Savino v. Commissioner of Social Security

Filing 30

DECISION AND ORDER granting 25 Motion for Attorney Fees. Plaintiff's counsel is hereby awarded $26,946.80 in attorney fees under 42 U.S.C. § 406(b). Upon receipt, Plaintiff's counsel shall remit the previously awarded EAJA fee to plaintiff. SO ORDERED. Signed by Hon. Hugh B. Scott on 9/17/2020. (MFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN SAVINO,
Plaintiff,

Decision and Order
17-CV-915 (HBS)
Consent

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

On June 7, 2019, the Court issued a Decision and Order in which it granted plaintiff’s motion
for judgment on the pleadings, vacated the Commissioner’s final determination, and remanded the
case for further administrative proceedings. Dkt. No. 19. On September 20, 2019, in accordance
with a stipulation between the parties, Dkt. No. 23, the Court awarded plaintiff attorney fees in the
amount of $6,688.37 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Dkt. No. 24.
On July 14, 2020, plaintiff’s counsel filed a motion for an award of attorney fees in the amount
of $26,946.80, pursuant to 42 U.S.C. § 406(b). Dkt. Nos. 25, 29. Plaintiff’s counsel advises that on
June 27, 2020, the Commissioner issued a Notice of Award, based on a favorable decision, totaling
$107,787.20 in past-due benefits. Dkt. No. 25-2 at 2; Dkt. No. 28 at 2 n.1. Of that amount, the
Commissioner withheld 25 percent—$ 26,946.80—to pay any duly approved attorney fee.
Plaintiff’s counsel has set forth details in the motion explaining the time spent on the case and
how the amount sought is consistent with the attorney-client contract, the amount of time spent on
the case, prevailing rates for the type of work performed, and the statutory cap for fees. After
reviewing the motion papers, the Court finds that the request is in fact consistent with statutory
authority and with cases that have addressed similar requests. See generally, e.g., Gisbrecht v. Barnhart,

535 U.S. 789 (2002); Wurzer v. Comm’r, No. 15-CV-6528 CJS, 2019 WL 3821897 (W.D.N.Y. Aug. 14,
2019); Barone v. Saul, No. 13-CV-896, 2019 WL 3296616, at *2 (W.D.N.Y. July 23, 2019).
Accordingly, the motion is granted. Plaintiff’s counsel is hereby awarded $26,946.80 in
attorney fees under 42 U.S.C. § 406(b). Upon receipt, Plaintiff’s counsel shall remit the previously
awarded EAJA fee to plaintiff. See Wurzer, 2019 WL 3821897, at *2 (“Fee awards under both the
EAJA and § 406(b) may be awarded, but the claimant’s attorney must refund the claimant the amount
of the smaller fee.”).
SO ORDERED.

/s/Hugh B. Scott

DATED: September 17, 2020

Hon. Hugh B. Scott
United States Magistrate Judge

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