Lopez v. Commissioner of Social Security

Filing 22

ORDER GRANTING 21 Motion for Attorney Fees. IT IS FURTHER ORDERED that Howard D. Olinsky be awarded $20,753.25 in attorneys fees to be remitted by Plaintiff from Plaintiffs past-due benefits pursuant to the fee agreement between Plaintiff and Mr. Olinsky. IT IS FURTHER ORDERED that, upon receipt of the fee award, Mr. Olinksy refund to Plaintiff the EAJA fees in the amount of $5,951.74. Signed by Judge Elizabeth S. Chestney. (rg)

Case 5:19-cv-01088-ESC Document 22 Filed 01/05/22 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MONICA LOPEZ,
Plaintiff,
vs.
ANDREW SAUL, COMMISSIONER OF
SOCIAL SECURITY;
Defendant.

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SA-19-CV-01088-ESC

ORDER
Before the court in the above-styled cause of action is Plaintiff’s Counsel’s Motion for
Attorney Fees Pursuant to Social Security Act Section 2601(b)(1) [#21].

In the motion,

Plaintiff’s counsel, Howard D. Olinksy, asks the Court to award him $20,753.25 out of
Plaintiff’s past-due benefits award from the Social Security Administration. For the reasons
stated below, the Court will GRANT Mr. Olinsky’s motion.
On August 22, 2020, the Court vacated the Commissioner’s decision finding Plaintiff not
disabled and remanded this case for further administrative proceedings [#15]. On November 23,
2020, the Court awarded attorney’s fees of $5,951.74 and expenses of $22.40 to Plaintiff as a
prevailing party under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 [#20]. On
April 3, 2021, the Social Security Administration (“SSA”) issued its final determination on
remand, finding Plaintiff disabled and granting her total past due benefits of $84,844.00 for the
period of May 2015 to February 2021.1 (Ex B. [#21-3], at 2.) Plaintiff was also awarded

In Plaintiff’s decision letter, the SSA technically awarded her $78,845.50 because they
withheld 5,998.50 pursuant to a fee agreement with a different attorney for representation in
agency proceedings.
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Auxiliary past due benefits of $22,169.00 (Ex. B. [#21-3, at 5.) This resulted in combined past
due benefits of $107,013.00.
Mr. Olinsky now requests that the Court award him $20,753.25 out of Plaintiff’s past due
benefits, pursuant to Section 2601(b)(1) of the Social Security Act, codified at 42 U.S.C. §
406(b). The provision states:
Whenever a court renders a judgment favorable to a claimant under this
subchapter 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) (emphasis added). Twenty-five percent of Plaintiff’s past due benefits is
$26,753.25. The attorney who represented Plaintiff in agency proceedings has been awarded
attorney fees of $6,000.00 pursuant to a previously approved fee agreement between Plaintiff
and that attorney. Mr. Olinksy requests the remaining $20,753.25.
The record reflects that Plaintiff and Mr. Olinksy entered into a contingency fee
agreement, which provides that counsel shall charge and receive a fee equal to 25 percent of the
past due benefits awarded to Plaintiff and her family if she won her case. (Ex. A. [#21-2], at 2.)
Time records attached to Mr. Olinsky’s motion demonstrate that Plaintiff’s attorneys and
paralegals spent 33 hours on this case at the federal-court level. (Ex. C. [#21-4].) Of those
hours, 26 are attorney hours and 7 are paralegal hours. (Ex. D [#21-5]; Ex. E [21-6].) Based on
the requested $23,125.88, and if the paralegal time is billed at $100.00 per hour (as indicated by
Mr. Olinksy), the effective hourly attorney rate is $771.28. (Mot. [#21-1], ¶ 10.)
For the purposes of fee determination, the Commissioner is not a true party in interest;
instead, the Commissioner’s role is similar to a trustee. Jeter v. Astrue, 622 F.3d 371, 374 n.1
(5th Cir. 2010) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002)). Any opposing

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response from the Commissioner in this capacity was due on or before January 3, 2022. To date,
no response has been filed. Pursuant to Local Rule CV-7(d), if there is no response filed within
the time period prescribed by the rules, the Court may be considered unopposed.
In considering a motion for a 406(b) fee award, the Court must decide whether the
requested award is reasonable. Gisbrecht, 535 U.S. 789, at 808 (2002). An award of 25 percent
is considered the ceiling for fees, not an amount that is automatically considered reasonable. Id.
at 807.

Where the plaintiff and his or her attorney have entered into a contingency fee

agreement, the Court must review for reasonableness the fees yielded by that agreement and
assess whether the fees would result in a windfall for the attorney. Id. at 808–09. The Fifth
Circuit has not prescribed an exhaustive list of factors to consider in determining whether a fee
award is unearned such that it may be considered a windfall. Jeter v. Astrue, 622 F.3d 371, 381
(5th Cir. 2010). It has noted with approval, however, several factors considered by lower courts,
including “risk of loss in the representation, experience of the attorney, percentage of the pastdue benefits the fee constitutes, value of the case to a claimant, degree of difficulty, and whether
the client consents to the requested fee.” See id. at 381–82. While not determinative, the
existence of a contingency fee agreement indicates that the plaintiff consented to the agreed upon
fee. Id.
Having reviewed Mr. Olinsky’s motion and the supporting documentation provided, the
Court finds the fee request reasonable.

Mr. Olinsky provided effective and efficient

representation, identifying and analyzing three separate errors on appeal. (Pl. Brief [#12].)
Further, it is well-known that “there is a substantial risk of loss in civil actions for social security
disability benefits.” Luella B.G. v. Saul, No. 3:18-cv-969-BN, 2021 WL 487694, at *2 (N.D.
Tex. Feb. 10, 2021) (internal citation omitted). Given the multiple denials of benefits at the

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administrative level, Plaintiff’s success appears to be attributable to counsel’s work. While not
determinative on the amount of the award, the existence of a contingency fee agreement
indicates that Plaintiff consented to paying Mr. Olinsky 25 percent of her past-due benefits
award. See Jeter, 622 F.3d at 381–82.
Mr. Olinsky’s resulting effective hourly rate of $771.28 falls within amounts that have
been approved by courts as reasonable under similar circumstances. See, e.g., Sabourin v.
Colvin, No. 3:11-CV-2109-M, 2014 WL 3949506, at *1–2 (N.D. Tex. Aug. 12, 2014) (finding
that the “de facto hourly rate of $1,245.55 per hour” did not constitute an unearned windfall but
fair compensation for attorney’s fees under § 406(b)); Prude v. U.S. Comm’r, Soc. Sec. Admin.,
No. 11-CV-1266, 2014 WL 249033, at *2 (W.D. La. Jan. 22, 2014) (finding that the resulting
hourly fee of $937.50 was reasonable in light of factors “such as the few attorneys in the area
who will handle a disability appeal,” “the lack of compensation in the many unsuccessful cases,”
and the fact that the fee was “not attributable to anything other than the attorney’s own work”).
The resulting hourly rate requested here is reasonable.
Lastly, Mr. Olinksy has indicated he intends to refund to Plaintiff the EAJA fees
previously paid, as required, in the amount of $4,600 (the $400 filing fee was previously
refunded on December 28, 2020). (Mot. [#21-1] ¶ 8.)
Generally, the SSA withholds 25 percent of past due benefits for potential attorney fees.
Here, the SSA withheld only $5,998.50 to cover attorney fees for the attorney that represented
Plaintiff in the administrative proceedings. No percentage of the past due benefits was withheld
to cover attorney fees for Mr. Olinsky’s representation of Plaintiff in litigation proceedings.
When the Administration releases funds without withholding for attorney fees, an attorney can
request the Administration to bring overpayment proceedings to recover the funds from the

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claimant on the attorney’s behalf. See 42 U.S.C. § 404; 20 C.F.R. § 404.501; POMS GN
03920.055. Alternatively, an attorney can seek recovery of funds owed directly from his client.
See Booth v. Comm'r of Soc. Sec., 645 Fed. Appx. 455, 459 (6th Cir. 2016). Here, the fee
agreement entered by Plaintiff and Mr. Olinsky provides for just such a situation. (Ex. A. [#212], at 2.) (“If SSA, through error, fails to withhold my federal court attorney’s fee and pays the
legal fee to me by mistake (which sometimes happens), I will pay my federal court attorney
promptly from the back benefits I receive.”).
In summary, the fee award requested by Mr. Olinsky is reasonable, and the Court will
grant the motion.
IT IS THEREFORE ORDERED that Plaintiff’s Counsel’s Motion for Attorney Fees
Pursuant to Social Security Act Section 2601(b)(1) [#21] is GRANTED.
IT IS FURTHER ORDERED that Howard D. Olinsky be awarded $20,753.25 in
attorney’s fees to be remitted by Plaintiff from Plaintiff’s past-due benefits pursuant to the fee
agreement between Plaintiff and Mr. Olinsky.
IT IS FURTHER ORDERED that, upon receipt of the fee award, Mr. Olinksy refund to
Plaintiff the EAJA fees in the amount of $5,951.74.

SIGNED this 5th day of January, 2022.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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