McGlothin v. Berryhill

Filing 30

ORDER granting 25 Motion for Attorney Fees. Signed by Hon. Frank P. Geraci, Jr. on 3/11/21. (SG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERICKA M.1,
Plaintiff,
v.

Case # 17-CV-776-MAT
DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Plaintiff Ericka M. brought this appeal of the Social Security Administration’s (“SSA”)
decision to deny her disability benefits. ECF No. 1. On April 4, 2019, the Court reversed the
SSA’s decision and remanded this case for further administrative proceedings. ECF No. 21.
Thereafter, the Court awarded Plaintiff’s attorney, Brandi Smith, Esq., $4,217.50 in fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. ECF No. 25.
On August 4, 2020, the SSA issued a Notice of Award granting Plaintiff $126,660.00 in
past due disability benefits and withholding $31,665.00—25 percent—to pay her attorney. ECF
No. 25-4. On August 19, 2020, Smith moved for $31,665.00 in attorney’s fees under 42 U.S.C.
§ 406(b). ECF No. 25.
For the reasons that follow, Smith’s motion is GRANTED and Smith is awarded
$31,665.00 in fees.
DISCUSSION
I.

§ 406(b) and Reasonableness of the Requested Fee
The Social Security Act provides that

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In accordance with this Court’s November 18, 2020 Standing Order regarding the identification of non-government
parties in social security opinions, available at https://www.nywd.uscourts.gov/standing-orders-and-district-plans, this
Decision and Order will identify Plaintiff using only the first name and last initial.

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[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, “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-06430MAT, 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.
After a court confirms that the fee is within the 25 percent statutory boundary, it analyzes
three factors to determine if the resulting fee is reasonable. Those factors are: (1) whether the
requested fee is out of line with the “character of the representation and the results the
representation achieved”; (2) whether the attorney unreasonably delayed the proceedings in an
attempt to increase the accumulation of benefits and thereby increase his fee; and (3) whether “the
benefits awarded are large in comparison to the amount of time counsel spent on the case,” the socalled “windfall” factor. Id. (citation omitted).
The Court has reviewed each factor to assure that the requested fee is reasonable. As an
initial matter, the SSA awarded Plaintiff $126,660.00 in past due benefits and therefore counsel’s
request for $31,665.00 in fees—25 percent of the award—does not exceed the statutory cap.
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, because Plaintiff filed a motion for judgment on the
pleadings with non-boilerplate arguments and obtained remand, which ultimately led to a favorable

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decision awarding Plaintiff benefits. As to the second factor, there is no evidence that counsel
unreasonably delayed the proceedings so as to inflate past due benefits and the potential fee award.
As to the third factor, i.e., whether the fee award constitutes a windfall to the attorney,
courts often examine the lodestar figure to help them make this determination. See Abbey, 2019
WL 336572, at *2; see also Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990). Here, Smith spent
40.43 hours in connection with the appeal to this Court. ECF Nos. 25-1 at 6; 25-2 at 3. Dividing
the $31,665.00 fee requested by 40.43 hours yields an hourly rate of $783.21.
However, Smith argues that the Court should not use this method of calculation to
determine the hourly rate. Instead, she suggests that, because she must refund the EAJA fee to
Plaintiff, the Court should subtract the amount of the EAJA fee from the requested § 406(b) fee
for purposes of calculating the hourly rate. ECF No. 25-1 at 6-7. The logic appears to be that,
since the SSA—not the Plaintiff—pays the EAJA fee,2 by remitting the EAJA fee to the Plaintiff,
the attorney only nets from the Plaintiff the difference between the § 406(b) fee and the EAJA fee.
See James Brian W. v. Comm’r of Soc. Sec., No. 18-CV-771SR, ECF No. 28 at 4 (W.D.N.Y. Feb.
25, 2020). So here, if Smith receives $31,665.00 in § 406(b) fees from Plaintiff’s recovery of
benefits, but then remits the $4,217.50 EAJA fee paid by the SSA to Plaintiff, Smith has only
received $27,447.50 from Plaintiff. Dividing $27,447.50 by 40.43 hours yields $678.88, so Smith
has effectively only charged Plaintiff $678.88 per hour.
Some courts have accepted this method of calculation, or at least considered it when
analyzing the reasonableness of the requested fee. See, e.g., Blair v. Saul, No. 15-CV-307-A, 2020

“Fees requested pursuant to § 406(b) come from the attorney’s client’s recovery,” whereas EAJA fees come “from
the public fisc.” Plandowski v. Saul, No. 17-CV-186-A, 2020 WL 6689053, at *3 (W.D.N.Y. Nov. 13, 2020); see
also 28 U.S.C. § 2412(d)(1)(A) (providing that “a party prevailing against the United States in court, including a
successful Social Security benefits claimant, may be awarded fees payable by the United States if the Government’s
position in the litigation was not substantially justified.” (emphasis added)).
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WL 2744108, at *5 (W.D.N.Y. May 27, 2020); Hackett v. Saul, No. 14-CV-6280L, 2020 WL
1915297, at *1 n.1 (W.D.N.Y. Apr. 20, 2020); Rice v. Comm’r of Soc. Sec, No. 1:15-cv-00959MAT, 2019 WL 180668, at *2 (W.D.N.Y. Jan. 4, 2019).
Other courts have rejected it. See, e.g., Twardowski v. Saul, No. 18-CV-19F, 2020 WL
6048198, at *3 (W.D.N.Y. Oct. 13, 2020) (finding “no merit” in plaintiff’s counsel’s argument
that the hourly rate should be calculated based on the net of the requested § 406(b) fee and the
EAJA fee); Maldonado v. Comm’r of Soc. Sec, No. 16-CV-6678, ECF No. 34 at 2 (W.D.N.Y. June
8, 2020) (determining that it was wrong to subtract EAJA award from the amount counsel requests
as reasonable fee when calculating hourly rate); Patel v. Astrue, No. 10-CV-1437 JG, 2012 WL
5904333, at *4 (E.D.N.Y. Nov. 26, 2012) (explaining that plaintiff’s attorney’s relinquishment of
the EAJA award to the plaintiff “has no effect on the hourly rate at which [plaintiff’s attorney] is
compensated under § 406(b)”).
The Court joins the latter group of courts in rejecting this method of calculating the hourly
rate. This is because Ҥ 406(b) does not differentiate between the source of funds counsel seeks
as compensation, but instead directs the Court to focus upon the reasonableness of the fee
requested.” James Brian W., No. 18-CV-771SR, ECF No. 28 at 6-7. In other words, the fact that
the plaintiff ultimately only pays a portion of the § 406(b) award once the EAJA fee “paid by the
SSA is returned to plaintiff in no way changes the fact that, if the motion is granted, counsel will
have received [the full amount of the requested § 406(b) fee] over the course of counsel’s
representation of plaintiff.” Id. at 6. “Subtracting the EAJA award from the award counsel seeks
under 42 U.S.C. § 406(b)(1)(A) serves only to skew the Court’s assessment of reasonableness of
the overall fee requested.” Id. at 6-7.

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Here, Smith is requesting $31,665.00, and it is the reasonableness of that amount that the
Court should assess. An award of $31,665.00 corresponds to an hourly rate of $783.21. Courts in
this district have approved even higher rates as reasonable where, as here, counsel developed
meritorious, non-boilerplate arguments on the claimant’s behalf. See, e.g., Briem v. Barnhart, No.
05 Civ. 6219, 2006 WL 3374955, at *1 (W.D.N.Y. Nov. 17, 2006) (approving $1,300.00);
McDonald v. Comm’r of Soc. Sec., No. 16-CV-926, 2019 WL 1375084, at *2 (W.D.N.Y. Mar. 27,
2019) (approving $1,051.64); Sims v. Comm’r of Soc. Sec., No. 17-CV-798-FPG, 2020 WL
812923, at *2 (W.D.N.Y. Feb. 19, 2020) (approving $980.87); see also Campana v. Saul, No. 16CV-960, 2020 WL 3957960, at *2 (W.D.N.Y. July 13, 2020) (describing requested hourly fee of
$1,000 as “very high by Western New York standards” but approving that rate in part because “the
incentive necessary for counsel to take contingency-fee cases weigh[ed] in favor of approving the
fee”). The Court concludes that a fee of $31,665.00 is reasonable and awards Smith the same.
CONCLUSION
Accordingly, Smith’s motion for attorney’s fees under § 406(b) (ECF No. 25) is
GRANTED and Smith is awarded $31,665.00 in fees. The Court directs the Commissioner to
release those funds withheld from Plaintiff’s benefits award. After counsel receives the § 406(b)
fee, she must remit the $4,217.50 EAJA fee, which she has indicated she intends to do.
IT IS SO ORDERED.
Dated: March 11, 2021
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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