Morse v. Commissioner of Social Security

Filing 27

ORDER: 23 Plaintiffs Fee Petition seeking attorney fees pursuant to § 406(b) (Dkt. 23) is GRANTED; Plaintiff is awarded $ 32,496 in fees to be paid from the funds withheld from Plaintiffs retroactive benefits award. Plaintiffs counsel is directed to remit to Plaintiff the $ 6,900 received for the EAJA fee award. Signed by Hon. Leslie G. Foschio on 04/06/2021. (TAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DOUGLAS M.,
v.

Plaintiff,

ANDREW M. SAUL, 1 Commissioner of
Social Security,

DECISION
and
ORDER
17-CV-1178F
(consent)

Defendant.
______________________________________
APPEARANCES:

LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, and
JUSTIN DAVID JONES, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
MARIA PIA FRAGASSI SANTANGELO
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza
Room 3904
New York, New York 10278
and

Andrew M. Saul became Commissioner of the Social Security Administration on June 17, 2019, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to
continue this suit by reason of sentence one of 42 U.S.C. § 405(g).

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BLAKELY PRYOR, and
DENNIS J. CANNING
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
601 East 12th Street
Room 965
Kansas City, Missouri 64106
JURISDICTION
On June 19, 2018, the parties to this action consented pursuant to 28 U.S.C.
§ 636(c) to proceed before the undersigned. (Dkt. 8). The matter is presently before
the court on Plaintiff’s counsel’s motion for approval of attorney fees under 42 U.S.C.
§ 406(b), filed April 20, 2020 (Dkt. 23) (“Fee Petition”).

BACKGROUND
Plaintiff commenced this action on November 17, 2017, pursuant to Titles II and
XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of the Commissioner of Social Security’s final decision denying Plaintiff’s
applications filed with the Social Security Administration (“SSA”), on March 6, 2014, for
Social Security Disability Insurance under Title II of the Act (“SSDI”), and for
Supplemental Security Income (“SSI”) under Title XVI of the Act (together, “disability
benefits”). Opposing motions for judgment on the pleadings were filed by Plaintiff on
July 3, 2018 (Dkt.10), and by Defendant on August 31, 2018 (Dkt. 13), and in a Decision
and Order filed June 12, 2019 (Dkt. 15) (“D&O”), judgment on the pleadings was
granted by the undersigned in favor of Plaintiff with the matter remanded to the
Commissioner for calculation of benefits. On September 9, 2019, in connection with the

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remand, Plaintiff applied for fees under the Equal Access to Justice Act, 28 U.S.C. §
2412 (“EAJA”) (Dkt. 17), in the amount of $ 6,900 (“EAJA fee”), which amount the
parties agreed to by stipulation filed October 9, 2019 (Dkt. 21), and approved by Text
Order entered October 10, 2019 (Dkt. 22), with the EAJA fee received by Plaintiff’s
attorney on November 21, 2019. (Dkt. 23-1 at 2). On April 5, 2020, the SSA issued a
Notice of Award granting Plaintiff disability benefits including $ 129,984 in retroactive
benefits, of which 25% or $ 32,496 was withheld to pay Plaintiff’s attorney fees. (Dkt.
23-1 at 2). On April 20, 2020, Plaintiff filed the instant Fee Petition (Dkt. 23) pursuant to
42 U.S.C.§ 406(b), seeking $ 32,496 in attorney fees, and indicating the EAJA fee was
received on November 21, 2019 (Dkt. 23-1 at 2). In response, the Commissioner asks
the court to determine the reasonableness of the fee request, Dkt. 26 at 2-3, but does
not otherwise oppose the Fee Petition.

DISCUSSION
As relevant to the instant motion, the Act 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.
42 U.S.C. § 406(b)(1)(A) (“§ 406”).
Here, in retaining counsel in connection with her disability benefits application, Plaintiff
executed a contingent Fee Agreement 2 providing counsel with permission to apply for

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A copy of the Fee Agreement is filed as Dkt. 19-5.

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fees up to 25% of any retroactive benefits awarded under § 406 if Plaintiff’s disability
benefits application required litigation in federal court.
Even if the requested attorney fee does not exceed the statutory 25% cap, “the
attorney for the successful claimant must show that the fee sought is reasonable for the
services rendered.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). Where, as here,
there exists an attorney-client contingent fee agreement, Ҥ 406 does not displace
contingent-fee agreements as the primary means by which fees are set for successfully
representing Social Security benefits claimants in court. Rather, § 406(b) calls for court
review of any such arrangements as an independent check to assure that they yield
reasonable results in particular cases.” Id. Contingent fee agreements are also entitled
to some deference, Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990), in the interest of
assuring that attorneys continue to represent clients such as the plaintiff. Gisbrecht,
535 U.S. at 805. Nevertheless, contingent fee agreements “are unenforceable to the
extent that they provide for fees exceeding 25 percent of the past-due benefits.” Id. As
such, “[w]ithin the 25 percent boundary . . . the attorney for the successful claimant must
show that the fee sought is reasonable for the services rendered.” Id.
The Second Circuit Court of Appeals has identified three factors to be considered
in determining whether to approve the full amount of attorney fees requested under a
contingent fee agreement, including (1) whether the requested fee is within the 25%
statutory cap; (2) whether there was any fraud or overreaching in making the contingent
fee agreement; and (3) whether the requested fee is so large as to be a “windfall” to the
attorney. Wells, 907 F.2d at 372. The court is also required to assess whether the
requested fee is inconsistent with the character of the legal representation and the

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results achieved by legal counsel, as well as whether counsel effected any
unreasonable delay in the proceedings to increase the retroactive benefits and,
consequently, the attorney’s own fee. Joslyn v. Barnhart, 389 F.Supp.2d 454, 456
(W.D.N.Y. 2005) (citing Gisbrecht, 535 U.S. at 808). Here, the Commissioner does not
specifically challenge the amount of the attorney fees requested in the Fee Petition but,
rather, merely requests the court determine whether the requested fees are
reasonableness. Dkt. 26 at 2-3. Further, the amount of attorney fees requested does
not exceed the statutorily permitted 25% of the retroactive disability benefits, and
nothing in the record suggests there was any fraud or overreaching in making the
contingent fee agreement and, accordingly, the court limits its review to whether the
amount of fees requested in the Fee Petition is reasonable or would be a windfall to
counsel.
Insofar as Defendant requests the court consider whether the amount of fees
requested in the Fee Petition is reasonable, Plaintiff’s counsel requests as attorney fees
$ 32,496, which is equal to the statutory 25 % cap based on the $ 129,984 retroactive
disability benefits awarded Plaintiff. Dividing the requested fee of $ $ 32,496 by 38.6
hours expended by Plaintiff’s counsel results in an hourly rate of $ 841.87. When
analyzing whether a fee award is reasonable or amounts to a windfall to the attorney,
courts consider whether (1) the attorney’s efforts were particularly successful, (2) the
attorney expended effort through pleadings that were not boilerplate and arguments
requiring research and issues of material fact, and (3) the attorney, based on his
experience litigating Social Security matters, handled the case with efficiency.

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McDonald v. Comm’r of Soc. Sec., 2019 WL 1375084, at * 2 (W.D.N.Y. Mar. 27, 2019)
(citing Wargo v. Colvin, 2016 WL 787960, at *2 (W.D.N.Y. Mar. 1, 2016)).
In the instant case, it cannot be denied that counsel’s efforts in this matter were
clearly successful as they resulted in an award of benefits to Plaintiff upon remand.
Plaintiff’s counsel asserts he expended a total of 38.6 hours representing Plaintiff in this
matter, including, inter alia, reviewing the decision of the Administrative Law Judge
(“ALJ”) denying Plaintiff benefits at the administrative level, reviewing the administrative
record, preparing and filing the complaint, preparing and filing certificate of service,
researching, drafting, reviewing and filing the motion for judgment on the pleadings,
including a memorandum of law in support of the plaintiff’s claims, and preparing and
filing the EAJA motion. Dkt. 23-2 at 2-3; Dkt. 23.3 at 1-2. Given the amount and type of
work required in this action, this rate would be consistent with fees awarded in similar
cases. See, e.g., McDonald, 2019 WL 1375084, at * 2-3 (approving attorney fee award
of $ 30,602.75 for 29.1 hours of work resulting in hourly rate of $ 1,051.64); Joslyn v.
Barnhart, 389 F.Supp.2d 454, 455-56 (W.D.N.Y. 2005) (approving attorney fee award
of $ 38,116.50 for 42.75 hours of work resulting in hourly rate of $ 891.61).
Although Defendant notes several cases where courts have reduced fees
approaching $ 1,000 per hour, Dkt. 26 at 3 n. 1, the court’s review of such cases reveals
the reductions were attributed to the modest amount of work performed in each case.
See, e.g., Mitchell v. Astrue, 2019 WL 1895060, at * 5 (E.D.N.Y. Apr. 29, 2019)
(awarding attorney fees at $ 500 hourly rate where the plaintiff’s attorney expended only
1.6 hours on the case before the Commissioner agreed to remand); and Devenish v.
Astrue, 85 F.Supp.3d 634, 638 (E.D.N.Y. 2015) (awarding § 406(b) fees in amount

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reflecting hourly rate reduced to $ 350 from $ 1,000 where plaintiff’s attorney never
prepared any memorandum of law nor advanced any legal arguments because the
matter was remanded to the SSA by stipulation). In contrast, here, the record shows
the Plaintiff’s counsel reviewed the entire record and prepared the necessary pleadings,
motions, and memoranda of law.
In these circumstances, the court finds the hourly rate of $ 841.87 is not
unreasonable, such that the requested fees of $ 32,496 for 38.6 hours of work also is
not unreasonable.

CONCLUSION
Based on the foregoing, Plaintiff’s Fee Petition seeking attorney fees pursuant to
§ 406(b) (Dkt. 23) is GRANTED; Plaintiff is awarded $ 32,496 in fees to be paid from the
funds withheld from Plaintiff’s retroactive benefits award. Plaintiff’s counsel is directed
to remit to Plaintiff the $ 6,900 received for the EAJA fee award.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

April 6th, 2021
Buffalo, New York

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