Summary
approving an application for fees filed February 16, 2018 when the Notice of Award was dated October 24, 2017
Summary of this case from Daniel J. M. v. Comm'r of Soc. Sec.Opinion
6:15-CV-744 (MAD/CFH)
05-17-2018
REBECCA ROSE BROWN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
APPEARANCES: OLINSKY LAW GROUP 300 S. State Street Suite 420 Syracuse, New York 13202 Attorneys for Plaintiff SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 Attorneys for Defendant OF COUNSEL: HOWARD D. OLINSKY, ESQ. NATHANIEL V. RILEY, ESQ. JEREMY A. LINDEN, SAUSA JOSHUA L. KERSHNER, SAUSA
APPEARANCES:
OLINSKY LAW GROUP
300 S. State Street
Suite 420
Syracuse, New York 13202
Attorneys for Plaintiff SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Attorneys for Defendant
OF COUNSEL:
HOWARD D. OLINSKY, ESQ.
NATHANIEL V. RILEY, ESQ. JEREMY A. LINDEN, SAUSA
JOSHUA L. KERSHNER, SAUSA Mae A. D'Agostino, U.S. District Judge :
DECISION AND ORDER
Currently pending before the Court is Rebecca Rose Brown's ("Claimant") motion for an award of attorney's fees pursuant to 42 U.S.C. § 406(b). See Dkt. No. 22 at 1. The Acting Commissioner has not opposed this motion. See Dkt. No. 26 at 2. For the following reasons, the motion is granted.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner Nancy A. Berryhill will substitute for former Acting Commissioner Carolyn W. Colvin. See also 42 U.S.C. § 405(g) ("Any action instituted in accordance with this subsection shall survive not withstanding any change in the person occupying the office of Commissioner of Social Security or any vacancy in such office").
Pursuant to 42 U.S.C. § 406(b), a court may award reasonable attorney's fees to a successful claimant's attorney, provided that those fees do not exceed twenty-five percent of the amount of past-due benefits awarded to the claimant. See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002); Wells v. Sullivan, 907 F.2d 367, 370 (2d Cir. 1990). "[B]ecause a successful social security claimant evaluates and pays his own attorney, a court's primary focus should be on the reasonableness of the contingency agreement in the context of the particular case." Wells, 907 F.2d at 371. Section 406(b) does not displace any contingent-fee arrangement between the claimant and the attorney, but rather sets the ceiling for an award under any such agreement at twenty-five percent of the past-due benefits. Gisbrecht, 535 U.S. at 792-93. Where fee awards are made under both § 406(b) and the Equal Access to Justice Act ("EAJA"), the claimant's attorney must refund the smaller amount to the claimant. See id. at 796.
Here, counsel seeks payment of twenty-five percent of the past-due benefits owed. See Dkt. No. 22-1 at ¶ 9. Claimant's past-due benefits amount to $130,427, twenty-five percent of which is $32,606.75. See id. at ¶¶ 4, 7.
Counsel was previously awarded attorney's fees in the amount of $13,045.73 under the EAJA. See id. at ¶ 6. Counsel has indicated that, in the event that the Court awards fees pursuant to § 406(b), he will refund the smaller of the awards to Claimant. See id.; see also Gisbrecht, 535 U.S. at 794-95.
Counsel's itemized summary shows that counsel and his staff spent 87.2 hours representing Claimant at the administrative level and 73.8 hours representing Claimant in federal court. See Dkt. No. 22-1 at ¶ 10; Dkt. No. 22-4. Work performed at the administrative level is compensable under 42 U.S.C. § 406(a), not 42 U.S.C. § 406(b), and counsel has indicated that he will not be filing a petition for 42 U.S.C. § 406(a) fees. See Dkt. No. 22-1 at ¶ 5. By statute, 42 U.S.C. § 406(b) fees may be paid only for representation before a court. Counsel's 73.3 hours of attorney work amounts to a de facto hourly rate of $444.84. See Dkt. No. 26 at 2. The Court finds that $32,606.75 is reasonable, given the hours expended, the fact that counsel secured a favorable outcome for Claimant, and the Acting Commissioner's lack of opposition to the request. There is no evidence of fraud or overreaching, and an hourly rate of $444.84 would not be a windfall to counsel. See, e.g., Devaux v. Astrue, 932 F. Supp. 2d 349, 351 (E.D.N.Y. 2013) (holding that $386.00 per hour was reasonable); Patel v. Astrue, No. 10-CV-1437, 2012 WL 5904333, *4 (E.D.N.Y. Nov. 26, 2012) (holding that an hourly rate of $650 was reasonable); Filipkowski v. Barnhart, No. 05-CV-01449, 2009 WL 2426008, *2 (N.D.N.Y. Aug. 6, 2009) (rejecting the government's claim that an hourly rate of $743.30 amounted to a windfall). Thus, counsel's motion for attorney's fees pursuant to § 406(b) is granted.
Of the 73.8 hours dedicated to Claimant's case before the Court, 73.3 hours of work was performed by attorneys and 0.5 hours was performed by administrative support staff. See Dkt. No. 26 at 2. --------
Accordingly, after carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Claimant's motion for attorney's fees (Dkt. No. 22) is GRANTED in the amount of $32,606.75; and the Court further
ORDERS that counsel shall refund Claimant the sum of $13,045.73 previously awarded to Claimant under the EAJA; and the Court further
ORDERS that the Acting Commissioner is directed to take the steps necessary to cause the amount of $32,606.75 to be made payable to counsel from the fund of withheld past-due benefits; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of the Decision and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 17, 2018
Albany, New York
/s/ _________
Mae A. D'Agostino
U.S. District Judge