Muller v. Berryhill

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x Cindy L. Muller

MEMORANDUM AND ORDER

Plaintiff,

Case No. 19-cv-0875-FB

-against-

Commissioner of Social Security

Defendant. ------------------------------------------------x Appearances:

For the Plaintiff: For the Defendant:

LEWIS BART INSLER RICHARD P. DONOGHUE Law Office of Lewis B. Insler By: Sean P. Greene 17 Newcomb Pl. United States Attorney’s Office White Plains, NY 10606 271 Cadman Plaza

7th Floor Brooklyn, NY 11201

BLOCK, Senior District Judge:

The Social Security Administration (“SSA”) awarded Plaintiff Cindy L. Muller (“Muller”) $34,974.001 in past due benefits. Muller’s counsel, Lewis Bart Insler (“Insler”), also obtained $6,670.85 in attorney’s fees under the Equal Access to Justice Act (“EAJA”). Pursuant to a fee agreement, Muller now seeks the full 1 This sum represents the benefits awarded after subtracting the $5,000.00 in fees sought by Stephen Jackel, the attorney who represented Muller at the administrative level. See ECF 19-1 at 2. amount of attorney’s fees withheld by the SSA, totaling $8,743.50. See ECF No. 19-3. For the reasons below, Insler’s fee request is granted.

Title 42, United States Code, 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 plaintiff is entitled.” The Supreme Court has held that 42 U.S.C. § 406(b)’s “reasonable fee” provision does not prohibit the use of contingency fee agreements, so long as they do not provide for a fee “in excess of 25 percent of the total past due benefits” and are “reasonable.” See Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002) (prescribing reasonableness review of contingency fee agreements). Courts in the Second Circuit weigh three factors when assessing the reasonableness of a fee agreement: (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 as to be a windfall to the attorney. Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990).

Here, Insler requests 25% of the total past-due benefits Muller was awarded, and there is no allegation of fraud. Thus, the only remaining question is whether a de facto hourly rate of $255.21 for 34.26 hours of work would constitute a “windfall” to Insler. It would not. The hourly rate of $255.21 for attorney work is well within the range that this Court has found to be reasonable in Social Security cases and therefore is not a windfall. See Patruno v. Berryhill, 2021 WL 1091900, at *1 (E.D.N.Y. March 22, 2021).

CONCLUSION Muller’s motion is GRANTED. The Commissioner of the SSA is ORDERED to disburse $8,743.50 to Insler and the remainder to Muller pursuant to 42 U.S.C. § 406(b). Upon receipt of these funds, Insler is DIRECTED to return the $6,670.85 awarded under the EAJA to Muller.

SO ORDERED.

_/S/ Frederic Block___________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York November 2, 2021