Brown v. Colvin

Filing 21

ORDER granting 18 Motion for Attorney Fees consistent with this Order. Signed by Hon. Michael A. Telesca on 3/16/18. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RONALD DAVID BROWN,
DECISION AND ORDER
No. 6:14-cv-06732-MAT

Plaintiff,

-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

I.

Background
Represented

by

counsel,

Ronald

David

Brown

(“Plaintiff”)

commenced this action pursuant to Title II of the Social Security
Act,

seeking

review

of

the

final

decision

of

the

Acting

Commissioner of Social Security (“the Commissioner”) denying his
application for Disability Insurance Benefits (“DIB”). On November
20, 2015, the Court found that the Commissioner’s determination was
erroneous as a matter of law and was not supported by substantial
evidence.

Accordingly,

the

Court

reversed

the

Commissioner’s

decision and remanded the matter for calculation and payment of
benefits.
On January 15, 2016, the Court issued an Order granting
Plaintiff’s request for attorney’s fees in the amount $6,500.00
under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”).
Plaintiff

has now

moved

for

an award

of

attorney’s

fee

pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”). The Commissioner
filed

a

response

indicating

that

she

has

no

objections

to

Plaintiff’s request for attorney’s fees pursuant to Section 406(b)

but requests that the Court conduct an independent reasonableness
review, as required by law.
For the reasons discussed below, the Section 406(b) Motion is
granted.
II. Applicable Legal Principles
Section 406(b) provides in relevant part that “[w]henever a
court renders a judgment favorable to a claimant. . . 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 reason
of such judgment.” 42 U.S.C. § 406(b)(1)(A).
“Within the 25 percent boundary” set by Section 406(b), “the
attorney for the successful claimant must show that the fee sought
is reasonable for the services rendered.” Gisbrecht v. Barnhart,
535 U.S. 789, 807 (2002) (citation omitted). Section 406(b) also
“calls for court review of [contingent fee] arrangements as an
independent check, to assure that they yield reasonable results in
particular

cases.”

Id.

(footnotes

omitted).

Thus,

it

is

the

district court’s responsibility to determine whether the requested
fees are unreasonable, as required by Social Security Act and
Gisbrecht.
After ascertaining that a given contingent fee agreement is
within the 25 percent statutory boundary, courts have considered

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the following factors in determining whether the resulting fee is
reasonable: 1) whether the requested fee is out of line with the
“character of the representation and the results the representation
achieved;”

2)

whether

the

attorney

unreasonably

delayed

the

proceedings in an attempt to increase the accumulation of benefits
and thereby increase his own fee; and 3) whether “the benefits
awarded are large in comparison to the amount of time counsel spent
on the case,” the so-called “windfall” factor. Joslyn v. Barnhart,
389 F. Supp.2d 454, 456 (W.D.N.Y. 2005) (quoting Gisbrecht, 535
U.S. at 808).
III.

Discussion
On December 8, 2010, Howard D. Olinski, Esq. (“Counsel”) and

Plaintiff entered into an Attorney-Client Fee Agreement (Doc. 18-2)
pursuant to which Plaintiff agreed that if he did receive benefits,
Counsel would charge and receive as the fee an amount equal to
twenty-five percent of the past due benefits awarded to Plaintiff.
Therefore, the contingent fee agreement at issue does not exceed
the 25 percent boundary set by Section 406(b).
Counsel indicates that he has not received a Notice of Awards
from the Commissioner as required, although he did receive an
Important Information letter (Doc. 18-3) informing him that the
Commissioner has withheld $13,334.25 from Plaintiff’s past due
benefits. Counsel has requested $13,334.25 for 41.15 hours of
representation in Plaintiff’s appeal to this Court. (Doc. 17-4).

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Counsel indicates that, should the Court award a Section 406(b) fee
in excess of the EAJA award of $6,500, Counsel will refund to
Plaintiff that amount ($6,500.00).
With regard to the first Gisbrecht factor, the Court finds
that the requested fee is in line with the “character of the
representation and the results the representation achieved.” Here,
Counsel’s effective briefing secured a reversal and remand for
payment of benefits—the best result possible for Plaintiff. This
factor accordingly weighs in favor of finding reasonableness.
Turning to the second factor, Counsel did not engage in
dilatory

litigation

tactics

or

otherwise

cause

delay

in

the

proceedings that might have inflated past due benefits and thus the
potential fee award. The second factor also weighs in favor of
finding reasonableness.
Finally, with regard to whether the requested fee represents
a “windfall,” the Supreme Court has not provided clear guidance on
assessing this factor, but has suggested that conducting what is
essentially a lodestar analysis may be helpful. See Gisbrecht, 535
U.S.

at

808

(suggesting

that

the

hours

spent

by

counsel

representing the claimant and counsel’s “normal hourly billing
charge for noncontingent-fee cases” may aid “the court’s assessment
of the reasonableness of the fee yielded by the fee agreement”).
Based on the itemized statement submitted (Doc. 18-4), Counsel
spent a total of 41.15 hours representing Plaintiff in this Court.

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Dividing the Section 406(b)(1) fee requested ($13,334.25) by the
total hours (41.15) yields an effective hourly rate of $324.04.
A contingent fee outside of the Social Security context
typically represents the past and future value of the case. Here,
however, the statute provides that attorney’s fees are based solely
on past-due benefits. See 42 U.S.C. § 406(b)(1). The value of this
case to Plaintiff is greater than the amount of past due benefits
received, since Plaintiff will receive not only the past due
benefits owing, but also ongoing benefits until he dies, reaches
retirement age, or is no longer disabled. In addition, the value of
health care benefits attendant to Title II benefits is not included
in the computation of the fee under Section 406(b)(1). The Court
agrees that the value of this case to Plaintiff is considerably
greater than past-due benefits received. Furthermore, Plaintiff’s
case involved a substantial risk of loss to Counsel, the benefits
claim having been denied at multiple levels of agency review before
the initiation of this civil action. The Court also considers the
deference owed to lawful attorney-client fee agreements, Gisbrecht,
535 U.S. at 793, and the interest in assuring that attorneys
continue to represent clients such as Plaintiff, id. at 805. All of
these

factors

counsel

a

finding

that

the

fee

reasonable, and the Commissioner does not disagree.
IV. Conclusion

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requested

is

For the reasons set forth above, the Court grants the Section
406(b)(1) Motion (Doc. 18) in its entirety and awards attorney’s
fees

in

the

amount

of

$13,334.25.

The

Court

directs

the

Commissioner to release the funds withheld from Plaintiff’s award.
Upon receipt of the fee award, Plaintiff’s Counsel shall refund the
$6,500.00 in EAJA fees to Plaintiff.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

March 16, 2018
Rochester, New York

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