Weese v. Commissioner of Social Security
DECISION and ORDER GRANTING 21 Plaintiff's Motion for Attorney Fees. Plaintiff's counsel is awarded $ 21,700.46 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 $ 5,581.53 awarded for the EAJA fee award if such amount has been received. SO ORDERED. Signed by Hon. Leslie G. Foschio on 04/27/2021. (TAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANDREW M. SAUL, 1 Commissioner of
LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, and
TIMOTHY HILLER, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
138 Delaware Avenue
Buffalo, New York 14202
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
MICHAEL ARLEN THOMAS and
RICHARD W. PRUETT
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
1961 Stout Street, Suite 4169
Denver, Colorado 80294
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).
On August 5, 2020, the parties to this action consented pursuant to 28 U.S.C.
§ 636(c) to proceed before the undersigned. (Dkt. 15). 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 March 19, 2021 (Dkt. 21) (“Fee Petition”).
Plaintiff commenced this action on May 1, 2018, 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 February 6, 2018,
for Social Security Disability Insurance under Title II of the Act (“SSDI”), and
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
December 5, 2018 (Dkt.10), and by Defendant on February 4, 2019 (Dkt. 13), and in a
Decision and Order filed August 17, 2020 (Dkt. 16) (“D&O”), judgment on the pleadings
was granted by the undersigned in favor of Plaintiff, based on a disability onset date of
June 6, 2011, such that Plaintiff was entitled to SSI, but not SSDI, with the matter
remanded to the Commissioner for calculation of benefits. On November 17, 2020, in
connection with the remand, Plaintiff applied for fees under the Equal Access to Justice
Act, 28 U.S.C. § 2412 (“EAJA”) (Dkt. 18), in the amount of $ 5,581.53 (“EAJA fee”),
which amount the undersigned approved in a Decision and Order filed December 22,
2020 (Dkt. 20). As of March 19, 2021, Plaintiff’s attorney averred the EAJA fee had yet
to be received. (Dkt. 21-2 ¶ 12). On March 5, 2021, the SSA issued a Notice of Award
granting Plaintiff disability benefits including $ 86,801.85 in retroactive benefits, of which
25% or $ 21,700.46 was withheld to pay Plaintiff’s attorney fees. On March 19, 2021,
Plaintiff filed the instant Fee Petition (Dkt. 21) pursuant to 42 U.S.C.§ 406(b), seeking
$ 21,700.46 in attorney fees based on 26.7 hours of work, and indicating the EAJA fee
had yet to be received (Dkt. 21 at 2). In response, the Commissioner asks the court to
determine the reasonableness of the fee request, as well as that the court order
Plaintiff’s attorney return the EAJA fee if received (Dkt. 25 at 1-2), but does not
otherwise oppose the Fee Petition. Plaintiff did not file any further reply.
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
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,
A copy of the Fee Agreement is filed as Dkt. 21-4.
there exists an attorney-client contingent fee agreement, “§ 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 in
assuring that attorneys continue to represent clients such as 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 if approved. 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 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 review the reasonableness of the requested fees. Dkt.
25 at 2. 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.
Plaintiff’s counsel requests as attorney fees $ 21,700.46, which is equal to the
statutory 25 % cap based on the $ 86,801.85 retroactive disability benefits awarded
Plaintiff. Dividing the requested fee of $ $ 21,700.36 by 26.7 hours results in an hourly
rate of $ 812.75. 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. 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,
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 26.7 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 and motion to proceed in forma pauperis,
preparing and filing certificate of service, researching, drafting, reviewing and filing the
motion for judgment on the pleadings, which included a memorandum of law in support
of Plaintiff’s claim, preparation of a reply, and preparing and filing the EAJA motion.
Dkt. 21-2 at 2-3. Given the amount and type of work required in this action, this hourly
rate of $ 812.75 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).
Further, although Defendant notes several cases where courts have reduced
fees approaching $ 1,000 per hour, the reduction was attributed to the modest amount
of work performed on the 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 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 $ 812.75 is not
unreasonable, such that the requested fees of $ 21,700.46 for 26.7 hours of work also is
Based on the foregoing, Plaintiff’s Fee Petition seeking attorney fees pursuant to
§ 406(b) (Dkt. 21) is GRANTED; Plaintiff’s counsel is are awarded $ 21,700.46 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 $ 5,581.53 awarded for the EAJA fee award if
such amount has been received.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
April 27th, 2021
Buffalo, New York
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