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Gonzales v. Commissioner of Social Security

United States District Court, D. New Jersey

December 19, 2017

THOMAS R. GONZALES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JASON LANELL THOMPSON LEVENTHAL, SUTTON & GORNSTEIN, ESQS. On behalf of Plaintiff

          ELIZABETH ROTHSTEIN SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL On behalf of Defendant

          MEMORANDUM OPINION & ORDER

          NOEL L. HILLMAN, U.S.D.J.

         WHEREAS, this matter comes before the Court under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for Disability Insurance Benefits and Supplemental Security Income (“Social Security benefits”) under Title II and Title XVI of the Social Security Act; and

         On October 8, 2015, this Court granted Plaintiff's appeal, and reversed and remanded the matter to the administrative law judge for further proceedings; and

         On December 23, 2015, pursuant to Fed.R.Civ.P. 25(a), [1]Plaintiff's counsel filed a motion to substitute Plaintiff with Plaintiff's widow, Sylvia E. Gonzales, because Plaintiff died on April 23, 2013[2]; and

         On January 22, 2016, the Court granted Plaintiff's motion; and

         On December 22, 2016, Plaintiff filed another motion to substitute Sylvia E. Gonzales with her daughter, Monica Dee Gonzales, because Sylvia E. Gonzales died on June 12, 2016, and the benefits the original Plaintiff, Thomas Gonzales, would have received were to be awarded to his children; and

         On that same date, Plaintiff filed a motion for attorney's fees pursuant to the Social Security Act, 42 U.S.C. § 406(b), in the amount of $43, 926.00; and

         The attorney fee provision of the Social Security Act provides, “Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which claimant is entitled by reason of such judgment, ” 42 U.S.C. §406(b)(1); and

         Plaintiff represents that Plaintiff's children have been awarded over $170, 000 in past-due Social Security disability benefits, and $43, 926.00 has been withheld by the Commissioner for attorney's fees, which amount represents the contractual contingency fee of 25 percent of past-due benefits; and

         Counsel for Plaintiff has certified that a total of 38.2 hours were expended on Plaintiff's civil action, which led to outstanding results for Plaintiff, who contractually agreed to pay the contingency fee; and

         The Commissioner has not objected to Plaintiff's motion to substitute the current Plaintiff with her daughter; but The Commissioner has filed a letter brief in opposition to Plaintiff's motion for attorney's fees; and

         The Commissioner notes that even though the requested amount does not exceed the statutory cap and there is no evidence of fraud or overreaching, the de facto hourly rate comes to $1, ...


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