Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KEON BROWN,

Plaintiff, MEMORANDUM & ORDER

23-CV-6425 (EK)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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ERIC KOMITEE, United States District Judge:

Counsel for Keon Brown moves for an award of $3,900 in

attorney’s fees under 42 U.S.C. § 406(b)(1). Though the

Commissioner of Social Security does not object to the motion,

the Court must determine whether the fee request is reasonable.

For the following reasons, Brown’s Counsel’s request is granted.

Background

Brown retained the law firm Osterhout Berger

Disability Law, PLLC (“OBL”) to represent him in connection with

his pursuit of disability insurance benefits under the Social

Security Act. On August 14, 2023, Brown signed a contingent-fee

agreement providing that OBL would receive 25% of any past-due

disability benefits awarded by the Commissioner of Social

Security (“Commissioner”).

On August 23, 2023, Brown filed suit in this Court,

challenging the Commissioner’s decision to reject his

application for disability benefits. The Commissioner agreed

that “the ALJ did not properly evaluate the medical opinion

evidence, the claimant’s subjective complaints, and the

vocational evidence” and agreed jointly with Brown to remand the

case for further proceedings. Consent Mot. To Remand, ECF

No. 8. Following remand, the parties also agreed to a fees

award to OBL of $1,206 pursuant to the Equal Access to Justice

Act (“EAJA”), 28 U.S.C. § 2412. Jt. Mot. for Atty’s Fees, ECF

No. 11-1.

On remand, the Commissioner found Brown disabled and

awarded him approximately $34,000 in past due benefits. The

Commissioner withheld $8,935.25 — 25% of the past-due benefits

awarded — for attorney’s fees. OBL then moved for an award of

$3,900 — several thousand less than the contract entitled it to.

Discussion

A court must enforce a claimant-counsel contract for

“a reasonable fee . . . not in excess of 25% of the . . . past-

due benefits” awarded in a case before the Commissioner.

42 U.S.C. § 406(b)(1)(A). When the fee arrangement is

contingent, “the district court’s determination of a reasonable

fee under § 406(b) must begin with the agreement, and the

district court may reduce the amount called for by the

contingency agreement only when it finds the amount to be

unreasonable.” Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir.

1990).

To determine whether a fee is reasonable, courts

consider “a) the character of the representation and the result

the representative achieved, b) whether a claimant's counsel is

responsible for undue delay, [ ] c) whether there was fraud or

overreaching in the making of the contingency agreement,” and d)

“whether a requested fee would result in a ‘windfall’ to

counsel.” Fields v. Kijakazi, 24 F.4th 845, 849 (2d Cir. 2022)

(citing Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002)).

Here, the one-page contingency agreement provides that

OBL is entitled to a 25% fee award. Fee Agreement, ECF No. 13-3

(“I agree to pay a fee of 25% of my past due benefits.”). And

the Gisbrecht factors suggest that $3,900 is reasonable.

First, nothing in the record suggests OBL provided

sub-standard representation. On the contrary, through OBL,

Brown received tens of thousands of dollars in past due

benefits.

Second, there is no indication that OBL delayed the

proceedings to increase the amount of past due benefits and,

consequently, the size of its contingency fee. Third, the fee

agreement is simple and clear and therefore likely not the

product of fraud. See Fee Agreement.

Fourth, $3,900 would not be a windfall to OBL. “In

determining whether there is a windfall that renders a § 406(b)

fee in a particular case unreasonable, courts must consider more

than the de facto hourly rate.” Fields, 24 F.4th at 854. They

must also consider (1) counsel’s “ability and expertise ... 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

satisfaction of the disabled claimant,” 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 854–55.

Here, the hourly rate does not suggest that OBL is set

to receive a windfall. Brown’s attorneys billed 3.9 hours on

the case, see Itemization of Time, ECF No. 13-2, and while the

retainer entitles OBL to $8,935.25 (25% of Smith’s past-due

benefits), it seeks only $3,900 — yielding an effective rate of

$1,000 per hour. That is well within the range of what other

courts have approved, especially factoring in inflation. See

Biryla v. Comm'r of Soc. Sec. Admin., No. 24-CV-136, 2026 WL

1020903, at *3 (E.D.N.Y. Apr. 15, 2026) (“[F]ee awards

equivalent to [an] hourly rate of $1,000 or more are common.”)

(collecting cases).

The remaining Fields factors likewise weigh against a

windfall. Although OBL did not include a declaration attesting

to the ability and expertise of Brown’s attorneys, OBL achieved

a beneficial result for Brown with only 3.9 hours of work. See

Fields, 24 F.4th at 854 (“It would be foolish to punish a firm

for its efficiency and thereby encourage inefficiency.”).

Further, OBL represented Brown for over two years including at

the agency level. And nothing in the record indicates Brown was

unsatisfied with the result. See Finnegan v. Comm'r. of Soc.

Sec., No. 21-cv-2070, 2024 WL 4494088, at *4 (E.D.N.Y. Oct. 15,

2024) (“[T]he Court presumes that Plaintiff is satisfied with

receiving the past-due benefits that he sought; there is no

evidence in the record to the contrary.”). Finally, “[i]n the

absence of a fixed-fee agreement, payment for an attorney in a

social security case is inevitably uncertain, and any reasonable

fee award must take account of that risk.” Wells, 907 F.2d at

371. Here, Brown and OBL signed their agreement before it was

certain that this Court would even remand Brown’s case back to

the Commissioner. “The success of the claim was far from a sure

thing” and the $3,900 fee reflects a calculated risk, not a

windfall. Fields, 24 F.4th at 856.

Accordingly, a fee award of $3,900 is reasonable.

However, though fees may be awarded under both EAJA and

Section 406(b), “the claimant’s attorney must refund to the

claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at

794-95. Within five business days of receipt of the

Section 406(b) fees, OBL shall remit the EAJA award of $1,206 to

Plaintiff and shall file a declaration stating such on the

docket. OBL is also directed to serve a copy of this Order and

the docket on Brown and shall note proof of service on the

docket no later than June 1, 2026.

Conclusion

For the foregoing reasons, OBL’s motion for attorney’s

fees is granted and such fees are awarded in the amount of

$3,900 pursuant to 42 U.S.C. § 406(b). OBL must return the

$1,206 already awarded under EAJA to Brown.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State

s District Judge

D ated: June 2, 2026

Brooklyn, New York