Flagg v. Commissioner of Social Security

Filing 20

ORDER with respect to 17 Motion for Attorney Fees. The parties are directed to meet and confer to discuss Plaintiff's motion for attorneys' fees. By no later than Wednesday, March 19, 2025, the Government shall respond to Plaintiff's motion identifying any areas of disagreement or, in lieu thereof, the parties shall submit a stipulation for allowance of fees by that deadline. SO ORDERED. (Signed by Magistrate Judge Gary Stein on 3/5/2025) (jjc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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Damon Mickeal Flagg,
:

Civil No. 1:24-cv-03374-ER-GS

:
:
Plaintiff,
:
Motion for Attorney’s Fees
:
Pursuant to the Equal Access to Justice Act
v.
:
28 U.S.C. §2412
:
:
Commissioner of Social Security,
:
:
Defendant.
:
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COUNSEL:
PLEASE TAKE NOTICE that upon the annexed affidavit of Daniel Berger, attorney for the
plaintiff, and the other papers, the plaintiff makes a motion before this Court, for an order:
1. Awarding attorney’s fees plus costs in the sum of $6,811.90 pursuant to the Equal Access
to Justice Act; and
2. Granting such other and further relief as may be deemed just and proper.
Plaintiff, by and through his attorney, Daniel Berger, hereby moves the court to award attorney’s
fees to be paid by the defendant pursuant to the Equal Access to Justice Act, 28, USC §2412.
Plaintiff asks for an award of attorney’s fees in the amount of $6,811.90 to be paid to plaintiff’s
attorney calculated at the rate of $251.00 per hour for 26.9 hours of work performed, and
$100.00 per hour for 0.6 hours of work performed by paralegal on this case in Federal Court.
Plaintiff is entitled to receive attorney’s fees pursuant to the Equal Access to Justice Act because
he is the prevailing party in this action, is an individual whose net worth did not exceed two
million dollars at the time the action was filed as is demonstrated by plaintiff’s attached signed
affidavit, IFP application, and the position of the United States in this litigation and at the agency
was not substantially justified. Although the burden of proof on the issue of substantial
justification is on the government, plaintiff’s supporting memorandum briefly addresses this
issue.
There are no special circumstances in this case which make an award under the EAJA unjust.
This motion is supported by the affidavit of plaintiff and the affidavit of plaintiff’s attorney,
memorandum, federal court retainer signed by plaintiff, and plaintiff’s signed IFP application.

Dated at Bronx, NY this March 3, 2025

Respectfully submitted,

The parties are directed to meet and confer to discuss
Plaintiff’s motion for attorneys’ fees. By no later than
Wednesday, March 19, 2025, the Government shall respond
to Plaintiff’s motion identifying any areas of disagreement or,
in lieu thereof, the parties shall submit a stipulation for
allowance of fees by that deadline.

____________________

Date: March 5, 2025
New York, NY

Law Office of Daniel Berger

Daniel Berger
Attorney for Plaintiff

1000 Grand Concourse, Suite 1A
Bronx, NY 10451

Damon Mickeal Flagg v. Commissioner of Social Security
Civil No. 1:24-cv-03374-ER-GS

DANIEL BERGER
ATTORNEY AT LAW
1000 Grand Concourse,
Bronx, New York 10451
_____
PHONE [phone]
FAX [phone]
Damon Mickeal Flagg v. Commissioner of Social Security
Civil No. 1:24-cv-03374-ER-GS
Time Entry
03/11/2024: 1.6 hours. Review of Record; Attorney
Attorney reviewed case history, including client summary and medications, hearing notes, ALJ
decision, Notice of Appeals Council Action, and exhibits of record.
Time Entry
03/22/2024: 0.0 hours. Call to client; Paralegal
Paralegal called client to inform client that attorney has reviewed case and decided to take case
to Federal Court. Paralegal scheduled an appointment for client to sign necessary documents.
Time Entry
04/03/2024: 0.6 hours. Visit from client; Attorney
Client met with attorney and discussed Federal Court process. Client signed necessary papers to
file civil action in Federal Court. Client had several questions regarding Federal Court, which
attorney answered.
Time Entry
05/02/2024: 0.2 hours. Drafting; Attorney
Attorney drafted civil cover sheet, complaint, and summons to file civil action in Federal Court.
Time Entry
05/02/2024: 0.0 hours. Copies; Paralegal
Paralegal made required copies of documents drafted by attorney.
1

Damon Mickeal Flagg v. Commissioner of Social Security
Civil No. 1:24-cv-03374-ER-GS

Time Entry
05/02/2024: 0.5 hours. Filing on ECF; Paralegal
Paralegal filed Civil Action on ECF. Documents filed include Complaint, Civil Cover Sheet, IFP,
and Summons.
Time Entry
05/06/2024: 0.0 hours. Review of Docket Sheet; Attorney
Attorney reviewed docket sheet including scheduling order and order granting IFP.
Time Entry
07/08/2024: 0.0 hours. Download of CAR and Review of Docket Sheet; Attorney
Attorney reviewed docket sheet, answer to complaint. Attorney downloaded Administrative
Record.
Time Entry
07/08/2024: 0.1 hours. Call to client; Attorney
Attorney called client.
Time Entry
08/01/2024: 0.1 hours. Drafting and Filing; Attorney
After ARC Michael P. Corona consented, Attorney filed a request for a 61-day extension of time
for the proposed briefing schedule.
Time Entry
09/26/2024: 5.7 hours. Review of file; Attorney
Review of file, hearing notes, certified administrative transcript, and record (603 pages).
Time Entry
09/27/2024: 6.8 hours. Drafting; Attorney
Attorney Prepared Statement of Facts. (12 pages, 5 footnotes)
Time Entry

2

Damon Mickeal Flagg v. Commissioner of Social Security
Civil No. 1:24-cv-03374-ER-GS

09/29/2024: 8.6 hours. Drafting and Research; Attorney
Preparation of Memorandum of Law. Issues raised: The ALJ should have found Plaintiff disabled
based on her psychiatric and physical impairments; The ALJ failed to consider all of Plaintiff's
impairments and limitations; The VE's testimony did not constitute substantial evidence; The
ALJ failed to develop the record.
Time Entry
09/30/2024: 0.5 hours. Review and Edit; Attorney
Edit Statement of Facts.
Time Entry
09/30/2024: 2.0 hours. Review and Edit; Attorney
Edit and Cite check Memorandum of Law, Shepardized cases, checked regulations, and created
table of authorities.
Time Entry
09/30/2024: 0.1 hours. Draft Table of Contents; Paralegal
Paralegal drafted table of contents.
Time Entry
10/01/2024: 0.0 hours Filing ECF; Attorney
Attorney filed Motion for Judgment on the Pleadings and Memorandum of Law in Support via
ECF.
Time Entry
10/01/2024: 0.1 hours. Call to client; Attorney
Attorney called client.
Time Entry
11/26/2024: 0.0 hours. Proposed Stipulation and Order; Attorney
After reviewing the Plaintiff’s Motion for Judgment on the Pleadings and Memorandum of Law
in Support, ARC Avni Dinesh Gandhi offered to remand this matter.

3

Damon Mickeal Flagg v. Commissioner of Social Security
Civil No. 1:24-cv-03374-ER-GS

Time Entry
12/03/2024: 0.0 hours. Review of Stipulation and Order; Attorney
Attorney reviewed Stipulation and Order signed by Hon. U.S. District Court Judge Edgardo
Ramos on December 3, 2024.
Time Entry
12/03/2024: 0.3 hours. Call to client; Attorney
Attorney called client and informed client of remand. Attorney answered client’s questions.
Time Entry
03/03/2025: 0.3 Hours. Preparation of EAJA Request; Attorney
Attorney prepared EAJA request.
____________________________________________________
ATTORNEY HRS: 26.9 x $251.00/HR = $6,751.90
PARALEGAL HRS: 0.6 x $100.00/HR = $60.00
Total Hours: 27.5
TOTAL FOR LEGAL SERVICES RENDERED: $6,811.90
______________________________________________________________________________
Respectfully submitted,

Daniel Berger, Esq.

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4/4/2024

4/4/2024