Puchales v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JESSE P.,
Plaintiff,
vs. 	5:23-CV-198
(MAD/MJK)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
250 South Clinton Street - Suite 210
Syracuse, New York 13202
Attorney for Plaintiff
SOCIAL SECURITY ADMINISTRATION 	FERGUS J. KAISER, ESQ.
6401 Security Boulevard
Baltimore, Maryland 21235
Attorney for Defendant
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Jesse P. ("Plaintiff"),1 through his attorney Petitioner Howard D. Olinsky, Esq.
("Petitioner"), moves this Court pursuant to Section 206(b)(1) of the Social Security Act and 42
U.S.C. § 406(b)(1) for an award of attorney's fees based on the contingency fee agreement
between Plaintiff and Petitioner. See Dkt. No. 31. Defendant Commissioner of Social Security
1 In accordance with guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Northern
District of New York in 2018 to better protect personal and medical information of non-
governmental parties, this Memorandum-Decision and Order will identify Plaintiff by first name
and last initial.
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(the "Commissioner") "neither supports nor opposes counsel's request for attorney's fees in the
amount of $33,666.50, under 42 U.S.C. § 406(b)," and asserts that "it is for the Court to decide"
whether the request is reasonable. Dkt. No. 32 at 1.
On January 26, 2026, Plaintiff submitted a supplemental motion for attorney's fees,
requesting an additional $16,728.50, for a total of $50,395 in attorney's fees. See Dkt. No. 33.
The Commissioner does not support or oppose the supplemental motion. See Dkt. No. 34.
II. BACKGROUND
On February 13, 2023, Plaintiff filed this civil action seeking review of the
Commissioner's final decision denying his application for Social Security Disability Insurance
benefits and Supplemental Security Income benefits under the Social Security Act. See Dkt. No.
1. On June 10, 2024, the Court remanded this matter to the Social Security Administration for
further proceedings. See Dkt. No. 26. Thereafter, on September 13, 2024, the parties stipulated
to an award of attorney's fees in the amount of $6,350.09, under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412, and costs in the amount of $0, under 28 U.S.C. § 1920. See Dkt.
Nos. 29, 30.
On remand, Plaintiff secured a finding that he is disabled, and Plaintiff received an award
of $134,666 in past due benefits for February 2020 to June 2025. See Dkt. No. 31-1 at ¶¶ 4, 8;
Dkt. No. 31-3 at 2. On January 11, 2026, Plaintiff received a Notice of Award for Plaintiff's
child, N.R.P., with an award of past due benefits in the amount of $66,914 for February 2020
through June 2025. See Dkt. No. 33-1 at ¶ 5. As such, the total past due benefits received by
Plaintiff and his family are $201,580.
Presently before the Court is Plaintiff's motion and supplemental motion for a further
award of attorney's fees under 42 U.S.C. § 406(b), which authorizes a court to grant a "reasonable
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fee . . . not in excess of [twenty-five] percent of the total past due benefits" awarded in a
successful Social Security benefits action. 42 U.S.C. § 406(b)(1)(A). The contingency agreement
between Petitioner and Plaintiff stated that Petitioner could seek up to twenty-five percent of an
award of past due benefits that Plaintiff and his family may receive. See Dkt. No. 31-2 at 2. The
Social Security Administration withheld twenty-five percent of Plaintiff's and N.R.P's past due
benefits for attorneys' fees—a total of $33,666.50 from Plaintiff's past due benefits and
$16,728.50 from N.R.P.'s past due benefits. See Dkt. No. 31-3 at 5; Dkt. No. 33-2 at 3.
III. DISCUSSION
The effect of § 406(b) is threefold: "it fixes a maximum percentage for contingent fees of
twenty-five percent; it permits recovery of such fees only out of past due benefits; and it requires
court approval for whatever amount of fees should be paid." Fields v. Kijakazi, 24 F.4th 845, 852
(2d Cir. 2022) (citation, internal quotation marks, footnote, and alterations omitted). As the
Second Circuit has repeatedly observed, "§ 406(b) is not entirely self-explanatory[,]" as it "allows
contingency agreements but gives no guidance as to how a court should treat them in determining
a reasonable fee." Id. (quoting Wells v. Sullivan, 907 F.2d 367, 369 (2d Cir. 1990)) (internal
quotation marks omitted). Nonetheless, district courts have been guided to "'approach fee
determinations by looking first to the contingent-fee agreement, then testing it for
reasonableness[.]'" Id. (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002)).
The "court approval" contemplated by § 406(b) is thus a "reasonableness" review, which
includes consideration of factors such as:
(1) whether the percentage is within the [twenty-five percent] cap;
(2) whether there has been fraud or overreaching; (3) whether the
requested amount is a windfall to the claimant's attorney; (4) the
character and results of the representation; (5) the amount of time
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spent on the case; (6) whether the attorney is responsible for any
delay; and (7) the normal charge for non-contingent-fee cases.
Michael N. v. Comm'r of Soc. Sec., No. 5:23-CV-175, 2025 WL 1519316, *1 (N.D.N.Y. May 28,
2025) (citing BillyJo M. v. Comm'r of Soc. Sec., 568 F. Supp. 3d 309, 311 (W.D.N.Y. 2021);
Fields, 24 F.4th at 854).
In Fields, the Second Circuit recognized that the "windfall" factor is less clear than the
other factors to be considered. See Fields, 24 F.4th at 853-54 (noting that the Supreme Court and
the Second Circuit have "rejected reliance on the lodestar method" of calculating fees in Social
Security cases, and that "some jurists have expressed frustration that the windfall factor could be
read as simply the lodestar method by another name and, as such, incompatible with the stated
approach of these opinions") (citations omitted). Thus, the Circuit cautioned that " [i]n
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." Id. (citation omitted).
Here, attorneys and paralegals at Petitioner's law firm, Olinsky Law Group, spent 31.4
hours working on Plaintiff's case before this Court. See Dkt. No. 31-1 at ¶ 9; Dkt. No. 33-1 at ¶
10. Ledgers submitted by Petitioner show that 25.1 hours of this work is attributable to attorney
time and 6.3 hours is attributable to work performed by paralegals. See Dkt. No. 31-1 at ¶ 9; Dkt.
No. 33-1 at ¶ 10. The requested award of $50,395 implies a blended hourly rate of approximately
$1,604.94 for all timekeepers (including paralegals). See Dkt. No. 33-1 at ¶ 10. If the 6.3 hours
of paralegal time are first carved out at $100 per hour (as Petitioner suggests, see id.), the
remaining requested award implies an even higher hourly rate of approximately $1,982.67 for the
attorneys who worked on this matter. See id.
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Although $2,000 per hour is an unusually high hourly rate in a Social Security case, the
Court, guided by the Second Circuit's decision in Fields, must look beyond the de facto hourly
rate in determining the reasonableness of the requested fee. First, $50,395 is twenty-five percent
of the past due benefits awards, which does not exceed the statutory cap. Second, there is no
evidence of fraud or overreaching in the record before the Court. Third, courts have found similar
hourly rates to be reasonable in light of the remaining factors to be considered. Compare,
Timothy G. v. Comm'r of Soc. Sec., No. 18-CV-9235, 2025 WL 486774, *4 (S.D.N.Y. Feb. 12,
2025) (reducing award to reflect $1,500 for each attorney hour from the requested $2,000 de facto
hourly rate where counsel did not also represent the plaintiff in administrative proceedings and
there was an eight-month delay between the Notice of Award and motion for § 406(b) fees), with
Michael N., 2025 WL 1519316, at *2 (accepting de facto $2,000 hourly rate and noting that "the
Second Circuit has approved similar de facto rates in light of the nature of these cases") (citing
Fields, 24 F.4th at 856 & n.10 (collecting cases)). And, as for the remaining factors, attorneys at
Petitioner's law firm spent 25.1 total hours litigating before this Court, the record reflects that
Petitioner acted diligently to achieve a favorable result for Plaintiff and his family, and there is no
evidence of undue delays.
"Where, as here, the specialization and experience of the firm and the attorneys enabled
them to work efficiently and obtain a remand . . . for their client, '[i]t would be foolish to punish a
firm for its efficiency and thereby encourage inefficiency.'" David M.D. v. Dudek, No. 8:21-CV-
00465, 2025 WL 1266612, *3 (N.D.N.Y. May 1, 2025) (quoting Fields, 24 F.4th at 854). Given
the contingent nature of the representation, the contract between Petitioner and Plaintiff, the
absence of objections to the requested fee by the Commissioner or Plaintiff, and analysis of all the
factors to be considered, the Court finds that Petitioner's request for a § 406(b) fee in the amount
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of $50,395 is reasonable in this case. See Bay v. Comm'r of Soc. Sec., No. 20-CV-9774, 2025 WL
437698, *1 (S.D.N.Y. Feb. 6, 2025) ("Considering the hours expended together with the amount
of fees requested yields a de facto hourly rate of approximately $1,861. Although quite high in
isolation, it is not unreasonable given the contingency arrangement and is in line with amounts
that courts have found reasonable given the sum [plaintiffs have] recovered in these types of
cases") (citation omitted).
As a final matter, Congress has authorized fee awards under both the EAJA (payable by
the Government) and under § 406(b) (payable out of a claimant's past due benefits). However, as
Petitioner acknowledges, see Dkt. No. 31-1 at 3, when an attorney seeks fees under both
provisions, the EAJA award is treated as an offset: the claimant's attorney must refund to the
claimant the amount of the smaller fee, see Gisbrecht, 535 U.S. at 796. Petitioner has indicated
that he will refund the smaller of the awards to Plaintiff in the event that the Court awards fees
pursuant to § 406(b). See Dkt. No. 31-1 at 3; Dkt. No. 33-1 at 3.
IV. CONCLUSION
Accordingly, after carefully reviewing the entire record in this matter, the parties'
submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion and supplemental motion for attorney's fees (Dkt. Nos.
31, 33) are GRANTED in the amount of $50,395; and the Court further
ORDERS that the Social Security Administration is directed to approve a payment of
$50,395 to Petitioner, out of Plaintiff's past-due benefits; and the Court further
ORDERS that Petitioner is directed, upon receiving payment of the § 406(b) award, to
immediately refund Plaintiff the fee of $6,350.09 previously received under the EAJA; and the
Court further
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ORDERS that the Clerk of the Court shall serve a copy of the Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 8, 2026
Albany, New York
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