Manser v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KATELYN M.,
Plaintiff,
vs. 	5:23-CV-65
(MAD/CFH)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
250 South Clinton Street - Suite 210
Syracuse, New York 13202
Attorney for Plaintiff
SOCIAL SECURITY ADMINISTRATION 	HEETANO SHAMSOONDAR, ESQ.
6401 Security Boulevard 	KRISTINA COHN, ESQ.
Baltimore, Maryland 21235
Attorneys for Defendant
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Katelyn M. ("Plaintiff"),1 through her attorney Petitioner Howard D. Olinsky,
Esq. ("Petitioner"), moves this Court pursuant to Section 206(b)(1) of the Social Security Act and
42 U.S.C. § 406(b)(1) for an award of attorney's fees based on the contingency fee agreement
between Plaintiff and Petitioner. See Dkt. No. 21. Defendant Commissioner of Social Security
1 In accordance with guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Northern
District of New York in 2018 to better protect personal and medical information of non-
governmental parties, this Memorandum-Decision and Order will identify Plaintiff by first name
and last initial.
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(the "Commissioner") "neither supports nor opposes counsel's request for attorney's fees in the
amount of $7,873.00 under 42 U.S.C. § 406(b)." Dkt. No. 22 at 1. The Commissioner states that
"[i]t is for the Court to decide if the request for attorney's fees under 42 U.S.C. § 406(b) is
reasonable under the law." 	Id.
II. BACKGROUND
Petitioner represented Plaintiff in an action before this Court for judicial review of the
Commissioner's denial of Plaintiff's application for Social Security Disability Insurance. See Dkt.
No. 1; Dkt. No. 21-1 at ¶ 1. On September 13, 2023, this Court remanded the matter back to the
Commissioner for further proceedings and entered judgment in Plaintiff's favor pursuant to a
stipulation by the parties. See Dkt. Nos. 16, 17, 18. On August 26, 2025, the Court granted
Petitioner attorney's fees in the amount of $7,089.90 under the Equal Access to Justice Act
("EAJA"). See Dkt. No. 20 at 5.
On September 20, 2025, the Social Security Administration determined Plaintiff was
entitled to $68,292 in back-payments for the period of September 2020 to May 2025. See Dkt.
No. 21-3 at 4. Petitioner now seeks attorney's fees in the amount of $7,873 under Social Security
Act § 206(b)(1) and 42 U.S.C. § 406(b)(1). See Dkt. No. 21-1 at ¶ 7.
Plaintiff and Petitioner entered a contingency fee agreement which states that Petitioner
may seek a fee award of up to twenty-five percent of Plaintiff's past-due benefits received for
representation in federal court. See Dkt. No. 21-2 at 2. The agreement uses the term "406(b)
fees" to denote this fee arrangement. Id. The agreement also states that if Petitioner becomes
entitled to a 406(b) fee, "counsel will credit the amount of the EAJA fee in addition to the 406b
fee and will return any excess EAJA amounts not authorized." Id. Petitioner requests that the
Court not include a specified amount to be refunded upon receipt of a fee award order under §
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406(b) because Petitioner has "not received payment of EAJA fees and it is not known whether
Plaintiff has accumulated any debt while her case has been pending." Dkt. No. 21-1 at 3 n.1. In
addition to any attorney's fee award under § 406(b), Petitioner intends to file a fee petition in the
amount of $9,200 for work performed at the administrative level. See id. at ¶ 6.
III. DISCUSSION
Under § 406(b), when a court renders a favorable judgment for a claimant represented by
an attorney, "the court may determine and allow . . . a reasonable fee for such representation, not
in excess of [twenty-five] percent of the total of the past-due benefits to which claimant is entitled
. . . ." 42 U.S.C. § 406(b)(1)(A). The effect of § 406(b) is threefold: "it fixes a maximum
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 whatever amount of fees should be paid."
Fields v. Kijakazi, 24 F.4th 845, 852 (2d Cir. 2022) (citation, internal quotation marks, footnote,
and alterations omitted). As the Second Circuit has repeatedly observed, "§ 406(b) is not entirely
self-explanatory[,]" as it "allows contingency agreements but 'gives no guidance as to how a court
should treat them in determining a "reasonable fee."'" Id. (quoting Wells v. Sullivan, 907 F.2d
367, 369 (2d Cir. 1990)). Nonetheless, district courts have been guided to "'approach fee
determinations by looking first to the contingent-fee agreement, then testing it for
reasonableness[.]'" Id. (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002)).
The "court approval" contemplated by § 406(b) has been described as a "reasonableness"
review, which includes consideration of certain relevant factors such as:
(1) whether the percentage is within the [twenty-five percent] 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
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spent on the case; (6) whether the attorney is responsible for any
delay; and (7) the normal charge for non-contingent-fee cases.
Michael N. v. Comm'r of Soc. Sec., No. 5:23-CV-175, 2025 WL 1519316, *1 (N.D.N.Y. May 28,
2025) (citing BillyJo M. v. Comm'r of Soc. Sec., 568 F. Supp. 3d 309, 311 (W.D.N.Y. 2021)).
In Fields, the Second Circuit recognized that the "windfall" factor is less clear than the
other factors to be considered. See Fields, 24 F.4th at 853-54 (noting that the Supreme Court and
the Second Circuit have "rejected reliance on the lodestar method" of calculating fees in Social
Security cases, and that "some jurists have expressed frustration that the windfall factor could be
read as simply the lodestar method by another name and, as such, incompatible with the stated
approach of these opinions") (citations omitted). Thus, the Circuit cautioned that " [i]n
determining whether there is a windfall that renders a § 406(b) fee in a particular case
unreasonable, courts must consider more than the de facto hourly rate." Id. (citation omitted).
Here, attorneys and paralegals at Petitioner's law firm, Olinsky Law Group, spent 32.9
hours litigating Plaintiff's case before this Court. See Dkt. No. 21-1 at ¶ 9. 	Ledgers submitted by
Petitioner show that 27.3 hours of this work is attributable to attorney time and 5.6 hours is
attributable to work performed by paralegals. See id.; Dkt. Nos. 21-4, 21-5, 21-6. The requested
award of $7,873 implies a blended hourly rate of $239.30 for all timekeepers (including
paralegals). See Dkt. No. 21-1 at ¶ 9. If the 5.6 hours of paralegal time is first carved out at $100
per hour (as Petitioner suggests), the remaining requested award implies an effective hourly rate
of $267.88 for the attorneys who worked on this matter. See id.
Petitioner's representation of Plaintiff resulted in a remand from this Court and a
subsequent finding that Plaintiff is disabled and eligible for benefits and past-due benefits in the
amount of $68,292.00. See id. at ¶¶ 1, 4, 8. Petitioner's request of $7,873 is less than twelve
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percent of Plaintiff's $68,292 award—significantly below the statutory twenty-five percent cap
contemplated by § 406(b). There is no evidence of fraud, overreaching, or undue delay in the
record before the Court. And the de facto hourly rate of $267.88 is not patently unreasonable and
is significantly lower than hourly rates found reasonable by courts in this District. See, e.g.,
Mileke W. v. Comm'r of Soc. Sec., No. 5:22-CV-1387, 2025 WL 1951822, *2 (N.D.N.Y. July 16,
2025) (finding a de facto hourly attorney rate of $2000.74 for 2.7 hours of attorney time to be
reasonable, in light of, inter alia, the specialization and experience of the firm); Melissa L.R. v.
O'Malley, No. 1:21-CV-00318, 2024 WL 4680800, *4 (N.D.N.Y. Nov. 5, 2024) (finding that
$777.90 per hour is not a windfall when taking into account the uncertainty present in
contingency-fee representation of social security benefit claims where the petitioner has had
multiple prior denials); Danny F. v. Comm'r of Soc. Sec. Admin., No. 3:20-CV-1371, 2024 WL
2237151, *3 (N.D.N.Y. May 17, 2024) (finding hourly rate of $754.67 to be reasonable
considering the attorney's experience with Social Security Act cases, the 25.1 hours spent
litigating matter, the successful outcome of the case, and the inherent uncertainty of litigation).
Moreover, Petitioner has established that the work on this case has been more than
"boilerplate." Petitioner states that attorneys at Olinsky Law Group spent more than fifteen hours
preparing and writing briefing before this Court, as well as conducting research and case
preparation. See Dkt. No. 21-4 at 3. Although the expertise of the attorneys has not been
explicitly pled here, Olinsky Law Group has successfully litigated numerous Social Security
Administration matters in the Northern District of New York. See, e.g., Michael N. v. Comm'r of
Soc. Sec., No. 5:23-CV-175, 2025 WL 1519316 (N.D.N.Y. May 28, 2025); David M.D. v. Dudek,
No. 8:21-CV-465, 2025 WL 1266612 (N.D.N.Y. May 1, 2025); Lorraine H. v. Comm'r of Soc.
Sec., No. 5:21-CV-437, 2024 WL 2304411 (N.D.N.Y. May 21, 2024).
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"Where, as here, the specialization and experience of the firm and the attorneys enabled
them to work efficiently and obtain a remand . . . for their client, '[i]t would be foolish to punish a
firm for its efficiency and thereby encourage inefficiency.'" David M.D., 2025 WL 1266612, at
*3 (quoting Fields, 24 F.4th at 854). Given the contingent nature of the representation, the
agreement between Petitioner and Plaintiff, the absence of objections to the requested fee by the
Commissioner or Plaintiff, and analysis of all the factors to be considered, the Court finds that
Petitioner's request for a § 406(b) fee in the amount of $7,873 is reasonable in this case. See
Crystal M.C. v. Comm'r of Soc. Sec., No. 5:20-CV-807, 2023 WL 144066, *3 (N.D.N.Y. Jan. 10,
2023) (holding that de facto hourly rate of $341.97 was reasonable) (collecting cases).
As a final matter, 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). As Petitioner
has addressed, 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. See
Gisbrecht, 535 U.S. at 796. Petitioner states that the EAJA fee will be refunded upon receipt of
an award of § 406(b) attorney's fees. See Dkt. No. 21-1 at 3. However, because Petitioner has not
yet received payment of the EAJA fees awarded, Petitioner requests that the Court not specify an
amount to be refunded upon receipt of a § 406(b) fee award. See id. at 3 n.1.
Indeed, at times, funds allocated for payment of EAJA fees may be intercepted to pay
outstanding tax or debt obligations. See Gibson v. Saul, No. 21-CV-41, 2024 WL 4802618, *1
n.1 (E.D.N.Y. Nov. 15, 2024) ("[Counsel] never received the $6,756.98 award of attorney's fees
ordered by this Court because the United States Treasury intercepted the fees to pay [the
plaintiff's] New York State tax debt. [Counsel] cannot return money he never received") (citation
omitted); Bermejo v. Comm'r of Soc. Sec., No. 18-CV-6926, 2022 WL 10676429, *1 & n.1
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(S.D.N.Y. Aug. 22, 2022), R&R adopted, 2022 WL 10638093 (S.D.N.Y. Oct. 18, 2022) (holding
no offset required for § 406(b) award where counsel did not receive EAJA fees "presumably due
to the fee being applied to a debt owed by [the plaintiff] and subject to a lien on the EAJA fee")
(citations and internal quotation marks omitted). As Petitioner has not received payment of the
EAJA fees, a specific amount to be refunded will not be stated herein. However, Petitioner is
advised that, in the event any EAJA fees have been received, the Court directs that such fees be
refunded to Plaintiff. See Gisbrecht, 535 U.S. at 796.
IV. CONCLUSION
Accordingly, after carefully reviewing the entire record in this matter, the parties'
submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for attorney's fees (Dkt. No. 21) is GRANTED in the
amount of $7,873; and the Court further
ORDERS that the Social Security Administration is directed to approve a payment of
$7,873 to Petitioner, out of Plaintiff's past-due benefits; and the Court further
ORDERS that Petitioner is directed, upon receiving payment of the § 406(b) award, to
refund Plaintiff the full amount of any fees previously received under the EAJA; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of the Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 13, 2026
Albany, New York
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