McLark v. Colvin
Filing
24
DECISION & ORDER: Granting the # 21 Motion for Attorney Fees. It is Ordered that Plaintiff's attorney is hereby awarded attorney's fees of $20,037.00, to be paid by the Acting Commissioner out of the amounts being withheld from payme nt to plaintiff of past benefits owed in accordance with the court's prior order and judgment in this matter and the foregoing order is conditioned upon the requirement that plaintiff's attorney refund the plaintiff the amount of $11,400.00, representing prior fees recovered by counsel under the EAJA. Signed by Magistrate Judge David E. Peebles on 10/27/2016. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
KAREN McLARK,
Plaintiff,
Civil Action No.
6:15-CV-0620 (DEP)
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
LACHMAN & GORTON LAW OFFICE
P.O. Box 89
1500 East Main Street
Endicott, New York 13761
PETER A. GORTON, ESQ.
FOR DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
EMILY H. FISHMAN, ESQ.
Special Assistant U.S. Attorney
DECISION AND ORDER
After pursuing a procedural path that began with an application for
Social Security benefits in July 2010 and culminated in a favorable judicial
decision in March 2016, plaintiff has filed a motion seeking the court's
approval of payment to her attorney from the funds awarded to her based
on the favorable judicial decision. Acting Commissioner of Social Security
Carolyn Colvin, the defendant in this action, does not oppose the
application, provided that plaintiff's counsel is required to credit plaintiff
with the amounts previously received from the Social Security
Administration ("SSA") in connection with the matter pursuant to the Equal
Access to Justice Act ("EAJA"), as amended, 28 U.S.C. § 2412. 1 Having
carefully reviewed plaintiff's application and found that it conforms with the
governing legal principles, and that the fees sought are reasonable,
plaintiff's application is granted.
I.
BACKGROUND
On July 1, 2010, plaintiff Karen McLark applied for disability benefits
and supplemental security income payments under Titles II and XVI of the
Social Security Act, as amended, respectively. Following the initial denial
1
This matter is before me on consent of the parties, pursuant to 28 U.S.C. §
636(c). Dkt. No. 13.
2
of those applications, a hearing was conducted on November 14, 2011, by
Administrative Law Judge ("ALJ") John Ramos. ALJ Ramos subsequently
issued a decision on December 22, 2011, finding that plaintiff was not
disabled at the relevant times and denying her application for benefits.
That decision became a final determination of the SSA on May 14, 2013,
when the SSA Appeals Council denied plaintiff's request for review of the
matter.
On June 14, 2013, plaintiff commenced an action in this court
challenging the Acting Commissioner's determination. McLark v. Colvin,
No. 13-CV-0684 (N.D.N.Y. filed June 14, 2013). The result of that action
was a consent order, dated April 8, 2014, remanding the matter to the
Commissioner for further consideration. The court thereafter approved a
payment under the EAJA to plaintiff's counsel in the amount of $5,000.
After the matter was remanded to the Commissioner, a further
hearing was conducted by ALJ Ramos on January 27, 2015. The ALJ
issued a second decision on March 9, 2015, again finding that plaintiff was
not disabled at the relevant times and therefore ineligible for payment of
benefits. Plaintiff subsequently commenced this action on May 21, 2015,
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of that
second determination. The result of this action was a decision and
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judgment entered on March 3, 2016, vacating the Commissioner's
determination and remanding the matter with a directed finding of disability
and for the sole purpose of calculating the benefits owed to plaintiff. As a
result of that determination, an order was entered on March 15, 2016,
approving plaintiff's request for payment of the additional sum of $6,400 in
attorney's fees pursuant to the EAJA.
II.
PROCEDURAL HISTORY
On September 30, 2016, plaintiff filed the instant application for
approval of payment of attorney's fees from past benefits due to the
plaintiff in the amount of $20,037.00 pursuant to 42 U.S.C. § 406(b)(1).
Dkt. No. 21. Included with plaintiff's submission, inter alia, are summaries
of the time expended by counsel on plaintiff's behalf with respect to both
the administrative and the judicial proceedings outlined above. Id. The
Acting Commissioner responded to the pending application by letter dated
October 4, 2016. Dkt. No. 22. In that response, she does not oppose the
application but notes the court's responsibility to ensure that the requested
relief is reasonable, and that plaintiff is properly credited with the $11,400
received by her counsel pursuant to the two prior EAJA applications. Id.
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III.
DISCUSSION
Plaintiff's application is made pursuant to 42 U.S.C. § 406(b), which
provides, in relevant part, as follows:
(b) Fees for representation before court
(1)(A) 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 the claimant is entitled by reason of
such judgment, and the Commissioner of
Social Security may, notwithstanding the
provisions of section 405(i) of this title, but
subject to subsection (d) of this section,
certify the amount of such fee for payment to
such attorney out of, and not in addition to,
the amount of such past-due benefits. In
case of any such judgment, no other fee may
be payable or certified for payment for such
representation except as provided in this
paragraph.
42 U.S.C. § 406(b)(1)(A). As the Supreme Court has noted, section 406(b)
does not supplant contingency fee arrangements such as that entered into
between plaintiff and her attorney, but does require the court to engage in
an independent analysis to assure that the result dictated by the
contingency arrangement is reasonable given the circumstances of the
particular case at hand. Gisbrecht v. Barnhart, 535 U.S. 789, 807-08
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(2002). Based upon that review, if the court finds that "the benefits are
large in comparison to the amount of time counsel spent on the case, a
downward adjustment is . . . in order." Gisbrecht, 535 U.S. at 808.
In this case, plaintiff's application reveals that her counsel, Peter A.
Gorton, Esq., expended 37.7 hours at the administrative level, 27.5 hours
in connection with the first federal court action, and 34.1 hours in this
action, performing legal services on plaintiff's behalf in connection with her
efforts to secure Social Security benefits. Dkt. No. 21-1 at 9-12. The
application also includes a copy of the retainer agreement entered into on
April 28, 2010, between Attorney Gordon and plaintiff, under which plaintiff
agreed to pay a fee equal to twenty-five percent of all back benefits
awarded in the event the case was appealed into the courts and the
plaintiff prevailed. Id. at 15. That amount, according to plaintiff's
application, equals $20,037. Dividing that sum by the total number of
hours expended, 99.3, yields an effective hourly rate of $201.78. That
amount falls comfortably within hourly rates that have been approved in
this district for experienced attorneys, especially those with expertise in a
particular area of practice. See, e.g., See, e.g., Luessenhop v. Clinton
Cnty., N.Y., 558 F. Supp. 2d 247, 266 (N.D.N.Y. 2008) (Treece, M.J.)
(noting that the prevailing market hourly rate is now higher than $210 and
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awarding attorney's fees at a rate of $235); Doe v. Kaiser, No. 06-CV1045, 2007 WL 2027824, at *9-10 (N.D.N.Y. July 9, 2007) (Peebles, M.J.)
(attorney's fee award calculated at an hourly rate of $250 based on
consideration of what a reasonable client in the Syracuse, New York,
community would pay and the experience of the attorney); Hoblock v.
Albany Cnty. Bd. of Elections, No. 04-CV-1205, 2006 WL 3248402, at *3
(N.D.N.Y, Nov. 7, 2006) (Kahn, J.) (awarding attorney's fees at an hourly
rate of $225.00); see also Arbor Hill Concerned Citizens Neighborhood
Ass'n v. Cnty. of Albany, 522 F.3d 182, 193-94 (2d Cir. 2007) (affirming
the district court's finding that recovery of attorney's fees should be
calculated based upon the hourly rate of $210 for experienced attorneys).
Accordingly, I find the amount sought by plaintiff's counsel in his pending
application is fair and reasonable, and consistent with the retainer
agreement entered into with his client.
IV.
SUMMARY AND RECOMMENDATION
Having reviewed this matter and determined that the fee resulting
from the retainer agreement entered into between plaintiff and her attorney
is reasonable, I conclude that plaintiff's counsel is entitled to the amount
being withheld by the Acting Commissioner, in the sum of $20,037.00,
from unpaid benefits due to the plaintiff, conditioned upon counsel's
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repayment to plaintiff of the amounts received pursuant to two prior EAJA
fee applications, totaling $11,400.00. Accordingly, it is hereby
ORDERED as follows:
(1)
Plaintiff's attorney is hereby awarded attorney's fees of
$20,037.00, to be paid by the Acting Commissioner out of the amounts
being withheld from payment to plaintiff of past benefits owed in
accordance with the court's prior order and judgment in this matter.
(2)
The foregoing order is conditioned upon the requirement that
plaintiff's attorney refund the plaintiff the amount of $11,400.00,
representing prior fees recovered by counsel under the EAJA.
(3)
The clerk is respectfully directed to forward copies of this order
to counsel for the parties pursuant to the court's local rules.
Dated:
October 27, 2016
Syracuse, New York
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