McVicker v. Commissioner of Social Security
- Sarah Netburn
- 1:21-cv-07445
- U.S. District Court · Southern District of New York
- 2
In McVicker v. Commissioner, Judge Netburn ordered a response to counsel’s request for Social Security appeal fees, without deciding the amount.
Michael McVicker, his counsel, and the Commissioner of Social Security. The order requires the Commissioner to respond to the attorney-fee motion but does not decide the requested fee amount.
What happened
In Michael McVicker v. Commissioner of Social Security, the court had previously sent McVicker’s challenge to the denial of benefits back to the Social Security Administration for further review. The court also approved an agreement awarding him $10,350 in attorney’s fees under the Equal Access to Justice Act.
After McVicker received retroactive benefits, his lawyer asked the court for additional fees under a law allowing fees of up to 25 percent of past-due benefits. The opinion does not state the amount requested.
Judge Sarah Netburn ordered the Commissioner of Social Security to respond to the fee request, including whether the requested amount would be an improper windfall. The court did not decide the fee request in this order.
The detailed version
- McVicker v. Commissioner of Social Security · No. 1:21-cv-07445
- Sarah Netburn
- Oct. 2, 2025
Background
Michael McVicker brought this action under 42 U.S.C. § 405(g) to challenge the denial of Social Security benefits. The court previously remanded, or sent back, the matter for further review by the Commissioner of Social Security. The court also approved a stipulation and agreement awarding McVicker $10,350 in attorney’s fees under the Equal Access to Justice Act, a federal law that can authorize fee awards against the government.
After the remand, McVicker received retroactive benefits from the Social Security Administration. On September 29, 2025, his counsel filed a motion seeking attorney’s fees under 42 U.S.C. § 406(b). That provision allows a court to approve a reasonable fee of no more than 25 percent of the claimant’s past-due benefits.
Order
Because of the Commissioner’s specialized role and expertise in this area, the court ordered the Commissioner to respond to the fee motion. The court specifically directed the Commissioner to address whether the requested fees would amount to an impermissible windfall. The order does not rule on whether fees should be awarded or determine the amount of any award.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.