govinfo:USCOURTS-njd-1_20-cv-12720-1

[Docket No. 19] 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF NEW JERSEY 
CAMDEN VICINAGE 
 
 
NANCY B.,1 
 
 Plaintiff, 
 
 v. 
 
COMMISSIONER OF SOCIAL 
SECURITY, 
 
 Defendant. 
 
 
 
 
Civil Action No. 20-12720 (RMB) 
 
 
MEMORANDUM ORDER 
 
 
 
 
 
RENÉE MARIE BUMB, Chief United States District Judge: 
 
Plaintiff Nancy B ., by and through her attorney Richard Frankel , Esq. 
(“Counsel”), moves for an award of attorney’s fees under Section 406(b) of the 
Social Security Act. 42 U.S.C. § 406(b) . Counsel represented Plaintiff in social 
security proceedings before the Social Security Administration and on appeal before 
this Court pursuant to a representation agreement originally entered into on July 25, 
2016 [Fee Agreement ( Docket No. 1 9-5).] In that agreement, Plaintiff agreed that 
Counsel would receive 25% of any past due disability benefits awarded by the Social 
Security Administration after her appeal to federal court. The Social Security 
 
1 The Committee on Court Administration and Case Management of the Judicial 
Conference of the United States has recommended that federal courts should refer to 
plaintiffs in social security disability cases by only their first names and last initials 
given the significant privacy concerns in these matters. See also D.N.J. Standing Order 
2021-10. PageID: <pageID>
2 
Administration awarded Plaintiff past due benefits in the amount of $138,116.00 for 
the period of January 2016 through September 2025, with ongoing monthly benefits 
in the amount of $1,389.30 for as long as she remains disabled. [Pl.’s Br. at 1 (Docket 
No. 19-1); Notice of Award (Docket No. 1 9-4).] Counsel seeks $34,529 .00, 
representing 25% of the past due award amount, to satisfy the fee agreement. 
[Pl.’s Br. at 1 .] The Commissioner of Social Security does not oppose the motion. 
[Docket No. 20.] 
For the below reasons, the fee application will be GRANTED, in part, and 
DENIED, in part. 
I. STANDARD OF REVIEW 
The Social Security Act allows an attorney to have a contingent fee arrangement 
with a social security claimant under which the attorney receives a percentage of the 
benefits award. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (explaining that the Act 
“does not displace contingent-fee agreements”). Section 406(b) of the Act provides: 
Whenever a court renders a judgment favorable to a claimant under this 
title 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 the claimant is entitled by reason of such judgment[.] 
 
42 U.S.C. § 406(b). “Contingent fee arrangements are ‘the primary means by which 
fees are set for successfully representing Social Security benefits claimants in court.’” 
Laurice A.H. v. Kijakazi , 2023 WL 8237336, at *2 (D.N.J. Nov. 28, 2023) (quoting 
Gisbrecht, 535 U.S. at 807). Pursuant to Section 406(b), contingent fee arrangements PageID: <pageID>
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providing for fees beyond 25% of past due benefits are “unenforceable.” Gisbrecht, 
535 U.S. at 807. 
While Congress allows contingent fee arrangements in the social security realm, 
courts must police those agreements to ensure they are reasonable. Id. (Ҥ 406(b) calls 
for court review of such arrangements as an independent check, to assure that they 
yield reasonable results in particular cases.”). In doing so, courts look to “the 
experience of counsel, the nature of contingent fees and the risk of non -recovery, 
counsel’s typical hourly rate, the EAJA fee previously requested, and whether the 
attorney is responsible for any unreasonable delays in the proceeding.” Leak v. Comm’r 
of Soc. Sec. , 2017 WL 5513191, at *1 (D.N.J. Nov. 17, 2017). “Courts should [also] 
consider the nature and length of the professional relationship with the claimant—
including any representation at the agency level[.]” Fields v. Kijakazi, 24 F.4th 845, 855 
(2d Cir. 2022). “While § 406(b) fees compensate counsel for court- related work, 
consideration of ‘the time spent and work performed by counsel on the case when it 
was pending at the agency level’ can inform a district court ’s understanding of ‘the 
overall complexity of the case, the lawyering skills necessary to handle it effectively, 
the risks involved, and the significance of the result achieved in district court.’” Id. 
(quoting Mudd v. Barnhart , 418 F.3d 424, 428 (4th Cir. 2005)). And courts must be 
mindful of “‘the primacy of lawful attorney-client fee agreements.’” Acosta v. Comm’r 
of Soc. Sec. , 2022 WL 1598947, at *1 (3d Cir. May 20, 2022) (quoting Gisbrecht , 
535 U.S. at 793). PageID: <pageID>
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Courts can reduce “an attorney’s recovery based on the character of the 
representation and the results the representative achieved,” or “[i]f the attorney is 
responsible for delay.” Gisbrecht, 535 U.S. at 808. Courts will also reduce a fee award 
when “the benefits are large in comparison to the amount of time counsel spent on the 
case.” Id. Said another way, courts will reduce a fee award to prevent windfalls to 
attorneys. Id. In evaluating fee applications, courts have struggled to determine what 
constitutes a windfall to attorneys. See generally Arnold v. O’Malley , 106 F.4th 595, 
600–01 (7th Cir. 2024); accord Fields , 24 F.4th at 853-54. The windfall analysis is not 
“a way of reintroducing the lodestar method” to determine whether a fee under 
Section 406(b) is reasonable. Fields, 24 F.4th at 854. Because “even a relatively high 
hourly rate may be perfectly reasonable, and not a windfall, in the context of any given 
case.” Id. Finally, if the attorney has received a fee award under the EAJA, the 
attorney must refund that award to the social security claimant. Gisbrecht, 535 U.S. 
at 796 (“Congress harmonized fees payable by the Government under EAJA with fees 
payable under § 406(b) out of the claimant ’s past-due Social Security benefits in this 
manner: Fee awards may be made under both prescriptions, but the claimant’ s 
attorney must ‘refun[d] to the claimant the amount of the smaller fee.’” (alteration in 
original, citation omitted)). 
II. DISCUSSION 
Considering the relevant factors, the Court finds that the $34,529.00 requested 
fee would result in a windfall to Counsel . The Court first considers Counsel’s PageID: <pageID>
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experience. While Counsel has submitted no affirmation detailing his background or 
experience, as is proper, he provides some background information in a footnote of his 
moving brief. [Pl.’s Br. at 3 n.3.] Counsel represents that he graduated in 2005 from 
Temple University’s Beasley School of Law and that he has spent the entirety of his 
twenty-year legal career representing claimants in social security matters. He also 
avers that he has delivered numerous lectures on disability law and litigated 
extensively in the related area of ERISA disability benefits. [Id.] 
Next, the Court considers Counsel’s hourly rate and the nature of the contingent 
fees sought. Jawan H. v. Comm’r of Soc. Sec., 2024 WL 2318930, at *3 (D.N.J. May 22, 
2024) (citing Leak, 2017 WL 5513191, at *1). Counsel seeks $34,529.00, representing 
25% of Plaintiff’s past due benefits award. According to Counsel, he spent 23.2 hours 
on Plaintiff’s social security appeal [Pl.’s Br. at 2; Itemization of Services (Docket 
No. 19-6)], and his standard non-contingent hourly fee rate is $625.00.
2 [Pl.’s Br. at 2 
n.1.] This results in an imputed effective hourly rate of $1, 488.32, which is well over 
two times Counsel’s standard rate. 3 The requested hourly rate also far exceeds the 
 
2 The Court notes that, in a case before this Court just last year, Counsel 
represented – in his motion filed mere months before the instant motion and relating 
to legal services rendered on behalf of his client during the same time frame as Plaintiff 
here – that his standard hourly rate was $4 50.00. See Laura H. v. Comm’r of Soc. Sec., 
2025 WL 1456769, at *2 (D.N.J. May 21, 2025) (reducing an imputed effective hourly 
rate of $1,549.76, which was over three times counsel’s self-professed standard hourly 
rate of $450.00). 
3 Even deducting the $5,100.00 EAJA fee award that Counsel must remit to 
Plaintiff, his imputed hourly rate is $1,268.49, which is still more than twice Counsel’s 
standard rate. Regardless of how the rate is calculated, Counsel’s claim that his PageID: <pageID>
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EAJA hourly rate previously requested – just $219.83. Plaintiff cites the Community 
Legal Services of Philadelphia website fee schedule, which reflects hourly rate s 
between $535.00 and $625.00 for attorneys with sixteen to twenty years of experience. 
See Attorney ’s Fees , Community Legal Services of Philadelphia (Jan. 19, 2023), 
https://clsphila.org/about-community-legal-services/attorney-fees/. While the 
Court does not disregard Counsel ’s increase to his standard hourly rate, neither the 
Community Legal Services of Philadelphia fee schedule nor Counsel’s asserted rate is 
dispositive of the Court’s windfall analysis. See Leak, 2017 WL 5513191, at *1. 
The Court turns to the other factors. While neither the Commissioner nor 
Plaintiff have objected to the fee application, Counsel has not pointed “to any specific 
complexities of this case” justifying an increased hourly rate. See Rossi , 2023 WL 
6533488, at *2. The appeal, to the contrary, “appear[ed] routine” as it was based on 
just three arguments. See Jawan H., 2024 WL 2318930, at *3. 
Clearly, there was a genuine risk of non-recovery in this case absent Counsel’s 
work in securing a favorable result for his client. Indeed, Plaintiff had previously been 
denied benefits initially by the ALJ and again before the Appeals Council before 
securing a favorable result in federal court. [Pl.’s Br. at 2.] There is nothing to suggest 
that Counsel was in any way responsible for the lengthy time between Plaintiff’s initial 
 
imputed hourly rate “is approximately less than twice Mr. Frankel’s standard” rate is 
plainly incorrect. [ See Pl.’s Br. at 2 n.1.] The Court observes that Mr. Frankel has 
made this error before. See, e.g., Laura H., 2025 WL 1456769, at *2; Rossi v. Comm’r of 
Soc. Sec., 2023 WL 6533488, at *2 n.1 (D.N.J. Oct. 6, 2023). The Court urges Counsel 
to verify the accuracy of his representations in each case prior to submitting them to 
the Court, rather than relying on inaccurate boilerplate language. PageID: <pageID>
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application and the favorable resolution . The Court also notes the “length of the 
professional relationship with the claimant.” Fields, 24 F.4th at 855. While fees 
awarded under Section 406(b) are intended to compensate for “court -related work,” 
the Court recognizes that Counsel represented Plaintiff for years at the agency level 
as well. See id. 
Given Counsel’s background and experience, his standard hourly rate, how 
long he spent on this matter, and the issues involved in the appeal, the Court finds that 
enforcing the representation agreement to allow Counsel to receive 25% of Plaintiff’s 
past due benefits award would result in a windfall to Counsel. See, e.g. , Jawan H., 
2024 WL 2318930, at * 4; Rossi, 2023 WL 6533488, at *2 . Thus, the Court reduces 
Counsel’s imputed hourly rate to $ 1,000.00, which is somewhat less than twice his 
standard hourly rate. Considering the reduced imputed hourly rate and the number of 
hours worked, Counsel will receive a fee award of $ 23,200.00, which constitutes 
roughly 16.8% of the past due benefits awarded to Plaintiff. Cf. Laura H., 2025 WL 
1456769, at *3 (reducing fee award to 15.3% of past due award); Jawan H., 2024 WL 
2318930, at *4 (reducing fee award to 17.7% of past due award). Counsel must remit 
the EAJA fee award he received from Plaintiff. Gisbrecht, 535 U.S. at 796. 
III. CONCLUSION
For the above reasons, and for good cause shown, 
IT
 IS, on this 17th day of June 2026, hereby: PageID: <pageID>
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ORDERED that Plaintiff’s Motion for Attorney s’ Fees Pursuant to 
Section 406(b) of the Social Security Act [Docket No. 19] is GRANTED, in part, and 
DENIED, in part; and it is further 
ORDERED that Counsel shall remit to Plaintiff Nancy B . any amount he 
received in EAJA fees by this Court’s previous award [Docket No. 18]; and it is finally 
ORDERED that Counsel shall be awarded $23,200.00 in attorney’s fees from 
Plaintiff Nancy B.’s past due disability benefits award. 
/s/Renée Marie Bumb 
RENÉE MA RIE BUMB 
Chief United States District Judge PageID: <pageID>

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