Samuelson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEREMY S.,
Plaintiff, 21-CV-1190Sr
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #17.
Plaintiff applied for disability benefits on November 29, 2019, alleging
disability beginning February 13, 2015. Dkt. #4, p.37. The ALJ rendered a decision that
plaintiff was not disabled on February 3, 2021. Dkt. #4, pp.37-53. The Appeals Council
denied review on September 1, 2021. Dkt. #4, p.6. Current counsel commenced
representation of plaintiff on November 2, 2021(Dkt. #22-2), and filed an action in this
Court seeking review of the Commissioner’s final decision on November 3, 2021. Dkt.
#1. On September 30, 2023, this Court issued a Decision and Order rem anding the
matter to the Commissioner for further proceedings. Dkt. #18. By Stipulation entered
December 29, 2023, counsel was awarded $9,250.00 in fees pursuant to the Equal
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Access to Justice Act (“EAJA”).1 Dkt. #20 & 21. On August 13, 2024, following a second
administrative hearing, the ALJ determined that plaintiff had been disabled since
February 13, 2015. Dkt. #22-3. By letter dated August 11, 2025, the SSA advised
plaintiff that his past-due benefits totaled $129,205.00 and that $32,301.25 had been
withheld from this amount as a potential attorney fee. Dkt. #22-4.
Currently before the Court is plaintiff’s counsel’s motion for an award of
attorney’s fees pursuant to 42 U.S.C. § 406(b)(1)(A) in the amount of $32,301.25. Dkt.
#22. In support of the motion, counsel argues that she conducted a thorough review of
the administrative record and specifically researched relevant statutory and case law to
prepare a substantive memorandum of law and reply memorandum of law in support of
the motion for judgment on the pleadings before this Court and also represented
plaintiff at the second administrative hearing on August 5, 2024. Dkt. #22-1, pp.3, 10-11
& 15. Counsel agrees that the EAJA fee will be refunded to plaintiff upon receipt of fees
pursuant to 42 U.S.C. § 406(b)(1)(A) and attached a signed fee agreement between
plaintiff and Frederick Law Offices, PLLC, dated November 2, 2021, which provides,
inter alia, that the attorney fee will be 25% of any past-due benefits. Dkt. #22-1, p.4 &
#22-2. Counsel also attaches a time sheet of services rendered indicating 48.10
attorney hours expended on this matter. Dkt. #22-5.
1 The EAJA provides that “a party prevailing against the United States in court, including
a successful Social Security benefits claimant, may be awarded fees payable by the United
States if the Government’s position in the litigation was not substantially justified.” 28 U.S.C.
§ 2412(d)(1)(A). Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). EAJA fees are determined by
the time expended and a capped hourly rate. Id. Fees may be awarded pursuant to both the
EAJA and the Social Security Act, but counsel must refund to the claimant the amount of the
smaller fee, up to the point the claimant receives 100 percent of the past-due benefits. Id.
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The Commissioner defers to the discretion of the Court as to the
appropriateness of the fee award. Dkt. #24.
The Social Security Act provides that “[w]henever a court renders a
judgment favorable to a claimant . . . who was represented before the court by an
attorney, the court may determine and allow as part of its judgment a reasonable fee for
such representation, not in excess of 25% of the total of the past-due benefits to which
the claimant is entitled by reason of such judgment.” 42 U.S.C. § 406(b)(1)(A).
Pursuant to Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure, a
claim for attorney’s fees must be made by motion filed no later than fourteen days after
the entry of judgment. Sinkler v. Berryhill, 932 F.3d 83, 87-88 (2d Cir. 2019). Because
the filing of such a motion must await the Commissioner’s award of benefits, however,
the deadline is equitably tolled until counsel receives notice of the benefits award. Id. at
88. In practice, therefore, the fourteen day filing period starts to run when the plaintiff
receives the calculation of benefits. Id. Counsel is presumed to have received the
calculation of benefits three days after mailing. Sinkler, 932 F.3d at 88 n.5. In as much
as the Notice of Award letter is dated August 11, 2025, the filing of this motion on
August 26, 2025 is timely.
Even within the 25% statutory limitation for contingent-fee arrangements,
the court is required to review the fee sought as an independent check to assure that it
is reasonable for the services rendered in the particular case. Gisbrecht, 535 U.S. at
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807. In making this assessment, the court considers: (1) the character of the
representation and the results the representation achiev ed; (2) whether the attorney
was responsible for delay that resulted in the accumulation of additional past-due
benefits; and (3) whether the past-due benefits are so large in comparison to the
amount of time counsel spent on the case that the requested fee would amount to a
windfall to the attorney. Id. at 808. The Court of Appeals for the Second Circuit has also
instructed district courts to consider whether there has been fraud or overreaching in
making the fee agreement. Wells v. Sullivan, 907 F.2d 367, 372 (1990).
“A windfall is a fee of a size not commensurate with the service provided.”
Avila v. Comm’r of Soc. Sec., 20-CV-1360, 2023 WL 6035648, at *3 (S.D.N.Y. Sept. 15,
2023). In considering whether the requested fee may be a windfall to the attorney, the
court may request a record of the hours spent representing the claimant and a
statement of the lawyer’s normal hourly billing rate for non-contingent fee cases.
Gisbrecht, 535 U.S. at 807. However, courts should recognize that “even a relatively
high hourly rate may be perfectly reasonable, and not a windfall, in the context of any
given case.” Fields v. Kijakazi, 24 F.4th 845, 854 (2d Cir. 2022). Among the factors to
be considered are: (1) the ability and expertise of the attorneys and whether they were
particularly efficient; (2) the nature and professional relationship of the attorney with the
plaintiff, including any representation at the agency level; (3) the satisfaction of the
plaintiff; 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 854-855.
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A windfall is more likely to be present in a case . . . where
the lawyer takes on a contingency-fee representation that
succeeds immediately and with minimal effort, suggesting
very little risk of nonrecovery. That kind of unearned
advantage is what the windfall concern is really about.
Id. at 855.
In the instant case, the fee request is within the boundaries of the statute
and there is no evidence of fraud or overreaching in the execution of the fee
agreement. The Court recognizes that counsel is experienced in representation of
individuals seeking disability benefits and provided able representation to plaintiff,
including engaging in successful motion practice before this Court and representing
plaintiff at an administrative hearing upon remand. There is no evidence that counsel
was dilatory in the representation of plaintiff. Moreover, the request for $32,301.25 in
fees following an expenditure of 48.10 hours equates to a de facto hourly rate of
$671.54, which is in line with awards generally approved in this district for similar work
performed. See Rebecca L.B. v. Comm’r of Soc. Sec., 20-CV-425, 2025 WL 1318376,
at *3 (W.D.N.Y. May 7, 2025) (collecting cases finding effective hourly rate between
$697.20 and $1,182.07 to be reasonable); Amy Sue H. v. Comm’r of Soc. Sec., 17-CV-
713, 2021 WL 4519798, at *3 (W.D.N.Y. Oct. 4, 2021) (collecting cases finding effective
hourly rates between $697 and $1,000 to be reasonable). Such an aw ard appropriately
compensates counsel for the time spent on this case, the risk accepted by counsel in
undertaking representation on contingency, and the successful result obtained by
plaintiff, who will continue to receive disability benefits into the future. See Lewis v.
Saul, 16-CV-6411, 2020 WL 132281, at *2 (W.D.N.Y. Jan. 13, 2020) (recognizing value
of future benefits and insurance coverage that are not reflected by the amount of past-
due benefits).
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CONCLUSION
For the reasons set forth above, counsel is awarded $32,301.25, with the
stipulation that upon receipt of this award, counsel will refund to plaintiff $9,250.00
previously received pursuant to the EAJA.
SO ORDERED.
DATED: Buffalo, New York
October 3, 2025
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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