Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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REPORT AND
RECOMMENDATION
20-CV-3187 (WFK)(MMH)
NADINE CATHERINE LABARBERA,
Plaintiff,
-against-
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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MARCIA M. HENRY, United States Magistrate Judge:
Plaintiff Nadine Catherine LaBarbera commenced this action against Defendant
Commissioner of Social Security, alleging that Defendant erroneously denied her application
for Social Security Disability benefits under the Social Security Act, 42 U.S.C. §§ 301 et seq.
(See generally Compl., ECF No. 1.)1 The Court granted the parties’ stipulation to remand to
the Social Security Administration (the “SSA”) for further proceedings, and Plaintiff
eventually was awarded disability benefits. Before the Court is Plaintiff’s counsel Howard D.
Olinsky and his firm Olinsky Law Group’s (“Olinsky”) motion for attorney fees, pursuant to
42 U.S.C. § 406(b). 	(Mot., ECF No. 20.) 	Defendant has not responded to the motion. 	The
1 All citations to documents filed on ECF refer to the ECF document number and pagination in the
ECF header.
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Honorable William F. Kuntz, II referred the motion for report and recommendation. For the
reasons set forth below, the Court respectfully recommends that the motion should be granted.
I. 	BACKGROUND
A. 	Procedural History
As alleged in the Complaint, Plaintiff is disabled and is entitled to Social Security
Disability Insurance benefits. (See Compl., ECF No. 1 at 2.) Plaintiff filed an application for
Social Security Disability benefits, which an administrative law judge (“ALJ”) denied on April
2, 2019. (See id. Ex. A, ECF No. 1-1 at 2.) Plaintiff requested a review of the ALJ’s decision
with the Appeals Council of the SSA; on May 14, 2020, the Appeals Council denied Plaintiff’s
request. (See id.)
On July 8, 2020, Plaintiff retained Olinsky to represent her in federal court to appeal
the denial of benefits. (See Olinsky Aff. Ex. A, ECF No. 20-2 at 2–3.) Under the terms of the
contingency fee agreement, “if [Olinsky] wins [Plaintiff’s] case in federal court, which means
that either [Plaintiff’s] case is remanded to the SSA for further proceedings . . . and/or the
federal court enters a directed finding that [Plaintiff] [is] disabled, [Olinsky] will petition for
an award of attorney fees for work performed at the federal court(s) pursuant to the Equal
Access to Justice Act (‘EAJA’).” (Id. at 2.) Plaintiff also assigned her interest in any EAJA
fees to Olinsky. (Id.) The contingency fee agreement also provides that Olinsky “has the right
to ask the court to award 25% of [Plaintiff’s] past-due benefits” pursuant to Section 406(b) for
representing her in federal court. (Id.) In addition, Plaintiff and Olinsky agreed that if Olinsky
was awarded “a fee up to 25% of the past due benefits” under Section 406(b), then Olinsky
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would “credit the amount of the EAJA fee in addition to the [Section 406(b)] fee” and would
return any excess EAJA amounts to Plaintiff. (Id.)
Plaintiff initiated this lawsuit on July 16, 2020, alleging that the ALJ’s April 2, 2019
decision, affirmed by the Appeals Council, was “not supported by substantial evidence and
[was] contrary to law and regulation.” (Compl., ECF No. 1 ¶ 8.) After the Court granted an
extension, Plaintiff served a motion for judgment on the pleadings on March 31, 2021. (Feb.
4, 2021 Order, ECF No. 10; see also Pl.’s Ltr., ECF No. 11.) 	On May 12, 2021, the parties
jointly moved to reverse the Commissioner’s April 2, 2019 final decision and to remand the
matter to the SSA for further administrative proceedings. (ECF No. 15.) The Court granted
the motion that same day, and entered judgment reversing and remanding on July 27, 2021,
pursuant to 42 U.S.C. § 405(g). 2 	(See May 12, 2021 Order; ECF No. 16.) 	On remand, the
Commissioner found that Plaintiff is disabled and therefore eligible for benefits. (See Olinsky
Aff., ECF No. 20-1 ¶ 8; see also id. Ex. B, ECF No. 20-3 at 3.)
B. 	Attorneys’ Fees
On August 23, 2021, the Court granted the parties’ stipulated request that Plaintiff
should be awarded $4,961.46 in attorneys’ fees and expenses and $400.00 in costs pursuant to
the EAJA. (Aug. 23, 2021 Order, ECF No. 19.) The Court further ordered that those attorneys’
fees should be paid directly to Olinsky “if plaintiff has agreed to assign her rights to EAJA
2 See 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.”).
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fees to her attorney, and provided that plaintiff owes no debt that is subject to offset under the
Treasury Offset Program.” 3 (Id.)
In a Notice of Change in Benefits letter dated March 13, 2022 (the “Notice”), the SSA
informed Plaintiff that she would receive past-due disability benefits, that it had withheld
$10,413.00 or 25% of those past-due benefits to pay her approved representative, and that her
lawyer must petition the Court to receive a Section 406(b) award of attorneys’ fees. (See Pl.’s
1st Supp., ECF No. 22-1 at 3.) The Notice was faxed to her representatives before the SSA,
Christopher Latham and J. Anklowitz, on June 23, 2022. (Id. at 1.)
Nearly two years later, in September 2024, the SSA issued two letters related to
Olinsky’s attorneys’ fees. First, in a letter to Olinsky dated September 1, 2024 (the “Attorney
Letter”), the SSA directed Olinsky to confirm whether he had requested, would request, or was
waiving attorneys’ fees for representing Plaintiff in this action. 	(See Pl.’s 2d Supp. Ex. A.,
ECF No. 24-1 at 2–3). 	Olinsky received this letter on September 3, 2024. 	(See id. at 2.)
Second, by letter dated September 8, 2024 (the “Fee Approval Letter”), the SSA notified
Plaintiff that it had approved a fee of $10,413.00 to pay Plaintiff’s representative for the work
on her Social Security claim. 	(Olinsky Aff. Ex. B, ECF No. 20-3 at 3.) 	The Fee Approval
Letter also informed Plaintiff that: (1) the SSA had withheld a total of $16,136.50 in benefits
due to pay her legal expenses; (2) $10,067.00 had been or would be paid Latham and
Anklowitz; and (3) the SSA was withholding the balance of $6,069.50 “in case Howard
Olinsky asks the court to approve a fee for work that was done before the court.” (Id.)
3 See 31 U.S.C. § 3716(c)(3); 31 C.F.R. § 285.4.
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Olinsky emailed Anklowitz on September 12, 2024, asking whether his firm had
received any fees. 	(See Pl.’s 2d Supp. Ex. B, ECF No. 24-2 at 3–4.) 	Anklowitz responded
that his firm had requested and been approved for $10,413.00 but had only received $4,324.50,
and attached the Notice. (See id. at 2.) Anklowitz’s firm emailed Olinsky the Fee Approval
Letter on November 18, 2024. (Olinsky Aff. Ex. B, ECF No. 20-3 at 2.)
On November 27, 2024, Olinsky filed the instant motion requesting attorneys’ fees in
the amount of $6,069.50, pursuant to 42 U.S.C. § 406(b). 	(Mot., ECF No. 20.) 	To date,
Defendant has not responded to Plaintiff’s motion. Judge Kuntz referred the motion for report
and recommendation. (Dec. 5, 2024 Order Referring Mot., ECF No. 21.) In response to the
Court’s orders, Plaintiff supplemented the motion on July 22, 2025 and July 29, 2025. 	(See
July 18, 2021 Order; Pl.’s 1st Supp., ECF No. 22; July 23, 2021 Order; Pl.’s 2d Supp., ECF
No. 24.)
II. 	DISCUSSION
“[Section 406(b) of the Social Security Act] authorizes a court that enters a judgment
favorable to a social security claimant to award, ‘as part of its judgment,’ a reasonable fee for
counsel’s representation before the court, not to exceed 25% of the total past-due benefits to
which the claimant is entitled ‘by reason of such judgment.’” 	Sinkler v. Berryhill, 932 F.3d
83, 86 (2d Cir. 2019) (quoting 42 U.S.C. § 406(b)(1)(A) and citing Gisbrecht v. Barnhart, 535
U.S. 789, 807–08 (2002)). 	“[W]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).
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Further, “the EAJA provides additional fees if the Commissioner’s position was not
‘substantially justified.’” LaFrance v. Saul, No. 17-CV-4709 (CM)(SN), 2019 WL 4677041,
at *1 (S.D.N.Y. Aug. 26, 2019) (quoting Gisbrecht, 535 U.S. at 794–96), R. & R. adopted by
2019 WL 4565074 (S.D.N.Y. Sept. 20, 2019); see also 28 U.S.C. § 2412. “Fee awards may
be made under both prescriptions, but the claimant’s attorney must refund to the claimant the
amount of the smaller fee.” Gisbrecht, 535 U.S. at 796.
A. 	Timeliness
“Motions for attorneys’ fees under [Section 406(b)] must be filed within the 14-day
filing period prescribed by Rule 54(d) of the Federal Rules of Civil Procedure.” 	Miller v.
Comm’r of Soc. Sec., No. 20-CV-5214 (PKC), 2023 WL 5002789, at *2 (E.D.N.Y. Aug. 4,
2023) (citing Sinkler, 932 F.3d at 91). 	“Where . . . a Social Security claimant secures a
judgment reversing a denial of benefits and remanding for further proceedings, the fourteen-
day filing period is tolled until the claimant receives notice of the amount of any benefits
award.” Sinkler, 932 F.3d at 85. “Once counsel receives notice of the benefits award—and,
therefore, the maximum [attorneys’] fees that may be claimed—there is no sound reason not
to apply Rule 54[d](2)(B)’s fourteen-day limitations period to a § 406(b) filing[.]” Id. at 88;
see also id. at 89 n.5 (noting the presumption that “a party receives communications three days
after mailing”). 	Furthermore, “district courts are empowered to enlarge that filing period
where circumstances warrant.” Id. at 89.
Olinsky’s motion is timely based on his awareness of Plaintiff’s past-due benefits.
Hanlon v. Comm’r of Soc. Sec., No. 18-CV-7090 (PKC), 2022 WL 103640, at *2 (E.D.N.Y.
Jan. 11, 2022) (“This Court and others have concluded that ‘starting the 14-day period
when counsel receives notice of the benefit award is more consistent with Sinkler’s logic,
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because until counsel receives notice of the award, the amount of the award remains as-yet-
unknown to the relevant party filing the § 406(b) motion.’”) (quoting Williams v. Comm’r of
Soc. Sec., No. 18-CV-4734 (PKC), 2021 WL 4480536, at *2 (E.D.N.Y. Sept. 30, 2021)
(cleaned up)). Olinsky contends that he first learned about a favorable agency decision when
he received the Attorney Letter on September 3, 2024, seeking his intentions for an attorneys’
fee application. 	(Pl.’s 2d Supp., ECF No. 24 at 1.) 	That was two years after Plaintiff
presumably received the Notice stating her amounts of past-due benefits. (See Pl.’s 1st Supp.,
ECF No. 22-1 at 2.) 	As Olinsky correctly notes, however, the Attorney Letter “does not
provide an amount of past due benefits, an amount withheld for payment of [attorneys’] fees,
or any other information that [he] could use to request approval of a fee.” (Id.) Under these
circumstances, Olinsky appropriately refrained from seeking attorneys’ fees. See, e.g., Greene
v. Acting Comm’r of Soc. Sec., No. 21-CV-8550 (NSR)(AEK), 2025 WL 3080289, at *3
(S.D.N.Y. May 5, 2025) (counsel could not have filed motion for § 406(b) attorneys’ fees
because, without the notice of award, “he did not know the amount of past-due benefits”),
R. & R. adopted by 2025 WL 3079953 (S.D.N.Y. Nov. 4, 2025); Mcenery v. Comm’r of Soc.
Sec., No. 21-CV-7827 (CS), 2024 WL 4815849, at *3 (S.D.N.Y. Nov. 18, 2024) (“[Counsel]
could not have filed a [Section 406(b)] motion for [attorneys’] fees until he received notice of
Plaintiff’s award because he needed to know Plaintiff’s past-due benefits to calculate his
maximum allowable fee.”).
Further, although the record is not clear exactly when Anklowitz sent Olinsky a copy
of the Notice, it is undisputed that Anklowitz told Olinsky that Anklowitz’s firm (not
Olinsky’s) had been approved for the full $10,413.00 in attorneys’ fees (i.e., the full 25% of
past-due benefits). (Pl.’s 2d Supp. Ex. B, ECF No. 24-2 at 2.) Understandably, at that point
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Olinsky did not request attorneys’ fees because Plaintiff would have had to pay out-of-pocket
for any amount awarded to Olinsky above the 25% threshold—likely in violation of their
retainer agreement capping fees at 25%. (Pl.’s 2d Supp., ECF No. 24 at 2; see Olinsky Aff.
Ex. A, ECF No. 20-2 at 2.) Only after Olinsky received the Fee Approval Letter on November
18, 2024 did he learn that his portion of the withheld past-due benefits was available for an
attorneys’ fees award. (Pl.’s 2d Supp., ECF No. 24 at 3.) Olinsky then filed the instant motion
nine days later, on November 27, 2024. (Olinsky’s Mot., ECF No. 20.) The Court therefore
finds that Olinsky timely moved for a Section 406(b) fee award less than 14 days after the
earliest date he could have received notice of Plaintiff’s benefits award. See Greene, 2025 WL
3080289, at *2–3.
Even if the Court found that the 14-day period for filing a fee award started upon
Plaintiff’s receipt of the Notice, the circumstances warrant an enlargement of the 14-day
period. 	First, “there would be no prejudice to the opposing party, the Social Security
Administration, because it would not be paying [counsel’s] fee to begin with. That fee would
be paid by [Plaintiff] out of her past-due benefits, and it can hardly be prejudicial for a client
to pay her attorney a reasonable, pre-agreed fee.” Saunders v. Comm’r of Soc. Sec., No. 19-
CV-22 (RA), 2024 WL 4696022, at *3 (S.D.N.Y. Nov. 6, 2024) (citing Sinkler, 932 F.3d at
89). Additionally, “[t]he record reflects that Counsel submitted its request for attorneys’ fees
. . . within fourteen days of receipt of the [Fee Approval Letter] . . . and there is no evidence
before the Court, nor does the Commissioner raise any arguments rebutting Counsel’s assertion
that it never received the Notice of Award from the SSA.” Caraballo v. Comm’r of Soc. Sec.,
No. 19-CV-1160 (MKB), 2025 WL 2576700, at *2 n.4 (E.D.N.Y. Sept. 6, 2025). Given these
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circumstances, the Court exercises its discretion to “enlarge th[e] filing” period for the motion
and deems it timely. Sinkler, 932 F.3d at 89.
B. 	Reasonableness
1. 	Contingency Fee & Hourly Rate
When reviewing Section 406(b) attorneys’ fees applications where claimants retained
counsel pursuant to a contingency agreement, courts determine: (1) whether the requested
amount exceeds the statutory 25% cap; (2) whether there was fraud or overreaching in the
making of the agreement; and (3) whether the requested amount is so large as to be a windfall
to the attorney. Wells v. Sullivan, 907 F.2d at 372. Courts may properly consider the following
factors in the reasonableness analysis: (1) “the character of the representation and the results
the representative achieved,” especially if the representation is “substandard”; (2) whether the
attorney is responsible for undue delay; and (3) whether the benefits to counsel are large
compared to the amount of time spent on the case. Fields v. Kijakazi, 24 F.4th 845, 853 (2d
Cir. 2022) (citing Gisbrecht, 535 U.S. at 808 and Wells v. Sullivan, 907 F.2d at 372).
The Court finds that the requested attorneys’ fees award pursuant to the contingency
fee agreement is reasonable. Olinsky seeks $6,069.50 in attorneys’ fees pursuant to 42 U.S.C.
§ 406(b)(1) for representing Plaintiff in this action—i.e., the balance of Plaintiff’s past-due
withheld benefits remaining after Latham and Anklowitz were awarded $10,413.00. 	(See
Olinsky Aff., ECF No. 20-1 ¶¶ 4–7.) Plaintiff retained Olinsky pursuant to a 25% contingency
fee agreement, and the requested fees accumulated during Olinsky’s advocacy for Plaintiff in
this action. (See Olinsky Aff. Ex. A, ECF No. 20-2 at 2–3; see also id. Exs. C to E, ECF Nos.
20-4 to 20-6.) Based on the Notice and Fee Approval Letter, Olinsky’s requested attorneys’
fees do not exceed 25% of Plaintiff’s total past-due benefits. Further, nothing in the record
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indicates any fraud or overreaching in Olinsky and Plaintiff coming to an agreement regarding
contingency fees. Therefore, this contingency fee is reasonable.
Additionally, Olinsky’s de facto hourly rate is reasonable. Olinsky seeks payment for
27.3 hours of work—that is, 20.5 attorney hours and 6.8 paralegal hours, for an effective hourly
rate of $262.90 for attorneys. (See Olinsky Aff., ECF No. 20-1 ¶ 9.) 4 Olinsky did not cause
any undue delay in representing Plaintiff: the summons and complaint were served promptly;
Olinsky’s single request for additional time to serve the motion for judgment on the pleadings
was justified and reasonable; and as noted, the instant motion was timely filed upon Olinsky
receiving the Fee Approval Letter stating the available funds for payment for his fee award.
(ECF Nos. 6, 9, 18.) 	Courts have found comparably calculated de facto hourly rates to be
reasonable for similar work on plaintiffs’ appeals of SSA decisions. See, e.g., Long v. Comm’r
of 	Soc. 	Sec., 	No. 18-CV-1146 	(PKC), 	2020 	WL 	6545904, 	at 	*3 	(E.D.N.Y 	Nov. 	6,
2020) (deducting paralegal work at the rate of $100 per hour to calculate the effective hourly
attorney rate); Caraballo, 2025 WL 2576700, at *2 n.5 (calculating a de facto hourly rate of
$269.20 based on a similar calculation, and collecting cases). The Court thus recommends a
finding that Olinsky’s proffered rates are reasonable.
2. 	Windfall
“In determining whether there is a windfall that renders a § 406(b) fee in a particular
case unreasonable, courts must consider more than the de facto hourly rate.” Fields, 24 F.4th
at 854. 	Instead, in evaluating whether “a relatively high hourly rate” is a windfall “in the
4 The Court calculates the de facto hourly rate as $263.92 based on the following formula:
($6,090.50 requested fees – $680 ($100 x 6.8 paralegal hours)) / 20.5 attorney hours. However,
the Court will use Olinsky’s calculations as requested.
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context of any given case,” courts should assess: (1) “the ability and expertise of the lawyers
and whether they were particularly efficient,” (2) “the nature and length of the professional
relationship with the claimant—including any representation at the agency level,” (3) “the
satisfaction of the disabled claimant,” and (4) “how uncertain it was that the case would result
in an award of benefits and the effort it took to achieve that result.” Id. at 854–55.
The Court finds that the requested award is not an unreasonable windfall to counsel.
Id. 	First, regarding counsel’s ability, expertise, and efficiency, the 27.3 hours billed were
warranted given Olinsky’s substantial expertise in representing plaintiffs in Social Security
disability cases. See, e.g., Torres v. Comm’r of Soc. Sec., No. 20-CV-4359 (PKC), 2025 WL
2855356, at *3 (E.D.N.Y. Oct. 8, 2025) (noting Olinsky’s expertise in Social Security
disability law for over 30 years); Caraballo, 2025 WL 2576700, at *3 (noting that Olinsky
specializes in litigating social security disability claims). 	Since being retained, Olinsky
reviewed the administrative record, moved for judgment on the pleadings, and obtained a
reversal of the Appeal Council’s decision and stipulation of remand. (See May 12, 2021 Order;
ECF No. 16.) Plaintiff subsequently secured past-due benefits. (Pl.’s 1st Supp., ECF No. 22-
1 at 2.) The relatively few hours billed for this successful outcome is consistent with the work
of an experienced Social Security practitioner. Figueroa v. Comm’r of Soc. Sec., No. 22-CV-
3759 (SLC), 2024 WL 5039633, at *3 (S.D.N.Y. Dec. 9, 2024) (collecting cases reflecting an
average of at least 30 hours expended in Social Security appeals in district courts).
Accordingly, this factor does not warrant any downward adjustment.
That said, the nature of Olinsky’s attorney-client relationship with Plaintiff could
support a reduction in attorneys’ fees. 	In Fields, the Second Circuit decided that “the
significant investment of time and effort in [Plaintiff’s] case at the agency level further enabled
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[counsel] to operate with efficiency in the federal courts” because “[counsel] represented
[Plaintiff] since the start of agency proceedings in 2011, advocating on his behalf during four
separate hearings before ALJs and in multiple petitions to the Appeals Council.” Fields, 24
F.4th at 855. In contrast, Olinsky’s professional relationship with Plaintiff is less developed.
Latham and Anklowitz represented Plaintiff before the SSA, after Plaintiff’s past-due benefits
began to accrue in 2019, and again after remand to the SSA in 2021. Plaintiff retained Olinsky
to represent her in this action in 2020 only after the Appeals Council of the SSA affirmed the
ALJ’s denial of Plaintiff’s application. 	(Olinsky Aff. Ex. A, ECF No. 20-2 at 3.) 	As such,
Olinsky’s comparatively short period of representing Plaintiff may not amount to the
significant attorney-client relationship that enabled Olinsky to efficiently represent Plaintiff in
the federal court. 	See, e.g., Figueroa, 2024 WL 5039633, at *4 	(reducing attorneys’ fees
because counsel “did not represent Plaintiff during the entire agency proceedings”); see also
Nashir v. Berryhill, No. 18-CV-767 (HKS), 2023 WL 2815003, at *2 (W.D.N.Y. Apr. 5, 2023)
(“Given that counsel has represented plaintiff for approximately half of the time that past due
benefits were accruing, the Court finds it appropriate to reduce counsel’s award . . . .”). That
said, “it reasonably might have taken Olinsky slightly longer than the attorney in Fields to
review the administrative record” given the duration of his working relationship with
Plaintiff. 	See Torres, 2025 WL 2855356, at *3 (citing Velasquez v. Comm’r of Soc. Sec.,
No. 21-CV-0892 	(PKC), 	2025 	WL 	1249604, 	at 	*4 	(E.D.N.Y. 	Apr. 	30, 	2025)).
Further, Olinsky requests only $6,069.50 of the total $16,136.50 in potential fees withheld by
the SSA precisely because Latham and Anklowitz were approved for the full amount of
$10,413.00 for their representation. 	(Olinsky Aff. Ex. B, ECF No. 20-3 at 3.) 	Overall,
therefore, this factor does not warrant any downward adjustment of Olinsky’s fees.
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Third, Plaintiff’s satisfaction with her disability benefits award supports the requested
attorneys’ fees. 	“Although there is no submission from Plaintiff supporting or opposing
[Olinsky’s] request for fees, Plaintiff received a very favorable result from this action; she was
awarded benefits for the entirety of her alleged disability period.” Munoz v. Comm’r of Soc.
Sec., No. 20-CV-2496 (KAM), 2023 WL 5310742, at *3 (E.D.N.Y. Aug. 17, 2023). “While
Plaintiff’s counsel did not handle the administrative proceedings before the Social Security
Administration, counsel was instrumental in securing a favorable result on appeal, and there is
no indication that Plaintiff was dissatisfied with counsel’s representation.” Mcenery, 2024 WL
4815849, at *4. 	“Because these results are consistent with the relief Plaintiff sought by
retaining 	[Olinsky], 	the 	Court 	safely 	presumes 	Plaintiff 	is 	satisfied 	with 	[Olinsky]’s
representation, and no downward adjustment is required.” 	Giorgio v. Comm’r of Soc. Sec.,
No. 21-CV-736 (EK)(MMH), 2025 WL 504537, at *4 (E.D.N.Y. Feb. 15, 2025), R. & R.
adopted by 2025 WL 753867 (E.D.N.Y. Mar. 10, 2025).
Finally, the Court finds that the uncertainty regarding this action’s success also supports
the conclusion that the requested attorneys’ fees are not a windfall to Olinsky. “‘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.’” Fields, 24 F.4th at
855–56 (quoting Wells v. Sullivan, 907 F.2d at 371). Although counsel in this case succeeded
quickly—the parties 	stipulated to remand less than one year after Plaintiff filed her
Complaint—this 	case 	was 	not 	less 	risky 	than 	other 	similar 	SSA 	cases. 	Plaintiff
retained Olinsky more than four years ago and, at that point, “there was no guarantee that he
would be paid for his work.” 	Brockington v. Comm’r of Soc. Sec., No. 21-CV-2178
(LGS)(VF), 2024 WL 3639219, at *4 (S.D.N.Y. June 28, 2024), R. &. R. adopted by 2024 WL
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3639192 (S.D.N.Y. Aug. 2, 2024). 	Therefore, the fourth factor also does not warrant a
downward adjustment.
For these reasons, the Court respectfully recommends that Olinsky should be awarded
attorneys’ fees in the amount of $6,069.50 pursuant to 42 U.S.C. § 406(b).
C. 	EAJA Attorneys’ Fees Award
“Once appropriate fees under 42 U.S.C. § 406(b) are calculated, the district court
should order [plaintiff’s counsel] to return the lesser of either that amount or the EAJA award
to his clients.” Wells v. Bowen, 855 F.2d 37, 48 (2d Cir. 1988). “[A]n EAJA award offsets an
award under Section 406(b), so that the amount of the total past-due benefits the claimant
actually receives will be increased by the EAJA award up to the point the claimant receives
100 percent of the past-due benefits.” Gisbrecht, 535 U.S. at 796 (cleaned up).
Pursuant to the retainer agreement, Plaintiff agreed that “if counsel becomes entitled to
a fee up to 25% of the past due benefits . . . that counsel will credit the amount of the EAJA
fee in addition to the [Section 406(b)] fee and will return any excess EAJA amounts not
authorized, to [Plaintiff].” 	(Olinsky Aff. Ex. A, ECF No. 20-2 ¶ 3.) 	Olinsky confirms that,
upon receipt of the requested attorneys’ fees under 42 U.S.C. § 406(b), he will refund Plaintiff
$4,944.21 for the EAJA fees. 	(Olinsky Aff., ECF No. 20-1 at 3.) 	Nothing in the record
suggests that Plaintiff owes any debt that is subject to offset under the Treasury Offset
Program.
Accordingly, the Court respectfully recommends that Olinsky should refund Plaintiff
the EAJA fees in the amount of $4,944.21 upon receipt of his Section 406(b) attorneys’ fees
award.
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III. 	CONCLUSION
For the reasons set forth above, the Court respectfully recommends that: (1) Olinsky’s
motion for attorney fees should be granted, (2) Olinsky should be awarded $6,069.50 in
attorneys’ fees pursuant to 42 U.S.C § 406(b), paid from Plaintiff’s past-due benefits, and (3)
within seven days of receipt of the Section 406(b) attorneys’ fees award, Olinsky should refund
to Plaintiff $4,944.21 for the attorneys’ fees he was awarded pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412.
A copy of this Report and Recommendation is being served on the parties via ECF.
Within 14 days of service, any party may serve and file specific written objections to this
Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any requests
for an extension of time to file objections shall be directed to Judge Kuntz. If a party fails to
object timely to this Report and Recommendation, it waives any right to further judicial
review of this decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).
SO ORDERED.
Brooklyn, New York
February 17, 2026
/s/Marcia M. Henry
MARCIA M. HENRY
United States Magistrate Judge
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