United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR ATTORNEY'S
FEES PURSUANT TO 42 U.S.C. §406(b)(1) [Doc.
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE.
Misty Vainwright (“plaintiff”) has filed a motion
for attorney's fees pursuant to 42 U.S.C.
§406(b)(1). [Doc. #31]. Defendant, Nancy A. Berryhill,
the Acting Commissioner of the Social Security Administration
(the “defendant” or the
“Commissioner”) has not responded to
plaintiff's motion. For the reasons articulated below,
plaintiff's Motion for Attorney's Fees Pursuant to 42
U.S.C. §406(b)(1) [Doc. #31] is
GRANTED in the amount of $12,
December 6, 2013, plaintiff applied for disability insurance
benefits claiming that she had been disabled since September
1, 2013. (Doc. #8, Certified Transcript of the Record,
Compiled on August 6, 2015, (hereinafter “Tr.”)
Tr. 174-76). Following a hearing before an Administrative Law
Judge (“ALJ”), the ALJ denied plaintiff benefits
on November 10, 2014. (Tr. 75- 95). After exhausting her
administrative remedies, plaintiff filed the Complaint in
this case on July 6, 2015. [Doc. #1]. On September 23, 2015,
the Commissioner filed her Answer and the official
transcript. [Doc. #8]. On December 17, 2015, plaintiff filed
her Motion for Judgment on the Pleadings, seeking to reverse
and/or remand the Commissioner's decision (“Motion
to Reverse”), along with a supporting memorandum. [Doc.
##15-16].On March 14, 2016, the Commissioner filed a
Motion to Affirm the Decision of the Commissioner
(“Motion to Affirm”). [Doc. #21]. On July 11,
2016, the undersigned issued a Recommended Ruling,
recommending that plaintiff's Motion to Reverse be
granted and that the Commissioner's Motion to Affirm be
denied. [Doc. #23]. On July 19, 2016, defendant filed an
objection to the Recommended Ruling [Doc. #24], to which
plaintiff filed a response. [Doc. #25]. On August 25, 2016,
Judge Janet C. Hall overruled defendant's objection, and
affirmed, adopted and ratified the Recommended Ruling. [Doc.
#26]. Judgment was entered on August 31, 2016. [Doc. #27].
November 16, 2016, plaintiff filed a stipulation for
allowance of fees in the amount of $4, 753.70 under the Equal
Access to Justice Act (“EAJA”). [Doc. #29]. Judge
Hall granted and so ordered the fee stipulation on November
17, 2016. [Doc. #29].
counsel represents that on September 20, 2016, the Appeals
Council vacated the final decision of the Commissioner and
remanded the case for another administrative hearing, which
was held on January 31, 2017, before ALJ John Aletta. See
Doc. #31-2 at 2. On March 10, 2017, ALJ Aletta found
plaintiff disabled as of September 1, 2013. See Id.
at 2-3. Plaintiff and each of her three minor children
received a Notice of Award dated June 21, 2017, delineating
the amounts each would receive as a result of the ALJ's
finding of disability. See Doc. ##31-3, 31-4. The Notices
state: “We usually withhold 25 percent of past due
benefits in order to pay the approved lawyer's
fee.” Doc. #31-3 at 7; Doc. #31-4 at 14, 18, 22. The
SSA withheld $9, 145.00 from plaintiff's past due
benefits, and $1, 188.25 from the past due benefits awarded
to each of plaintiff's three minor children, for a total
amount withheld of $12, 709.75. See id.
counsel now seeks an award of $12, 709.75 in attorney's
fees pursuant to 42 U.S.C. §406(b), and in accordance
with the contingency fee agreement executed by plaintiff on
May 26, 2015. See Doc. #31-3.
a court renders a judgment favorable to a claimant 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, but that fee may not exceed 25
percent of the total of the past-due benefits to which the
claimant is entitled.” Blizzard v. Astrue, 496
F.Supp.2d 320, 321-22 (S.D.N.Y. 2007) (quoting 42 U.S.C.
§406(b)(1)(A) (internal quotation marks omitted)).
Section “406(b) 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 such
arrangements as an independent check, to assure that they
yield reasonable results in particular cases.”
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002)
considering a fee application under section 406(b), “a
court's primary focus should be on the reasonableness of
the contingency agreement in the context of the particular
case; and the best indicator of the
‘reasonableness' of a contingency fee in a social
security case is the contingency percentage actually
negotiated between the attorney and client, not an hourly
rate determined under lodestar calculations.” Wells
v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990).
Ultimately, the attorney seeking the award “must show
that the fee sought is reasonable for the services
rendered.” Gisbrecht, 535 U.S. at 807.
determining the reasonableness of a fee sought pursuant to
section 406(b), the Court considers the following factors:
“(1) whether the requested fee is out of line with the
character of the representation and the results the
representation achieved; (2) whether the attorney
unreasonably delayed the proceedings in an attempt to
increase the accumulation of benefits and thereby increase
his own fee; and (3) whether the benefits awarded are large
in comparison to the amount of the time counsel spent on the
case.” Sama v. Colvin, No.
3:10CV01268(VLB)(TPS), 2014 WL 2921661, at *2 (D. Conn. June
25, 2014) (quoting Joslyn v. Barnhart, 389 F.Supp.2d
545, 546 (W.D.N.Y. 2005)).
the absence of a fixed-fee agreement, payment for an attorney
in a social security case is inevitably uncertain, and any
reasonable fee award must take account of that risk.”
Wells, 907 F.2d at 371. “Thus, a reduction in
the agreed-upon contingency amount should not be made
lightly[, ]” Blizzard, 496 F.Supp.2d at 325,
and is appropriate only “when [the court] finds the
amount to be unreasonable.” Wells, 907 F.2d at
Court begins with a review of the “U.S. District Court
Retainer Agreement and Assignment, ” signed by
plaintiff on May 26, 2015 (the “Agreement”).
[Doc. #31-3]. The Agreement provides for a presumptively
reasonable fee of “twenty-five percent (25%) of the
past due benefits due [plaintiff] and [her] family pursuant
to 42 U.S.C. §406 of the Social Security Act.”