Weiss v. Kijakazi

DOCUMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DOC #:. : □□ □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ DATE FILED: 18/7095 RICHARD WEISS, Plaintiff, 22-CV-04669 (LGS)(SN) -against- ORDER KILOLO KIJAKAZI, Defendant. __------------------------------------X SARAH NETBURN, United States Magistrate Judge: Plaintiff filed this action pursuant to 42 U.S.C. § 405(g), seeking review of a denial of social security benefits. The Court remanded the matter for further review by the Commissioner of Social Security, and the Court approved a stipulation and agreement awarding Plaintiff $7,200.00 in attorney’s fees, plus expenses of $21.00, under the Equal Access to Justice Act (the “EAJA”), 28 U.S.C. § 2412. ECF No. 29.

Following the remand, Plaintiff received retroactive benefits from the Social Security Administration. Thereafter, on February 17, 2025, Plaintiff's counsel filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b). See ECF Nos. 30-32. Section 406(b) permits the Court to approve “‘a reasonable fee . . . not in excess of 25 percent of the . . . past-due benefits” awarded to the plaintiff. Gisbrecht v. Barnhart, 535 U.S. 789, 795 (2002) (quoting 42 U.S.C. §406(b)(1)(A)).

Because of the Commissioner’s unique role and expertise in this area, the Court orders the Commissioner to respond to Plaintiff's motion no later than March 4, 2025. In particular, the Court directs the Commissioner to address the question of whether the fees amount to an impermissible windfall. See Diberardino v. Commissioner of Social Security, No. 17-cv-02868 (PKC), 2020 WL 6746828 (E.D.N.Y. Nov. 17, 2020).

SO ORDERED.

SARAH NETBURN | United States Magistrate Judge DATED: New York, New York February 18, 2025