McCall v. Commissioner of Social Security

Filing 30

DECISION AND ORDER: Consistent with the findings herein, Plaintiff's 26 Motion for Attorney Fees under 42 U.S.C. § 406 (b)(1)(A) is granted. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/22/24. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CAROLINE S.M.,
Plaintiff,
v.

DECISION AND ORDER
19-CV-374-A

MARTIN O’MALLEY, 1
Commissioner of Social Security,
Defendant.
Plaintiff Carlone S.M., as the prevailing party in this social security benefits
action, has filed a Motion for Attorney Fees, under 42 U.S.C. § 406 (b)(1)(A). Dkt.
#26. Defendant neither supports nor opposes counsel's request. Dkt. #29.
By statute, this Court may determine and award a reasonable fee not to
exceed 25% of total past-due benefits to an attorney who secures a favorable
judgment for a claimant in a social security case in federal court. See 42 U.S.C. §
406 (b)(1)(A); Gisbrecht v. Barnhart, 535 U.S. 789, 794 (Ҥ 406(a) governs fees for
representation in administrative proceedings; § 406(b) controls fees for
representation in court.”). This fee authority “does not displace contingent-fee
agreements” but rather “calls for court review of such arrangements as an
independent check, to assure that they yield reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807. Since 406(b) is not entirely self-explanatory, the Second
Martin O’Malley is now the Commissioner of Social Security. He is substituted
pursuant to Fed. R. Civ. P. 25(d). The Clerk is directed to amend the caption to comply
with this substitution.
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Circuit, in “[s]eeking to provide…guidance” on the issue has held “that where there is
a contingency fee agreement in a successful social security case, the district court's
determination of a reasonable fee under § 406(b) must begin with the agreement,
and the district court may reduce the amount called for by the contingency
agreement only when it finds the amount to be unreasonable.” Fields v. Kijakazi, 24
F.4th 845, 852–53 (2d Cir. 2022) (quotations and citations omitted). 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.” Gisbrecht, 535 U.S.
at 807. “Within the 25 percent boundary ... the attorney for the successful claimant
must show that the fee sought is reasonable for the services rendered.” Id.
Here, Plaintiff entered into a fee agreement with his attorney whereby Plaintiff
agreed to pay attorney fees of up to 25% of the past due benefits awarded to
Plaintiff. Dkt. #26-2. After this lawsuit was commenced in federal court, Plaintiff was
awarded $76,051.00 in past due benefits. Dkt. #26-3. The requested fee of
$11,812.75 is equal to approximately 15.5% of the past due benefits, well under both
the 25% statutory limit and the amount provided for under the fee agreement. Yet,
the inquiry does not end there as this Court must still determine whether the
requested amount is reasonable, and to do that, the Courts have looked to “whether
there has been fraud or overreaching in making the agreement…[and]…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).

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Having thoroughly reviewed counsel's fee request and supporting
documentation, this Court finds that the requested fee is reasonable based on
counsel's experience in social security law, the character of the representation
provided, and the favorable results achieved. See Gisbrecht, 535 U.S. at 808.
Moreover, there is no indication that this fee is a windfall. Fields v. Kijakazi, 24 F.4th
at 849. Timesheets submitted by Plaintiff’s counsel reflect that Plaintiff’s attorneys
and paralegals logged 29.6 hours at the federal court level. Of those hours, 24.4
were attorney hours and 5.2 are paralegal hours. If paralegal hours were billed at
$100.00 per hour and deducted, the effective hourly attorney rate would be $462.82.
Dkt. #26-4, 26-5, 26-6. This amount is reasonable. 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”); see also Fields, 24 F.4th at 854 (“[E]ven a relatively high hourly
rate may be perfectly reasonable, and not a windfall, in the context of any given
case.”). For these reasons, Plaintiff's counsel's $11,812.75 fee request is therefore
granted under 42 U.S.C. § 406 (b)(1)(A).
By stipulation approved and ordered on August 25, 2021, this Court
previously awarded Plaintiff's counsel $5,400.00 in fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412 (d). (Dkt. #24). Because the fee granted
herein exceeds the EAJA fee, Plaintiff's counsel must refund the $5,400.00 EAJA fee
to Plaintiff. See Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988). Accordingly, it is
hereby
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ORDERED, that counsel's Motion for Attorney Fees in the amount of
$11,812.75 under 42 U.S.C. § 406(b)(1)(A) (Dkt. #26) is GRANTED. The fees are to
be paid out of Plaintiff's past-due benefits in accordance with agency policy; and it is
further
ORDERED, that Plaintiff's counsel is directed to refund to Plaintiff the
$5,400.00 EAJA award within 14 days of receiving the § 406(b) award.
IT IS SO ORDERED.
s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: November 22, 2024
Buffalo, New York

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