Mack v. Commissioner of Social Security

Filing 31

DECISION & ORDER granting 28 Motion for Attorney Fees. Signed by Hon. Lawrence J. Vilardo on 08/18/2020. (CEH)-CLERK TO FOLLOW UP-

Case 1:17-cv-00924-LJV Document 31 Filed 08/18/20 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SHERRY MACK,

Plaintiff,
v.

17-CV-00924-LJV
DECISION & ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________

The plaintiff, Sherry Mack, is a prevailing party in this social security benefits
action. Her counsel has moved for attorney’s fees under 42 U.S.C. § 406(b)(1)(A).
Docket Item 28. The defendant does not oppose the motion. Docket Item 30.
Section 406(b)(1)(A) provides:
Whenever 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, and
the Commissioner of Social Security may, notwithstanding the provisions of
section 405(i) of this title, but subject to subsection (d) of this section, certify
the amount of such fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits. In case of any such
judgment, no other fee may be payable or certified for payment for such
representation except as provided in this paragraph.
Id.
Mack was awarded $176,342.00 in past-due benefits. Docket Item 28 at 1;
Docket Item 28-1. Her counsel seeks $44,085.50 in fees, which is 25% of the past-due
benefits and is consistent with the contingent-fee agreement that provides for attorney
fees in the amount of 25% of any recovery. Docket Item 28-2.

Case 1:17-cv-00924-LJV Document 31 Filed 08/18/20 Page 2 of 3

Having reviewed counsel’s fee request and supporting documentation, this Court
finds that the requested fee is reasonable based on counsel’s experience in social
security law, the character of the representation provided, and the favorable results
achieved. See Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). Moreover, there is no
indication that this fee is a windfall. 1 Id. The $44,085.50 fee request is therefore
granted under 42 U.S.C. § 406(b)(1)(A).
By stipulation approved and ordered on August 12, 2019, this Court previously
awarded Mack’s counsel $10,400.00 in fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). Docket Items 26, 27. Because the fees granted above
exceed the EAJA fees, Mack’s counsel must refund the EAJA fees to her. See Wells v.
Bowen, 855 F.2d 37, 42 (2d Cir. 1988).

1

While the fee here constitutes an hourly rate of over $595.75—high by Western
New York standards—the precedent cited in counsel’s fee application and the incentive
necessary for counsel to take contingency-fee cases weigh in favor of approving the fee
here. See Gisbrecht, 535 U.S. at 808 (noting that “a record of the hours spent
representing the claimant” can be used by the court “as an aid to [its] assessment of the
reasonableness of the fee yielded by the fee agreement”).
2

Case 1:17-cv-00924-LJV Document 31 Filed 08/18/20 Page 3 of 3

ORDER
In light of the above,
IT IS HEREBY ORDERED that the plaintiff’s motion for attorney’s fees under
42 U.S.C. § 406(b)(1)(A) in the amount of $44,085.50, Docket Item 28, is GRANTED;
and it is further
ORDERED that Mack’s counsel shall refund the $10,400.00 in EAJA fees to
Mack within 14 days of the entry date of this decision and order.

SO ORDERED.
Dated:

August 18, 2020
Buffalo, New York

/s/ Hon. Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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