Tummino v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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DOMINIQUE T.,
Plaintiff,
-v- 	5:24-CV-400 (DNH/TWD)
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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DAVID N. HURD
United States District Judge
ORDER ON MOTION FOR ATTORNEY’S FEES
On March 22, 2024, plaintiff Dominique T.1 (“plaintiff”) filed this action
seeking review of the final decision of defendant Commissioner of Social Secu-
rity (“Commissioner”) denying her application for benefits under the Social Se-
curity Act (the “Act”). Dkt. No. 1.
After plaintiff filed her opening brief, Dkt. No. 9, the parties stipulated to a
remand for further administrative proceedings pursuant to Sentence Four of
42 U.S.C. § 405(g), Dkt. No. 13. 	This Court “so ordered” the stipulation on
1 In accordance with a May 1, 2018 memorandum issued by the Judicial Conference’s Commit-
tee on Court Administration and Case Management and adopted as local practice in this District,
only claimant’s first name and last initial will be mentioned in this opinion.
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October 18, 2024, Dkt. No. 14, and a judgment in plaintiff’s favor was entered
later that day, Dkt. No. 15.
On November 15, 2024, plaintiff moved for an award of attorney’s fees as a
“prevailing party” under the Equal Access to Justice Act (“EAJA”), which shifts
litigation fees to a government defendant when certain conditions are met.
Dkt. No. 16. A few days later, the parties stipulated to an award of $3,978.75
in EAJA fees, Dkt. No. 197, and this Court approved the stipulation on Decem-
ber 2, 2024, Dkt. No. 18. Following this remand, plaintiff was administratively
awarded benefits. Dkt. No. 19-1 ¶ 11.
On February 17, 2026, plaintiff moved for a further award of attorney’s fees
under 42 U.S.C. § 406(b), which authorizes a court to grant a “reasonable” fee
in a successful Social Security action.2 	Dkt. 19. 	The Commissioner has not
responded, and the time period in which to do so has expired. 	See id. 	The
motion will be considered on the basis of the available submissions without
oral argument.
Originally passed in 1965, the effect of § 406(b) is threefold: “it fixes a max-
imum 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
2 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, 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.
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whatever amount of fees should be paid.” Fields v. Kijakazi, 24 F.4th 845, 852
(2d Cir. 2022) (cleaned up).
The “court approval” contemplated by § 406(b) is “reasonableness” review,
which includes consideration of factors such as: (1) whether the percentage is
within 	the 	25% 	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
spent on the case; (6) whether the attorney is responsible for any delay; and (7)
the normal charge for non-contingent-fee cases. 	BillyJo M. v. Comm’r of Soc.
Sec., 568 F. Supp. 3d 309, 311 (W.D.N.Y. 2021) (cleaned up) (collecting cases);
see also Fields, 24 F.4th at 854.
Upon review of the submissions in light of the governing law, plaintiff’s re-
quest for a § 406(b) fee will be granted. 	Counsel acted diligently to achieve a
favorable result for their client. This case required agency proceedings, at least
partial briefing in federal court, and then some more proceedings on remand.
The requested de facto hourly rate amounts to $904.00, which is a low-to-mid-
dling hourly rate in this nuanced area of law. 	Fields, 24 F.4th at 856 & n.10
(approving de facto rate of $1,556.98 and collecting cases assessing a range of
hourly rates as high as $2,100). The requested fee does not exceed twenty-five
percent of the past-due benefits. 	And there is no indication that it would
amount to a “windfall.” Accordingly, the fee is “reasonable.”
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Therefore, it is
ORDERED that
1. Plaintiff’s amended motion for attorney’s fees (Dkt. No. 19) is GRANTED;
2. A fee in the amount of $14,200.00 (Dkt. No. 19-1 ¶ 18) is AUTHORIZED
to be paid from the claimant’s past-due benefits; and
3. 	Plaintiff’s attorneys must surrender to plaintiff any fee previously re-
ceived under the EAJA.
The Clerk is directed to terminate the pending motion.
IT IS SO ORDERED.
Dated: March 13, 2026
Utica, New York.
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