Mitchell v. Astrue

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS, For the foregoing reasons, the R&R (Dkt. 25) is ADOPTED and Plaintiff's (Dkt. 21) motion for attorneys' fees is GRANTED IN PART. Plaintiff's counsel is awarded $1,400 in attorneys' fees. So Ordered by Judge Nicholas G. Garaufis on 4/26/2019. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-X

ROBERT N. MITCHELL,JR,
Plaintiff,
MEMORANDUM & ORDER

-against09-CV-83(NGG)
(SMG)
MITCHELL J. ASTRUE,COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
X

NICHOLAS G. GARAUFIS,United States District Judge.
Before the court is Plaintiffs motion for attorneys' fees pursuant to the Social Security

Act(the "Act"),42 U.S.C. § 406(b)(1), requesting an award of$20,000.00. (PI. Mot. for
Attorney Fees("Mot.")(Dkt. 21); PL Mem.in Supp. of Mot.("Mem.")(Dkt. 21-4) at 4.) On
October 18, 2018, this court referred the motion to Magistrate Judge Steven M. Gold for a report

and recommendation("R&R")pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 54(d)(2)(D) and
72(b)ofthe Federal Rules of Civil Procedure. (Oct. 18, 2018 Order.) Judge Gold issued an

R&R on December 28,2018,recommending that Plaintiffs counsel be awarded $1,400 in legal
fees. (R&R at 1.) Plaintifffiled a timely objection on January 3, 2019. (Obj. to R&R("Obj.")
(Dkt. 25).) For the following reasons, the R&R is ADOPTED and Plaintiffs motion for
attorneys' fees is GRANTED IN PART.
I.

BACKGROUND

The R&R clearly sets forth the background ofthis case(R&R at 1-3), and the parties

have not objected to Judge Gold's statement offacts and procedural history. The court thus
adopts the R&R in this respect and offers the following summary for context.

Dong v.

Miller. 16-CV-5836(NGG)
(JO),2018 WL 1445573, at *2(E.D.N.Y. Mar. 23, 2018)(adopting
an R&R's statement offacts because the parties did not object to it).
1

On September 26,2001,Plaintifffiled a claim for disability insurance benefits with the

Social Security Administration (the "SSA"), claiming that he became disabled on August 8,
2001. (Compl.(Dkt. 1)

5-6.) An Administrative Law Judge(an "ALJ")determined that

Plaintiff was not disabled, and Plaintiffsought a review before the SSA Appeals Council, which
vacated the ALJ's determination and remanded the case for further proceedings. (Id.
Plaintiffs claims were denied again, and he again sought review ofthat denial. (Id

7-10.)
11-15.)

This time, however,the SSA Appeals Council upheld the ALJ's decision denying benefits. (Id
1116.)

On January 9, 2009,Plaintiff filed his complaint in this court seeking modification ofthe
decision. (Id) Shortly thereafter, Plaintiff declined to accept an offer firom the Commissioner to
remand the case, and so the Commissioner filed a motion to remand under sentence four of42

U.S.C. § 405(g). (Def. Mot. to Remand(Dkt. 11).) In a brief supporting his motion,the
Commissioner acknowledged that the ALJ had not properly considered statements firom two of

Plaintiff's physicians. CSee Mem.in Supp. ofDefs. Mot for Remand ("Def. Remand Mem.")
(Dkt. 12)at 18-19.) For that reason, and because the record did not conclusively establish
Plaintiff's disability, the Commissioner argued that a remand was more appropriate than an

outright reversal and award of benefits. (Id at 21-22.) In opposition. Plaintiff argued against
remanding the case for a further substantive hearing, and instead requested that the court reverse
and remand solely for a calculation of benefits under sentence six of42 U.S.C. § 405(g). (PI.

Mem.in Opp'n to Mot. for Remand ("PI. Remand Mem.")(Dkt. 14) at 9-11.) The court granted
the Commissioner's motion to remand on December 22,2010. (Mem.& Order("Remand

M&O")
(Dkt. 18).) On March 19,2018, after two additional rounds of hearings and appeals, an
ALJ found that Plaintiff was disabled. (Affirmation of Charles E. Binder("Binder Affirmation")

(Dkt. 21-2)

7-9.) Plaintiff was awarded past due benefits totaling $346,233.50, but $86,558—

25% ofthe total amount—^was withheld for attomeys' fees. (Not. of Award (Dkt. 21-3) at 4.)
On August 17, 2018, Plaintiff moved in this court for attorneys' fees pursuant to 42
U.S.C. § 406(b)(1), requesting an award of$20,000.00. (Mot.; Mem. at 4.) On October 18,
2018, this court referred the motion to Magistrate Judge Steven M. Gold for an R&R pursuant to
28 U.S.C. § 636(b)(1)(B)and Rules 54(d)(2)(D) and 72(b)ofthe Federal Rules of Civil
Procedure. (Oct. 18,2018 Order.) Judge Gold issued his R&R on December 28,2018,

recommending that Plaintiffs counsel be awarded $1,400 in legal fees. (R&R at 1.) Plaintiff
filed timely an objection on January 3, 2019. (Obj.)
n.

LEGAL STANDARD

A.

Review of a Magistrate Judge's R&R

In reviewing a magistrate judge's R&R,the district court"may accept, reject, or modify,

in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(1). The court must make "a de novo determination ofthose portions ofthe report or
specified proposed findings or recommendations to which objection is made." Id To obtain this
de novo review, an objecting party "must point out the specific portions ofthe report and
recommendation to which [that party] object[s]." U.S. Flour Corp. v. Certified Bakery. Inc.,
No. lO-CV-2522(JS)
(WDW),2012 WL 728227, at *2(E.D.N.Y. Mar. 6,2012); see also Fed.
R. Civ. P. 72(b)(2)("[A] party may serve and file specific written objections to the [R&R]."). If
a party "makes only conclusory or general objections, or simply reiterates his original arguments,

the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entegris.
Inc.. 249 F.R.D. 48, 51 (E.D.N.Y. 20081: see also Mario v. P&C Food Mkts.. Inc.. 313 F.3d 758,

766(2d Cir. 2002). Portions of an R&R to which a party makes no objection are also reviewed
for clear error. U.S. Flour. 2012 WL 728227, at *2.

B.

Award of Attorneys' Fees Under the Act

Section 406(b)(1)(A)ofthe Act provides:
Whenever a court renders ajudgment 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
ofthe total ofthe past-due benefits to which the claimant is entitled
by reason of such judgment, and the Commissioner . . . may . ..
certify the amount of such fee for payment to such attorney out of,
and not in addition to, the amount ofsuch past-due benefits.

"[Section] 406(b) does not displace contingent-fee agreements as the primary means by which
fees are set for successfully representing Social Security benefits claimants .... Rather, § 406(b)
calls for court review of such arrangements as an independent check, to assure that they yield
reasonable results in particular cases." Gisbrecht v. Bamhart. 535 U.S. 789, 807(2002).
Courts determining "whether fees ... are reasonable should 'begin with the agreement,

and ... may reduce the amount called for by the contingency agreement only when it finds the
amount to be unreasonable.'" Arrovo v. Comm'r of Soc. Sec.. 14-CV-3513(PKC),2018 WL

2088013, at *2(E.D.N.Y. May 4,2018)(quoting Wells v. Sullivan. 907 F.2d 367,372(2d Cir.
1990)). To determine whether a fee is "unreasonable," a court should consider:"(i)'whether the
contingency percentage is within the 25% cap';(ii)'whether there has been fraud or
overreaching in making the agreement'; and (iii)'whether the requested amount is so large as to
be a windfall to the attorney.'" Id (quoting Wells. 907 F.2d at 371). Courts may "'appropriately

reduce[] the attomey's recovery' based upon:(1)'the character ofthe representation and the
results the representative achieved';(2)whether the attorney created a delay in proceedings,
since an attomey should 'not profit from the accumulation of benefits during the pendency ofthe

case in court' caused by such delay; and(3) whether the proposed[ fee is 'large in comparison
]
to the amount oftime counsel spent on the case.'" McCown v. Bamhart. No. 06-CV-3981
(DAB>(KNF),2009 WL 996391, at *3(S.D.N.Y. Mar. 31, 2009)tQuoting Gisbrecht. 535 U.S.
at 808), R&R adopted by. 2009 WL 1447683 (S.D.N.Y. May 21, 2009).
m.

DISCUSSION

A.

The Award of Attorneys' fees

No party objects to Judge Gold's determination that Plaintiff should be awarded
attorneys' fees. The court therefore reviews this determination for clear error,
^U.S. Flour,
2012 WL 728227, at *2, and finds none. Judge Gold correctly determined that the court's

decision remanding his claim constituted "judgment favorable" to Plaintiff within the meaning of
42 U.S.C. § 406(b)(1)(A), and that attorneys' fees were therefore available to him. fSee R&R at
4-5.) Accordingly,the court adopts the R&R in this respect.
B.

Calculation of Attorneys' fees

In this case. Judge Gold recommended an award of$1,400, significantly less than the

$20,000 Plaintiff requested. (See R&R at 1.) While Plaintiff's $20,000 request is less than the

statutory 25 percent cap, and less than the 25 percent agreed to in Plaintiffs fee agreement with
his counsel. Judge Gold determined that $20,000 was an unreasonable fee in this case because
only 2.8 ofthe 24 hours reportedly expended by counsel and his colleagues in this court were
reasonably spent. (Id. 10-12.) In his objection to Judge Gold's calculation ofthe appropriate
amount to award in attorneys' fees. Plaintiff raises two arguments. First, he argues that all ofthe

time his counsel spent on the case was reasonable and that it should therefore be considered in
detenrdning the reasonableness of his request for $20,000. (Obj. at 1-2.) Second, he argues that
Judge Gold incorrectly applied a $500 per hour rate instead ofthe fee agreed to in Plaintiffs

contingent fee agreement with his counsel. (Id. at 2-5.) The court addresses each argument in
turn.

1.

Time to be Considered in Determininp the Fee Award

Plaintiffs counsel Charles E. Binder and his colleagues Jeannine LaPlace and Eddy
Pierre Pierre report that they spent 24 hours working in connection with federal court

proceedings on this matter. (Attorney Time Records(Dkt. 21-3).) According to their records,
Binder, LaPlace, and Pierre spent this time on the following tasks:(1)reviewing the file;(2)

dictating the complaint and a letter to Plaintiff;(2)reviewing the transcript and file for potential
remand stipulation;(4)communicating with defense counsel to decline the remand offer;(5)
reviewing the record and organizing evidence;(6)conducting legal research;(7)drafting

arguments;(8)reviewing and editing a draft brief and preparing it for filing; and(9)reviewing
the Court's decision. (Id.) 1.6 hours ofthis time reflected work completed before Defendant
offered to remand the case in or around June of 2009. (See id.; June 4,2009 Letter (Dkt. 5)at 1

(inforrning the court that "plaintiff ha[d] declined to accept the Commissioner's offer ofremand

pursuant to the fourth sentence of42 U.S.C. § 405(g)").) An additional 1.2 hours ofthis time
reflects reviewing the file for a potential remand stipulation, and 0.6 hours ofthis time reflects a
phone call with Defendant declining to accept the remand offer. (Attorney Time Records.) The
remainder ofthe time reflects work spent in connection with Plaintiff's appeal following
Defendant's filing ofits motion to remand. (Id.)

Judge Gold reasoned that the time spent by Plaintiff's counsel after the government
agreed to remand the case was unnecessary because "the likelihood that Plaintiff might have
avoided remand for further proceedings ... was slim at best." (R&R at 10.) He therefore did
not consider that time—except for the time counsel spent in reviewing the file to reach a

deteraiination regarding that offer—^in reaching his recommendation regarding an appropriate
award offees. (Id. at 10-11.) Plaintiff argues that his decision not to consent to the remand

offer was reasonable, and that all the time expended on the case was therefore reasonably
expended. (Obj. at 1-2.)

Having conducted de novo review,the court agrees with Judge Gold's analysis.
Plaintiff's counsel here created a delay in the proceedings, only to achieve the same outcome as
that initially offered by the Commissioner. In Curto v. Astrue. No. 07-CV-3711 (DLC),2010

WL 1047624(S.D.N.Y. Mar. 22,2010),faced with similar facts,^ the court found that the
plaintiff's counsel "should not receive any award offees for work performed in connection with
the briefing on the cross-motions for remand" because the Commissioner had "offered to consent

to a sentence four remand before any motion practice." Id at *3. The court reasoned that "[i]t

would reflect a perverse system ofincentives" to award attomeys fees for futile motion practice,
especially since, as "attorneys' fees are generally not available under the [Equal Access to
Justice Act] for legal work performed at the administrative level after a sentence four remand,
there is a risk that a refusal to consent to a sentence four remand may be driven by an attorney's
financial interest, rather than his client's interest." Id (citation omitted).
The court agrees with Plaintiff, and the court in Curto. that there may be some situations

in which a plaintiff's attomey would have "good reason to reject[an] offer of a sentence four
remand," and could therefore recover reasonable attorneys' fees for the work completed

* In Curto. the Commissioner offered to remand for further administrative proceedings shortly after the plaintiff filed
a complaint in federal court. 2010 WL 1047624, at *1. The parties cross-moved for remand, and the court
ultimately remanded die case under sentence four of§ 405(g), which is the same result as would have occurred

pursuant to the original remand offer fi-om the Commissioner. Id An ALJ then reversed the Commissioner's
previous denial ofbenefits, and plaintiffs counsel filed a motion in the district court seeking approximately $5000
for services performed at the district court level. Id at *2. The court declined to award the fuU amount,finding it
unreasonable because the majority ofthe 23.44 hours spent working on the case in the district court were spent in
connection with the briefing on the parties' cross-motions for remand. Id at 2 n.2.

following the rejection of such a remand offer, even where the ultimate result was a sentence

four remand. fSee Obj. at 1 (quoting Curto. 2010 WL 1047624, at *3).) This is not such a
situation. As Judge Gold noted,in this case,"the likelihood that Plaintiff might have avoided
remand for further proceedings under sentence four was slim at best." (Id at 10.)

In their briefing on the Commissioner's motion for remand, both parties agreed that "the
ALJ committed legal error by failing to properly consider the medical opinion oftwo
physicians." (Remand M&O at 4.) And, as this court's remand order made clear, remand for

further factual development was the only appropriate response to such an error in an ALJ
determination:

'Where the administrative record contains gaps, remand to the
Commissioner for further development of the evidence is
appropriate as fiirther findings would so plainly help to assure the
proper disposition of the claim.' Because the ALJ has failed to
properly consider the medical opinions oftwo of Mitchell's treating
physicians, the Commissioner must be allowed to further develop
the record.

lid, at 5 (quotiug Butts v. Bamhart. 388 F.3d 377, 385(2d Cir. 2004).) In the face ofclear

Second Circuit precedent mandatiug a remand for factual development,^ Plaiutifif argued that the
court should instead apply an unpublished district court case with inapposite facts. (See PI.
Remand Mem. at 10-11 (extensively quoting Keamev v. Astrue. No. 08-CV-572(JG),2008 WL

2705525(E.D.N.Y. July 11,2008)).) In Keamev,the court declined to remand the case for a
substantive hearing because it had already done so once and the ALJ had disregarded its previous

order. See 2008 WL 2705525, at *5-6. Here,Plaintiff did not explain how this case rises to the

^ In Butts, the Second Circuit held that, where the ALJ failed to consult a vocational expert, the district court did not
abuse its discretion by remanding the plaintiffs claim for further proceedings, rather than for a calculation of
benefits.
388 F.3d at 385-87. This was because "where 'the ALJ failed to develop the record sufiBciently to
make' appropriate disability determinations, a remand for 'further findings that would so plainly help to assure the
proper disposition ofthe claim is particularly appropriate.'" Id at 386(quoting Rosa v. Callahan. 168 F.3d 72, 83
(2d Cir. 1999)(alterations adopted)).
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same egregious level as the facts present in Kearney. In the absence ofsuch flagrant disregard of
a previous order—or other similar conduct—^the court had no basis to deny the Commissioner's
motion for a sentence four remand.

Butts, 388 F.3d at 385. It would have been

unreasonable for Plaintiff to expect any other result.

Further, Plaintiff has not since provided any reasonable basis for his decision to reject the
Commissioner's remand offer. In objecting to Judge Gold's R&R,he insists that "it was hardly
unreasonable ... to turn down a stipulated remand for further proceedings when Piis] claim was
well-supported by the treating medical source opinions and denied by two ALJs that were the
subject ofa bias class action and the claim was pending for many years." (Obj. at 2.) But the
only case he cites in support of his contention that the decision was reasonable is an unpublished
district court case from 1989—one that he did not even mention in his original brief in

opposition to the remand motion. tSee Obj. at 2(citing Koteras v. Sullican. No. 81-CV-75IE,
1989 WL 148383(W.D.N.Y. Nov. 29, 1989).) Plaintiff does not explain how it was reasonable

to rely on this case when there was contradictory and applicable Second Circuit precedent.
Thus,"the character of[Plaintiffs coimsel's] representation" unreasonably delayed
proceedings in Plaintiffs case, and achieved the same results as would have been achieved

without the months spent litigating the Commissioner's motion for remand. See Gisbrecht, 535
U.S. at 808. In such a case, it is appropriate for the court to reduce the award of attorneys' fees.
See id. And,as one factor to be determined in assessing the reasonableness of an award of

attorneys' fees is the amount oftime an attorney spent on the case,
^id., it is necessary for the
court to assess the amount oftime Plaintiffs counsel reasonably spent working on the case at the
district court level.

As Judge Gold noted, the 1.6 hours spent working on the case before the Commissioner's
remand offer were reasonably expended. (See R&R at 12.) So,too, were "the 1.2 hours spent
'reviewing the transcript and file for potential remand stipulation,' which presumably would
have been necessary whether or not Plaintiff chose to accept the remand offer." (Id.(quoting
Attorney Time Records).) Plaintiffs counsel thus reasonably spent 2.8 hours working on this
matter in connection with federal court proceedings, and the court will consider that amount of
time in determining a reasonable award offees.
2.

Application of a $500 Per Hour Rate

Having determined that Plaintiff's counsel only reasonably expended 2.8 hours on work

in connection with this matter at the district court level, the court agrees vdth Judge Gold that an

award of$20,000 is clearly unreasonable. As previously noted, the amount oftime spent
working on a case in relevant in assessing the reasonableness of an award for attomeys' fees.

See Gisbrecht 535 U.S. at 808. And the award Plaintiff requests would result in a de facto
hourly rate of$7,142.86, a rate that would be obviously excessive for even the most highly

regarded attorney. Of course. Plaintiff is correct that a contingent-fee agreement, where
reasonable, should be the basis for the determination of attorneys' fees under § 406(b). (Obj. at 2

(citing Gisbrecht. 535 U.S. at 806-07).) But courts may use "a record ofthe hours spent
representing the claimant," as well as "the lawyer's normal hourly billing charge" to assess the

reasonableness ofthe fee award, and to decrease it where appropriate. Gisbrecht 535 U.S. at
808.

As Plaintiff correctly notes, the court can also "consider how long Plaintiffs counsel has
represented the claimant, including time expended before the Administration, in considering the

reasonableness offees." (Obj. at 4.) However,such time is relevant only to help the court assess

10

"the overall complexity ofthe case, the lawyering skills necessary to handle it effectively, the
risks involved, and the significance of the result achieved in district court." Trupia v. Astrue.
No. 05-CV-6085,2008 WL 858994, at *3(E.D.N.Y. Mar. 27, 2008)fquoting Benton v. Comm'r

of Soc. Sec.. No. 03-CV-3154(ARR),2007 WL 2027320, at *2(E.D.N.Y. May 17, 2007)). The
court therefore considers the sixteen years spent on the case in front ofthe SSA. The resulting

complexity ofthe case does not, however,render reasonable an award equivalent to over $7,000
per hour.

Other courts in this circuit have reduced fees for Binder & Binder attorneys to $500 per
hour in social security cases, finding that higher de facto rates would be unreasonable. See, e.g.,
Airovo. 2018 WL 2088013, at *3; Brown v. Colvin. No. 15-CV-4823(SDA),2018 WL

6061199, at *4(S.D.N.Y. Nov. 20,2018). Cf. Cahill v. Colvin. No. 12-CV-9445(PAE)
(MHD),

2016 WL 4581342, at *2(S.D.N.Y. Sep. 2, 2016)(considering an appropriate award offees for

work performed by Binder & Binder attorneys and fmding that $13,875.83 for 28.8 hours of
work—^resulting in an hourly rate of$481.80—^was reasonable). Moreover, records submitted to
the court in a recent social security case showed that Binder's regular hourly rate is $193.81. See
Karki V. Comm'r of Soc. Sec.. No. 13-CV-6395(PKC),2018 WL 1307947, at *1 (E.D.N.Y.
Mar. 13, 2018).

The court thus finds that an award of$1,400—^which translates to an hourly rate of

$500—^will adequately compensate Plaintiffs counsel for the time spent on this case, the risks
inherent to undertaking representation on a contingency basis, and the ultimately successful
result he obtained. Such a reward also "satisfies the underlying poHcy goal of ensuring that
claimants have qualified counsel representing them in their social security appeals.",Arrovo,
2018 WL 2088013, at *3 fciting Muniz v. Astrue. No.09-CV-3954(ARR),2011 WL 5563506,

11

at *6(E.D.N.Y. Nov. 15, 2011)). And,as it amounts to more than twice the hourly rate recently
reported by PlaintifPs counsel,s^ Karki. 2018 WL 1307947, at *1, the award adequately

accounts for the complexity ofthe case as indicated by its long history in front ofthe SSA.
IV.

CONCLUSION

For the foregoing reasons, the R&R(Dkt. 25)is ADOPTED and PlaintifPs(Dkt. 21)

motion for attorneys' fees is GRANTED IN PART. PlaintifPs counsel is awarded $1,400 in
attorneys' fees.
SO ORDERED.

s/Nicholas G. Garaufis

lAUFl^
NICHOLAS G. GARAUFI

Dated: Brooklyn, New York

April 4^,2019

United States District Judge

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