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Vogth-Eriksen v. Berryhill

United States District Court, D. Connecticut

December 4, 2018

DIANE VOGTH-ERIKSEN
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

          RULING ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO 42 U.S.C. §406(B)(1) [DOC. #25]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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, 734.00.

         I. Background

         On May 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.

         On May 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].

         Plaintiff's 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.

         II. Legal Standard

         "Whenever 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) (footnote omitted).

         When 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.

         When 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)).

         "In 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 at 371.

         III. Discussion

         The 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.

         First, 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 the ...


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