Devenish v. Astrue

85 F. Supp. 3d 634, 2015 U.S. Dist. LEXIS 8372, 2015 WL 332133
CourtDistrict Court, E.D. New York
DecidedJanuary 24, 2015
DocketNo. 12-cv-4567 (ADS)
StatusPublished
Cited by32 cases

This text of 85 F. Supp. 3d 634 (Devenish v. Astrue) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Devenish v. Astrue, 85 F. Supp. 3d 634, 2015 U.S. Dist. LEXIS 8372, 2015 WL 332133 (E.D.N.Y. 2015).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On September 12, 2012, the Plaintiff Keith Devenish (the “Plaintiff’) commenced this action pursuant to the Social Security Act, 42 U.S.C. § 405(g). The Plaintiff sought to reverse the decision of the Defendant Michael J. Astrue, the then-Commissioner of the Social Security Administration (the “Defendant”) denying the Plaintiffs application for Social Security disability benefits.

Presently before the Court is a motion by counsel for the Plaintiff, Christopher James Bowes (“Bowes”), for approval of attorneys’ fees of $12,300 pursuant to Section 406(b) of the Social Security Act. For the reasons set forth below, the Court reduces the requested fee to $5,145.

I. BACKGROUND

A. Underlying Facts

The Plaintiff is a former firefighter whose primary residence is in Massape-qua, New York. (Compl. at ¶ 4.) On October 15, 2010, the Plaintiff applied for Social Security disability benefits due to “reactive airway disease” and injuries to his lower back and left knee. (Id. at ¶ 6.)

On January 26, 2011, the Social Security Administration (“SSA”) denied the application. (Id. at ¶ 7.) The Plaintiff appealed the SSA decision. On September 8, 2011, there was a hearing before Administrative Law Judge (“ALJ”) Jay Cohen in Jericho, New York. (Id. at ¶ 8.)

On October 7, 2011, ALJ Cohen rendered a decision in which he denied the Plaintiffs claim for disability benefits because he found that the Plaintiff retained the capacity to perform sedentary work. (Id. at ¶ 9.) On July 10, 2012, the SSA Appeals Council declined to review ALJ Cohen’s determination. (Id. at ¶ 10.)

On July 10, 2012, the Plaintiff commenced this action appealing the Defendant’s decision.

By a February 20, 2013 stipulation, the parties agreed to (1) vacate the Defendant’s decision denying the Plaintiff disability benefits; and (2) remand the case for further administrative proceedings, including a new hearing and decision. (Dkt. No. 7.)

By a further May 30, 2013 stipulation, the parties agreed to award Bowes $2,400 in attorneys’ fees and $350 in costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, which reflected 14.7 hours of Bowe’s time. (Bowes Deck at ¶ 11.)

On October 1, 2013, ALJ Joseph Fara-guna found that the Plaintiff was disabled and entitled to disability benefits. (Bowes Decl. at ¶ 11.)

On February 11, 2014, the SSA issued a Notice of Decision awarding the Plaintiff [636]*636past-due benefits of $72,214. {Id. at Ex. C.) The SSA withheld $18,553, twenty-five percent of the Plaintiffs award, in the event that Bowes sought additional attorneys’ fees. {Id. at Ex. D.) According to the Notice, the SSA will pay the remainder of the $18,553 to the Plaintiff after attorneys’ fees are approved. {Id.)

In the present motion, Bowes moves for attorneys’ fees pursuant to 42 U.S.C. § 406(b) for $12,300 in connection with 14.7 hours of work he undertook on behalf of the Plaintiff. According to Bowes’s time records, Bowes spent this time conducting tasks, such as: (i) an initial review of records; (ii) discussions with the Plaintiff; (iii) additional review of the Plaintiffs “paperwork”; (iv) drafting and filing the complaint; (v) review of the administrative record; and (vi) preparing] a “fee demand letter.” {Id. at Ex. B) The time records list Bowes’s hourly rate as $189.56. Under this hourly rate, Bowes’s attorneys’ fees would be $2,691 plus costs of $350 for a total of $3,041.75.

However, the Plaintiff agreed to pay Bowes a contingency fee of twenty-five percent of all past due benefits as compensation for legal services. {Id. at Ex. A.) As described above, twenty-five percent of $72,214 is $18,553. {Id. at 21.)

Bowes acknowledges that $18,533 is “arguably ... somewhat disproportionate to the time expended,” and as such, seeks $14,700 in fees, which reflects a $1,000 hourly rate. {Id. at 21-23.) However, he states that his contingency fee award of $14,700 should be offset by $2,400 in attorneys’ fees that he was awarded under the EAJA for the same work. {Id. at ¶¶ 11, 24.) Thus, the Plaintiff seeks a total award of $12,300. {Id. at ¶ 24.)

The Defendant did not object to the Plaintiffs request but noted that attorneys are required to “obtain court approval of their fees, and courts are required to determine whether the amount of the fee requested is reasonable.” (Dkt. No. 16.)

II. DISCUSSION

Social Security Act § 406(b) provides that a court may award a “reasonable fee” “not in excess of 25% of the total of the past due benefits to which the claimant is entitled.” 42 U.S.C. § 406(b). The Second Circuit has held that the a court’s determination of whether fees requested under section 406(b) should “begin with the agreement, and the district court may reduce the amount called for by the contingency agreement only when it finds the amount to be unreasonable.” Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir.1990).

To determine whether a fee is “unreasonable,” a district court should consider: (i) “whether the contingency percentage is within the 25% cap”; (i) “whether there has been fraud or overreaching in making the agreement”; and (iii) “whether the requested amount is so large as to be a windfall to the attorney.” Id. (citation omitted); see also Barbour v. Colvin, No. 12-CV-00548 (ADS), 2014 WL 7180445, at *1 (E.D.N.Y. Dec. 10, 2014) (Spatt, J.) (same).

In addition, fee awards under both the EAJA and § 406(b) may be awarded, but the claimant’s attorney must refund the claimant the amount of the smaller fee. Id. (citing Porter v. Comm’r of Soc. Sec., No. 8:06-CV-1150 (GHL), 2009 WL 2045688, at *3 (N.D.N.Y. July 10, 2009)); see also Wells v. Bowen, 855 F.2d 37, 48 (2d Cir.1988) (“Once appropriate fees under 42 U.S.C. § 406(b) are calculated, the district court should order Attorney Hogg to return the lesser of either that amount or the EAJA award to his clients.”).

In the instant case, Bowes’s proposed fee of $14,700, including the EJA award, is within the twenty-five percent cap, which [637]*637is $18,553. (Bowes Decl. at ¶¶ 21-23.) Furthermore, there are no allegations of fraud or overreaching with respect to the retainer agreement. Therefore, the sole question for the Court is whether a fee of $14,700 for 14.7 hours of work would result in a windfall to Bowes.

There is no clear criteria for determining when an award would result in a windfall; however, courts in this Circuit had identified several releyant considerations:

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85 F. Supp. 3d 634, 2015 U.S. Dist. LEXIS 8372, 2015 WL 332133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devenish-v-astrue-nyed-2015.