Ferreira v. Berryhill

Background

Ramona Judith Ferreira applied for disability insurance benefits with an alleged disability onset date of December 10, 2012. An administrative law judge found that she was not entitled to benefits, and the Social Security Administration’s Appeals Council declined review. Ferreira then retained the Olinsky Law Group to pursue her claim in federal court.

The parties agreed to send the case back to the Social Security Administration before the agency filed the administrative record. The court ordered the remand in May 2018. Ferreira was later found entitled to benefits beginning in June 2013. The agency issued separate notices of award for Ferreira’s own benefits and her children’s benefits and withheld a total of $26,503.50, representing 25 percent of past-due benefits, for possible representative fees.

The Olinsky Law Group had earlier received $1,589.03 in attorney’s fees under the Equal Access to Justice Act, a statute that permits fees when the government’s position was not substantially justified. The fee agreement provided that any Equal Access to Justice Act payment would be refunded to Ferreira if the firm later received a fee for the same work from her past-due benefits.

Timeliness

Section 406(b) of the Social Security Act allows a court to award a reasonable fee for an attorney’s work representing a claimant in federal court, subject to a limit of 25 percent of the claimant’s past-due benefits. Under the governing appellate decision, a fee motion generally must be filed within 14 days, but that period can be extended or paused in appropriate circumstances. When benefits are awarded after a remand, the period is paused until the claimant receives notice of the award amount needed to calculate the maximum fee.

The court found that the first fee motion was timely because the notices for Ferreira’s children did not provide enough information to calculate the maximum fee available for the federal-court work. Counsel promptly asked about Ferreira’s notice and filed the original motion six days after receiving informal information about the amount being withheld.

Counsel received Ferreira’s own notice of award on October 5, 2020, but filed the amended motion 30 days later. The court extended the filing period and treated the amended motion as timely. It reasoned that the agency had issued separate notices nearly four months apart, creating confusion, and that counsel had taken steps to preserve the fee request. The court also noted that the amended motion should have been filed promptly but concluded that the short delay did not warrant denying the request.

Reasonableness of the Fee

The Olinsky Law Group requested $4,920 for 11.4 hours of work: 4.2 hours by attorneys and 7.2 hours by paralegals. The court found that the requested amount was within the 25-percent statutory limit and that there was no evidence of fraud or improper pressure in the fee agreement.

The court concluded that the fee matched the nature and results of the representation, which helped produce a stipulated remand before briefing began. It found no unreasonable delay designed to increase the past-due benefits and therefore the fee. Although the effective attorney hourly rate was approximately $1,000, the court found that amount was not an improper windfall in light of comparable awards and the risk that counsel might not be paid under a contingency-fee arrangement.

Disposition

The court granted the motion for attorney’s fees under Section 406(b) and awarded Howard D. Olinsky $4,920. The Commissioner was instructed to disburse that amount to Olinsky of the Olinsky Law Group. After receiving the award, Olinsky must promptly refund Ferreira the $1,589.03 in Equal Access to Justice Act fees already received. The court directed the Clerk to terminate the motions at ECF Nos. 21 and 24.