Rivera v. Commissioner of Social Security

Background

Jonathan Rivera applied for Disability Insurance Benefits and Supplemental Security Income, alleging that he became disabled on March 7, 2018. The Social Security Administration denied the applications, and an administrative law judge later found that Rivera was not entitled to benefits. The agency’s Appeals Council declined further review.

Rivera retained attorney Howard D. Olinsky to challenge the denial in federal court. Rivera and Olinsky signed a fee agreement allowing Olinsky to receive up to 25 percent of any past-due benefits awarded after a successful federal-court appeal. Rivera filed this action in October 2020 and later moved for judgment based on the administrative record. The parties agreed to send the case back to the Social Security Administration for further proceedings, and the court approved that agreement in November 2021.

The agency later found Rivera entitled to benefits beginning in September 2018. It issued a notice stating that Rivera was owed $91,706.70 in past-due benefits for September 2018 through April 2024 and withheld $22,926.68—25 percent of those benefits—for representative fees. The agency-level representative’s fee was approved at $7,200. Olinsky then requested $15,726.68 for his federal-court representation. Rivera had previously received $5,270.55 in attorney’s fees under the Equal Access to Justice Act.

Legal standard

Under 42 U.S.C. § 406(b), a court may approve a reasonable fee for an attorney who represented a claimant in federal court after the claimant receives a favorable judgment. The fee cannot exceed 25 percent of the claimant’s past-due benefits. The court must examine the contingency-fee agreement and may reduce the requested amount if it is unreasonable.

The court considered whether the fee percentage was within the statutory cap, whether fraud or improper pressure affected the agreement, whether the fee fit the nature of the representation and the result achieved, whether counsel caused delay, and whether the award would be an improper windfall compared with the time and effort required.

Court’s analysis

The court found that the requested fee was within the 25-percent cap and found no evidence of fraud or overreaching. It concluded that Olinsky’s work led to a remand and ultimately to a fully favorable benefits determination. The court also found that counsel did not cause unreasonable delay; although counsel sought one 60-day extension, the court found the request justified and noted that the brief was filed one month before the extended deadline.

The court determined that the fee was not an improper windfall. Olinsky’s firm devoted 21.6 hours of attorney time to the case, including reviewing the administrative record, preparing the brief, reviewing the work, monitoring the case, and communicating with opposing counsel. The court considered Olinsky’s more than 30 years of focus on Social Security disability law, his firm’s experience, the successful result, Rivera’s substantial benefits award, and the uncertainty inherent in contingency-fee representation. The effective rate was approximately $728.09 per hour, which the court found within the range approved in similar cases.

Disposition

Judge Andrew E. Krause granted Rivera’s motion for attorney’s fees and awarded Howard D. Olinsky $15,726.68, to be paid from Rivera’s past-due benefits in accordance with Social Security Administration policy. The court directed Olinsky to promptly refund Rivera the full $5,270.55 previously received under the Equal Access to Justice Act.