Isaacs v. Berryhill
Filing
27
DECISION and ORDER. It is hereby ORDERED, that Plaintiff's 25 Motion for Attorneys' Fees is GRANTED; and it is further ORDERED, that Attorney Gorton is awarded the sum of $13,498.75 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 ORDERED, that Attorney Gorton is directed to remit to Plaintiff the sum of $6,000 that was previously awarded (and received) as attorneys' fees pursuant to the EAJA. Signed by Magistrate Judge Daniel J. Stewart on 3/30/2020. (dpk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THERESA I.,
Plaintiff,
3:17-CV-1317
(DJS)
v.
ANDREW M. SAUL, Comm’r of Soc. Sec., 1
Defendant.
APPEARANCES:
OF COUNSEL:
LACHMAN & GORTON
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089
PETER A. GORTON, ESQ.
SOCIAL SECURITY ADMINISTRATION
OFFICE OF REGIONAL GENERAL COUNSEL
REGION II
26 Federal Plaza - Room 3904
New York, New York 10278
JOHANNY SANTANA, ESQ.
DANIEL J. STEWART
United States Magistrate Judge
DECISION and ORDER
I. INTRODUCTION
On February 19, 2020, counsel to Plaintiff in this action submitted a Motion for
Attorneys’ Fees. Dkt. No. 25. Defendant submitted a Response to the Motion. Dkt. No.
26. Upon review of the matter, the Court grants Plaintiff’s Motion.
Andrew M. Saul became the Commissioner of Social Security on June 17, 2019. The Clerk of Court is respectfully
directed to amend the caption.
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II. BACKGROUND
Plaintiff filed a Complaint in this matter on December 6, 2017, seeking review of
the Commissioner’s determination denying Plaintiff’s application for disability benefits.
Dkt. No. 1. The parties filed Motions for Judgment on the Pleadings and in March 2019
this Court granted Plaintiff’s Motion, remanded the matter for further administrative
proceedings, and entered judgment in favor of Plaintiff. Dkt. Nos. 19 & 20. The parties
stipulated to Plaintiff’s first Motion for Attorneys’ Fees pursuant to the Equal Access to
Justice Act (“EAJA”) and the Court ordered such attorneys’ fees awarded. See Dkt. No.
24. At that time, $6,000 was awarded and received by counsel. See id.; Dkt. No. 25-1.
Upon review of the matter on remand, a favorable decision awarding Plaintiff benefits
was rendered. See Dkt. No. 25-3. Plaintiff’s counsel has now filed this Motion. Dkt.
No. 25.
Plaintiff’s counsel seeks attorneys’ fees in the amount of $13,498.75, of which he
would remit to Plaintiff the sum of $6,000 previously awarded from the EAJA fees. Dkt.
No. 25-1.
Defendant states that the Commissioner see no evidence of fraud or
overreaching in this case. Dkt. No. 26 at p. 1.
III. DISCUSSION
The Social Security Act provides:
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.
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42 U.S.C. § 406(b)(1)(A). This Section “calls for court review of [contingent fee]
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
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.
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Plaintiff’s counsel seeks fees at a de facto hourly rate of $438.28. 2 Dkt. No. 25-1.
This is well within the range of reasonable fees that have been approved in the past. See,
e.g., Teri L. v. Comm’r of Soc. Sec., 2020 WL 777213, at *2 (N.D.N.Y. Feb. 18, 2020)
(finding de facto hourly rate of $486.93 reasonable); David B. v. Saul, 2019 WL 6123780,
at *3 (N.D.N.Y. Nov. 19, 2019) (de facto hourly rate of $494.98); Sarah L. v. Colvin,
2018 WL 6178486, at *3 (N.D.N.Y. Nov. 27, 2018) (de facto hourly rate of $650). In
any event, “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
client, not an hourly rate determined under lodestar calculations.” Wells v. Sullivan, 907
F.2d at 371. 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 resulted in the matter being remanded the matter for
further consideration. Counsel’s Motion for Judgment on the Pleadings discussed the
material facts and applicable law. The record establishes that the matter was handled
efficiently which is an important relevant consideration. Teri L. v. Comm’r of Soc. Sec.,
2020 WL 777213, at *2 (“there is no doubt that this case was handled efficiently, at least
in part, because of counsel’s experience with social security cases”); Eric K. v. Berryhill,
2019 WL 1025791, at *2 (N.D.N.Y. Mar. 4, 2019) (“[Counsel’s] experience representing
Social Security claimants likely contributed to the efficiency with which he handled this
“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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case and that it would have required more time from an inexperienced attorney.”). In
addition, Plaintiff has been awarded significant benefits as a result of the litigation. See
Dkt. No. 25-3. Finally, in reviewing counsel’s time log, it generally appears to reflect
appropriate attorney work properly recorded. Defendant concedes that the effective
hourly rate sought here generally would not be considered a windfall. Dkt. No. 26. The
Court therefore finds that the amount requested would not constitute a windfall.
Finally, the Court notes that there is no question that this Motion is 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. Aug.
2, 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 Notice of Award is dated February 11, 2020. Dkt. No. 25-3 at p. 1. Plaintiff filed the
present Motion on February 19, 2020. Dkt. No. 25. The Motion is therefore timely.
For the reasons set forth above, the Motion is granted.
IV. CONCLUSION
WHEREFORE, it is hereby
ORDERED, that Plaintiff’s Motion for Attorneys’ Fees is GRANTED; and it is
further
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ORDERED, that Attorney Gorton is awarded the sum of $13,498.75 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
ORDERED, that Attorney Gorton is directed to remit to Plaintiff the sum of
$6,000 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: March 30, 2020
Albany, New York
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