Cataneo v. Astrue

Filing 31

ORDER granting 24 Motion for Attorney Fees: The court grants plaintiffs motion for attorneys fees under 42 U.S.C. § 406(b) and awards $19,740.97 in fees to plaintiffs attorney, which is the net amount of attorneys fees agreed to under the Retainer Agreement, offset by $10,230.78 in EAJA fees already awarded. The Clerk of Court is respectfully requested to enter a judgment so reflecting.Ordered by Judge Kiyo A. Matsumoto on 5/23/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
ALAN CATANEO
NOT FOR PUBLICATION
Plaintiff,
MEMORANDUM AND ORDER
-against11-CV-2671 (KAM)
CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration
Defendant.
---------------------------------X

MATSUMOTO, United States District Judge:
Plaintiff Alan Cataneo (“Cataneo” or “plaintiff”)
brought the underlying action seeking review of the
Commissioner’s decision to deny plaintiff Social Security
disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). (ECF No. 1, Complaint dated 6/2/2011 (“Compl.”).)
On March 27, 2013, the court granted plaintiff’s motion to
remand the case to the Commissioner for further proceedings.
(ECF No. 16, 3/27/13 Order.)
Plaintiff’s counsel now seeks an award of $29,971.75
in attorney’s fees, reduced by the amount of Equal Access to
Justice Act (“EAJA”) fees that have already been awarded
($10,230.78). (ECF No. 24, Mot. for Atty’s Fees dated 1/31/14.)
The Commissioner does not oppose plaintiff’s motion.

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(ECF No.

28, Response to Mot. for Atty’s Fees dated 2/18/14.)

For the

reasons stated below, the application is granted.
BACKGROUND
I.

Plaintiff’s Claim for Benefits and Procedural History
Plaintiff applied for Social Security Disability

benefits on January 11, 2005.

(ECF No. 25, Bowes Declaration

dated 1/31/14 (“Bowes Decl.”) ¶ 3.)

The Social Security

Administration (“SSA”) denied plaintiff’s claim on March 4, 2005,
and after a pro se hearing, Administrative Law Judge Peter
Crispino (“ALJ Crispino”) approved the application for
Supplemental Security Income (“SSI”) disability benefits but
denied the claim for Social Security Disability Insurance
benefits (“DBI”).

(Id. ¶¶ 4, 6.)

The Appeals Council denied

review and plaintiff filed a civil action challenging the denial
of SSD benefits.

(Id. ¶ 7.)

The parties agreed to remand the

action for additional administrative proceedings on September 25,
2008, and the parties agreed to an EAJA fee of $1,730.78
covering time expended in the 2008 civil action.

(Id. ¶ 8.)

On

November 7, 2008, the Appeals Council vacated the ALJ Crispino’s
January 30, 2006 decision and remanded plaintiff’s claim for
additional administrative proceedings.

(Id. ¶ 9.)

After a remand hearing, ALJ David Ettinger (“ALJ
Ettinger”) denied plaintiff’s claim for disability benefits on

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May 7, 2009.

(Id. ¶¶ 10, 11.)

The Appeals Council declined to

assume jurisdiction of plaintiff’s case on April 1, 2011, making
ALJ Ettinger’s May 7, 2009 decision the final decision of the
Commissioner.

(Id. ¶ 13.)

On June 3, 2011, this civil action commenced.
14.)

(Id. ¶

The court issued a decision dated March 17, 2013, granting,

in part, plaintiff’s motion for judgment on the pleadings and
remanding this action for additional administrative proceedings.
(Id. ¶ 15.)

On remand before ALJ Moises Penalver (“ALJ

Penalver”), plaintiff was found disabled and was awarded pastdue disability benefits of $99,789.90.

(Id. ¶ 20.)

Plaintiff’s

wife and daughter, as his auxilliary beneficiaries, were awarded
a total of $$11,558.80.

(Id. ¶ 23.)

The SSA withheld

$29,971.25 for payment of attorney’s fees.
II.

(Id. ¶ 27.)

The Instant Motion
Pursuant to 42 U.S.C. § 406(b)(1), plaintiff’s counsel

now seeks $29,971.75 in attorney’s fees for 62.2 hours of work
performed representing plaintiff in his federal court and
administrative court proceedings, offset by the amount of EAJA
awards counsel has already received

(ECF No. 26, Mem. in

Support of Atty’s Fees dated 1/31/14 (“Pl.’s Mem.”).)

As

counsel has already received $10,230.78 in EAJA fees, counsel is
seeking the court’s approval of a net amount of $19,740.97 in

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attorney’s fees.

(Id. ¶ 33; Pl.’s Mem. at 5.)

Plaintiff agreed

to pay 25% of his award of past-due benefits under the terms of
the retainer agreement with his counsel.
Retainer Agreement dated 2/15/08.)

(Bowes Decl., Ex. A,

The Commissioner does not

oppose plaintiff’s counsel’s petition.

(ECF No. 28, Response to

Mot. for Atty’s Fees dated 2/18/14, at 5.)
DISCUSSION
The Social Security Act provides that a court may
award an attorney who represents a prevailing claimant in a
Social Security case “a reasonable fee. . . not in excess of 25
percent of the total of past-due benefits to which the claimant
is entitled.”

42 U.S.C. § 406(b)(1)(A).

In determining whether

to award fees, a district court looks first to the contingent
fee agreement between parties.
U.S. 789, 807-08 (2002).

See Gisbrecht v. Barnhart, 535

The Second Circuit has noted that “the

best indicator of the ‘reasonableness’ of a contingency fee in a
social security case is the contingency percentage actually
negotiated between the attorney and the client, not an hourly
rate determined under lodestar calculations.”

Devaux v. Astrue,

932 F. Supp. 2d 349, 351-52 (E.D.N.Y. 2013) (quoting Wells v.
Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)) (internal quotation
marks omitted).

Furthermore, courts in this circuit have

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approved contingency fee awards that significantly exceed market
rates.

Id. at 352.
If the fee agreement provides for a fee within the 25

percent cap, as it does here, “‘the attorney for the successful
claimant must show that the fee sought is reasonable for the
services rendered.’”

Blizzard v. Astrue, 496 F. Supp. 2d 320,

322 (quoting Gisbrecht, 535 U.S. at 807).

In making the

determination as to whether a given fee is reasonable, the court
“must be mindful that ‘a contingency fee is the freely
negotiated expression both of a claimant’s willingness to pay
more than a particular hourly rate to secure effective
representation, and of an attorney’s willingness to take the
case despite the risk of nonpayment.’”

Diz v. Astrue, No. 08-

CV-1486, 2010 WL 322028, at *2 (E.D.N.Y. Jan. 26, 2010) (quoting
Wells, 907 F.2d at 371).
In considering whether a downward adjustment is
appropriate, courts should consider whether the requested fee is
1) in line with the “‘character of the representation and the
results of the representation achieved;’ 2) whether the attorney
unreasonably delayed the proceedings in an attempt to increase
the accumulation of benefits and thereby increase his own fee;
and 3) whether ‘the benefits awarded are large in comparison to
the amount of time counsel spent on the case,’ the so-called

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‘windfall’ factor.”

Joslyn v. Barnhart, 389 F. Supp. 2d 454,

456 (W.D.N.Y. 2005) (citing Gisbrecht, 535 U.S. at 808).
None of the three factors are at issue here. As a
result of the instant action, plaintiff received a substantial
award of past-due benefits.

There is no suggestion or

indication that counsel delayed the proceedings in an attempt to
increase his own fee.

Moreover, the amount sought by

plaintiff’s counsel is one that the Commissioner does not oppose
and one that is not without precedent.

Plaintiff’s counsel

seeks $29,971.25 in fees for 62.2 hours of work performed, which,
under a lodestar analysis, reflects an award of $481.85 per hour.
This hourly rate is not unreasonable.

See, e.g., Ellick v.

Barnhart, 445 F. Supp. 2d, 1166, 1169-71 (C.D. Cal. 2006)
(collecting cases approving of fee awards involving range of net
hourly rates of up to $982 per hour); Diz, 2010 WL 322028, at *2
(approving a contingency fee award amounting to an hourly rate
of $825 per hour).
Therefore, based on its review of the record, the
court finds that awarding plaintiff’s counsel the requested
contingency fee is reasonable given the services rendered.
CONCLUSION
The court grants plaintiff’s motion for attorney’s
fees under 42 U.S.C. § 406(b) and awards $19,740.97 in fees to

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plaintiff’s attorney, which is the net amount of attorney’s fees
agreed to under the Retainer Agreement, offset by $10,230.78 in
EAJA fees already awarded.

The Clerk of Court is respectfully

requested to enter a judgment so reflecting.

SO ORDERED
DATED: May 23, 2014
Brooklyn, New York

/s/
________
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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