Opinion
19-cv-0875-FB
11-02-2021
Cindy L. Muller Plaintiff, v. Commissioner of Social Security Defendant.
Appearances: For the Plaintiff: LEWIS BART INSLER Law Office of Lewis B. Insler For the Defendant: RICHARD P. DONOGHUE Sean P. Greene United States Attorney's Office
Appearances:
For the Plaintiff:
LEWIS BART INSLER
Law Office of Lewis B. Insler
For the Defendant:
RICHARD P. DONOGHUE
Sean P. Greene
United States Attorney's Office
MEMORANDUM AND ORDER
FREDERIC BLOCK Senior United States District Judge
The Social Security Administration (“SSA”) awarded Plaintiff Cindy L. Muller (“Muller”) $34,974.00 in past due benefits. Muller's counsel, Lewis Bart Insler (“Insler”), also obtained $6,670.85 in attorney's fees under the Equal Access to Justice Act (“EAJA”). Pursuant to a fee agreement, Muller now seeks the full amount of attorney's fees withheld by the SSA, totaling $8,743.50. See ECF No. 19-3. For the reasons below, Insler's fee request is granted.
This sum represents the benefits awarded after subtracting the $5,000.00 in fees sought by Stephen Jackel, the attorney who represented Muller at the administrative level. See ECF 19-1 at 2.
Title 42, United States Code, Section 406(b) entitles prevailing plaintiffs in Social Security actions to “reasonable [attorney's] fee[s] [that are] not in excess of 25 percent of the total past-due benefits to which the plaintiff is entitled.” The Supreme Court has held that 42 U.S.C. § 406(b)'s “reasonable fee” provision does not prohibit the use of contingency fee agreements, so long as they do not provide for a fee “in excess of 25 percent of the total past due benefits” and are “reasonable.” See Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002) (prescribing reasonableness review of contingency fee agreements). Courts in the Second Circuit weigh three factors when assessing the reasonableness of a fee agreement: (1) whether the proposed fee is below the 25% statutory maximum; (2) whether the contingency fee agreement is the product of fraud or attorney overreach; and (3) whether the requested amount is so large as to be a windfall to the attorney. Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990).
Here, Insler requests 25% of the total past-due benefits Muller was awarded, and there is no allegation of fraud. Thus, the only remaining question is whether a de facto hourly rate of $255.21 for 34.26 hours of work would constitute a “windfall” to Insler. It would not. The hourly rate of $255.21 for attorney work is well within the range that this Court has found to be reasonable in Social Security cases and therefore is not a windfall. See Patruno v. Berryhill, 2021 WL 1091900, at *1 (E.D.N.Y. March 22, 2021).
CONCLUSION
Muller's motion is GRANTED. The Commissioner of the SSA is
ORDERED to disburse $8,743.50 to Insler and the remainder to Muller pursuant to 42 U.S.C. § 406(b). Upon receipt of these funds, Insler is DIRECTED to return the $6,670.85 awarded under the EAJA to Muller.
SO ORDERED.