Parvon v. Commissioner of Social Security

Filing 31

DECISION AND ORDER: Plaintiff's motion for attorney's fees under § 406(b) (ECF No. 27) is GRANTED and Plaintiff is awarded $21,497 in fees. The Court directs the Commissioner to release those funds withheld from Plaintiff's benefits award. After counsel receives the § 406(b) fee, he must remit the $4,285.64 EAJA fee to Plaintiff. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 6/27/2022. (MFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AL P.,
Plaintiff,
v.

Case # 18-CV-226-FPG
DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Al P. brought this appeal of the Social Security Administration’s (“SSA”) decision
to deny him disability benefits. ECF No. 1. On March 9, 2020, the Court granted Plaintiff’s
motion for judgment on the pleadings and remanded the case to the Commissioner for further
proceedings. ECF No. 23. Thereafter, the Court entered a Stipulation and Order awarding
Plaintiff’s attorney, Lewis L. Schwartz, $8,244.36 in fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. ECF No. 26. Due to the Treasury Offset Program, Attorney
Schwartz received only $4,285.64 of the EAJA fee. See ECF No. 27-1 at 3.
On December 28, 2021, the SSA issued a Notice of Award granting Plaintiff disability
benefits and withholding $21,497 to pay his attorney. ECF No. 27-1 at 2. On January 17, 2022,
Plaintiff moved for $21,497 in attorney’s fees under 42 U.S.C. § 406(b). ECF No. 27.
For the reasons that follow, Plaintiff’s motion is GRANTED, counsel is awarded $21,497
in fees, and counsel shall remit the $4,285.64 in EAJA fees to Plaintiff.
DISCUSSION
The Social Security Act provides that
[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
1

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% 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-06430-MAT,
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% 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 so-called “windfall”
factor. Id. (citation omitted).
The Court has reviewed each factor to assure that the requested fee is reasonable. As an
initial matter, counsel seeks the same amount that the SSA withheld from Plaintiff’s past due
benefits—$21,497—and there is no indication that said amount exceeds the statutory cap. See
ECF No. 27-4 at 4. The Commissioner agrees. See ECF No. 29 at 5.
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 obtained remand with nonboilerplate arguments, ECF Nos. 13, 23, which ultimately led to a favorable decision awarding
him benefits. As to the second factor, there is no evidence that counsel unreasonably delayed the
proceedings in an attempt to inflate past due benefits and the potential fee award.
2

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, counsel
spent 40.1 hours in connection with the appeal to this Court. ECF No. 27-1 at 2. Dividing the
$21,497 fee requested by 40.1 hours yields an hourly rate of $536.08. This Court has found even
higher rates reasonable where, as here, counsel developed meritorious, non-boilerplate arguments
on the claimant’s behalf. McDonald v. Comm’r of Soc. Sec., No. 16-CV-926, 2019 WL 1375084,
at *2 (W.D.N.Y. Mar. 27, 2019) (awarding fees with effective hourly rate of $1.051.64).
Accordingly, based on all of the above, the Court concludes that the requested fee award is
reasonable. Furthermore, counsel must refund the EAJA fees to Plaintiff, which he indicated he
intends to do. ECF No. 27-1 at 3.
CONCLUSION
Plaintiff’s motion for attorney’s fees under § 406(b) (ECF No. 27) is GRANTED and
Plaintiff is awarded $21,497 in fees. The Court directs the Commissioner to release those funds
withheld from Plaintiff’s benefits award. After counsel receives the § 406(b) fee, he must remit
the $4,285.64 EAJA fee to Plaintiff.
IT IS SO ORDERED.
Dated: June 27, 2022
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York

3