Mattison v. Commissioner of Social Security
DECISION AND ORDER granting 17 Motion for Attorney Fees. Signed by Hon. Elizabeth A. Wolford on 6/4/2021.(MGB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Plaintiff Lee M. (“Plaintiff”) moves for attorneys’ fees in the amount of $9,898.00,
pursuant to 42 U.S.C. § 406(b). (Dkt. 17). The Commissioner of Social Security (“the
Commissioner”) does not object to Plaintiff’s request. (Dkt. 19). For the reasons discussed
below, the Court grants Plaintiff’s motion.
On November 27, 2018, Plaintiff filed this action, seeking review of the final
decision of the Commissioner denying her application for Disability Insurance Benefits.
(Dkt. 1). Plaintiff moved for judgment on the pleadings on July 29, 2019 (Dkt. 6), and the
Commissioner moved for judgment on the pleadings on September 20, 2019 (Dkt. 7). By
Decision and Order dated January 29, 2020, the Court denied the Commissioner’s motion
and granted Plaintiff’s motion, remanding the matter for further administrative
proceedings. (Dkt. 10).
By stipulation filed on May 13, 2020, the parties agreed that Plaintiff’s counsel was
entitled to $5,692.88 for services performed in connection with this action, pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Dkt. 15), and the stipulation was
approved by the Court on May 21, 2020 (Dkt. 16).
After a supplemental hearing, the ALJ issued a fully favorable decision on October
19, 2020. (See Dkt. 17-3). Thereafter, the Commissioner issued a Notice of Award dated
October 31, 2020, in connection with Plaintiff’s DIB claim, indicating that 25% of
Plaintiff’s past-due benefits ($11,768.00) was withheld to pay Plaintiff’s representative.
(Dkt. 17-4 at 2).
On November 11, 2020, Plaintiff moved for attorneys’ fees pursuant to 42 U.S.C.
§ 406(b). (Dkt. 17). Plaintiff’s counsel seeks $9,898.00, which represents less than the
statutory cap of 25% of the past-due benefits. (See Dkt. 17-1 at ¶ 5). Counsel states that
if he receives the requested fee, he will refund to Plaintiff the $5,692.88 EAJA fee. (Dkt.
17-1 at ¶ 14(b)). The Commissioner filed a response, indicating that he has no objection
to Plaintiff’s counsel’s fee request. (See Dkt. 19).
Section 406(b) provides, in relevant part, 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% 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% 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
attorney bears the burden of persuasion that the statutory requirement has been satisfied.”
Id. 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.
Here, the Court finds the requested fee is reasonable. The requested fee of $9,898.00
represents less than the 25% statutory cap identified by the SSA. (See Dkt. 17-4 at 2). As
such, the requested fee falls within the statutory 25% cap.
The Court further finds the requested fee is not an amount so large as to be a windfall
to counsel. The requested fee would result in a de facto hourly rate of $334.39 ($9,898.00
divided by 29.6 hours). (Dkt. 17-1 at ¶ 12). Counsel’s effective hourly rate falls well under
the range of rates under § 406(b) approved by courts. See Buckley v. Berryhill, No. 15CV-0341-A, 2018 WL 3368434, at *2-3 (W.D.N.Y. July 10, 2018) (approving de facto
hourly rate of $1,000.00); Cieslik v. Berryhill, No. 14-CV-430-A, 2018 WL 446218, at *3
(W.D.N.Y. Jan. 17, 2018) (approving de facto hourly rate of $792.44); Rita M. B. v.
Berryhill, No. 5:16-CV-0262 (DEP), 2018 WL 5784101, at *6 (N.D.N.Y. Nov. 5, 2018)
(approving de facto hourly rate of $644.48).
The Court also finds the remaining relevant factors weigh in favor of finding that
counsel’s requested fee is reasonable. There is no evidence of fraud or overreaching in the
making of the agreement. Additionally, counsel was not responsible for any delay.
Further, counsel has provided effective representation. Despite having her applications for
benefits initially denied, due to counsel’s efforts, Plaintiff secured a recovery of past-due
benefits. (See Dkt. 17-3; Dkt. 17-4).
The Court also notes that counsel is required to return the previously awarded EAJA
fee of $5,692.88. 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. . . .”). Accordingly, in light of the above, the Court finds counsel’s
requested fee is reasonable.
For the foregoing reasons, Plaintiff’s § 406(b) motion (Dkt. 17) for attorneys’ fees
is granted, and the Court hereby orders as follows: (1) Plaintiff’s counsel shall be paid
attorneys’ fees in the amount of $9,898.00, 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 $5,692.88 to Plaintiff.
ELIZABETH A. WOLFORD
United States District Judge
June 4, 2021
Rochester, New York
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