Heinemann v. Berryhill
Filing
24
DECISION AND ORDER: Granting 21 Motion for Attorney Fees. Signed by Magistrate Judge Daniel J. Stewart on 10/06/2020. (map)
Case 3:17-cv-01313-DJS Document 24 Filed 10/06/20 Page 1 of 6
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JACQUELINE H.,
Plaintiff,
-v-
Civ. No. 3:17-CV-1313
(DJS)
ANDREW M. SAUL, Comm’r of Soc. Sec., 1
Defendant.
APPEARANCES:
OF COUNSEL:
LACHMAN, GORTON LAW FIRM
Counsel for Plaintiff
P.O. Box 89
1500 East Main Street
Endicott, NY 13761
PETER A. GORTON, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GENERAL COUNSEL
- REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
LAUREN E. MYERS, ESQ.
DANIEL J. STEWART
United States Magistrate Judge
DECISION AND ORDER
I. INTRODUCTION
On June 3, 2020, Peter A. Gorton, counsel to Plaintiff in this action, submitted a
Motion for Attorneys’ Fees. Dkt. No. 21. Defendant submitted a Response to the Motion,
explaining that the Motion was timely filed, that the award sought appeared reasonable,
1
Andrew M. Saul became the Commissioner of Social Security on June 17, 2019 and is substituted as the Defendant
pursuant to Federal Rule of Civil Procedure 25(d).
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Case 3:17-cv-01313-DJS Document 24 Filed 10/06/20 Page 2 of 6
and that there was no evidence of fraud or overreaching by counsel. Dkt. No. 23. Upon
review of the matter, the Court grants Plaintiff’s Motion.
II. BACKGROUND
Plaintiff filed a Complaint in this matter on December 1, 2017, seeking review of
the Commissioner’s determination denying her application for disability benefits. Dkt.
No. 1. The parties filed Motions for Judgment on the Pleadings, and on March 18, 2019,
this Court granted Plaintiff’s Motion, remanded the matter for further administrative
proceedings, and entered judgment in favor of Plaintiff. Dkt. Nos. 16 & 17. The parties
stipulated as to Plaintiff’s first Motion for Attorneys’ Fees pursuant to the Equal Access
to Justice Act (“EAJA”), filed in April of 2019, and the Court ordered such attorneys’
fees awarded. See Dkt. Nos. 19 & 20. At that time, $6,200.00 was awarded and received
by counsel. See id. Upon review of the matter on remand, the Administrative Law Judge
issued a favorable decision awarding Plaintiff benefits. Dkt. No. 21-1. That decision
resulted in an award to Plaintiff of total back due benefits of $93,559.00. Id. On June 3,
2020, Plaintiff’s counsel filed a Motion for Attorneys’ Fees pursuant to 42 U.S.C. §
406(b). Dkt. No. 21.
Plaintiff’s counsel seeks attorneys’ fees in the amount of $18,389.75, of which he
would remit to Plaintiff the sum of $12,126.18 previously awarded from the EAJA fees. 2
III. DISCUSSION
The Social Security Act provides:
2
As Defendant’s Response clarifies, Plaintiff was awarded fees under the EAJA both in this matter, as described
above, in the amount of $6,200.00, and was also awarded $5,926.18 in a previous appeal of this claim. Dkt. No. 23
at p. 3 (citing Heinemann v. Colvin, No. 3:16-CV-179, Dkt No. 20).
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Case 3:17-cv-01313-DJS Document 24 Filed 10/06/20 Page 3 of 6
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.
42 U.S.C. § 406(b)(1)(A). This section “calls for court review of such arrangements as
an independent check, to assure that they yield reasonable results in particular cases.”
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). The court “must give due deference to
the intent of the parties, but it ought not blindly approve every fee request made pursuant
to a contingent agreement.” Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990).
“[A] requested fee based on a contingent fee arrangement should be enforced
unless the court finds it to be unreasonable.” Id. at 370. In determining whether a fee is
reasonable, a court should consider whether the attorney is responsible for a delay in the
proceedings, as well as “whether there has been fraud or overreaching in making the
agreement, and whether the requested amount is so large as to be a windfall to the
attorney.” Id. at 372; Gisbrecht v. Barnhart, 535 U.S. at 808. In determining whether an
award would constitute a windfall,
courts in this circuit have identified several relevant considerations, which
include: (1) whether the attorney’s efforts were particularly successful for
the plaintiff, (2) whether there is evidence of the effort expended by the
attorney demonstrated through pleadings which were not boilerplate and
through arguments which involved both real issues of material fact and
required legal research, and finally, (3) whether the case was handled
efficiently due to the attorney’s experience in handling social security cases.
Porter v. Comm’r of Soc. Sec., 2009 WL 2045688, at *3 (N.D.N.Y. July 10, 2009)
(quoting Rowell v. Astrue, 2008 WL 2901602, at *4 (E.D.N.Y. July 28, 2008)). If the
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court finds the fee is unreasonable, the court “may reduce the fee provided it states the
reasons for and the amounts of the deductions.” Id.
Here, the contingency fee agreement provides in pertinent part that “[i]f the first
ALJ decision after the date of this agreement is a denial, and my attorney agrees to appeal
and the case is won at a later proceeding, the fee will be 25% of all back benefits awarded
in my case without a cap on the fee.” Dkt. No. 8 at p. 186. The amount requested does
not exceed the 25% cap, and there is no evidence of fraud or overreaching.
Counsel seeks $18,389.75, and he expended 61.7 hours of work on this matter,
resulting in a de facto hourly rate of $298.05. 3 Dkt. Nos. 21-1 & 21-2. This is well within
the range regularly awarded as attorneys’ fees in this type of case. See Tammy K. v.
Comm’r of Soc. Sec., 2019 WL 1567523, at *3 (N.D.N.Y. Apr. 11, 2019) (awarding
attorneys’ fees at a de facto hourly rate of $292.35); Insel v. Comm’r of Soc. Sec., 2017
WL 6558585, at *1 (N.D.N.Y. Dec. 22, 2017) (finding a de facto hourly rate of $416.60
would not be a windfall). As for the effort expended by the attorney, this is not a case in
which the matter was simply remanded upon stipulation of the parties; counsel prepared
a Motion for Judgment on the Pleadings which was compelling enough that the Court
remanded the matter for further consideration. In addition, Plaintiff has been awarded
significant benefits as a result of the litigation. Finally, in reviewing counsel’s time log,
it generally appears to reflect properly recorded and appropriate attorney work. The Court
3
“Although the Court cannot rely on the lodestar method to determine whether the fees sought are reasonable,
Plaintiff’s counsel’s record of the time he expended in federal court and the tasks that he performed related to the
federal court litigation is one factor that the Court may consider in determining reasonableness.” Whittico v. Colvin,
2014 WL 1608671, at *5 (N.D.N.Y. Apr. 22, 2014).
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therefore finds that the amount requested would not constitute a windfall, and will not
deny the Motion on that basis.
Finally, the Motion was submitted timely. “Unless a statute or a court order
provides otherwise, the motion [for attorneys’ fees] must: (i) be filed no later than 14 days
after the entry of judgment[.]” FED. R. CIV. P. 54(d)(2)(B). This rule applies to Section
406(b) attorneys’ fee applications following a district court remand of an agency denial
of benefits. Sinkler v. Berryhill, 932 F.3d 83 (2d Cir. 2019). Because the Commissioner
typically calculates benefits “months after the district court remands,” however, the
timeframe may be tolled pending the Commissioner’s calculation of benefits following
remand, and then would begin to run upon the claimant receiving notice of the benefits
calculation. Id. at 86-91. In this case, the Motion was submitted on June 3, 2020, and the
Notice of Award was dated May 24, 2020. Dkt. No. 21-3. The Motion is therefore timely.
The Court will grant Plaintiff’s Motion.
IV. CONCLUSION
WHEREFORE, it is hereby
ORDERED, that Plaintiff’s Motion for Attorneys’ Fees (Dkt. No. 21) is
GRANTED; and it is further
ORDERED, that Attorney Gorton is awarded the sum of $18,389.75 as fees
pursuant to 42 U.S.C. § 406(b), to be paid from the amount withheld by the Commissioner
of Social Security from the past due benefits awarded to Plaintiff; and it is further
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Case 3:17-cv-01313-DJS Document 24 Filed 10/06/20 Page 6 of 6
ORDERED, that Attorney Gorton is directed to remit to Plaintiff the sum of
$12,126.18 that was previously awarded (and received) as attorneys’ fees pursuant to the
EAJA; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order
upon the parties to this action in accordance with the Local Rules.
Dated: October 6, 2020
Albany, New York
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