Weiland v. Colvin
Filing
22
DECISION AND ORDER granting 18 Motion for Attorney Fees consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 10/11/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMANDA WEILAND,
DECISION AND ORDER
No. 6:16-cv-06100-MAT
Plaintiff,
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
I.
Background
Represented by counsel, Amanda Weiland (“Plaintiff”) commenced
this 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”). The Court, on February 4,
2017, reversed the Commissioner’s decision and remanded the matter
for further administrative proceedings.
A supplemental hearing was held before an ALJ on December 19,
2017. On March 29, 2018, the ALJ issued a fully favorable decision
finding Plaintiff disabled as of March 15, 2012. By Notice of Award
dated July 2, 2018, $13,925.25 was withheld from Plaintiff’s past
due
benefits
for
attorney’s
fees.
This
amount
represented
25 percent of Plaintiff’s past due benefits, which therefore equal
approximately $55,701.00.
Plaintiff has filed a motion pursuant to 42 U.S.C. § 406(b)
(“Section 406(b) Motion”), requesting approval of an award in the
amount of $13,925.25 for legal services performed by her counsel in
federal
district
court.
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, Plaintiff’s 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, supra.
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After ascertaining that a given contingent fee agreement is
within the 25 percent statutory boundary, courts have considered
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
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
further administrative proceedings. Following remand, an ALJ issued
a fully favorable decision, awarding Plaintiff benefits as of
March 15, 2012. 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
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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 Court notes that Counsel’s request of $13,925.25
represents
25
percent
of
the
past
due
benefits
awarded
to
Plaintiff. It is permissible under the fee agreement between
Plaintiff and her attorney, which, consistent with the statutory
cap, allows for up to 25 percent of the past due benefits.
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 24.27 hours representing Plaintiff in the district court.
Dividing the Section 406(b)(1) fee requested ($13,925.25) by the
total hours (24.27) yields an hourly rate of $573.76. However,
Plaintiff’s counsel already has been awarded $4,500.00 in fees
under Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).1
1
By stipulation and order dated April 10, 2017, this Court awarded
Plaintiff’s attorney $4,500.00 in fees under the EAJA plus $400.00 in costs, for
a total of $4,900.00. The lesser of the two fees awarded under Section 406(b) and
the EAJA fee will be paid to Plaintiff. See Gisbrecht, 535 U.S. at 796 (“Fee
awards may be made under both prescriptions [in the EAJA and Section 406(b)], but
the claimant’s attorney must ‘refun[d] to the claimant the amount of the smaller
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That amount will be refunded to Plaintiff, which means the net
award
to
Plaintiff’s
counsel
under
Section
406(b)
will
be
$9,425.25. Dividing $9,425.25 by 24.27 yields an effective hourly
rate of $388.35. Moreover, it bears noting that Plaintiff’s counsel
was
required
to
expend
an
additional
22.15
hours
at
the
administrative level in connection with the remand proceedings.
While the Court is without authority to award compensation for
services performed at the administrative level, those services may
be considered as a factor in determining the overall complexity of
the case, the lawyering skills necessary to handle it effectively,
the risks involved, and the significance of the results achieved in
district court. Lapatra v. Astrue, 530 F. Supp.2d 453, 456 n.2
(W.D.N.Y. 2008) (citations omitted).
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
fee.’”) (quoting Act of Aug. 5, 1985, Pub. L. 99–80, § 3, 99 Stat. 186; second
alteration in original). Thus, if the pending application is granted, Plaintiff
will receive $4,500.00. See id.
-5-
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
requested
is
reasonable, and the Commissioner does not disagree.
IV. Conclusion
For the reasons set forth above, the Court grants the Section
406(b)(1) Motion in its entirety and awards attorney’s fees in the
amount of $13,925.25. 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 to Plaintiff the $4,500.00
in EAJA fees previously awarded.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
October 11, 2018
Rochester, New York
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