Heffernan v. Astrue

87 F. Supp. 3d 351, 2015 U.S. Dist. LEXIS 16031, 2015 WL 541508
CourtDistrict Court, E.D. New York
DecidedFebruary 10, 2015
DocketNo. 12-cv-5410 (ADS)
StatusPublished
Cited by15 cases

This text of 87 F. Supp. 3d 351 (Heffernan 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
Heffernan v. Astrue, 87 F. Supp. 3d 351, 2015 U.S. Dist. LEXIS 16031, 2015 WL 541508 (E.D.N.Y. 2015).

Opinion

DECISION AND ORDER

SPATT, District Judge.

On August 21, 2010, the Plaintiff Brian Heffernan (the “Plaintiff’) filed for Social Security Disability benefits. He alleged a disability as of November 2009 due to chronic venous insufficiency, right foot ulcers, and bipolar disorder.

On December 2, 2010, the Defendant Commissioner of the Social Security Administration (the “SSA”) denied his application.

On September 20, 2011, the Plaintiff, represented by counsel, appeared at an administrative hearing before an Administrative Law Judge (“ALJ”), Bruce Mac-Dougall.

By Notice of Decision dated October 3, 2011, ALJ MacDougall denied the Plaintiffs claim based on a finding that he retained the residual functional capacity to perform sedentary work. The Plaintiff filed exceptions to the ALJ’s decision.

By Notice of Appeals Council Action dated October 11, 2012, the Appeals Council denied review, finding no reason to review the ALJ’s decision, thus making the ALJ’s October 3, 2011 Decision the “final” administrative decision on the Plaintiffs application for benefits.

The Plaintiff retained the Office of Christopher James Bowes (“Bowes”) to represent him in a federal court civil action challenging the final administrative decision on his claim. In exchange for those legal services, the Plaintiff agreed to pay 25% of his past due benefits as an attorney fee. (Contingency Fee Agreement, Bowes Deck, Exh. A.)

On October 26, 2012, the Plaintiff commenced this action pursuant to the Social Security Act, 42 U.S.C. § 405(g) and 1383(c)(3) to review the SSAs final decision.

On May 1, 2013, the parties filed a stipulation, pursuant to the fourth sentence of 42 U.S.C. § 405(g), agreeing to reverse the SSA’s decision denying the Plaintiffs claim and remand the claim for further administrative proceedings, including a new hearing and a new decision.

On May 2, 2013, the Court “So Ordered” the stipulation filed on May 1, 2013 and closed the case.

On May 6, 2013, judgment in accordance with that “So Ordered” stipulation was entered.

On July 29, 2013, the parties filed a stipulation, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, agreeing to award the Plaintiff $2,878.16 in attorney fees and $350 in costs, in full satisfaction of any claim under that statute. The EAJA award was designed to be without prejudice to any subsequent application for fees that counsel may make under 42 U.S.C. § 406(b).

On July 30, 2013, the Court “So Ordered” the stipulation filed on July 29, 2013.

On November 13, 2013, a remand hearing was held, at which time the Plaintiff was represented by Bowes.

On December 4, 2013, ALJ MacDougall issued a fully favorable decision to the Plaintiff, finding him disabled for the relevant time period and entitled to disability benefits.

Thereafter, the SSA issued a Notice of Decision dated July 7, 2014 in which it stated that the Plaintiff was entitled to [354]*354past due benefit payments from May 2010 through December 2013 totaling $112,287.90. The SSA further advised the Plaintiff that of this total award, it was withholding 25% of the past due benefits, $28,071.98, for payment of attorney fees.

On August 26, 2014, the SSA sent a Notice of Award to the Plaintiffs two children. In that award, the SSA advised the parties that it owed the Plaintiffs first child $50,240 in past due benefits, of which $12,560 was withheld for the attorneys’ fee payment.

As to the Plaintiffs second child, the SSA paid $6,196.50 in past due benefits.

On October 10, 2014, the Plaintiff moved pursuant to 42 U.S.C. § 406(b) for an order approving the contingent fee agreement. In particular, the Plaintiff seeks an order directing the SSA to award $15,100 out of funds withheld by it from the Plaintiffs past due recovery for the period covered by the December 4, 2013 decision as set forth in the July 7, 2014 and August 26, 2014 Notices of Award, subject to a reduction of the EAJA attorneys fees of $2,878.16 already received by Bowes. The net desired award of attorneys’ fees is $12,231.84.

I. DISCUSSION

“An award of attorneys’ fees under section 406(b)(1) of the Act is proper where: 1) there is a judgment in favor of the claimant; 2) the fee is awarded as part of the Court’s judgment; and 3) the reasonable fee does not exceed twenty-five percent of the total amount of past-due benefits awarded to the claimant.” Slaughter v. Astrue, No. 10-CV-3428 (DLI), 2014 WL 3585513, at *2 (E.D.N.Y. July 21, 2014).

Where, as here, “there is a contingency fee agreement in a successful social security case, the district court’s determination of a reasonable fee under § 406(b) must 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). “Factors considered in determining whether a fee request is reasonable include: 1) ‘whether the retainer was the result of fraud or overreaching;” 2) “whether the attorney was ineffective or caused unnecessary delay;” 3) “whether the fee would result in a windfall to the attorney in relation to the services provided;” and 4) “the risk of loss the attorney assumed by taking the case.’ ” Barbour v. Colvin, No. 12-CV-00548 (ADS), 2014 WL 7180445, at *1 (E.D.N.Y. Dec. 10, 2014) (quoting Kazanjian v. Astrue, No. 09 civ. 3678(BMC), 2011 WL 2847439, at *1 (E.D.N.Y. July 15, 2011) (citing Wells, 907 F.2d at 372))

Fees awarded under section 406(b)(1) are deducted from the claimant’s past-due benefits, and it is the role of the district court to determine the reasonableness of the fee. 42 U.S.C. § 406(b)(1). “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.” Devenish v. Astrue, 85 F.Supp.3d 634, 636, No. 12-CV-4567 (ADS), 2015 WL 332133, at *2 (E.D.N.Y. Jan. 24, 2015) (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.”).

Here, the proposed fee of $15,100 for 15.1 hours of work rendered before this Court, including the EAJA award, is well [355]*355within the 25% cap, which is $28,071.98.

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Bluebook (online)
87 F. Supp. 3d 351, 2015 U.S. Dist. LEXIS 16031, 2015 WL 541508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heffernan-v-astrue-nyed-2015.