Disla v. Social Security Administration

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JONATHAN DISLA,

Plaintiff,

-against- ORDER

22 CV 1640 (LDH) (CLP)

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

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POLLAK, United States Magistrate Judge:

On March 24, 2022, plaintiff Jonathan Brown (“plaintiff”) commenced this action

against the Commissioner of the Social Security Administration (“Commissioner”), alleging

that he was wrongfully denied Disability Insurance Benefits. (ECF No. 1). On December 1,

2022, the Honorable LaShann DeArcy Hall So Ordered the parties’ stipulation, reversing and

remanding the Commissioner’s decision for further administrative proceedings. (ECF No. 16).

Currently pending before this Court is plaintiff’s Motion for an award of counsel’s fees,

pursuant to Section 406(b) of the Social Security Act, 42 U.S.C. § 406(b). (ECF No. 25). For

the reasons set forth below, the Court grants the motion.

BACKGROUND

Plaintiff Disla, proceeding pro se, applied for Disability Insurance Benefits on February

22, 2018, claiming to have been disabled since September 9, 2013. (Pl.’s Mem.1 at 1).

Following the denial of his application for benefits on May 16, 2018, plaintiff and his mother

consulted with counsel, and on June 9, 2018, plaintiff executed a Retainer Agreement. (Id. at 1–

1 Citations to “Pl.’s Mem.” refer to the plaintiff’s Memorandum in Support of Motion For An Award of Counsel Fees

Pursuant to 42 U.S.C. § 406(b) (ECF No. 25, Ex. 1).

2; see ECF No. 25, Ex. 5). The provision of the Agreement pertaining to Federal Civil Court

Actions provides that “at the favorable conclusion of my case, if and when benefits are

awarded, my attorney will apply for a fee of up to 25% of all past due benefits to me and my

auxiliaries. . .” subject to court approval. (ECF No. 25, Ex. 5 at 5).

After being retained, counsel filed a formal hearing request with the Social Security

Administration (“SSA”) and proceeded to represent plaintiff in a series of hearings before an

Administrative Law Judge (“ALJ”). (Pl.’s Mem. at 2). By Denial Decision dated June 4, 2019,

the ALJ, Gloria Pellegrino, denied plaintiff’s claims. (Id.) Counsel then filed an appeal on

plaintiff’s behalf to the Appeals Council, which remanded the case back to the ALJ for a new

hearing. (Id.) Following the hearing, the ALJ issued a second decision denying the claim, and

plaintiff again requested Appeals Council review. (Id.) On March 24, 2022, after the Appeals

Council affirmed the ALJ’s decision, plaintiff commenced this federal action, pursuant to 42

U.S.C. §§ 405(g)2 and 1383(c)(3), appealing the Commissioner’s decision to deny plaintiff’s

claim for disability insurance benefits. (Id.; see ECF No. 1).

After review of the voluminous administrative file, counsel prepared a motion and

Memorandum of Law, arguing that the final administrative decision should be reversed and

remanded. (Pl.’s Mem. at 2). Based upon the government’s review of counsel’s Memorandum,

the parties agreed to a voluntary remand which the court So-Ordered on March 13, 2023. (ECF

No. 15, 16, 17). On March 14, 2023, counsel for plaintiff moved for reasonable attorney’s fees

under EAJA, and the Commissioner settled the fee issue for $4,616.40. (ECF No. 19, Ex. 1; see

also ECF No. 20).

2 Section 405(g) is made applicable to final determinations regarding SSI benefits by 42 U.S.C. § 1383(c)(3).

Following remand, a new ALJ held a hearing and issued a favorable decision on May

24, 2024, finding plaintiff had been under a disability since September 9, 2013. (Pl.’s Mem. at

3). The Social Security Administration issued a Notice of Award dated August 13, 2025, which

was received on August 15, 2025. (Id.) The instant motion for counsel fees was then filed on

August 27, 2025. (ECF No. 25).

The Notice of Award letter of August 13, 2025 advised that the Social Security

Administration had withheld $27,377.003 from plaintiff’s past due benefits to pay a possible

attorney fee request. (Gov’t Ltr.4 at 1). From this amount, the ALJ approved a fee of $9,200 for

work performed at the administrative level, which amount was withheld by the Social Security

Administration, leaving a total of $18,177.00 withheld for possible court-approved fees. (Id.;

see also Pl.’s Mem. at 4).

On May 27, 2025, plaintiff filed the instant motion seeking $18,177.00 in attorney’s fees

under Section 406(b). (ECF No. 25-1). In the application, counsel notes that under the

Agreement, plaintiff is entitled to a credit in the amount of $4,616.40, representing the amount

already received by counsel pursuant to EAJA. (Pl.’s Mem. at 4). On August 28, 2025, the

Honorable LaShann DeArcy Hall referred the motion to the undersigned. (Docket Order, dated

August 28, 2025).

DISCUSSION

Section 406(b) of the Social Security Act provides that “[w]henever a court renders a

judgment favorable to a claimant under this title . . . the court may determine and allow as part of

3 This amount represents one-quarter of plaintiff’s total recovery.

4 In its letter filed September 2, 2025 (“Gov’t Ltr.”) (ECF No. 26), the government notes that the Commissioner has

no direct financial stake in the outcome of counsel’s motion and acts more like a “trustee for the claimants.” (Id. at

1 (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002))). Thus, the Commissioner takes no position on the

request for fees under Section 406(b). (Id.)

its judgment a reasonable fee . . . not in excess of 25 percent of the total of the past-due benefits

to which the claimant is entitled . . . .” 42 U.S.C. § 406(b)(1)(A).

A. Timeliness of Application

Before considering the substance of plaintiff’s motion, the Court must determine whether

the motion is timely. Here, plaintiff’s Notice of Award letter was issued on August 13, 2025, and

received on August 15, 2025. (Pl.’s Mem. at 3). The instant motion was filed on August 27,

2025, 12 days after receipt of the Notice of Award letter. (Gov’t Ltr. at 1). The Second Circuit

applies Rule 54(d)(2)(B)’s 14-day time limit to the filing of attorney’s fees requests under

Section 406(b), Sinkler v. Berryhill, 932 F.3d 83, 87–88 (2d Cir. 2019), but recognizes that

“district courts are empowered to enlarge that filing period where circumstances warrant.” Id. at

89 (citing cases) (noting also that Rule 54(d)(2)(B) “expressly states that the specified period

applies ‘[u]nless a statute or a court order provides otherwise’”).

Here, the motion was filed within the 14-day time limit set by Rule 54. Accordingly, the

Court deems the motion timely.

B. Reasonableness of Fee Request

The Court must now determine whether the requested fees are reasonable. See Gisbrecht

v. Barnhart, 535 U.S. at 807–08; Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990). If the

requested fee is based on a contingency fee agreement, it should be enforced unless the

agreement is unreasonable. Wells v. Sullivan, 907 F.2d at 372.

Although use of the lodestar method became popular in the context of “federal-court

adjudication of disputes over the amount of fees properly shifted to the loser in [a] litigation,” the

Supreme Court in Gisbrecht v. Barnhart held that the reasonableness check of Section 406 was

not intended to “displace contingent-fee agreements as the primary means by which fees are set

for successfully representing Social Security benefits claimants in court.” 535 U.S. at 802, 807.

This is because Section 406(b) authorizes “fees payable from the successful party’s recovery.”

Id. at 802. Rather than a complete bar, Section 406(b) merely establishes a limit on contingency

agreements, with the Supreme Court explaining that “[g]iven the prevalence of contingent-fee

agreements between attorneys and Social Security claimants, it is unlikely that Congress, simply

by prescribing ‘reasonable fees,’ meant to outlaw, rather than to contain, such agreements.”

Gisbrecht v. Barnhart, 535 U.S. at 805. See also Fields v. Kijakazi, 24 F.4th 845, 853 (2d Cir.

2022) (citing Wells v. Sullivan, 907 F.2d at 371) (explaining that “because a successful social

security claimant evaluates and pays his own attorney, a court’s primary focus should be on the

reasonableness of the contingency agreement in the context of the particular case – not an hourly

rate determined under lodestar calculations”) (internal quotation marks omitted).

When conducting a reasonableness analysis, courts consider the following factors: (1)

whether the contingency percentage falls within the 25% cap set by Section 406(b), see, e.g.,

Gisbrecht v. Barnhart, 535 U.S. at 807 (holding that Section 406(b) “does not displace

contingent-fee agreements” so long as the agreed-to fee comprises no more than 25% of a

claimant’s past-due benefits); (2) the character of counsel’s representation and the achieved result

(id. at 808); (3) whether counsel is responsible for undue delay (id.); (4) whether there has been

fraud or overreaching in making the agreement; and (5) whether the requested amount is so large

as to constitute a windfall to the attorney. See Fields v. Kijakazi, 24 F.4th at 853 (citing

Gisbrecht v. Barnhart, 535 U.S. at 807 and Wells v. Sullivan, 907 F.2d at 372).

To provide further clarity on the windfall factor, the Second Circuit in Fields v. Kijakazi

advised that this factor “does not constitute a way of reintroducing the lodestar method” and that

courts must consider “more than the de facto hourly rate” to determine whether there is a

windfall that renders a Section 406(b) fee unreasonable in the context of a particular case. Id. at

854 (emphasis in original). The Court in Fields v. Kijakazi instructed courts to consider (1) “the

ability and expertise of the lawyers and whether they were particularly efficient,” (2) “the nature

and length of the professional relationship with the claimant – including any representation at the

agency level[,]” (3) the claimant’s satisfaction, and (4) “how uncertain it was that the case would

result in an award of benefits and the effort it took to achieve that result.” Id. at 854–56.

In the instant case, the Social Security Administration withheld $27,377.00 from

plaintiff’s past due benefits payable to plaintiff to pay a possible attorney fee request. (Gov’t Ltr.

at 1). This represents 25% of plaintiff’s past-due benefits of $109,508. (See Pl.’s Mem., Ex. C at

5) Thus, the requested contingency fee falls within the 25% cap set by Section 406(b). The ALJ

approved counsel’s fee for administrative level services in the amount of $9,200.00. (Pl.’s Mem.

at 6).

Counsel represents that the Firm expended 21.5 attorney hours on plaintiff’s case before

the District Court. (Eisner Aff.5 ¶ 5). Based on counsel’s representations and the amount

withheld by the Social Security Administration, counsel will receive a de facto hourly rate of

$1,273.35 if the motion is granted.6 Although higher than hourly rates commonly awarded in

this district under a typical lodestar analysis, this rate falls “within the range of effective hourly

rates that have previously been deemed reasonable by courts in this Circuit” when awarding fees

under Section 406(b). Gentile v. Kijakazi, No. 21 CV 641, 2023 WL 6392905, at *2 (E.D.N.Y.

May 3, 2023) (approving a de facto hourly rate of $1,750 and collecting cases that approved

hourly rates between $1,072.17 to $2,100.00).

Beyond the de facto hourly rate, the Court’s analysis of the record supports a finding that

the Agreement is reasonable, and that the requested fee does not constitute a windfall to

5 Citations to “Eisner Aff.” refer to the Affirmation of Services submitted by Brian Eisner, Esq., counsel to plaintiff,

dated August 26, 2025. (ECF No. 25-4).

6 Plaintiff’s counsel states that his de facto hourly rate is $630.72. (Pl.’s Mem. at 6). However, the amount withheld

divided by the hours worked results in an hourly rate of $1,273.35 per hour.

plaintiff’s counsel. Counsel represents that he graduated from law school in 2015 and has been a

practicing attorney since 2016. (Pl.’s Mem. at 6). He represents that he has practiced in the field

of Social Security Disability law since 2017, handling over 4,000 claimants. (Id. at 7).

Moreover, it is evident that counsel achieved an excellent result for plaintiff, who was

established as disabled and awarded $109,508in past-due benefits because of counsel’s

representation.7 There is no indication from the record that counsel was responsible for any

undue delay in this matter, and the Agreement appears to be standard in this field, rather than the

result of fraud or overreaching on counsel’s part.

As for the measure of satisfaction of the claimant, there is no evidence that plaintiff was

dissatisfied with the results achieved, since he is now entitled to thousands of dollars in past-due

benefits. See Fields v. Kijakazi, 24 F.4th at 855 (noting that there was no indication in the record

that the claimant had objected to the fee amount, despite having a direct financial stake in the fee

determination). Furthermore, in considering the fee request, the court has considered the “risk of

non-payment” that an attorney assumes in contingent fee arrangements, and the uncertainty of a

favorable result for plaintiff. See Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)); see also

Morrison v. Saul, No. 16 CV 4168, 2019 WL 6915954, at *3 (S.D.N.Y. Dec. 19, 2019)).

In sum, the Court finds that the Retainer Agreement executed by plaintiff was both

reasonable and in line with the congressional limitations placed on Section 406(b) awards. The

requested fee is also reasonable, and it would not result in a windfall to counsel.

Finally, the Court notes that because counsel previously received an EAJA fee award of

$4,616.40, which Judge DeArcy Hall awarded to plaintiff on April 4, 2023 (ECF No. 19),

7 The Firm’s representation included drafting a successful, persuasive motion to remand to agency (see ECF No. 15),

after which the Social Security Administration stipulated to remand the case for further administrative proceedings

instead of filing papers in opposition (see ECF No. 16).

counsel has represented that he will return those funds to the plaintiff if the Court orders the

Commissioner to disburse a fee award in the amount of $18,177.00. (Pl.’s Mem. at 8).

CONCLUSION

Accordingly, the Court grants plaintiff’s motion and Orders that plaintiff’s counsel be

awarded $18,177.00 in attorney’s fees pursuant to Section 406(b)(1)(A) of the Social Security

Act.

The Clerk is directed to send copies of this Order to the parties either electronically

through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.

Dated: Brooklyn, New York

September 29, 2025 /s/ Cheryl L. Pollak

Cheryl L. Pollak

United States Magistrate Judge

Eastern District of New York