Opinion
Case No. 18-CV-2616 (FB)
05-25-2021
TERESA ZIPPRICH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Appearances: For the Plaintiff: DANIEL ADAM OSBORN Osborn Law, P.C. 295 Madison Avenue, 39th Floor New York, New York 10017 For the Defendants: JASON PECK Special Assistant U.S. Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201
MEMORANDUM AND ORDER Appearances:
For the Plaintiff:
DANIEL ADAM OSBORN
Osborn Law, P.C.
295 Madison Avenue, 39th Floor
New York, New York 10017 For the Defendants:
JASON PECK
Special Assistant U.S. Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201 BLOCK, Senior District Judge :
Having successfully obtained Social Security benefits for his client, the plaintiff's attorney seeks $21,333.75 under his contingency fee agreement. Such fees require court approval. See 42 U.S.C. § 406(b).
"When a contingent fee has been agreed to by the parties, the district court must determine whether the fee is reasonable." Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990). "While the court need not make mathematical calculations, it should, of course, determine whether the contingency percentage is within the 25% [statutory] cap; it should also consider whether there has been fraud or overreaching in making the agreement, and whether the requested amount is so large as to be a windfall to the attorney." Id.
The requested fee is 25% of past-due benefits. There is no evidence of fraud or overreaching. Counsel reasonably spent 52 hours obtaining a remand for his client; that results in an effective hourly rate of $410.26, which is well within the range of reasonable rates. See, e.g., Savage v. Comm'r, 2020 WL 3503218, at *2 (E.D.N.Y. June 29, 2020) (reducing effective hourly rate from $1,000 to $700).
Counsel has already received $9,000 under the Equal Access to Justice Act ("EAJA"). As he acknowledges, he must refund that amount to his client. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) ("Fee awards may be made under both [statutes], but the claimant's attorney must refund to the claimant the amount of the smaller fee." (internal quotation marks and alteration omitted)).
Accordingly, the Commissioner is ordered to disburse $21,335.75 to plaintiff's counsel. Upon receipt of those funds, counsel shall forthwith refund $9,000 to his client.
SO ORDERED.
/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge Brooklyn, New York
May 25, 2021