Opinion
17-CV-728F
04-06-2021
WILLIAM S., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
APPEARANCES: LAW OFFICES OF KENNETH R. HILLER, PLLC Attorneys for Plaintiff KENNETH R. HILLER, and AMY C. CHAMBERS, of Counsel 6000 North Bailey Avenue Suite 1A Amherst, New York 14226 JAMES P. KENNEDY, JR. UNITED STATES ATTORNEY Attorney for Defendant Federal Centre 138 Delaware Avenue Buffalo, New York 14202 and ANDREA LAURA LECHLEITNER, Special Assistant United States Attorneys, of Counsel Social Security Administration Office of General Counsel 26 Federal Plaza Room 3904 New York, New York 10278
DECISION and ORDER
(consent) APPEARANCES: LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, and
AMY C. CHAMBERS, of Counsel
6000 North Bailey Avenue
Suite 1A
Amherst, New York 14226 JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
ANDREA LAURA LECHLEITNER,
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza
Room 3904
New York, New York 10278
JURISDICTION
On June 19, 2018, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. (Dkt. 16). The matter is presently before the court on Plaintiff's counsel's motion for approval of attorney fees under 42 U.S.C. § 406(b), filed September 16, 2019 (Dkt. 21) ("Fee Petition").
BACKGROUND
Plaintiff commenced this action on August 1, 2017, pursuant to Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the Commissioner of Social Security's final decision denying Plaintiff's application filed with the Social Security Administration ("SSA"), on November 14, 2012, for Supplemental Security Income ("SSI") under Title XVI of the Act ("disability benefits"). Opposing motions for judgment on the pleadings were filed by Plaintiff on March 27, 2018 (Dkt. 12), and by Defendant on March 30, 2018 (Dkt. 14). In a Decision and Order filed January 23, 2019 (Dkt. 17) ("D&O"), judgment on the pleadings was granted by the undersigned in favor of Plaintiff with the matter remanded to the Commissioner solely for calculation of benefits. On April 23, 2019, Plaintiff applied for fees in connection with the remand, under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA") (Dkt. 19-1), in the amount of $ 6,335.95 ("EAJA fee"), which amount the parties agreed to by stipulation filed April 24, 2019 (Dkt. 19), and approved by Text Order entered April 26, 2019 (Dkt. 19), with the EAJA fee received by Plaintiff's attorney on June 18, 2019. (Dkt. 21-2 ¶ 13). On July 8, 2019, the SSA issued a Notice of Award granting Plaintiff disability benefits including $ 58,679 in retroactive benefits, but making no mention of any amount withheld for payment of attorney's fees. Notice of Award (Dkt. 21-4). On September 16, 2019, Plaintiff filed the instant Fee Petition (Dkt. 21) pursuant to 42 U.S.C.§ 406(b), seeking $ 14,669.75 in attorney fees for 32.6 hours work doe an hourly rate of $ 450, and indicating the EAJA fee has been received. In response, the Commissioner advises it raises no objections to the Fee Petition. (Dkt. 26). No further reply was filed in support of the Fee Petition.
DISCUSSION
As relevant to the instant motion, the Act provides
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)(1)(A) ("§ 406"). Here, in retaining counsel in connection with her disability benefits application, Plaintiff executed a contingent Fee Agreement providing counsel with permission to apply for fees up to 25% of any retroactive benefits awarded under § 406 if Plaintiff's disability benefits application required litigation in federal court. Nevertheless, even if the requested attorney fee does not exceed the statutory 25% cap, "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).
A copy of the Fee Agreement is filed as Dkt. 21-3.
Where, as here, there exists an attorney-client contingent fee agreement, "§ 406 does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for court review of any such arrangements as an independent check to assure that they yield reasonable results in particular cases." Id. Contingent fee agreements are also entitled to some deference, Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990), in the interest in assuring that attorneys continue to represent clients such as the plaintiff. Gisbrecht, 535 U.S. at 805. Nevertheless, contingent fee agreements "are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits." Id. As such, "[w]ithin the 25 percent boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered." Id.
The Second Circuit Court of Appeals has identified three factors to be considered in determining whether to approve the full amount of attorney fees requested under a contingent fee agreement, including (1) whether the requested fee is within the 25% statutory cap; (2) whether there was any fraud or overreaching in making the contingent fee agreement; and (3) whether the requested fee is so large as to be a "windfall" to the attorney. Wells, 907 F.2d at 372. The court is also required to assess whether the requested fee is inconsistent with the character of the legal representation and the results achieved by legal counsel, as well as whether counsel effected any unreasonable delay in the proceedings to increase the retroactive benefits and, consequently, the attorney's own fee. Joslyn v. Barnhart, 389 F.Supp.2d 454, 456 (W.D.N.Y. 2005) (citing Gisbrecht, 535 U.S. at 808). Here, as stated, the Commissioner does not oppose the Fee Petition. Dkt. 26 at 5-6. Further, the amount of attorney fees requested does not exceed the statutorily permitted 25% of the retroactive disability benefits, and nothing in the record suggests there was any fraud or overreaching in making the contingent fee agreement and, accordingly, the court limits its review to whether the amount of fees requested in the Fee Petition is reasonable or would be a windfall to counsel.
Plaintiff's counsel requests as attorney fees $ 14,669.75, which is equal to the statutory 25 % cap based on the $ 58,679 retroactive disability benefits awarded Plaintiff. Dividing the requested fee of $ 14,669.75 by 32.6 hours Plaintiff documents spending on Plaintiff's case, Dkt. 21-2 at 2-3, results in an hourly rate of $ 450. When analyzing whether a fee award is reasonable or amounts to a windfall to the attorney, courts consider whether (1) the attorney's efforts were particularly successful, (2) the attorney expended effort through pleadings that were not boilerplate and arguments requiring research and issues of material fact, and (3) the attorney, based on his experience litigating Social Security matters, handled the case with efficiency. McDonald v. Comm'r of Soc. Sec., 2019 WL 1375084, at * 2 (W.D.N.Y. Mar. 27, 2019) (citing Wargo v. Colvin, 2016 WL 787960, at *2 (W.D.N.Y. Mar. 1, 2016)).
In the instant case, it cannot be denied that counsel's efforts in this matter were clearly successful as they resulted in an award of benefits to Plaintiff upon remand. Plaintiff's counsel asserts she expended a total of 32.6 hours representing Plaintiff in this matter, including, inter alia, reviewing the decision of the Administrative Law Judge ("ALJ") denying Plaintiff benefits at the administrative level, reviewing the administrative record, preparing and filing the complaint and motion to proceed in forma pauperis, preparing and filing certificate of service, researching, drafting, reviewing and filing the motion for judgment on the pleadings, along with a memorandum of law in support, and preparing and filing the EAJA motion. Dkt. 21-2 at 2-3. Given the amount and type of work required in this action, this rate would be about 50% of the hourly rate for fees awarded in similar cases. See, e.g., McDonald, 2019 WL 1375084, at * 2-3 (approving attorney fee award of $ 30,602.75 for 29.1 hours of work resulting in hourly rate of $ 1,051.64); Joslyn v. Barnhart, 389 F.Supp.2d 454, 455-56 (W.D.N.Y. 2005) (approving attorney fee award of $ 38,116.50 for 42.75 hours of work resulting in hourly rate of $ 891.61). In fact, the effective hourly rate is more consistent with cases where have reduced fees based on a determination that the cases required only a modest amount of work. See, e.g., Mitchell v. Astrue, 2019 WL 1895060, at * 5 (E.D.N.Y. Apr. 29, 2019) (awarding attorney fees at $ 500 hourly rate where the plaintiff's attorney expended only 1.6 hours on the case before the Commissioner agreed to remand); and Devenish v. Astrue, 85 F.Supp.3d 634, 638 (E.D.N.Y. 2015) (plaintiff's attorney never prepared any memorandum of law nor advanced any legal arguments because the matter was remanded to the SSA by stipulation, supporting § 406(b) attorney fee award reflecting reduction of hourly rate to $ 350 from $ 1000). In contrast, here, the record shows the Plaintiff's counsel reviewed the entire record and prepared the necessary pleadings, motions, and memoranda of law.
In these circumstances, the court finds the hourly rate of $ 450 is not unreasonable, such that the requested fees of $ 14,669.75 for 32.6 hours of work also is not unreasonable.
CONCLUSION
Based on the foregoing, Plaintiff's Fee Petition under § 406(b) (Dkt. 21) is GRANTED; Plaintiff is awarded $ 14,669.75 in fees to be paid from Plaintiff's retroactive benefits award. Plaintiff's counsel is directed to remit to Plaintiff the $ 6,335.95 received for the EAJA fee award. SO ORDERED.
/s/ Leslie G . Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE DATED: April 6th, 2021
Buffalo, New York