March v. Colvin

Filing 19

ORDER granting 15 Motion for Attorney Fees consistent with this Order.. Signed by Hon. Michael A. Telesca on 1/16/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
YOLANDA MARCH,
Plaintiff,

15-CV-6035
DECISION AND ORDER

-vCAROLYN W. COLVIN, Acting
Commissioner OF Social Security,
Defendant.
I.

Introduction
Plaintiff Yolanda March(“plaintiff”) commenced this action

following the Commissioner of Social Security’s (“defendant” or the
“Commissioner”) denial of her applications for disability insurance
benefits and supplemental security income pursuant to the Social
Security Act (the “SSA”).

Plaintiff’s attorney, Peter A. Gorton,

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
$10,924.50, which represents the balance of 25% of plaintiff’s past
due benefits ($10,924.50), 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 initially denied. 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 ALJ’s

decision became final when the 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 entering a Stipulation and
Order remanding the case for further administrative proceedings on
November 14, 2015. By Stipulation and Order dated August 28, 2015,
the Court awarded the plaintiff attorney’s fees in the amount of
$4,717.55 pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d) (the “EAJA”).

However, plaintiff’s attorney did not

receive this fee payment, because it was applied to payment of a
federal debt owed by plaintiff.

See Docket No. 15-4 at 1.

On remand, the Commissioner determined that plaintiff had been
disabled, as defined in the SSA, since November 30, 2011.
Social

Security

Administration

subsequently

determined

The
that

plaintiff was entitled to $67,698.00 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 $10,924.50, which
represents the balance of 25% of plaintiff’s past due benefits
($16,924.50), 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
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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 is

experienced in handling social security cases, and frequently
appears before this Court in such matters.
has

further

submitted

documentation

Plaintiff’s attorney

showing

that

he

expended

24.2 hours of time in connection with this matter. Under these
circumstances,
reasonable.

the

Court

finds

the

requested

attorney’s

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)

(internal quotation omitted).

However, in this case, plaintiff’s

counsel did not actually receive the EAJA payment, because it was
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applied to an existing federal debt of plaintiff’s.

As such,

plaintiff has already received the benefit of that payment, and so
no further refund is required.

See, e.g., Culin v. Comm’r of Soc.

Sec., 2017 WL 1331282, at *2 (M.D. Fla. Apr. 11, 2017) (“If the
attorney

never

received

an

EAJA

award

because

the

Treasury

Department used the EAJA award to pay the claimant’s federal debts,
there is no amount of EAJA fees received, no risk of double
recovery prohibited by § 406(b)(2), and no amount to refund”)
(internal quotations omitted).
IV.

CONCLUSION
For the foregoing reasons, plaintiff’s motion for attorney’s

fees in the amount of $10,924.50 is granted.

The award is to be

made payable to Peter A. Gorton, Esq., attorney for plaintiff.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
January 16, 2018

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