DeJohn v. Colvin
Filing
19
ORDER granting 15 Motion for Attorney Fees. Signed by Hon. Michael A. Telesca on 03/02/2017. (CDH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DIANE DEJOHN,
Plaintiff,
14-CV-6414
DECISION AND ORDER
-vCAROLYN W. COLVIN, Acting
Commissioner OF Social Security,
Defendant.
I.
Introduction
Plaintiff
Diane
DeJohn
(“plaintiff”)
brought
an
action
following the Commissioner of Social Security’s denial of her
applications for disability insurance benefits and supplemental
security income pursuant to the Social Security Act (the “SSA”).
Plaintiff’s attorney, William J. McDonald, Jr., Esq. has filed a
motion pursuant to Section 206(b) of the SSA, 42 U.S.C. § 406(b),
requesting attorney’s fees in the amount of $11,928.00, which
represents the balance of 25% of plaintiff’s past due benefits
($17,928.00), less the amount of $6,000.00 received by plaintiff’s
attorney as a fee for services performed at the administrative
level.
II.
Background
Plaintiff’s applications for disability insurance benefits
were
filed
on
January
23,
2012,
and
respectively, and were initially denied.
February
14,
2012,
Following the denial of
benefits, plaintiff was granted a hearing before an administrative
law judge (“ALJ”), who later issued a written decision denying
benefits.
the
The ALJ’s decision became final on June 30, 2014, when
Appeals
Council
denied
plaintiff’s
request
for
review.
Plaintiff filed the present action seeking judicial review of the
ALJ’s final decision pursuant to 42 U.S.C. § 405(g), which resulted
in
the
Court
remanding
the
case
proceedings on August 6, 2015.
for
further
administrative
By Stipulation and Order dated
August 28, 2015, the Court awarded the plaintiff attorney’s fees in
the amount of $4,500.00 pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d) (the “EAJA”).
On remand, the ALJ
determined that plaintiff had been disabled, as defined in the SSA,
since December 31, 2006.
The Social Security Administration
subsequently determined that plaintiff was entitled to $71,712.00
in past-due benefits.
Plaintiff entered into a fee arrangement pursuant to which she
agreed to pay her attorney the greater of (1) 25% of the past due
benefits to which she became entitled because of a favorable
determination on her claim or (2) the full amount of any attorney’s
fees awarded under the EAJA.
Plaintiff’s attorney now requests
that the Court award him fees in the amount of $11,928.00, which
represents the balance of 25% of plaintiff’s past due benefits
($17,928.00), less the amount of $6,000.00 received by plaintiff’s
attorney as his fee for services performed at the administrative
level.
The Commissioner has filed a response stating that she has
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no objection to plaintiff’s counsel’s fee request. For the reasons
set forth below, the Court grants plaintiff’s motion.
III. Discussion
The relevant provision of the SSA provides that:
Whenever 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).
In considering a request for attorney’s
fees, the Court must determine whether the requested fee amount is
reasonable, giving “due deference” to the intent of the parties as
evidenced by their fee arrangement.
367, 372 (2d Cir. 1990).
Wells v. Sullivan, 907 F.2d
The Court must consider (1) whether the
contingency percentage is within the 25% cap, (2) whether there has
been fraud or overreaching in the agreement, and (3) whether the
requested amount is so large as to be a windfall to the attorney.
Id.
In this case, the contingency percentage is within the 25% cap
and there is no evidence of any fraud or overreaching in the
agreement.
The requested fee also is not so large as to represent
a windfall to plaintiff’s counsel.
Although there is no clear set of criteria for
determining when an award would result in a windfall, it
is clear that there are certain factors which should be
considered.
These factors include 1) whether the
attorney’s efforts were particularly successful for the
plaintiff, 2) whether there is evidence of the effort
3
expended by the attorney demonstrated through pleadings
which were not boilerplate and through arguments which
involved both real issues of material fact and required
legal research, and finally, 3) whether the case was
handled efficiently due to the attorney’s experience in
handling social security cases.
Joslyn v. Barnhart, 389 F. Supp. 2d 454, 456-57 (W.D.N.Y. 2005).
The Court may also “take into account the amount of time and effort
the attorney expended at the administrative level.”
Id. at 457.
Here, plaintiff’s attorney advocated successfully for his client
and
submitted
pleadings
that
were
thoroughly
involved real issues of material fact.
researched
and
Plaintiff’s attorney has
submitted evidence that he is experienced in handling social
security cases, having represented social security claimants since
1979.
Plaintiff’s attorney has further submitted documentation
showing that he expended 25.6 hours of time in connection with the
proceedings before this Court, as well as 15.5 hours of time in
connection
with
circumstances,
reasonable.
the
the
administrative
Court
finds
the
proceedings.
requested
Under
attorney’s
these
fees
See id. at 457 (finding fees of $38,116.50 reasonable
where the plaintiff’s attorney spent a total of 42.75 hours on the
court proceedings and utilized his skills and experience to provide
effective representation).
Finally, the Court notes that where, as in this case, fees are
awarded pursuant to both the EAJA and 42 U.S.C. § 406(b), “the
claimant’s attorney must refun[d] to the claimant the amount of the
smaller fee.”
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002)
4
(internal quotation omitted).
As a result, plaintiff’s counsel
shall pay to plaintiff the $4,500.00 previously awarded pursuant to
the EAJA.
IV.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for attorney’s
fees in the amount of $11,928.00 is granted.
The award is to be
made payable to William J. McDonald, Jr., Esq., attorney for
plaintiff. Upon receipt of this award, McDonald is ordered to pay
to plaintiff the $4,500.00 previously awarded pursuant to the EAJA.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
March 2, 2017
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