Plaintiff,

OPINION AND ORDER

v.

COMMISSIONER Of SOCIAL SECURITY.

Defendant.

CECCHI, District Judge.

This matter comes before the Court upon the Application and Motion of Barbara Leak

(“Plaintiff’) to award attorney’s fees for her Counsel, Abraham S. Alter, Esq. (“Plaintiffs

Counsel”) pursuant to 42 U.S.C. § 406(b). ECF No. 14. Defendant Commissioner of Social

Security (the “Commissioner”) opposes Plaintiffs Motion. ECF No. 18. No oral argument was

heard pursuant to Rule 78 ofthe Federal Rules of Civil Procedure. For the reasons set forth below,

Plaintiffs Motion is granted.

I. BACKGROUND

On March 19, 2012, this Court vacated, reversed, and remanded a decision by the

Commissioner that Plaintiff was not disabled. Plaintiffs Motion (“P1. Mot.”) ECF No. 14 at 1.

On remand, the Administrative Law Judge found Plaintiff was disabled as of March 1, 2004. Id.

On March 30, 2012, this Court awarded Plaintiffs Counsel $5,511.75 in attorney’s fees pursuant

to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). ECF No. 13. On December21, 2016, the Social Security Administration awarded Plaintiff $115,053.00 for past due benefits.

Id.
y

reason ofsuch judgment.

The Commissioner “requests that the Court determine whether the amount sought is

excessive and represents a windfall given the 31.2 hours of work claimed for this case.”

Defendant’s Motion in Opposition (“Def. Mot.”) ECF No. 18 at 2.

III. DISCUSSION

A. Hour Calculations

Based on the award of $115,053.00 for Plaintiffs past due benefits, Plaintiffs Counsel

seeks $22,763.25, representing 25% of that award. See P1. Mot. at 2. Both Parties agree that

whenever EAJA fees are awarded in the same case as fees pursuant to 406(a), the smaller fee is to

be refunded. P1. Mot. at 5; Def. Mot. at 2 n.1; see also Williams v. Comm ‘r ofSoc. Sec., 549 F.

Supp. 2d 613, 616 n.4 (D.N.J. 2008). Therefore, once Plaintiff has refunded the $5,511.75 in

attorney’s fees pursuant to EAJA, Plaintiffs fee would amount to $23,351.50. See ECF No. 19.

Given that Plaintiff worked 31.2 hours, the hourly rate awarded would be $745.24. See id.

B. Reasonableness

Where, as here, there is a contingent-fee agreement between Plaintiff and her Counsel,

“ 406(b) calls for court review ofsuch arrangements as an independent check, to assure that they

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adjustment is similarly in order.” Id. at 80$. When determining whether an amount is reasonable,

courts in the Third Circuit have considered the amount of time spent on the case, the result

achieved, the experience of counsel, the nature of contingent fees and the risk of non-recovery,

counsel’s typical hourly rate, the EAJA fee previously requested, and whether the attorney is

responsible for any unreasonable delays in the proceeding. See Anthony v. Comm ‘r ofSoc. Sec.,

No. 11-00796-WJM, 2014 WL 4352191, at *2 (D.N.J. Sept. 2, 2014) (approving a fee of

$18,347.00 for 26 hours of work); Dixon v. Comm ‘r of Soc. Sec., No. 10-5703 RBK, 2013 WL

5299561, at *4 (D.N.J. Sept. 18, 2013) (reducing fee request for $11,287.50 to $5,643.75 when

plaintiffs counsel would have received $5,643.75 from EAJA fees, but failed to apply); Wilson v.

Astrue,622 F. Supp. 2d 132, 136 (D. Del. 200$) (approving a fee of $21,958.13 for 19 hours of

work); Perez v. Barnhart, No. 02-3779, 2006 WL 781899, at *3..4 (E.D. Pa. March 23, 2006)

(reducing a fee request of $20,563.50 for 17.2 hours of work to $13,932.00).

Here, the Commissioner does not identify any factor which persuades the Court against

awarding the full amount sought by Plaintiffs Counsel. Rather, the Court finds that based upon

the factors previously identified, a fee of $28,763.25 is reasonable in this case. Plaintiffs Counsel

has represented claimants before the Social Security Administration and in federal district courts

The Supreme Court noted that contingent-fee agreements are not enforceable to the extent they

yield fees exceeding 25 percent ofthe past-due benefits. Id. This exception is not applicable here,

as the amount sought by Plaintiff is within the 25 percent boundary.

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at *2. Finally, although the rate requested in the instant matter is significantly higher than that

requested by Plaintiff pursuant to the EAJA ($176.66 per hour), the Court finds this does not

outweigh the previous factors in favor of awarding Plaintiff with the full amount requested.

IV. CONCLUSION

For the reasons set forth above,

ITlSonthis

dayof__o’---’-,2017,

ORDERED that Plaintiffs motion for attorneys’ fees, ECF No. 14, is GRANTED; it is

further

ORDERED that Plaintiffis entitled to $28,763.25 in attorney’s fees pursuant to 42 U.S.C.

§ 406(b); and it is further

ORDERED that the Clerk ofthe Court shall close this matter.

SO ORDERED.

CLAIRE C. CECCHI, U.S.D.J.

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