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.

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(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

(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,

(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,

(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,

, 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

(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