Polanco v. Colvin

Background

Joel Polanco sued under Section 205(g) of the Social Security Act to challenge the denial of his application for disability insurance benefits. The administrative law judge initially found that Polanco could perform his previous work as a police officer, and the Appeals Council denied review.

The federal case was later remanded for further proceedings after the parties agreed to the remand. Polanco then received a favorable decision from the Social Security Administration, which found him disabled as of October 9, 2012. The agency notified him that he had been awarded $187,923 in past-due benefits. It withheld 25% of those benefits, or $46,980.75, for possible attorney fees.

The opinion’s caption identifies Andrew M. Saul as the substituted defendant for Carolyn W. Colvin, the former acting Commissioner named in the original case.

Fee request

Polanco’s counsel sought approval of $31,400 in attorney fees under 42 U.S.C. § 406(b), based on a contingent-fee agreement providing for 25% of past-due disability benefits. Section 406(b) permits a court to approve a reasonable fee from past-due benefits, subject to a 25% maximum.

Magistrate Judge Ona T. Wang applied the required independent review of the fee request. She found that $31,400 was below the statutory maximum, that there was no evidence of fraud or overreaching in the fee agreement, and that the fee would not be an improper windfall. The court considered counsel’s successful result, 31.4 hours of work, more than 25 years of Social Security appeals experience, and the legal research and briefing involved in the case. The requested amount represented a $1,000 hourly rate.

Equal Access to Justice Act fees

Counsel asked the court to reduce the Section 406(b) award to $25,600 by subtracting the $5,800 previously awarded under the Equal Access to Justice Act. The Commissioner argued that counsel instead should receive the full Section 406(b) award and refund the $5,800 directly to Polanco.

The report agreed with the Commissioner’s method. It recommended awarding the full $31,400 and ordering counsel to promptly refund the $5,800 Equal Access to Justice Act payment to Polanco.

Recommendation and objections

The report and recommendation, signed by Ona T. Wang, recommended granting counsel’s fee request for $31,400 and ordering the $5,800 refund. It did not itself state that Judge Colleen McMahon had entered a final order adopting the recommendation. The parties were given 14 days after receiving the report to file objections with Judge McMahon; the report stated that failing to object within that period would waive objections and prevent appellate review.