McDonald v. Colvin

Filing 27

DECISION AND ORDER granting 23 Motion for Attorney Fees. Plaintiff is awarded $30,602.75 in fees. The Court directs the Commissioner to release the funds withheld from Plaintiff's benefits award. After he receives the § 406(b) fee, Plaintiff's attorney is directed to remit the $5,250 EAJA fee to Plaintiff. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/26/2019. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EUGENIA E. MCDONALD,
Plaintiff,
v.

Case # 16-CV-926-FPG
DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION AND BACKGROUND
On November 21, 2016, Plaintiff brought this case against the Commissioner of Social
Security to appeal the denial of her disability benefits. ECF No. 1. On November 28, 2017, after
the parties moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c),
the Court remanded this case solely for calculation and payment of benefits. ECF No. 20. On
December 27, 2017, the Court entered a Stipulation and Order awarding Plaintiff $5,250 in
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. ECF No. 22.
On December 22, 2018, the Social Security Administration (“SSA”) issued a Notice of
Award granting Plaintiff disability benefits and withheld $30,602.75, or 25 percent of her past due
benefits, to pay Plaintiff’s attorney. ECF No. 23-4. On December 28, 2018, Plaintiff moved for
$30,602.75 in attorney’s fees under 42 U.S.C. § 406(b). 1 ECF No. 23. The Commissioner argues

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Plaintiff filed her motion six days after the SSA issued the Notice and one day after she received it. See 20 C.F.R.
§ 404.1703. The Social Security Act does not set a deadline for filing a § 406(b) motion and the Second Circuit has
not indicated what standard governs the timeliness of such a motion. Abbey v. Berryhill, No. 6:17-CV-06430-MAT,
2019 WL 336572, at *3 (W.D.N.Y. Jan. 28, 2019) (citation omitted). After the SSA issues the Notice, some courts
require the § 406(b) motion to be filed within 14 days, while other courts require it to be filed within a “reasonable”
time. Id. (citations omitted). This District’s proposed Local Rule of Civil Procedure 5.5(g)(1) recommends a 65-day
window for filing § 406(b) motions. Id. at *4 (citing https://www.nywd.uscourts.gov/ news/notice-proposed-federalcourt-local-rules-amendments). Plaintiff’s motion is timely under any of these standards, and the Commissioner does
not argue otherwise.

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that this award is unreasonable. ECF No. 25. For the reasons that follow, Plaintiff’s motion is
GRANTED.
DISCUSSION
The Act provides that
[w]henever a court renders a judgment favorable to a claimant under this subchapter
who was represented before the court by an attorney, the court may determine and
allow as part of its judgment a reasonable fee for such representation, not in excess
of 25 percent of the total of the past-due benefits to which the claimant is entitled
by reason of such judgment.
42 U.S.C. § 406(b)(1)(A).
Within the 25 percent boundary that § 406(b) sets, “the attorney for the successful claimant
must show that the fee sought is reasonable for the services rendered.” Abbey v. Berryhill, No.
6:17-CV-06430-MAT, 2019 WL 336572, at *2 (W.D.N.Y. Jan. 28, 2019) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002)). The statute also requires “court review of [contingent fee]
arrangements as an independent check, to assure that they yield reasonable results in particular
cases.” Id. Thus, a court must determine the reasonableness of the requested fees. Id.
After a court determines that the contingent fee agreement is within the 25 percent statutory
boundary, it analyzes three factors to determine if the resulting fee is reasonable. A court considers
whether: 1) the requested fee is out of line with the “character of the representation and the results
the representation achieved;” 2) the attorney unreasonably delayed the proceedings in an attempt
to increase the accumulation of benefits and thereby increase his fee; and 3) “the benefits awarded
are large in comparison to the amount of time counsel spent on the case,” the so-called “windfall”
factor. Id. (citing Joslyn v. Barnhart, 389 F. Supp.2d 454, 456 (W.D.N.Y. 2005)).
Plaintiff’s request for $30,602.75 in attorney’s fees represents 25 percent of the awarded
past due benefits and therefore does not exceed the statutory cap. ECF No. 23-4. It is also

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acceptable under the fee agreement between Plaintiff and her attorney, which allows for a fee of
up to 25 percent of awarded past due benefits. ECF No. 23-3.
As to the first factor, the Court finds that the requested fee is in line with the character of
the representation and the results it achieved. Here, Plaintiff’s motion for judgment on the
pleadings led the Court to remand this case solely for calculation and payment of benefits. As to
the second factor, although Plaintiff’s attorney requested two extensions of time to file a
dispositive motion and one extension of time to file a reply brief, he provided acceptable reasons
for doing so. Thus, the Court finds that he did not unreasonably delay the proceedings in an attempt
to inflate past due benefits and the potential fee award. Accordingly, these factors weigh in favor
of reasonableness.
As to whether the fee award constitutes a windfall to the attorney, courts consider whether:
1) the attorney’s efforts were particularly successful; 2) there is evidence of the attorney’s
expended effort through pleadings that were not boilerplate and arguments that involved issues of
material fact and required legal research; and 3) the attorney handled the case efficiently due to his
experience litigating Social Security matters. Wargo v. Colvin, No. 11-CV-1100S, 2016 WL
787960, at *2 (W.D.N.Y. Mar. 1, 2016) (citation omitted).
A lodestar analysis may also be helpful in analyzing the windfall factor but the lodestar
figure does not determine reasonableness. See Abbey, 2019 WL 336572, at *2 (citing Gisbrecht,
535 U.S. at 808); see also Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990) (“[T]he best indicator
of the ‘reasonableness’ of a contingency fee in a social security case is the contingency percentage
actually negotiated between the attorney and client, not an hourly rate determined under lodestar
calculations.”). Here, Plaintiff’s attorney spent 29.1 hours representing Plaintiff before the Court.
ECF No. 23-6. Dividing the $30,602.75 fee requested by 29.1 hours yields an effective hourly

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rate of $1.051.64, which the Commissioner argues is unreasonable and constitutes a windfall to
Plaintiff’s attorney.
In making this argument, the Commissioner focuses solely on the effective hourly rate and
ignores the other factors set forth above. It cannot be disputed that Plaintiff’s attorney’s efforts
were particularly successful in this case—his briefing led the Court to remand this case for
calculation and payment of benefits after Plaintiff had been denied benefits twice at the
administrative level. Plaintiff’s attorney used his skills in this area of the law to sift through a
nearly 800-page record and find fact-based, non-boilerplate arguments in support of Plaintiff’s
claim. Plaintiff’s attorney also efficiently handled this case—the 29.1 hours spent litigating this
matter is modest and in line with the number of hours the Court has seen other seasoned attorneys
spend on these cases.
Although the Commissioner is correct that some courts have reduced attorney’s fee awards
where the effective hourly rate is comparable to the one sought here, “a substantial body of caselaw
has awarded rates that approach, if they do not exceed, $1,000.00. Moreover, many of those
decisions were issued some years ago, and their awards, if adjusted for increases in the cost of
living, would equal or exceed the amount requested here.” Torres v. Colvin, No. 11 CIV. 5309
JGK, 2014 WL 909765, at *4 (S.D.N.Y. Mar. 6, 2014) (citations omitted).
In the cases that the Commissioner cites where the court reduced the attorney’s requested
award, the court did not reduce the award just because the effectively hourly rate was high; rather,
the court reduced the award because it would be a windfall to the attorney in light of the work
performed. In those cases, the attorneys performed only a modest amount of work because they
secured stipulations for remand instead of submitting briefs on the merits of the case, or because
they expended an unreasonable number of hours that the courts declined to compensate. See

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Heffernan v. Astrue, 87 F. Supp. 3d 351, 356-57 (E.D.N.Y. 2015); Devenish v. Astrue, 85 F. Supp.
3d 634, 638-39 (E.D.N.Y. 2015); Whittico v. Colvin, No. 5:09-CV-907 FJS/DRH, 2014 WL
1608671, at *6 (N.D.N.Y. Apr. 22, 2014); George v. Astrue, No. 04-CV-1545 (FB), 2009 WL
197054, at *2 (E.D.N.Y. Jan. 28, 2009); Benton v. Comm’r of Soc. Sec., No. 03 CV 3154 (ARR),
2007 WL 2027320, at *3 (E.D.N.Y. May 17, 2007). That is not the scenario here—Plaintiff’s
attorney filed a persuasive brief that led to an award of benefits, and the hours he expended in
doing so were appropriate.
Accordingly, the Court concludes that the requested fee award is not a windfall to
Plaintiff’s attorney. Thus, in light of the deference owed to the agreement between Plaintiff and
her attorney, the interest in assuring that attorneys continue to represent clients in these types of
cases, and the other factors set forth above, the Court finds that the requested fee is reasonable.
Plaintiff’s attorney must refund the EAJA fee award to Plaintiff, which he indicated he intends to
do. See Joslyn, 389 F. Supp. 2d at 457 (noting that “if an award for attorney’s fees is ordered both
pursuant to the EAJA and pursuant to 42 U.S.C. § 406(b)(1), the lesser of the two awards must be
returned to the claimant” (citing Gisbrecht, 535 U.S. at 796)).
CONCLUSION
Plaintiff’s motion for attorney’s fees under § 406(b) (ECF No. 23) is GRANTED and
Plaintiff is awarded $30,602.75 in fees. The Court directs the Commissioner to release the funds
withheld from Plaintiff’s benefits award. After he receives the § 406(b) fee, Plaintiff’s attorney is
directed to remit the $5,250 EAJA fee to Plaintiff.
IT IS SO ORDERED.
Dated: March 26, 2019
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR., Chief Judge
United States District Court
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