Ponti v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JESSICA L. R. P.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
5:22-cv-01087
(AMN/TWD)
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
250 South Clinton St., Suite 210
Syracuse, NY 13202
Attorneys for Plaintiff
SOCIAL SECURITY ADMINISTRATION 	CANDACE BROWN CASEY,
6401 Security Boulevard 	ESQ.
Baltimore, MD 21235
Attorneys for Defendant
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
Currently before the Court is a motion by Plaintiff Jessica L. R. P. 1 for her attorney, Howard
D. Olinsky (“Petitioner”), to receive attorney’s fees pursuant to the Social Security Act, 42 U.S.C.
§ 406(b)(1) (the “SSA”). Dkt. No. 19 (the “Motion”). Defendant Commissioner of Social Security
(“Defendant”) neither supports nor opposes the requested relief. See Dkt. No. 21.
For the reasons set forth herein, the Court grants the 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
On October 21, 2022, Plaintiff filed this civil action seeking review of the Commissioner’s
final decision to deny her application for Social Security Disability Insurance benefits under the
SSA. Dkt. No. 1. On April 11, 2023, Senior United States District Judge Gary L. Sharpe reversed
the Commissioner’s final decision as stipulated by the parties and remanded this action to the
Commissioner for further administrative proceedings. Dkt. No. 13. On July 6, 2023, the parties
stipulated to an award of attorney’s fees, and the Judge Sharpe thereafter awarded a total of
$6,549.88 in attorney’s fees to Petitioner pursuant to the Equal Access to Justice Act (“EAJA”).
Dkt. No. 18.
On July 12, 2025, the Social Security Administration (the “Administration”) issued
Plaintiff a Notice of Award. 	Dkt. No. 19-3 at 1-9 (the “Award”).2 	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. The Administration also withheld $16,367.75 from Plaintiff’s past-
due benefits to pay her representative. Id. at 7. On October 6, 2025, the Administration issued
Plaintiff another Notice of Award concerning past-due benefits for Plaintiff’s child N.Z.O. Id. at
10-14 (the “Child’s Award”). 	The Administration withheld $4,581.75 in case Plaintiff’s
representative asked the Court “to approve a fee for the work that was done before the Court.” Id.
at 11. On October 30, 2025, this case was reassigned to the undersigned. Dkt. No. 20.
Presently before the Court is Petitioner’s motion for an award of attorney’s fees pursuant
to 42 U.S.C. § 406(b)(1)(A) (“Section 406(b)”), which authorizes a court to grant a “reasonable
fee . . . not in excess of [twenty-five] percent of the total of past-due benefits” awarded by a
2 Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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favorable Social Securities judgment. 	42 U.S.C. § 406(b)(1)(A). 	Petitioner has represented
Plaintiff on a contingency-fee basis pursuant to a fee agreement dated October 18, 2022, whereby
Plaintiff agreed to compensate her counsel in the amount of twenty-five percent of past-due
benefits awarded pursuant to Section 406(b). 	Dkt. No. 19-2 at 2. 	Plaintiff’s past-due benefits
under the Award were $42,284.00, and past-due benefits under the Child’s Award were
$18,327.00, which adds up to a past-due benefits total of $60,611.00. 	Dkt. No. 19-1 at ¶ 4.
Twenty-five percent of the total past due benefits is $15,152.75. See id. at ¶ 5. After accounting
for a previously approved fee in the amount $7,200.00 for representation at the administrative
level, Petitioner seeks attorney’s fees in the amount of $7,952.75. See id. at ¶¶ 6-7.
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
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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).
“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, pursuant to the contingency fee agreement, Petitioner seeks an award of $7,952.75,
which is the remainder of twenty-five percent of the past-due benefits that the Administration
awarded Plaintiff after accounting for $7,200.00 that was previously approved. Dkt. No. 19-1 at
¶¶ 6-7. The Court finds 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.
Petitioner states that attorneys and paralegals spent a total of 32.8 hours on Plaintiff’s case
before this Court. See id. at ¶ 9. Petitioner further states that the total number of hours spent on
Plaintiff’s case is comprised of 27.2 hours of attorney time and 5.6 hours of paralegal time. Id.
Deducting the paralegal time billed at $100 an hour results in an effective hourly attorney rate of
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$271.79. 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).
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. 21 at 1. Accordingly, the Court finds that Petitioner’s requested
amount in attorney’s fees is reasonable.
Lastly, when an attorney successfully seeks fees under both the SSA and EAJA, 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. 19-1 at 3. Accordingly, the Court additionally orders Petitioner
to refund EAJA attorney’s fees totaling $6,549.88 to Plaintiff.
V. 	CONCLUSION
Accordingly, the Court hereby
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ORDERS that Petitioner’s motion for an award of attorney’s fees under 42 U.S.C.
§ 406(b)(1), Dkt. No. 19, is GRANTED in the amount of $7,952.75 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 $7,952.75 in attorney’s fees, Petitioner is directed to
immediately refund Plaintiff the EAJA fee award of $6,549.88; 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 29, 2026
Albany, New York
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