Brown v. Berryhill

Filing 29

ORDER granting 24 Motion for Attorney Fees.For the reasons set forth above, Brown's application for attorney's fees in the amount of of $13,578.75 is GRANTED. The Social Security Administration should approve and effectuate a paym ent of $13,578.75 to Brown's counsel. Counsel is ordered to return to Brown the $4,325.00 received pursuant to the EAJA. The Clerk of Court is respectfully directed to close the motion at ECF No. 24. SO ORDERED. (Signed by Magistrate Judge Valerie Figueredo on 7/12/2022) (tg) Transmission to Finance Unit (Cashiers) for processing.

Case 1:18-cv-01320-VF Document 29 Filed 07/12/22 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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7/12/2022

ELISA ALTHEA BROWN,
18-CV-01320 (VF)

Plaintiff,

ORDER

-againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
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VALERIE FIGUEREDO, United States Magistrate Judge

Plaintiff Elisa Brown brought this motion for approval of attorney’s fees pursuant to 42
U.S.C. § 406(b). For the reasons explained below, Brown’s motion is GRANTED.
BACKGROUND
Brown’s application for Social Security benefits was denied both initially and following a
hearing by an Administrative Law Judge. On February 14, 2018, Brown filed the complaint in
this Court seeking review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). See
ECF No. 1. After Brown filed a motion for judgment on the pleadings, see ECF No. 15, the
parties stipulated to remand the matter to the Commissioner on November 27, 2018, for the
purpose of conducting further proceedings. See ECF Nos. 19-20. On December 27, 2018, the
Court approved an attorney’s fee award of $4,325.00 pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. See ECF No. 23.
Following remand, the Commissioner found Brown disabled and awarded past-due
benefits. See ECF No. 25-1, Ex. C at 2. The Commissioner withheld 25% of the past due
benefits, $13,578.75, for the payment of Brown’s attorney’s fees. Id. Counsel now seeks to
obtain this amount, pursuant to the contingent-fee arrangement with Brown, which provided for
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a contingent fee to counsel of up to 25% of any past-due benefits. See id., Ex. A at 2. Counsel
indicates that he will remit the EAJA award to his client if the instant fee application is granted.
See ECF No. 25 at ¶ 13. Contemporaneous time records show that Brown’s attorneys, Charles E.
Binder and Daniel S. Jones, spent a combined 22.30 hours in the federal court proceeding. See
ECF No. 25-1, Ex. B. The Commissioner does not object to the fee request. See ECF No. 27.
DISCUSSION
When a court renders a favorable judgment under 42 U.S.C. § 406(b) to a claimant who
was represented by counsel, “the court may determine and allow as part of its judgment a
reasonable fee for such representation.” Id. However, such fee may not exceed “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). Factors relevant to the request for approval of attorney’s fees are: “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) (citation omitted).
With regard to contingent fees, the law permits counsel to charge fees of up to 25% of the
past due benefits so long as the fees are reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 795
(2002). A lodestar method, which considers whether the rate charged and time spent were
reasonable, need not be employed if there is no reason to question the terms of the contingent-fee
agreement between the lawyer and plaintiff or the character of the representation provided. Id. at
806-08. However, a fee is not automatically recoverable simply because it is equal to or less than
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25% of the client’s total past-due benefits. Id. at 807. Several factors are relevant to the
reasonableness analysis, including: (1) “whether the contingency percentage is within the 25%
cap”; (2) “whether there has been fraud or overreaching in making the agreement”; and (3)
“whether the requested amount is so large as to be a windfall to the attorney.” Wells v. Sullivan,
907 F.2d 367, 372 (2d Cir. 1990). Also relevant are: (1) “the character of the representation and
the results the representative achieved”; (2) “the amount of time counsel spent on the case”; (3)
whether “the attorney [was] responsible for any delay”; and (4) “the lawyer’s normal hourly
billing charge for noncontingent-fee cases.” Gisbrecht, 535 U.S. at 808.
Here, all factors weigh in favor of awarding the fee requested by counsel. The fee of
$13,578.75 is not more than 25% of past-due benefits and would yield an hourly rate of $608.91
based on the expenditure of approximately 22.30 hours of attorney work spent on Brown’s social
security case. Additionally, the hours expended are reasonable given the nature of the services
provided and successful outcome obtained by Brown’s attorneys upon remand of the case.
Moreover, in light of the contingent-fee agreement between Brown and counsel, the
requested fee of $13,578.75 is not so large as to constitute a windfall to counsel. Cases in this
circuit have been deferential—accepting de facto hourly rates that exceed those for noncontingent fee cases. See, e.g., Fields v. Kijakazi, 24 F.4th 845, 856 (2d Cir. 2022) (finding the
de facto hourly rate of $1,556.98 to be reasonable based on effective representation); Bates v.
Berryhill, 2020 WL 728784 at *3 (S.D.N.Y. Feb. 13, 2020) (finding the de facto hourly rate of
$1,506.32 was product of competent and efficient advocacy); Baron v. Astrue, 311 F. Supp. 3d
633, 637-38 (S.D.N.Y. 2018) (collecting cases with hourly fees ranging from $1,072.17 to
$2,100.00 given efficient and impressive work from counsel).

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Further, there is no evidence of fraud or overreaching in the making of the contingent-fee
agreement, counsel was not responsible for any delay in this case, and counsel provided effective
representation, including obtaining the Commissioner’s agreement to remand.
Lastly, as counsel has already agreed to do, see ECF No. 25 at ¶ 13, counsel is required to
remit to Brown the $4,325.00 award to counsel pursuant to the EAJA. See Gisbrecht, 535 U.S. at
796 (where a fee award is made both under the EAJA and 42 U.S.C. § 406(b), the claimant’s
attorney must “refun[d] to the claimant the amount of the smaller fee”).
CONCLUSION
For the reasons set forth above, Brown’s application for attorney’s fees in the amount of
of $13,578.75 is GRANTED. The Social Seucrity Administration should approve and effectuate
a payment of $13,578.75 to Brown’s counsel. Counsel is ordered to return to Brown the
$4,325.00 received pursuant to the EAJA. The Clerk of Court is respectfully directed to close the
motion at ECF No. 24.
SO ORDERED.
DATED:

New York, New York
July 12, 2022

______________________________
VALERIE FIGUEREDO
United States Magistrate Judge

Copies to:
All parties (via ECF)
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