Burton v. Astrue
Filing
26
DECISION AND ORDER granting in part and denying in part 21 Motion for Attorney Fees consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 7/15/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
YOLANDA BURTON,
Plaintiff,
DECISION and ORDER
No. 6:12-CV-6347(MAT)
-vsCAROLYN COLVIN, Commissioner of
Social Security,
Defendant.
Yolanda Burton (“Plaintiff”), represented by counsel, brought
this action pursuant to Titles II and
XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner
of
Social
Security
denying
her
application
for
Disability Insurance Benefits and Social Security Insurance. The
Court found that the administrative law judge (“ALJ”) committed
legal error in failing to assign controlling weight to the medical
source statement of Plaintiff’s treating physician, discounting
Plaintiff’s testimony, and crafting hypothetical questions to the
vocational expert, who testified that if the limitations assigned
by the treating physician and testified to by Plaintiff were
credited, Plaintiff would be unable to maintain competitive gainful
employment. Because it was clear from the record that were such
evidence credited, the ALJ would be required to find Plaintiff
disabled, and because there were no outstanding issues needing
resolution before a determination of disability could be made, the
Court remanded the matter for calculation and payment of benefits
from July 14, 2008, through January 25, 2011.
Plaintiff
now
has
moved
for
attorney
fees
pursuant
to
42 U.S.C. § 406(b) (“Section 406(b)”), asking that the Court
approve
the
contingent
fee
arrangement
between
her
and
her
attorney, whereby Plaintiff agreed to pay her attorney 25 percent
of any past-due benefits payable to her, in exchange for the
provision of legal services in this proceeding. Plaintiff’s counsel
requests a fee award of $10,785.50 under Section 406(b). Counsel
states that pursuant to the fee agreement process, he was approved
for and received $6,000.00 in attorney’s fees (less the $86.00
statutorily-imposed
user
fee)
for
services
rendered
at
the
administrative level. In addition, counsel states, he applied for
and received $5,279.05 under the Equal Access to Justice Act
(“EAJA”). Plaintiff’s counsel seeks attorney’s fees in the amount
of $10,785.50 on the condition that he refund to Plaintiff the sum
of $5,279.05, the amount previously awarded as EAJA fees. However,
the amount to which the parties stipulated under the EAJA was
$5,629.05, which represented $5,279.05 for services performed and
$350.00 for costs incurred. See Stipulations and Order (Dkt #20)
at 1.
The Commissioner filed a response (Dkt #24) in which she does
not object to Plaintiff’s counsel’s motion for Section 406(b) fees,
-2-
but asserts that counsel has incorrectly calculated the amount of
fees due to him. Plaintiff’s counsel did not file any reply papers.
For the reasons discussed below, the Court agrees with the
Commissioner. Accordingly, Plaintiff’s counsel’s motion is denied
in part and granted in part.
II.
Discussion
Section 406(b) provides in relevant part that
[w]henever a court renders a judgment favorable to a
claimant under this title 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 such judgment . . .
42 U.S.C. § 406(b)(1)(A). “The Commissioner’s failure to oppose
this motion is not dispositive, as ‘[S]ection 406(b) requires an
affirmative
judicial
finding
that
the
fee
allowed
is
‘reasonable[.]’” Ewald v. Commissioner of Social Sec., No. CV-054583(FB), 2008 WL 4104458, at *1 n.1 (E.D.N.Y. Sept. 3, 2008)
(quoting Gisbrecht v. Barnhart, 535 U.S. 789, 807 n. 17 (2002));
see also Gisbrecht, 535 U.S. at 807 (“[Section] 406(b) calls for
court
review
of
such
[contingent-fee]
arrangements
as
an
independent check, to assure that they yield reasonable results in
particular cases.”) (footnote omitted); id. at 808-09. “Within the
25 percent boundary” established by Congress in § 406(b)(1)(A),
“the attorney for the successful claimant must show that the fee
-3-
sought is
reasonable
for
the
services
rendered.”
Id.
at
807
(footnote omitted).
Courts
reviewing
Section
406(b)
motions
should
consider
factors such as the character of the representation, the results
achieved, the amount of time spent on the case, whether the
attorney was responsible for any delay, and the attorney’s normal
hourly billing rate for noncontingent fee cases.
Gisbrecht, 535
U.S. at 808. Other factors properly considered are any instances of
misconduct or ineffectiveness of counsel; whether counsel would
enjoy a windfall because of either an inordinately large award or
because minimal effort was expended; and the degree of difficulty
of the case. Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990).
The
Court
begins
its
reasonableness
analysis
with
the
contingency agreement itself, which is unambiguous. The 25 percent
fee for which it provides for does not exceed the statutory cap;
moreover, 25 percent is a standard contingency fee for a Social
Security case. Ewald, 2008 WL 4104458, at *2 (citing Gisbrecht, 535
U.S. at 803 (noting that “[c]haracteristically . . ., attorneys and
clients enter into contingent-fee agreements specifying that the
fee
will
be
25
percent
of
any
past-due
benefits”
(internal
quotation marks and citation omitted)). There is no suggestion in
the
record
that
overreaching.
Plaintiff,
fee
agreement
Counsel
securing
a
was
provided
reversal
the
product
effective
of
-4-
the
of
fraud
representation
Commissioner’s
or
to
adverse
decision and the immediate award of benefits to her and her
children.
Turning next to the amount of the award requested, counsel
asserts that Plaintiff’s past-due benefits totaled $67,785.50 and
that, from this amount, $16,785.50 was withheld for the payment of
attorney’s fees. Defendant counters that both of these amounts are
incorrect.
See
Defendant’s
Memorandum
of
Law
(“Def’s
Mem.”)
(Dkt #24) at 3 (citing Declaration of Acting Assistant Regional
Commissioner for Management and Operations Support Bryant Wilder
(“Wilder Decl.”) (Dkt #24-1), ¶ 4). According to Defendant, the
actual amount of past-due benefits, “[b]ased on agency records,” is
$50,386.00. Wilder Decl. ¶ 4. Of this amount, Defendant states,
$33,630.00 represents past-due benefits due to Plaintiff herself
and $16,756.00 due equally to Plaintiff’s two dependent children.
Id. Defendant has
attached two Notices of Changes in Benefits
dated
2014,
November
4,
sent
to
Plaintiff
on
behalf
of
her
dependent children; and a Notice of Change in Benefits dated
December 1, 2014, sent to Plaintiff herself. The notices sent to
the
children
indicate
that
the
Commissioner
was
required
to
withhold 25 percent of all past-due benefits, or $2,094.50, from
the benefits due each child, making the total past-due amount
$8,378.00 for each child, or $16,756 for both children. The notice
sent to Plaintiff herself indicates that the Commissioner was
withholding 25 percent of all past-due benefits, or $8,407.50,
-5-
making the total past-due amount to Plaintiff $33,630. The total
amount of past-due benefits for Plaintiff and both her children
thus is $50,386 ($33,630.00 plus $16,756.00), and the total amount
withheld from past-due benefits for payment of attorney’s fees is
$12,596.50 ($8,407.50 plus $2,094.50 plus $2,094.50). Therefore,
the Court agrees that the correct amounts are as stated by the
Commissioner. Notably, Plaintiff’s counsel has not lodged any
disagreement with the Commissioner’s figures.
Using the correct amount withheld from past-due benefits for
attorney’s
fees
($12,596.50),
less
the
$6,000.00
paid
to
Plaintiff’s counsel for work performed at the administrative level,
divided by 27.6 hours (the number of hours expended by Plaintiff’s
counsel in connection with the federal action), yields an hourly
rate of $239.00. This is well below what other judges in this
Circuit have found to be reasonable under Section 406(b) and not to
represent a “windfall” to counsel. See, e.g., Ewald, 2008 WL
4104458, at *2 (finding award equivalent to $415.63 per hour not a
windfall) (citing Blizzard v. Commissioner of Soc. Sec., 496 F.
Supp.2d 320, 323-24 (S.D.N.Y. 2007) (finding award equivalent to
$705.00 per hour not a windfall); Trupia v. Astrue, No. 05-CV-6085
(SJF), 2008 WL 858994, at *3-*4 (E.D.N.Y. Mar. 27, 2008) (finding
award equivalent to $714.09 per hour not a windfall);
Joslyn v.
Barnhart, 389 F. Supp.2d 454, 456 (W.D.N.Y.2005) (finding award
-6-
equivalent to $891.61 per hour not a windfall); other citation
omitted).
In sum, the Court finds the 25 percent contingency fee,
applied to the correct past-due benefits amounts as set forth in
the
Commissioner’s
reasonable.
The
memorandum
Court
and
directs
supporting
the
exhibits,
Commissioner
to
to
be
remit
to
Plaintiff’s counsel $6,596.50, which represents 25 percent of the
past-due benefits to Plaintiff and her two dependent children
($12,596.50) minus the $6,000 paid to Plaintiff’s counsel for work
performed at the administrative level.
III. Conclusion
For the foregoing reasons, Plaintiff’s motion for attorney’s
fees is granted in part and denied in part. Commissioner is
directed forthwith to remit to Plaintiff’s counsel $6,596.50, which
represents 25 percent of the past-due benefits to Plaintiff and her
two dependent children ($12,596.50) minus the $6,000 paid for work
performed at the administrative level. Upon receipt of the fee
award, counsel is directed to he refund to Plaintiff the sum of
$5,629.05, the amount previously awarded as EAJA fees.
SO ORDERED.
S/Michael A. Telesca
________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 15, 2015
Rochester, New York
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