UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID L. J.,

Plaintiff,

v. 5:21-cv-00415 (AMN/ML)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ. 250 South Clinton St. - Suite 210 Syracuse, NY 13202 Attorneys for Plaintiff

SOCIAL SECURITY ADMINISTRATION CANDACE BROWN CASEY, 6401 Security Boulevard ESQ. Baltimore, MD 21235 Attorneys for Defendant Hon. Anne M. Nardacci, United States District Judge: MEMORANDUM-DECISION AND ORDER I. INTRODUCTION Currently before the Court is a motion by Plaintiff for his attorney, Howard D. Olinsky, to receive attorney’s fees pursuant to the Social Security Act,

(b) (the “SSA”). Dkt. No. 30 (the “Motion”). Defendant Commissioner of Social Security (“Defendant”) has responded to the Motion and neither supports nor opposes the requested relief. See Dkt. No. 32. For the reasons set forth herein, the Court grants the Motion in its entirety. II. BACKGROUND On August 2, 2022, the Court granted Plaintiff David L. J’s1 earlier petition, Dkt. No. 26, and issued a judgment awarding Plaintiff’s counsel attorneys’ fees of $6,647.90 pursuant to the Equal Access to Justice Act,

(the “EAJA”), Dkt. No. 29. The Social Security Administration (the “Administration”) subsequently issued Plaintiff a Notice of Award, dated

October 22, 2024. Dkt. No. 30-3 (the “Award”). Pursuant to the Award, the Administration will pay Plaintiff a lump sum of past-due benefits as well as a monthly benefit going forward.

. Also as part of the Award, the Administration withheld $22,522.25 from Plaintiff’s past-due benefits “in case [they] need[ed] to pay [his] representative.”

. Plaintiff’s counsel represents Plaintiff on a contingency-fee basis pursuant to a fee agreement dated April 8, 2021, whereby Plaintiff agreed to compensate his counsel in the amount of 25% of any past-due benefits awarded pursuant to

(b). Dkt. No. 30-2 at 2. Plaintiff’s counsel avers that attorneys and paralegals spent a total of 34.6 hours working on Plaintiff’s case before this Court for which they seek compensation, which reflects an effective hourly rate of $790.66 per hour.2 Dkt. No. 30-1 at ¶ 9; Dkt. No. 30-4 at 2-4 (Plaintiff’s counsel’s hours ledger).

III. STANDARD OF REVIEW The SSA provides that “[w]henever a court renders a judgment favorable to a claimant . . . who was represented before the court by an attorney, 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

1 In accordance with the local practice of this Court, Plaintiff’s last name has been abbreviated to protect his privacy. 2 The 34.6 hours for which Plaintiff’s counsel now seeks compensation appear to correspond with the 27.6 attorney hours and 7 paralegal hours for which Plaintiff’s counsel received compensation under the EAJA pursuant to the Court’s earlier Order. See Dkt. No. 26-1 at 2; see also Dkt. No. 29. past-due benefits to which the claimant is entitled by reason of such judgment . . . .”

(b)(1)(A).3 “The Second Circuit identified the following factors for a court to consider as a basis for refusing to approve the full amount requested under a contingency fee arrangement: (1) whether the amount requested exceeds the statutory 25% cap; (2) whether there was fraud or overreaching in the making of the agreement; and (3) whether the requested amount is so large as

to be a windfall to the attorney.” Karla B. v. Berryhill, No. 8:18-CV-1273,

, at *2 (N.D.N.Y. June 8, 2020) (quotation omitted). Moreover, the Second Circuit has noted that a district court “must give due deference to the intent of the parties.”

(quoting Wells v. Sullivan,

(2d Cir. 1990)). Indeed, the Supreme Court has explained that, “[m]ost plausibly read, . . . § 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court.” Ben D. v. Saul, No. 5:15-cv-01114,

, at *2 (N.D.N.Y. Apr. 22, 2020) (quoting Gisbrecht v. Barnhart,

(2002)). Rather, a district court’s review of such agreements is “an independent check, to assure that they yield reasonable results in particular

cases.” Gisbrecht,

. IV. DISCUSSION The Motion establishes a sufficient basis to approve the requested attorneys’ fees under Section 406(b) of the SSA as a result of counsel’s successful and efficient representation of Plaintiff resulting in the Award. The Court’s “determination of a reasonable fee under § 406(b) must begin with the

3 Additionally, while “[a]n attorney for a prevailing claimant may seek both SSA and EAJA fees, in the event he succeeds, must give the smaller of the awards to the claimant.” Gallo v. Astrue, No. 10-CV-1918,

, at *2 (E.D.N.Y. Nov. 8, 2011) (citing Wells v. Bowen,

, 42 (2d Cir. 1988)). contingency fee agreement[.]” Ben D.,

, at *2 (quoting Wells,

). As an initial matter, there is no indication that the requested fee is out of line with the representation or the results Plaintiff’s counsel achieved, nor is there any suggestion that counsel delayed or attempted to delay resolution of this litigation. Additionally, there is no indication that Plaintiff’s counsel engaged in fraud or overreaching to arrive at this result. Finally, the Court notes that

Defendant does not oppose the Motion. See Dkt. No. 32 at 1. Accordingly, the Court must determine whether an award of the attorneys’ fees requested would amount to a windfall for Plaintiff’s counsel or whether it is reasonable. Plaintiff’s counsel seeks an award of $22,522.25 in attorneys’ fees, which is 25% of the past-due benefits that the Administration awarded Plaintiff. See Dkt. No. 30-1 at ¶ 6. The 25% contingency fee results from an arrangement agreed to by Plaintiff and his counsel. See Dkt. No. 30-2. Plaintiff’s counsel notes that attorneys and paralegals at his firm spent a total of 34.6 hours on the matter before this Court. See Dkt. No. 30-1 at ¶ 9; Dkt. No. Dkt. No. 30-4 at 2-4. Awarding Plaintiff’s counsel the total amount sought would result in a de facto hourly rate of $790.66 for

both attorney and paralegal time. This hourly rate is within the range of what courts have generally considered to be reasonable in a case with experienced counsel who provided quality and efficient representation. See Fields v. Kijakazi,

, 856 (2d Cir. 2022) (approving de facto rate of $1,556.98 as reasonable); Kristen E. H. v. Comm’r of Soc. Sec., No. 6:21-CV-962,

, at *3 (N.D.N.Y. Jan. 6, 2023) (approving a $1,197 de facto hourly rate and collecting cases approving comparable or higher rates). Indeed, Plaintiff’s counsel “has extensive experience practicing social security law and representing claimants before the Social Security Administration and in the United States District Court.” Osborne v. Comm’r of Soc. Sec., No. 6:11-cv-553,

, at *2 (N.D.N.Y. Feb. 24, 2014) (referring to Plaintiff’s counsel). Therefore, the Court finds that the requested amount is reasonable. V. CONCLUSION Accordingly, the Court hereby ORDERS that Plaintiff's motion for an award of attorneys’ fees under the

(b)(1), Dkt. No. 30, is GRANTED in the amount of $22,522.25; and the Court further ORDERS that, upon receipt of the $22,522.25 in attorneys’ fees, Plaintiff's counsel is directed to immediately refund Plaintiff the EAJA fee award of $6,647.90; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. IT IS SO ORDERED.

Dated: September 3, 2025 |. lardaeer Albany, New York Anne M. Nardacci U.S. District Judge