Benevento v. Berryhill ( 2021 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x TRACY H. BENEVENTO, MEMORANDUM AND ORDER Plaintiff, Case No. 1:17-cv-7564-FB -against- NANCY A. BERRYHILL, Defendant. ------------------------------------------------x Appearances: For the Plaintiff: For the Defendant: HOWARD D. OLINKSY CANDACE SCOTT APPLETON Olinksy Law Group United States Attorney’s Office 250 South Clinton St. 271 Cadman Plaza East Ste 210 Brooklyn, NY 11201 Syracuse, NY 13202 BLOCK, Senior District Judge: Following an order to remand for the calculation of benefits, the Social Security Administration (“SSA”) awarded Plaintiff Tracy Benevento $65,929.00 in past-due benefits. Benevento also obtained $6,250.00 in attorney’s fees under the Equal Access to Justice Act (“EAJA”), which the parties stipulated would be paid to Olinsky. ECF No. 31 at 1-2. Pending is attorney Howard Olinsky’s (“Olinksy’s”) motion for approval of a contingency fee agreement (“the Agreement”), which provides that 25% of the plaintiff’s past due benefits award will be paid to counsel. Olinksy seeks a total of $16,482.25 in attorney’s fees. For the reasons below, Olinksy’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). 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, Olinksy requests a fee of $16,482.25, which is 25% of the total benefits award. There is no allegation of fraud. Finally, the requested amount of fees is not a windfall to the attorney. Olinksy requests a fee of $16,482.25 for 35.9 hours of work rendered before this Court. ECF No. 31 at 3. This hourly calculation includes 7.2 hours of paralegal work at the rate of $100.00 per hour. This makes the de facto hourly rate for the remaining 28.7 hours of attorney work $549.21. ECF No. 31 at 3. This Court has found that $100.00 per hour for paralegal work is reasonable. See, e.g., Bonaventure v. Saul, 2021 WL 1550513, at *2 (E.D.N.Y. April 19, 2021); Long v. Comm’r of Soc. Sec., 2020 WL 6545904, at *3 (E.D.N.Y. Nov. 6, 2020). The hourly rate of $549.21 for attorney work is also 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). Olinksy’s requested fee of $16,482.25 is reasonable. CONCLUSION Olinksy’s motion is GRANTED. The Commissioner of the SSA is DIRECTED to disburse $16,482.25 to Olinksy and the remainder to the plaintiff. Upon receipt of these funds, Olinksy is DIRECTED to refund the $6,250.00 awarded under the EAJA to the plaintiff. SO ORDERED. _/S/ Frederic Block____________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York July 22, 2021