Ciccarelli v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ELLEN M. C.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
5:22-cv-01175 (AMN/MJK)
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
250 South Clinton Street – Suite 210
Syracuse, New York 13202
Attorneys for Plaintiff
SOCIAL SECURITY ADMINISTRATION 	VERNON NORWOOD, ESQ.
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for Defendant
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
Petitioner, Howard D. Olinsky, attorney for Plaintiff Ellen M. C.,1 moves for an award of
attorney’s fees pursuant to Section 406(b) of the Social Security Act (the “SSA”). See Dkt. No.
22 (“Motion”). Defendant Commissioner of Social Security (“Commissioner”) neither supports
nor opposes the requested relief. See Dkt. No. 25.
For the reasons set forth below, the Court grants Petitioner’s Motion in its entirety.
1 In accordance with the local practice of this Court, Plaintiff’s last name has been abbreviated to
protect her privacy.
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II. 	BACKGROUND 2
On November 9, 2022, Plaintiff filed this civil action seeking review of the final decision
of the Commissioner denying her application for Supplemental Security Income benefits under the
SSA. Dkt. No. 1. On April 4, 2022 and July 27, 2023, the Court reversed the Commissioner’s
final 	decision 	and 	remanded 	this 	action 	to 	the 	Commissioner 	for 	further 	administrative
proceedings. See Dkt. No. 22-1 at ¶ 1. On both occasions, the parties stipulated to an award of
attorney’s fees, and the Court thereafter awarded a total of $11,623.72 in attorney’s fees to
Petitioner. See id. at ¶ 2.
On August 27, 2025, the Social Security Administration (the “Administration”) issued
Plaintiff a Notice of Award. 	Dkt. No. 22-3 (the “Award”). 	Pursuant to the Award, the
Administration will pay Plaintiff a lump sum of past-due benefits as well as a monthly benefit
going forward. See id. at 4-5. 3 The Administration also withheld $29,275.50 from Plaintiff’s past-
due benefits “in case [the Administration] need[ed] to pay [her] representative.” Id. at 6.
Presently before the Court is Petitioner’s motion for an award of attorney’s fees under 42
U.S.C. § 406(b)(1), which authorizes a court to grant a “reasonable 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). Petitioner has represented Plaintiff on a contingency fee basis pursuant
to a fee agreement dated May 24, 2021, whereby Plaintiff agreed to compensate her counsel in the
amount of twenty-five percent of any past-due benefits awarded pursuant to 42 U.S.C. § 406(b).
See Dkt. No. 22-2 at 2. According to the Award, Plaintiff’s past-due benefits were determined to
be $115,693.00. Dkt. No. 22-1 at ¶ 4. Petitioner seeks attorney’s fees in the amount of $28,923.25,
2 This case was reassigned to the undersigned on September 16, 2025. See Dkt. No. 23.
3 Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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which is twenty-five percent of Plaintiff’s past-due benefits. See id. at ¶¶ 5, 7.
III. 	STANDARD OF REVIEW
The SSA 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 [twenty-five] percent 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). “The Second Circuit identified the following factors for a court to consider
as a basis for refusing to approve the full amount requested under a contingency fee arrangement:
(1) whether the amount requested 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.” Karla B. v. Berryhill, No. 18-cv-1273, 2020 WL 3047517, at *2
(N.D.N.Y. June 8, 2020) (citation omitted). “Moreover, the Second Circuit has noted that a district
court ‘must give due deference to the intent of the parties.’” Id. (quoting Wells v. Sullivan, 907
F.2d 367, 372 (2d Cir. 1990)). 	Indeed, the Supreme Court has explained that, “most plausibly
read, [Section] 406(b) does not displace contingent-fee agreements as the primary means by which
fees are set for successfully representing Social Security benefits claimants in court.” Ben D. v.
Saul, No. 15-cv-1114, 2020 WL 1935553, at *2 (N.D.N.Y. Apr. 22, 2020) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002)) (alterations omitted). Rather, a district court’s review of such
agreements is “an independent check, to assure that they yield reasonable results in particular
cases.” Gisbrecht, 535 U.S. at 807.
IV. 	DISCUSSION
The Court’s “determination of a reasonable fee under [Section] 406(b) must begin with the
contingency fee agreement[.]” Ben D., 2020 WL 1935553, at *2 (quoting Wells, 907 F.2d at 370).
In this case, pursuant to the contingency fee agreement, Petitioner seeks an award of $28,923.25
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in attorney’s fees, which is twenty-five percent of the past-due benefits that the Administration
awarded Plaintiff. See Dkt. No. 22-1 at ¶¶ 5, 7; see also Dkt. No. 22-2 at 2 (Plaintiff affirming, in
relevant part, that she “understand[s] that [her] federal court attorney . . . has the right to ask the
court to award 25% of [her] past-due benefits . . . for representing [her] in federal court”). The
Second Circuit has held that “where there is a contingency fee agreement in a successful social
security case, . . . the district court may reduce the amount called for by the contingency agreement
only when it finds the amount to be unreasonable.” Fields v. Kijakazi, 24 F.4th 845, 852-53 (2d
Cir. 2022) (citation omitted). Here, there is no indication that the requested fee is out of line with
the representation or the results that Petitioner achieved, nor is there any suggestion that counsel
delayed or attempted to delay resolution of this litigation. Additionally, there is no evidence in the
record that Petitioner engaged in fraud or overreaching to arrive at this result.
Furthermore, Petitioner states that attorneys and paralegals spent a total of 60.7 hours on
Plaintiff’s case before this Court. See Dkt. No. 22-1 at ¶ 9. Awarding Petitioner the total amount
sought would result in a de facto hourly rate of $579.10. See id. This hourly rate is within the
range of what courts generally consider to be reasonable in a case with experienced counsel who
provided quality and efficient representation. See, e.g., Fields, 24 F.4th at 854-56 (approving de
facto rate of $1,556.98 as reasonable); Michael N. v. Comm’r of Soc. Sec., No. 23-cv-175, 2025
WL 1519316, at *2 (May 28, 2025) (approving de facto hourly rate of $2,000 and noting that “the
Second Circuit has approved similar de facto rates in light of the nature of these cases”); Kristen
E. H. v. Comm’r of Soc. Sec., No. 21-cv-962, 2023 WL 122612, at *3 (N.D.N.Y. Jan. 6, 2023)
(approving $1,197 de facto hourly rate and collecting cases approving comparable or higher rates).
Moreover, there is no indication that such an amount would constitute a “windfall” under
these circumstances. 	“When determining whether an award of attorney’s fees constitutes a
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windfall, the factors courts have considered include: the ability and expertise of the lawyers and
whether they were particularly efficient, accomplishing in a relatively short amount of time what
less specialized or less well-trained lawyers might take far longer to do.” David M.D. v. Dudek,
No. 21-cv-465, 2025 WL 1266612, at *2 (N.D.N.Y. May 1, 2025) (internal quotation marks and
citation omitted). 	Where, as here, the specialization and experience of the law firm and its
attorneys enabled them to work efficiently and obtain two orders remanding the action to the
Commissioner, “it would be foolish to punish a firm for its efficiency and thereby encourage
inefficiency.” 	Mileke W. v. Comm’r of Soc. Sec., No. 22-cv-1387, 2025 WL 1951822, at *3
(N.D.N.Y. July 16, 2025) (quoting Fields, 24 F.4th at 854). 	Indeed, Petitioner “has extensive
experience practicing social security law and representing claimants before the Social Security
Administration and in the United States District Court.” David L. J. v. Comm’r of Soc. Sec., No.
21-cv-415 (AMN/ML), 2025 WL 2531362, at *2 (N.D.N.Y. Sept. 3, 2025) (referring to
Petitioner). The Court also notes that Defendant does not oppose the Motion. See Dkt. No. 25 at
1. Accordingly, the Court finds that Petitioner’s requested amount in attorney’s fees is reasonable.
Lastly, when an attorney seeks fees under both the SSA and EAJA, if successful, the
attorney must refund the smaller of the awards to the plaintiff. See Ben D., 2020 WL 1935553, at
*1 n.2; see also Wells v. Bowen, 855 F.2d 37, 42, 48 (2d Cir. 1988) (noting that parties “may seek
fees under both provisions, as long as the attorney, if successful, gives the smaller of the two
awards to his or her client”). Petitioner has indicated that he will refund the attorney’s fees under
the EAJA to Plaintiff. See Dkt. No. 22-1 at 3. Accordingly, the Court additionally orders Petitioner
to refund EAJA attorney’s fees totaling $11,623.72 to Plaintiff.
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that Petitioner’s motion for an award of attorney’s fees under 42 U.S.C.
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§ 406(b)(1), Dkt. No. 22, is GRANTED in the amount of $28,923.25 to be paid from the amount
withheld by the Administration from Plaintiff’s past-due benefits; and the Court further
ORDERS that, upon receipt of the $28,923.25 in attorney’s fees, Petitioner is directed to
immediately refund Plaintiff the EAJA fee award of $11,623.72; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 15, 2026
Albany, New York
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