Terranova v. Commissioner of Social Security
Filing
24
DECISION AND ORDER Plaintiff's motion 19 is granted, and plaintiff's counsel is awarded attorney's fees pursuant to 42 U.S.C. §406(b), in the amount of $33,936.00. If plaintiff's counsel has not already refunded the am ount of previously-awarded EAJA fees to the plaintiff pursuant to 28 U.S.C. §2412, counsel is directed to do so within ten (10) business days after receipt of the full amount of attorney's fees awarded pursuant to Section 406(b) herein. Signed by Hon. David G. Larimer on 3/27/2024. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ROBERT T.,
Plaintiff,
DECISION AND ORDER
19-CV-1648DGL
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________________
Pending before the Court is a motion by counsel for plaintiff, a prevailing party in this
action for Social Security benefits, for an order awarding attorney’s fees pursuant to 42 U.S.C.
§406(b). (Dkt. #19). Pursuant to a contingent fee agreement permitting an award of attorneys fees
of up to 25% of the past-due benefits award (Dkt. #19-4), plaintiff’s counsel, Justin Jones, of the
Law Offices of Kenneth Hiller PLLC, seeks an award of $33,936.00 (25% of the award for
past-due benefits), and will refund to plaintiff the amount previously awarded for attorney fees
under the Equal Access to Justice Act (“EAJA”). The Commissioner takes no position on
plaintiff’s motion. (Dkt. ##21, 23).
The Court finds that the amount of the requested fee is reasonable, in light of the character
of the representation, the expertise of counsel, the results that were achieved, and the absence of
any delay in the proceedings by counsel. See Silliman v. Barnhart, 421 F.Supp.2d 625 (W.D.N.Y.
2006); Joslyn v. Barnhart, 389 F.Supp.2d 454 (W.D.N.Y.2005). The Court has reviewed the time
record summary submitted by plaintiff’s attorney (Dkt. #19-5), and I find no evidence of undue
delay, waste, or duplication of effort.
The Court has also considered the deference owed to agreements between an attorney and
client, the interest in assuring future legal representation for disability claimants, and the lack of
any factor suggesting that the requested award would result in a windfall, and notes that the amount
sought does not exceed the statutory 25% cap, and/or the 25% of awarded benefits to which
counsel is entitled under plaintiff’s fee agreement. See 42 U.S.C. §406(b)(1)(A); Gisbrecht v.
Barnhart, 535 U.S. 789, 802 (2002).
With respect to whether the requested award would result in a windfall, the amount of
attorney’s fees counsel stands to receive – $33,936.00 – results in a de facto hourly rate of $980.80
for 34.6 hours of attorney time. This is far below the upper range of awards approved in similar
cases. See e.g., Fields v. Kijakazi, 24 F.4th 845, 2022 U.S. App. LEXIS 2628 (2d Cir.
2022)(approving de facto rate of $1,556.98 as reasonable for New York City firm); Campana v.
Saul, 2020 U.S. Dist. LEXIS 122259 at *4 (W.D.N.Y. 2020)(approving hourly rate of $1,000,
which although “very high by Western New York standards” was justified by the need to
incentivize counsel to accept contingency-fee cases); McDonald v. Commissioner, 2019 U.S. Dist.
LEXIS 51643 at *5-*6 (W.D.N.Y. 2019) (de facto rate of $1,051.64 is not unreasonable); Baker
v. Colvin, 2014 U.S. Dist. LEXIS 109038 at *4 (W.D.N.Y. 2014)(de facto rate of $1,308.79 is not
unreasonable).
Nonetheless, the “best indicator of the ‘reasonableness’ of a contingency fee in a social
security case is the contingency percentage actually negotiated between the attorney and client,
not an hourly rate determined under lodestar calculations.” Wells v. Sullivan, 907 F.2d 367, 371
(2d Cir. 1990). The Second Circuit has therefore cautioned against overreliance on a lodestar
analysis of hourly rates in determining whether a requested fee would result in a windfall, holding
that “[f]or a district court to find that the fee provided by a contingency fee agreement in
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[disability] cases is unreasonable, and to do so solely on the grounds that the amount requested is
a windfall, it must first be truly clear that the fee is unearned by counsel.” Fields, 2022 U.S. App.
LEXIS 2628 at *3, *21-*22 (emphasis added). See also McDonald, 2019 U.S. Dist. LEXIS 51643
at *4 (a “lodestar analysis may also be helpful in analyzing the windfall factor but the lodestar
figure does not determine reasonableness”).
“Among the factors to be considered [in considering whether a requested fee would be a
windfall] are the ability and expertise of the lawyers and whether they were particularly efficient.”
Fields, 2022 U.S. App. LEXIS 2628 at *15-*16. Indeed, “[i]t would be foolish to punish a firm
for its efficiency and thereby encourage inefficiency,” by reducing a high de facto hourly rate that
is simply the result of accomplished lawyers doing “what other lawyers might reasonably have
taken twice as much time to do.” Id., 2022 U.S. App. LEXIS 2628 at *17 (citing Jeter v. Astrue,
622 F.3d 271, 380-81 (5th Cir. 2010)).
The Court is convinced, upon consideration of all of the factors relevant to determining
reasonableness, that the fee requested here would not be a windfall. The Court takes note of
counsel’s experience in the field of Social Security disability law, and the firm’s appreciable
investment of time and effort in this matter.
The results obtained – a favorable decision and an award of past-due benefits, in the amount
of $175,744.00 – likewise militate in favor of approving the requested fee. Notably, the
Commissioner has raised no substantive objections to the requested fees. (Dkt. #21, #23).
For these reasons, I find, as the Second Circuit did in Fields, that “the fee requested [is] the
product of efficient and effective representation, which drew upon [counsel’s] substantial
experience and expertise.” Id., 2022 U.S. App. LEXIS 2628 at *21. The application is, accordingly,
granted.
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CONCLUSION
For the foregoing reasons, plaintiff’s motion (Dkt. #19) is granted, and plaintiff’s counsel
is awarded attorney’s fees pursuant to 42 U.S.C. §406(b), in the amount of $33,936.00.
If plaintiff’s counsel has not already refunded the amount of previously-awarded EAJA
fees to the plaintiff pursuant to 28 U.S.C. §2412, counsel is directed to do so within ten (10)
business days after receipt of the full amount of attorney’s fees awarded pursuant to Section 406(b)
herein.
IT IS SO ORDERED.
Dated: Rochester, New York
March 27, 2024.
_______________________________________
DAVID G. LARIMER
United States District Judge
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