Harrington v. Commissioner of Social Security
Filing
31
DECISION & ORDER granting in part and denying in part 26 Motion for Attorney's Fees. IT IS HEREBY ORDERED that the plaintiff's motion for attorney's fees under 42 U.S.C. § 406(b)(1)(A) is granted in the adjusted amount of 6;12,157.40; and it is furtherORDERED that Harrington's counsel shall refund the $5,950.93 in EAJA fees to Harrington within 14 days of the entry date of this decision and order. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/25/2020. (RFI)
Case 1:18-cv-00249-LJV Document 31 Filed 08/25/20 Page 1 of 4
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SHELLIE A. HARRINGTON,
Plaintiff,
v.
18-CV-249-LJV
DECISION & ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________
The plaintiff, Shellie A. Harrington, is a prevailing party in this social security
benefits action. Her counsel has moved for $12,685.50 in attorney’s fees under
42 U.S.C. § 406(b)(1)(A). Docket Item 26. In his response, the Commissioner of Social
Security (“Commissioner”) argues that this Court should “reduce counsel’s fee award to
no more than the 25% statutory cap of $12,157.40.” Docket Item 30 at 6. Harrington
did not file a reply, and the time to do so has passed.
For the reasons that follow, this Court grants in part and denies in part
Harrington’s counsel’s motion and awards $12,157.40 in fees.
TIMELINESS
On August 2, 2019, the United States Court of Appeals for the Second Circuit
held that a motion for attorney’s fees under 42 U.S.C.§ 406(b) must be filed within 14
days after the plaintiff receives a calculation of past-due benefits. Sinkler v. Berryhill,
932 F.3d 83, 90 (2d Cir. 2019). In this case, Harrington was awarded both
supplemental security income (“SSI”) benefits and disability insurance benefits (“DIB”).
Case 1:18-cv-00249-LJV Document 31 Filed 08/25/20 Page 2 of 4
Her SSI notice of award was dated May 13, 2020, and her DIB notice of award was
dated May 17, 2020. See Docket Item 30 at 2. Under the Federal Rules of Civil
Procedure, a document is deemed received three days after mailing. Fed. R. Civ. P.
6(d). Thus, Harrington’s motion—filed June 3, 2020—is timely based on the date of the
second letter.
REASONABLENESS
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.
On May 13, 2020, the Social Security Administration (“SSA”) informed Harrington
that she had been awarded $50,742.00 in past-due SSI benefits. Docket Item 26-4 at 2.
Based on this letter, Harrington’s counsel calculated that he was due $12,685.50 in fees
(25% of $50,742,00). Docket Item 26-1. On May 17, 2020, SSA advised Harrington
that she also was entitled to DIB. Docket Item ECF 26-5. The May 17 notice of award
stated that SSA had withheld $5,438.65—25%—of the past-due DIB benefits for
attorneys’ fees. Id. at 3.
On July 10, 2020—after Harrington’s counsel filed the motion for fees—SSA sent
Harrington a notice explaining that her “SSI past-due benefits has [sic] been updated to
$47,142.00,” of which $26,875.00 was “eligible for fee calculation.” Docket Item 30-1 at
2
Case 1:18-cv-00249-LJV Document 31 Filed 08/25/20 Page 3 of 4
1. The notice further explained that “[f]or beneficiaries who are entitled to both [DIB]
and SSI benefits, the SSI past-due benefits eligible for fee calculation is the amount that
would have been due had the [DIB been] paid timely.” Id. Accordingly, SSA withheld
$6,718.75 from Harrington’s past-due SSI benefits for attorney’s fees. Id.
Based on all that, the Commissioner argues that “the total amount available for
attorney’s fees [is] $12,157.40 ($6,718.75 plus $5,438.65).” Docket Item 30 at 2. As
noted above, Harrington did not reply. Based on the information in the July 10 notice of
award, this Court agrees with the Commissioner and finds that Harrington’s counsel is
entitled to $12,157.40 in fees.
This Court further finds that $12,157.40 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). It
also is consistent with Harrington’s fee agreement. Docket Item 26-6 (providing that
“the attorney fee will be 1/4 (25%) of the past due benefits resulting from [Harrington’s]
claim”). Moreover, there is no indication that this fee is a windfall. 1 Id. This Court
therefore awards Harrington’s counsel $12,157.40 in fees under 42 U.S.C.
§ 406(b)(1)(A).
By stipulation approved and ordered on December 10, 2019, this Court
previously awarded Harrington’s counsel $5,950.93 in fees under the Equal Access to
1
While the fee here constitutes an hourly rate of almost $400—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”).
3
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Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Docket Items 24, 25. Because the fees
granted above exceed the EAJA fees, Harrington’s counsel must refund the EAJA fees
to her. See Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988).
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 $12,685.50, Docket Item 26, is GRANTED IN
PART AND DENIED IN PART. More specifically, the motion is granted in the adjusted
amount of $12,157.40; and it is further
ORDERED that Harrington’s counsel shall refund the $5,950.93 in EAJA fees to
Harrington within 14 days of the entry date of this decision and order.
SO ORDERED.
Dated:
August 25, 2020
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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