Case Name in Social Security Case - Unavailable

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
OCTAVIA NEWSON,
Plaintiff,
-against-
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM AND ORDER
Case No. 1:17-CV-2918 (FB)
Appearances:
For the Plaintiff:
HOWARD D. OLINSKY
Olinsky Law Group
250 S. Clinton St., Ste. 210
Syracuse, NY 12303
For the Defendant:
REBECCA H. ESTELLE
Special Assistant United States
Attorney
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, New York, 11201
BLOCK, Senior District Judge:
Following remand from this Court, Plaintiff Octavia Newson (“Plaintiff”) received past-
due disability benefits from the Social Security Administration (“SSA”). Her counsel, Howard
Olisnky (“Olinsky”), now seeks approval of an attorney-fee award of $ $7,943.00.
After this Court ordered remand, it awarded Olisnky $5,854.75 in attorney's fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. On March 17, 2025, the SSA issued
Plaintiff a Notice of Award (“NOA”) announcing that her total past due benefits were $68,572.00
and withholding $9,200.00 to pay a possible attorney-fee request. Dkt. 41-2. Plaintiff’s attorney
received notice of the award on October 17, 2025, and thirteen days thereafter filed this 42
Case 1:17-cv-02918-FB Document 45 Filed 02/17/26 Page 1 of 3 PageID #:
<pageID>

2
U.S.C. § 406(b) attorney-fee application. See Sinkler v. Berryhill, 932 F.3d 83, 85 (2d Cir. 2019)
(fourteen-day filing period).
First, the Court must consider whether Olinsky’s motion was timely. Typically, an
attorney must file an application for fees under § 406(b) within 14 days after the claimant
receives notice of any past-due benefits award. See Sinkler v. Berryhill, 832 F.83, 85 (2d Cir.
2019). Although Olisnky made the application more than 14 days following the date on the
NOA, March 17, 2025, he affirms that he first received the NOA by email on October 17, 2025.
Olinsky Aff. ¶ 4, ECF No. 41-1. Thus, Olinsky’s application is timely because it was made
within 14 days of his own receipt of the NOA. See Sinkler, 932 F.3d at 88 (“Once counsel
receives notice of the benefits award—and, therefore, the maximum attorney's fees that may be
claimed—there is no sound reason not to apply Rule 54(2)(B)’s fourteen-day limitations period
to a § 406(b) filing.”); also Walker v. Astrue, 593 F.3d 274, 280 (3d Cir. 2010) (tolling
application deadline until NOA is issued “and counsel is notified of that award”).
Turning to the requested attorney-fee award, the Court determines that $7,943.00 is
reasonable under the circumstances. Section 406(b) entitles prevailing plaintiffs in Social
Security actions to “reasonable [attorney's] fee[s] [that are] not in excess of 25 percent of the
total past-due benefits to which the claimant is entitled.” Reasonableness depends on three
factors: (1) whether the proposed fee is below the 25% statutory maximum; (2) whether the
contingency-fee agreement is the product of fraud or attorney overreach; and (3) whether the
requested amount is so large it constitutes a windfall to the attorney. See Wells v. Sullivan, 907
F.2d 367, 372 (2d Cir. 1990). As indicated by the NOA, the proposed fee award here does not
exceed the 25% cap, and the Court is aware of no evidence of fraud or attorney overreach.
Case 1:17-cv-02918-FB Document 45 Filed 02/17/26 Page 2 of 3 PageID #:
<pageID>

3
To assess the third factor, the Second Circuit has directed district courts to consider (1)
the expertise and ability of the claimant's lawyer and whether he or she was particularly efficient;
(2) the nature and length of the lawyer's professional relationship with the claimant, including
any representation at the agency level; (3) the satisfaction of the claimant; and (4) the level of
uncertainty of an award of benefits and the efforts it took to achieve the result of a disability
ruling. See Fields v. Kijakazi, 24 F.4th 845, 854-55 (2d Cir. 2022) (de facto hourly rate of
$1,556.98 was reasonable). Having considered those guidelines, the Court finds that the
requested award does not constitute a windfall.
Finally, because an attorney cannot receive fees under both the EAJA and § 406(b),
Olinsky must refund his $5,854.75 EAJA award to the Plaintiff. See Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002).
Accordingly, the Court approves Olinsky’s requested attorney-fee award of $7,943.00
under § 406(b) to be paid by the Commissioner out of the proceeds awarded to Plaintiff as past-
due benefits. Within five business days of receipt of the § 406(b) fees, Olinsky is ordered to
refund the EAJA award of $5,854.75 to Plaintiff and file a declaration stating such on the docket.
SO ORDERED.
_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
February 17, 2025
Case 1:17-cv-02918-FB Document 45 Filed 02/17/26 Page 3 of 3 PageID #:
<pageID>