UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

ADAM P., Plaintiff, No. 3:21-cv-1267 (SRU)

v.

MARTIN O’MALLEY, COMMISSIONER OF SOCIAL SECURITY,1 Defendant.

ORDER ON MOTION FOR ATTORNEYS’ FEES

Attorney Russell Zimberlin represented Adam P.2 (“plaintiff”) in an this action appealing the Social Security Administration’s decision denying the plaintiff’s claim for disability benefits. See Compl., Doc. No. 1. A consent motion to reverse and remand for additional development of the record was filed on December 14, 2021, which I granted. See Doc. Nos. 12, 13. Judgment entered on December 20, 2021. See Doc. No. 14. On January 3, 2022, the defendant filed a joint motion for attorney fees under the Equal Access to Justice Act (“EAJA”), stipulating to an award of $890.16. See Doc. No. 15. On January 5, 2022, this Court entered an order granting the joint motion for attorneys’ fees and awarding attorneys’ fees in the amount of $890.16 under the EAJA. Doc. No. 16. On January 3, 2023, Attorney Zimberlin filed a motion for attorneys’ fees under section 406(b), and asked that the Court hold the motion in abeyance pending ruling of the Commissioner on his pending request under

(a) for fees for work performed

1 On December 20, 2023, Martin O’Malley replaced Kilolo Kijakazi as Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of Court is directed to substitute Martin O’Malley for Kilolo Kijakazi in this action. 2 Pursuant to the U.S. District of Connecticut Standing Order on Social Security Cases, the plaintiff will be referred to solely by first name and last initial. See Standing Order Re: Social Security Cases, No. CTAO-21-01 (D. Conn. Jan. 8, 2021). before the agency. See Doc. No. 17. On January 3, 2024, Attorney Zimberlin filed an amended motion for attorneys’ fees, requesting an order approving attorneys’ fees in the amount of $4,389.50. See Doc. No. 23. The Commissioner takes no position on the amended request for attorneys’ fees. See Doc. No. 24, at 2.

I. Standard of Review Section 406(b)(1) of the Social Security Act provides, in part, that “[w]henever a court renders a judgment favorable to a [counseled] claimant” under the Social Security Act, “the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.”

(b)(1)(A). Attorneys’ fee awards under section 406(b) are paid directly out of the plaintiff’s past benefits in accordance with the terms of a contingency agreement. Id.; see Walls v. Comm’r of Social Security,

, at *1 (D. Conn. June 5, 2020). Requests for section 406(b) fees must be both timely and reasonable. In determining

whether a section 406(b) application is timely, the Second Circuit has instructed courts to apply Rule 54’s fourteen-day deadline, “but ‘the fourteen-day filing period is tolled until the claimant receives notice of the amount of any benefits award.’” Bukilici v. Saul,

, at *2 (D. Conn. May 7, 2020) (quoting Sinkler v. Berryhill,

(2d Cir. 2019)). In assessing whether the requested fee is reasonable, the Second Circuit has instructed courts to consider two factors in addition to the statutory 25-percent cap: “whether there has been fraud or overreaching in making the agreement” and “whether the requested amount is so large as to be a windfall to the attorney.” Wells v. Sullivan (Wells II),

(2d Cir. 1990). It is the “attorney for the successful claimant” who “must show that the fee sought is reasonable for the services rendered.” Gisbrecht v. Barnhart,

(2002). If a counsel receives fees pursuant to both the EAJA,

, and section 406(b), counsel is to “refund[] to the claimant the amount of the smaller fee.”

,

(Aug. 5, 1985); see also Gisbrecht,

. II. Discussion

A. Timeliness The plaintiff’s initial motion for attorneys’ fees was filed on January 3, 2024. See Doc. No. 17. Attached to that motion is the plaintiff’s Notice of Change in Benefits, which is dated December 25, 2022. See Doc. No. 17-3. The motion was therefore filed nine days after the receipt of the notice of the amount of the benefits award. Because Attorney Zimberlin filed the motion within fourteen days after the claimant received notice of the amounts of any benefits awarded, the motion is timely under Rule 54. See Sinkler,

(“[T]he fourteen-day filing period starts to run when the claimant receives notice of the benefits calculation.”). B. Reasonableness In this case, the fee agreement between the plaintiff and Attorney Zimberlin contemplates

a contingent fee of twenty-five percent of all past-due benefits for any successful appeals, which is equivalent to the statutory cap. See Doc. No. 17-5;

(b)(1)(A). The Social Security Administration previously approved a fee of $7,088.03 for work Attorney Zimberlin performed at the administrative level pursuant to section 406(a),3 a reduction from the $11,477.53 originally requested. See Doc. No. 23-2. Attorney Zimberlin now seeks the remaining balance of $4,4389.50 for work performed before this court. See Doc. No. 23-1, at 1.

3 The Social Security Act’s fee provisions “deal[] with the administrative and judicial review stages discretely: [section] 406(a) governs fees for representation in administrative proceedings; [section] 406(b) controls fees for representation in court.” Attorney Zimberlin states, without citation, in his amended motion that “25% of past-due benefits was $11,477.53.” See Doc. No. 23-1, at 1 n.2. It is difficult for the Court to corroborate that statement because none of the exhibits submitted by the plaintiff explicitly states the amount of past-due benefits that were awarded to the plaintiff. Additionally, the December 25, 2022

Notice of Change in Benefits letter advised the plaintiff that the agency “usually withhold[s] 25 percent of past-due benefits in order to pay the approved representative’s fee,” and withheld in this case “$7,088.03 from [the plaintiff’s] past-due benefits.” Doc No. 17-3, at 3. It is therefore unclear whether the 25 percent of the total past-due benefits was $11,477.53, as Attorney Zimberlin represents, $7,088.03, which the agency withheld and has now already approved as a fee for his work at the agency level, or some other number in between. Nonetheless, section 406 does not limit the aggregate fees awarded under subsections (a) and (b) to 25 percent of past-due benefits, but rather “the 25% cap in [section] 406(b)(1)(A) applies only to fees for court representation.” Culbertson v. Berryhill,

, 523 (2019). In the absence of a fee agreement between the claimant and their representative for work at the agency level, section

406(a) permits the agency to approve any “reasonable” fee to an attorney for a successful claimant, even if it exceeds the 25 percent of past-due benefits that it can withhold for direct payment.

. Here, the fee agreement between the plaintiff and Attorney Zimberlin, by its terms, pertains only to representation in federal court. See Doc. No. 17-5. The fee now requested for representation in court, $4,389.50, when compared to the amount withheld by the agency, appears to be below section 406(b)’s statutory cap and therefore also below the amount agreed to in the fee agreement.

(agreeing to a fee of 25% of past-due benefits). Turning to the second and third reasonableness factors, I must consider whether there was any fraud or overreach, and whether the requested amount is “so large as to be a windfall to the attorney.” Wells II,

. Neither party has reported any fraud or overreach, and I have not otherwise found any indication thereof. Regarding whether there is a windfall, I must

consider “more than the de facto hourly rate.” Fields v. Kijakazi,

, 854 (2d Cir. 2022). The Second Circuit has therefore outlined three additional factors that should inform a court’s determination of a windfall. First, “the ability and expertise of the lawyers and whether they were particularly efficient.”

Second, “the nature and length of the professional relationship with the claimant,” which “can inform a district court’s understanding of ‘the overall complexity of the case, the lawyering skills necessary to handle it effectively, the risks involved, and the significance of the result achieved in district court.’”

at 855 (quoting Mudd v. Barnhart,

(4th Cir. 2005)). Third, the court should consider “the satisfaction of the disabled claimant”; and, fourth, “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 855. A review of the fee

itemization submitted by Attorney Zimberlin shows that he spent 4.4 hours on this case, and he seeks payment at an hourly rate of $997.61. See Doc. No. 17-4; Doc. No. 23-1, at 2. Despite being a relatively high hourly rate, this is not more than other courts have found is reasonable. See Doc. No. 23-1, at 3 (citing cases). Moreover, because of counsel’s expertise, the length of his relationship with the plaintiff, and the ultimate satisfaction of the plaintiff, I conclude that the requested amount is reasonable and not “so large as to be a windfall to the attorney.” Wells II,

. Accordingly, I grant the plaintiff’s amended motion, doc. no. 23, and I approve Attorney Zimberlin’s request for an award of $4,389.50 in attorneys’ fees under section 406(b). C. Previous EAJA Award On January 5, 2022, I awarded the plaintiff $890.16 in attorneys’ fees pursuant to the EAJA. See Doc. No. 16. Accordingly, because the $4,389.50 in attorneys’ fees I award now exceeds the amount awarded previously, the plaintiff counsel is ordered to return the EAJA

award to his client. See Wells v. Bowen (Wells I),

(2d Cir. 1988) (“Once appropriate fees under

(b) are calculated, the district court should order [counsel] to return the lesser of either that amount or the EAJA award to his clients.”). III. Conclusion For the foregoing reasons, the plaintiff’s amended motion for 406(b) fees, doc. no. 23, is granted. The plaintiff’s counsel is awarded $4,389.50 in attorneys’ fees. Additionally, the plaintiff’s counsel is ordered to return the EAJA award previously ordered, see doc. no. 16, to his client. So ordered. Dated at Bridgeport, Connecticut, this 19th day of July 2024.

/s/ STEFAN R. UNDERHILL Stefan R. Underhill United States District Judge