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.
Diane Vogth-Eriksen ("plaintiff") has filed a
motion for attorney's fees pursuant to 42 U.S.C.
§406(b)(1). [Doc. #25]. 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. #25]
is GRANTED in the amount of $22,
17, 2013, plaintiff applied for disability insurance benefits
claiming that she had been disabled since March 6, 2013.
(Doc. #10, Certified Transcript of the Record, Compiled on
July 28, 2016, (hereinafter "Tr.") 191). Following
a hearing before an Administrative Law Judge
("ALJ"), the ALJ denied plaintiff benefits on
February 10, 2015. (Tr. 17-36). After exhausting her
administrative remedies, plaintiff filed the Complaint in
this case on July 5, 2016. See Doc. #1. On October
10, 2016, the Commissioner filed her Answer and the official
transcript. See Doc. #11. On December 12, 2016,
plaintiff filed her motion seeking to reverse and/or remand
the Commissioner's decision ("Motion to
Reverse"), along with a supporting memorandum.
See Doc. #15. On February 21, 2017, the Commissioner
filed a Motion for Entry of Judgment Under Sentence Four of
42 U.S.C. §405(g) with Reversal and Remand of the Cause
to the Defendant. See Doc. #21. On February 22,
2017, the undersigned issued a Ruling, granting the
Commissioner's motion to remand the case for further
proceedings, and denying as moot plaintiff's Motion to
Reverse. See Doc. #21. Judgment was entered on
February 23, 2017. See Doc. #22.
16, 2017, plaintiff filed a stipulation for allowance of fees
in the amount of $7, 200.00 and costs in the amount of
$400.00 under the Equal Access to Justice Act
("EAJA"). [Doc. #23]. The undersigned granted the
fee stipulation on May 18, 2017. [Doc. #24].
counsel represents that plaintiff has prevailed on remand and
has been awarded $90, 936.00 in benefits. See Doc.
#25 at 1-2. Plaintiff's counsel includes with her motion
a notice from the Northeastern Program Service Center of the
Social Security Administration which states: "We usually
withhold 25 percent of past due benefits in order to pay the
approved lawyer's fee. We withheld $22, 734.10 from your
benefits in case we need to pay the representative."
Doc. #25-1 at 1. Plaintiff's counsel now seeks an award
of $22, 734.10 in attorney's fees pursuant to 42 U.S.C.
§406(b), and in accordance with the contingency fee
agreement executed by plaintiff on November 30, 2016.
See Doc. #25-2.
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) (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) (quotation marks and citation omitted)).
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. Such
a reduction is appropriate only "when [the court] finds
the amount to be unreasonable." Wells, 907 F.2d
Court begins with a review of the "Contingent Fee
Agreement[, ]" signed by plaintiff on November 30, 2016
(the "Agreement"). [Doc. #25-2]. The Agreement
provides for a presumptively reasonable fee of
"twenty-five percent (25%) of the past due
benefits[.]" Id. Considering the plain language
of the Agreement, and the factors recited in Sama,
the requested fee is reasonable.
there is no evidence that the proposed fee is out of line
with the "character of the representation and the
results the representation achieved." Sama,
2014 WL 2921661, at *2. Plaintiff's counsel achieved a
fully favorable result for plaintiff by securing a remand to