Vinson v. Colvin
Filing
19
ORDER granting 15 Motion for Attorney Fees consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 6/28/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Michelle Patrice Vinson,
Plaintiff,
15-cv-06006
DECISION AND ORDER
-v-
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.
I. Introduction
Represented by counsel, Michelle Patrice Vinson(“plaintiff”)
brought an action pursuant to Title II of the Social Security Act
(“the
Act”)
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying her
application
for
disability
insurance
benefits
(“DIB”).
On
December 15, 2015, that decision was reversed and the case was
remanded solely for the payment and calculation of benefits. On
March 23, 2016, the Social Security Administration (“SSA”) issued
Notices of Award stating that plaintiff was entitled to monthly
disability benefits beginning November 2010. Doc. 15-3. The amount
of
$18,256.00
was
withheld
for
attorneys’
fees
constituting
25 percent of the past due amount due to the plaintiff. Id.
Plaintiff now moves for an award of attorney's fees in the
amount of $18,256.00 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. 15-3. Plaintiff’s counsel previously applied
for and received $5,696.20 under the Equal Access to Justice Act
(“EAJA”), an amount that he agrees to refund plaintiff upon the
receipt of $18,256.00. See § 2412 of the Equal Access to Justice
Act.
The Commissioner does not oppose plaintiff’s motion. Doc. 17.
For the reasons discussed below, the 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 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 ‘section 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
2
that they yield reasonable results in particular cases.”) (footnote
omitted); id. at 808-09. To fall “[w]ithin 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 noncontingency cases. See 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. See 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 does not exceed the statutory cap;
furthermore, 25 percent is a standard contingency fee for a Social
Security case. Ewald, 2008 WL 4104458, at *2 (citing Gisbrecht, 585
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
3
quotation marks and citations omitted). Neither party suggests that
the fee agreement was the product of fraud or overreaching. Counsel
provided
effective
representation
to
plaintiff
by
securing
a
favorable reversal of the Commissioner’s earlier denial and the
immediate award of benefits.
Counsel
asserts
that
25
percent
of
plaintiff’s
past-due
benefits totaled $18,256.00. While the fee applicant bears the
burden of establishing that the requested fees are reasonable,
plaintiff and the Commissioner agree that the following factors
support
such
an
award:
(1)
the
attorneys
spent
a
total
of
31.0 hours representing plaintiff;1 (2) plaintiff’s supervising
attorney is
an
experienced
litigator
in
the
field
of
Social
Security Disability law; (3) the attorney received a favorable
result for plaintiff in this action; (4) the Second Circuit has
upheld as non-“windfalls” a higher de facto hourly rate than that
found here, which totaled $588.90 per hour when calculated using
all 31.0 hours; (5) counsel will refund the smaller of the two fee
awards, here the EAJA $5,696.20 award, to plaintiff;2 and (6) the
total fee requested does not exceed 25 percent of the past-due
1
District courts in this Circuit have held that a routine social
security case requires from twenty to forty hours of attorney time. See e.g.,
Cruz v. Apfel, 48 F.Supp.2d 226, 230 (E.D.N.Y.1999); Grey v. Chater, 1997 WL
12806 at *1 (S.D.N.Y.1997). Further, this time may include the time spent on
EAJA fees applications. See Trichilo v. Secretary of Health and Human
Services, 823 F.2d 702, 708 (2d Cir.1987).
2
See, e.g., Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988) (“dual fee
applications are not improper as long as the lesser of any two amounts awarded
goes to the attorney's client.”).
4
benefits awarded to plaintiff. Gaudino v. Colvin, No. 10-CV-6656
CJS, 2013 WL 4647641, at *1 (W.D.N.Y. Aug. 29, 2013).
Contemporaneous time records from plaintiff’s counsel which
“specify, for each attorney, the date, the hours expended, and the
nature of the work done” must also be submitted. Cruz v. Local
Union No. 3 of Intern. Broth. of Elec. Workers, 34 F.3d 1148, 1160
(2d Cir. 1994). “Where the documentation of hours is inadequate,
the district court may reduce the award accordingly.” Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
Here, counsel has submitted a dated itemization of hours(Doc. 15–2)
that is sufficiently specific, legible, and coherently recorded for
the Court to determine whether it was reasonable to spend the
stated hours with the correlated tasks, and to determine whether
the enumerated tasks were properly non-clerical in nature.3
For the reasons set forth above, plaintiff's application for
attorneys’ fees under 42 U.S.C. § 406(b)(1) in the amount of
$18,256.00 is reasonable and is granted. Plaintiff's counsel shall
pay the amount of the EAJA award, $5,696.20 to plaintiff. The Court
directs the Commissioner to remit to plaintiff’s counsel the
requested $18,256.00 fee award.
3
However, the Court is not required to “scrutinize each action taken
or the time spent on it” when determining what is reasonable. See Aston, 808
F.2d at 11; see also New York Ass'n for Retarded Children v. Carey, 711 F.2d
1136, 1146 (2d Cir.1983).
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III. Conclusion
Plaintiff’s motion for attorneys’ fees is granted and the
Commissioner
is
directed
forthwith
to
remit
$18,256.00
to
plaintiff’s counsel. Upon receipt of the award, counsel is directed
to refund the EAJA award of $5,696.20 to plaintiff.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
June 28, 2016
Rochester, New York
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