Sherman v. Commissioner of Social Security
Filing
26
DECISION and ORDER granting 21 Motion for Attorney Fees. Signed by Hon. Elizabeth A. Wolford on 9/12/22. (NNR)
Case 1:17-cv-00936-EAW Document 26 Filed 09/12/22 Page 1 of 6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DEANNA S.,
v.
DECISION AND ORDER
Plaintiff,
COMMISSIONER OF SOCIAL SECURITY,
1:17-CV-00936-EAW
Defendant.
____________________________________
INTRODUCTION
Plaintiff Deanna S. (“Plaintiff”) seeks attorneys’ fees in the amount of $25,127.34
pursuant to 42 U.S.C. § 406(b). (Dkt. 21). The Commissioner of Social Security (“the
Commissioner”) does not object to the requested amount and defers to the Court
concerning the timeliness and the reasonableness of Plaintiff’s fee request. (Dkt. 25). For
the reasons that follow, the Court grants Plaintiff’s motion.
BACKGROUND
On September 19, 2017, Plaintiff filed this action, seeking review of the
Commissioner’s final decision denying her application for Disability Insurance Benefits.
(Dkt. 1). Plaintiff moved for judgment on the pleadings on May 30, 2018. (Dkt. 10). The
Commissioner responded and cross-moved for judgment on the pleadings on July 23, 2018.
(Dkt. 13). On February 19, 2020, the Court granted Plaintiff’s motion, reversed the
Commissioner’s decision, and remanded the matter for further proceedings. (Dkt. 17).
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By Stipulated Order filed on February 28, 2020, the Court approved payment of
$6,999.00 to Plaintiff’s counsel for services performed in connection with this action,
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”). (Dkt. 20).
On June 16, 2021, the Commissioner issued a Notice of Award in connection with
Plaintiff’s claim, which stated that the Commissioner withheld $18,945.38, or 25 percent
of Plaintiff’s past-due benefits to be paid to Plaintiff’s representative for legal services
rendered. (Dkt. 21-5 at 5). On July 2, 2022, the Commissioner issued three more Notices
of Award, one for each minor child of Plaintiff, withholding 25 percent of their past-due
benefits, or $6,181.96. (Dkt. 21-6 at 2, 6, 12). That same day, the Commissioner issued
an updated Notice of Award notifying Plaintiff that it withheld the total of $25,127.34 in
past-due benefits associated with Plaintiff’s and her family’s claims. (Dkt. 21-7).
On July 3, 2022, Plaintiff moved pursuant to 42 U.S.C. § 406(b) seeking $25,127.34
in attorneys’ fees. (Dkt. 21). In his motion, Plaintiff’s counsel indicates that he was
awarded the sum of $6,999.00 under the EAJA, which he will refund to Plaintiff once the
instant fee application is resolved. (Dkt. 21-2 ¶ 16-17). The Commissioner filed a response
on July 26, 2022. (Dkt. 25).
DISCUSSION
I.
Timeliness of the Motion
Generally, a fee application under § 406(b) must be filed within 14 days after the
entry of judgment. Fed. R. Civ. P. 54(d)(2)(B)(1). Rule 54(a)(2)(B) as applied to § 406(b)
motions for attorneys’ fees, requires that a party moving for attorneys’ fees file the motion
within 14 days of notice of a benefits award. Sinkler v. Berryhill, 932 F.3d 83, 88 (2d Cir.
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2019). Additionally, a presumption applies that a notice is received “three days after
mailing.” Id. at 89 n.5.
Here, the Commissioner issued the updated Notice of Award on July 2, 2022. (Dkt.
21-7). Plaintiff’s counsel filed his application on July 3, 2022, one day after the Notice.
(Dkt.21). Accordingly, Plaintiff’s application is timely.
II.
Reasonableness of the Motion
Section 406(b) provides, in relevant parts, as follows:
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. . . .
42 U.S.C. § 406(b)(1)(A). In other words, § 406(b) allows a successful claimant’s attorney
to seek court approval of his or her fees, not to exceed 25 percent of the total past-due
benefits. Section 406(b) “calls for court review of [contingent-fee] arrangements as an
independent check, to assure that they yield reasonable results in particular cases.”
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). This review is subject to “one boundary
line: Agreements are unenforceable to the extent that they provide for fees exceeding 25
percent of the past-due benefits.” Id. (citing § 406(b)). “Within the 25 percent boundary,
. . . the attorney for the successful claimant must show that the fee sought is reasonable for
the services rendered.” Id.
Accordingly, a fee is not automatically recoverable simply because it is equal to or
less than 25 percent of the client’s total past-due benefits. “To the contrary, because section
406(b) requires an affirmative judicial finding that the fee allowed is ‘reasonable,’ the
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attorney bears the burden of persuasion that the statutory requirement has been satisfied.”
Gisbrecht, 535 U.S. at 807 n.17. As such, the Commissioner’s failure to oppose the motion
is not dispositive. Mix v. Comm’r of Soc. Sec., No. 6:14-CV-06219 (MAT), 2017 WL
2222247, at *2 (W.D.N.Y. May 22, 2017).
Several factors are relevant to the
reasonableness analysis, including the following: (1) “whether the contingency percentage
is within the 25% cap[;]” (2) “whether there has been fraud or overreaching in making the
agreement[;]” and (3) “whether the requested amount is so large as to be a windfall to the
attorney.” Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990). Also relevant are the
following: (1) “the character of the representation and the results the representative
achieved[;]” (2) “the amount of time counsel spent on the case[;]” (3) whether “the attorney
is responsible for delay[;]” and (4) “the lawyer’s normal hourly billing charge for
noncontingent-fee cases.” Gisbrecht, 535 U.S. at 808.
When determining whether a requested fee constitute a windfall, courts are required
to consider: (1) “the ability and expertise of the lawyers and whether they were particularly
efficient[,]” (2) “the nature and length of the professional relationship with the claimant—
including any representation at the agency level[,]” (3) “the satisfaction of the disabled
claimant[,]” and (4) “how uncertain it was that the case would result in an award of benefits
and the effort it took to achieve that result.” Fields v. Kijakazi, 24 F.4th 845, 854-55 (2d
Cir. 2022).
Here, Plaintiff’s counsel seeks $25,127.34 represented to be 25 percent of the pastdue benefits. Utilizing the factors set forth above, the Court finds that there is no evidence
of fraud or overreaching in the making of the contingency agreement between counsel and
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Plaintiff. Although counsel sought two extensions during the course of Plaintiff’s litigation
(Dkt. 8; Dkt. 14), the Court does not find that either of them delayed any court proceedings
in an attempt to inflate past-due benefits or the potential fee award. Counsel provided
effective representation resulting in Plaintiff successfully receiving the benefits sought.
The hours expended by counsel on the case were reasonable in light of the issues presented
and the extent of counsel’s representation.
The requested fee would result in a de facto hourly rate of $722.05 ($25,127.34
divided by 34.8 hours). (Dkt. 21-8). Although some courts in this Circuit have held that
de facto hourly rates above $500.00 per hour are unreasonable, Morris v. Saul, 17-CV-259
(PKC), 2019 WL 2619334, at *3 (E.D.N.Y. June 26, 2019) (collecting cases), other courts
have allowed rates in excess of the rate counsel seeks in this matter. See, e.g., Jennifer W.
v. Saul, 18-CV-493F, 2021 WL 1624288, at *3 (W.D.N.Y. Apr. 27, 2021) (approving an
effective hourly rate of $812.75 where plaintiff prevailed on motion for judgment on the
pleadings); Douglas M. v. Saul, 17-CV-1187F, 2021 WL 1298491, at *3 (W.D.N.Y. Apr.
6, 2021) (approving an effective hourly rate of $841.87 where plaintiff prevailed on motion
for judgment on the pleadings); Lucia M. v. Saul, 15-CV-270F, 2021 WL 1298489, at *4
(W.D.N.Y. Apr. 6, 2021) (approving an effective hourly rate of $906.76).
Having considered the required factors, the Court finds that counsel’s effective
hourly rate of $722.05 is in line with awards generally approved in this district for similar
work performed. See, e.g., Fields, 24 F.4th at 851, 856 (2d Cir. 2022) (an effective hourly
rate of $1,556.98 was not a “windfall”); Amy Sue H. v. Comm’r of Soc. Sec., 1:17-cv00713-JJM, 2021 WL 4519798, at *3 (W.D.N.Y. Oct. 4, 2021) (collecting cases finding
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effective hourly rates between $697.20 and $1,000 to be reasonable in this district). The
Court is also “mindful that ‘payment for an attorney in a social security case is inevitability
uncertain.’” Buckley v. Berryhill, 15-CV-0341-A, 2018 WL 3368434, at *2 (W.D.N.Y.
July 10, 2018) (quoting Wells, 907 F.2d at 371). Accordingly, “the Second Circuit has
recognized that contingency risks are necessary factors in determining reasonable fees
under § 406(b).” Id. (quotation marks omitted).
The Court also notes that counsel is required to return the previously awarded EAJA
fee of $6,999.00 to Plaintiff. (Dkt. 20). See Gisbrecht, 535 U.S. at 796 (“Fee awards may
be made under both [EAJA and § 406(b)], but the claimant’s attorney must refund to the
claimant the amount of the smaller fee . . . .”).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for attorneys’ fees under § 406(b) (Dkt.
21) is granted, and the Court hereby orders as follows: (1) Plaintiff’s counsel shall be paid
attorneys’ fees in the amount of $25,127.34 out of funds withheld from Plaintiff’s past-due
benefits; and (2) Plaintiff’s counsel is hereby directed to remit the previously awarded
EAJA fee of $6,999.00 to Plaintiff.
SO ORDERED.
___________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated:
September 12, 2022
Rochester, New York
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