Mix v. Commissioner of Social Security

Filing 20

DECISION AND ORDER granting 16 Motion for Attorney Fees consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 5/22/17. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NICOLE MIX,
Plaintiff,
6:14-CV-06219 (MAT)
-vsDECISION and ORDER
Commissioner of Social Security,
Defendant.

Nicole Mix (“plaintiff”), represented by counsel, brought this
action pursuant to Titles II and XVI of the Social Security Act
(“the

Act”),

Commissioner

seeking
of

Social

review

of

the

Security

final

denying

her

decision

of

the

applications

for

Disability Insurance Benefits (“DIB”) and supplemental security
income. On December 19, 2014, this Court reversed that decision and
remanded the case for further proceedings. Doc. 11. On May 19,
2016, the Commissioner issued a fully favorable decision. Doc. 16-3
at 7-17. Thereafter, the Social Security Administration (“SSA”)
issued a Notice of Award stating that plaintiff was entitled to
$52,275.00 in past due DIB benefits.1 Doc. 16-3 at 19-56. Of that
past due amount, $13,068.75 was withheld for attorney fees. Id. The
SSA also issued a notice of award of auxiliary benefits in favor of
plaintiff’s daughter, entitling her to $26,118.00 in past due
benefits.
attorney

1

Id. The
fees.

Id.

SSA

withheld

$6,000.00

Additionally,

on

of

this

September

9,

amount

for

2016,

the

Plaintiff was also issued a notice of award stating that she was entitled
to $4,346.94 in past due SSI benefits. However, due to plaintiff’s DIB benefit
award amount, plaintiff was not actually awarded SSI benefits.

Commissioner authorized plaintiff’s attorney to collect $8,802.00
from plaintiff for work done at the agency level. Doc. 16-3 at 58.
Plaintiff’s counsel has now 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 plaintiff and his
attorney, whereby plaintiff agreed to pay his attorney 25 percent
of any past-due benefits payable to him, in exchange for the
provision

of

legal

services

in

this

proceeding.

Doc.

18.

Plaintiff’s counsel requests a fee award of $10,266.75 pursuant to
Section 406(b), and states that he previously applied for and
received $3,000.00 pursuant to the Equal Access to Justice Act
(“EAJA”). Plaintiff’s counsel thus applies for the amount indicated
above on the condition that he refund to plaintiff the sum of
$3,000.00, the amount previously awarded in EAJA fees, to plaintiff
upon receipt. The $10,266.75 requested by plaintiff’s counsel
represents the total of $19,068.75 withheld by the SSA, less
$8,802.00

previously

authorized

for

work

performed

at

the

administrative level, pursuant to 42 U.S.C. § 406(a), for plaintiff
and her minor child.
Defendant filed a response dated May 17, 2017, which indicates
that the Commissioner does not object to the motion. For the
reasons discussed below, plaintiff’s counsel’s motion is granted.
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
-2-

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., 2008 WL
4104458,*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 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).
-3-

The

Court

begins

its

reasonableness

analysis

with

the

contingency agreement itself, which is unambiguous. The 25 percent
fee for which it provides 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 the fee agreement was the product of fraud or
overreaching.
plaintiff,

Counsel

securing

a

provided
reversal

effective
of

the

representation

Commissioner’s

to

adverse

decision and the immediate award of benefits.
Turning next to the amount of the award requested, counsel has
established that plaintiff’s past-due benefits, and those of her
minor

child,

totaled

$78,393.00

and

that,

from

this

amount,

$19,068.75 was withheld for the payment of attorney fees. Based on
plaintiff’s counsel’s itemization of hours for work performed
before the District Court at 17.2 hours, this would result in a de
facto hourly rate of $596.90. This rate does not represent a
“windfall” to counsel. See, e.g., Trupia v. Astrue, 2008 WL 858994,
*3-*4 (E.D.N.Y. Mar. 27, 2008) (finding award equivalent to $714.09
per hour not a windfall);
496

F.

Supp.

2d

320,

Blizzard v. Commissioner of Soc. Sec.,

323-24

(S.D.N.Y.

2007)

(finding

award

equivalent to $705.00 per hour not a windfall); Joslyn v. Barnhart,

-4-

389 F. Supp.2d 454, 456 (W.D.N.Y. 2005) (finding award equivalent
to $891.61 per hour not a windfall).
In sum, the Court finds the 25 percent contingency fee,
applied to the correct past-due benefits amounts as set forth in
plaintiff’s memorandum and supporting exhibits, to be reasonable.
The Court directs the Commissioner to remit to plaintiff’s counsel
$10,266.75, which represents 25 percent of the past-due benefits to
plaintiff.
III. Conclusion
For the foregoing reasons, plaintiff’s counsel’s motion for
attorney fees is granted. The Commissioner is directed to remit to
plaintiff’s counsel $10,266.75, which represents 25 percent of the
past-due benefits to plaintiff. Upon receipt of the fee award,
counsel is directed to refund to plaintiff the sum of $3,000.00,
the amount previously awarded as EAJA fees.
SO ORDERED.
S/Michael A. Telesca
________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

May 22, 2017
Rochester, New York

-5-