McBride-Meyers v. Colvin

Filing 31

OPINION AND ORDER re: 23 MOTION for Attorney Fees PURSUANT TO 42 U.S.C. § 406(b)(1), filed by Nina S. McBride-Meyers. For the reasons set forth above, Plaintiff's motion for attorney's fees in the amount of $9,317. 50 is GRANTED. Upon receipt of this sum, counsel for Plaintiff shall refund the previously awarded $4,000.00 in attorney's fees, under the EAJA, directly to Plaintiff. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 12/17/2020) (kl)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
12/17/2020

Nina S. McBride-Meyers,
Plaintiff,

1:16-cv-05696 (SDA)

-against-

OPINION AND ORDER

Andrew Saul, Commissioner of Social
Security, 1
Defendant.
STEWART D. AARON, United States Magistrate Judge:
Presently before this Court is Plaintiff’s Motion for Attorney’s Fees (Pl.’s Not. of Mot., ECF
No. 23), pursuant to a contingent fee agreement and 42 U.S.C. § 406(b). Plaintiff seeks an award
of attorney’s fees in the amount of $9,317.50 which represents twenty-five percent (25%) of the
past due benefits awarded to the Plaintiff. (Binder Aff., ECF No. 24, ¶ 13.) For the reasons set
forth below, Plaintiff’s motion is GRANTED.
BACKGROUND
On July 15, 2013 Plaintiff filed an application for Social Security Disability benefits with a
disability onset date of April 12, 2013. (Binder Aff. ¶ 1.) Her application was denied upon initial
review and she timely requested a hearing before an Administrative Law Judge (“ALJ”) on
October 25, 2013. (Id.) Thereafter, on January 16, 2014, Plaintiff retained Binder & Binder to
represent her before the Social Security Administration (“SSA”) in regard to her pursuit for
disability benefits. (Id.)

Andrew Saul was sworn in as Commissioner of Social Security on June 17, 2019. Pursuant to 25(d)(1) of
the Federal Rules of Civil Procedure, Andrew Saul should be substituted for Carolyn W. Colvin as the
defendant.

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A hearing was held before ALJ Louis Cantanese on April 23, 2015. (Binder Aff. ¶ 2.) In a
written unfavorable decision, dated June 1, 2015, ALJ Cantanese found Plaintiff not disabled
within the meaning of the Social Security Act. (Id.) On June 25, 2015, Plaintiff requested review
of the ALJ’s decision by the Appeals Council and in support of this appeal her representatives
submitted comments on August 10, 2015. (Id.) On May 24, 2016, the Appeals Council denied the
request for review. (Id.)
Upon the Plaintiff’s decision to pursue an appeal in the United States District Court,
Plaintiff signed a retainer agreement authorizing the Law Offices of Charles E. Binder and Harry
J. Binder, LLP (“Binder Law Offices”) to “appeal the denial of Social Security benefits to the United
States District Court.” (Binder Aff. ¶ 3; Binder Aff. Ex. A, ECF No. 24-1.) The retainer agreement
provided that, if the claimant’s case is remanded by the United States District Court to the SSA,
and, upon remand, the claimant is awarded past due benefits by the Appeals Council and/or the
ALJ, the claimant will pay her counsel twenty-five percent (25%) of past due benefits, upon
approval by the District Court and/or the SSA. (See Binder Aff. Ex. A.)
On July 18, 2016, Plaintiff commenced an action in this Court by filing a complaint. (Binder
Aff. ¶ 4.) Issue was joined by filing of Defendant’s answer on October 27, 2016. (Id.) Plaintiff filed
a brief on December 22, 2016 and Defendant filed a brief on February 13, 2017. (Id.) On March
17, 2017, Plaintiff filed a reply. (Id.) On May 5, 2017, the parties consented to the jurisdiction of
Magistrate Judge Ellis for all purposes. (Consent, ECF No. 18.) Subsequently, on September 29,
2017, Judge Ellis issued an Order and Opinion remanding the case back to the SSA for further
proceedings. (Binder Aff. ¶ 4.) Judgment was entered the same day. (Id.)

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Based on the successful appeal in the District Court, Plaintiff sought an award of
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Binder Aff. ¶ 5.)
Thereafter, Plaintiff was awarded $4,000.00 in EAJA fees. (Id.)
In a written Fully Favorable Decision, dated February 16, 2018, the Appeals Council found
Plaintiff disabled within the meaning of the Social Security Act as of April 12, 2013. (Binder Aff. ¶
6.) In a March 4, 2018 Notice of Change in Benefits letter, the SSA advised that Plaintiff was due
benefits. (See Binder Aff. Ex. C, ECF No. 24-1.) In that letter, the SSA indicated it had “withheld
$9,317.50 from your past due benefits in case we need to pay your representative.” (See id.)
On March 12, 2018, Plaintiff’s counsel filed the present motion for attorney’s fees
pursuant to 42 U.S.C. § 406(b). (See Pl.’s Not. of Mot.) Plaintiff seeks attorney’s fees in the amount
of $9,317.50 which represents twenty-five percent (25%) of the past due benefits awarded to the
Plaintiff. (Binder Aff. ¶ 13.) Upon receipt of this sum, Binder & Binder pledges to refund the
previously awarded EAJA fees of $4,000.00 directly to the Plaintiff. (Id.)
On December 9, 2020, this case was redesignated to me and, on the same day, I ordered
Defendant to file any opposition to Plaintiff’s motion for attorney’s fees by December 16, 2020.
(12/9/20 Order, ECF No. 29.) On December 16, 2020, Defendant filed his response to Plaintiff’s
motion. (Def.’s Response, ECF No. 30.)
DISCUSSION
I.

Legal Standards
Section 206(b)(1)(A) of the 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
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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 of such past-due benefits.
42 U.S.C. § 406(b)(1)(A).
“Most plausibly read . . . § 406(b) does not displace contingent-fee agreements as the
primary means by which fees are set for successfully representing Social Security benefits
claimants in court. 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.
Barnhart, 535 U.S. 789, 807 (2002).
“[W]here there is a contingency fee agreement in a successful social security case, the
district court’s determination of a reasonable fee under § 406(b) must begin with the agreement,
and the district court may reduce the amount called for by the contingency agreement only when
it finds the amount to be unreasonable.” Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990)
(internal citations omitted). Among the factors to be considered when determining whether an
award is reasonable are: (a) whether the contingency fee is within the twenty-five percent limit;
and (b) whether the retainer was the result of fraud or overreaching by the attorney. See Wells,
907 F.2d at 372.
Other factors to be considered are the following:
1) whether the requested fee is out of line with the “character of the
representation and the results 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 “windfall” factor.
Joslyn v. Barnhart, 389 F. Supp. 2d 454, 456 (W.D.N.Y. 2005) (quoting Gisbrecht, 535 U.S. at 808).

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With respect to the third factor—whether the award constitutes a “windfall”— courts
consider the following factors:
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.
Blizzard v. Astrue, 496 F. Supp. 2d 320, 323 (S.D.N.Y. 2007) (quoting Joslyn, 389 F. Supp. 2d at
456-57).
Fee awards may be made under both the EAJA and § 406(b), but the claimant’s attorney
must “refun[d] to the claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796 (internal
quotation marks and citation omitted).
II.

Application
As noted above, Plaintiff seeks an award of attorney’s fees in the amount of $9,317.50.

The fees are within the twenty-five percent limit imposed by statute. Moreover, as noted by the
Commissioner in her submission, there is no evidence of fraud or overreaching. (See Def.’s Resp.
at 3-5.)
The Court finds that the requested fees are not out of line with the character of the
representation and the successful results achieved. The Court also finds that the Binder Law
Offices did not unreasonably delay the proceedings. Further, the Court finds that the Binder Law
Offices are well experienced in handling social security cases and that their written submissions
were specific and well supported.
With respect to the so-called windfall factor, the Binder Law Offices have requested
$9317.50 for 20.5 hours of services rendered before this Court, which represents a de facto
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hourly rate of $454.51. In support of its motion, the Binder Law Offices have provided, for each
of the two attorneys who worked on this case, Daniel S. Jones (“Jones”) and Charles E. Binder
(“Binder”), information concerning their backgrounds and experience and a calculation of the
hours spent on this case. Upon review of the submissions, the Court finds that the number of
hours spent on this matter by each attorney, that is, 18.5 hours in the case of Jones and 2 hours
in the case of Binder, or a total of 20.5 hours, is not unreasonable under the circumstances.
Further, as noted by the Commissioner, the de facto hourly rate of $454.51 is comparable to rates
previously approved in this Circuit. (See Def.’s Resp. at 5 n.2.)
The Court finds the fee amount sought by the Binder Law Offices to be reasonable. In
reaching this conclusion, the Court is mindful that, upon the award of such fees, the Binder Law
Offices have pledged to return to Plaintiff the full amount of the EAJA fees previously awarded.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for attorney’s fees in the amount of
$9,317.50 is GRANTED. Upon receipt of this sum, counsel for Plaintiff shall refund the previously
awarded $4,000.00 in attorney’s fees, under the EAJA, directly to Plaintiff.
SO ORDERED.
DATED:

December 17, 2020
New York, New York
________________________________
STEWART D. AARON
United States Magistrate Judge

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