Rodriguez v. Berryhill

Filing 31

ORDER granting 24 Motion for Attorney Fees. Accordingly, it is HEREBY ORDERED: 1. Plaintiff's motion for attorney's fees pursuant to 42 U.S.C. § 406(b) is GRANTED. 2. Plaintiff's counsel is awarded $8,994.25 in attorney&# 039;s fees, and the Social Security Administration is directed to pay that amount to plaintiff's counsel out of plaintiff's past-due disability benefits award. The Clerk is instructed to terminate the motion. (Doc. #24). SO ORDERED. (Signed by Judge Vincent L. Briccetti on 6/24/2020) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DELFIN RODRIGUEZ,
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL SECURITY,
:
Defendant.
:
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ORDER
17 CV 3104 (VB)

On April 27, 2017, plaintiff brought this action challenging the Commissioner of Social
Security’s denial of plaintiff’s application for disability benefits under 42 U.S.C. § 401 et seq.
(Doc. #1). On January 31, 2018, the Court “so ordered” the parties’ stipulation reversing and
remanding the case to the Commissioner for further administrative proceedings, pursuant to
sentence four of 42 U.S.C. § 405(g). (Doc. #21). On February 1, 2018, the Court entered
judgment accordingly. (Doc. #22).
On September 30, 2019, the Social Security Administration issued a Notice of Award
(“NOA”) to plaintiff, finding that he was entitled to past-due payments for social security
disability benefits. (See Doc. #26 (“Alegria Decl.”) Ex. 2 (“NOA”)).
On December 12, 2019, plaintiff moved for an award of attorney’s fees “in the lesser
amount of $13,027.00 or 25 percent of plaintiff’s past-due disability benefits” pursuant to 42
U.S.C. § 406(b). (Doc. #24). Defendant opposed plaintiff’s motion to the extent plaintiff sought
attorney’s fees exceeding $8,994.25. (See Doc. #27).
I.

Attorney’s Fees

The Court finds plaintiff’s counsel is entitled to attorney’s fees in the amount of
$8,994.25, which is equal to the Social Security Administration’s calculation of twenty-five
percent of plaintiff’s past-due disability benefits, and which the Court finds to be reasonable.
See Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990).
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, and the Commissioner
of Social Security may, notwithstanding the provisions of section 405(i) of this
title, but subject to subsection (d) of this section, 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.
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42 U.S.C. § 406(b)(1)(A).
Here, plaintiff’s attorney seeks attorney’s fees “in the lesser amount of $13,027.00 or 25
percent of plaintiff’s past-due disability benefits.” (Doc. #24). In the NOA, the Social Security
Administration stated: “We usually withhold 25 percent of past due benefits in order to pay the
approved representative’s fee. We withheld $8,994.25 from your past due benefits in case we
need to pay your representative.” (NOA at 3). In other words, $8,994.25 is twenty-five percent
of plaintiff’s past-due benefits. Indeed, although the total amount of past-due benefits is not
stated in the NOA, the NOA does state that “[w]hen we figure how much to pay you, we must
deduct certain amounts, such as Medicare premiums and worker’s compensation offset.” (NOA
at 1).
Accordingly, the Court finds the twenty-five percent fee of $8,994.25 calculated by the
Social Security Administration is the reasonable amount of attorney’s fees pursuant to the
statute.
II.

Timeliness of Application

Next, plaintiff’s counsel argues the Court should use its discretion and accept plaintiff’s
request for attorney’s fees even though plaintiff made the application after the fourteen-day
deadline had lapsed. The Court agrees.
The Second Circuit recently determined that the applicable limitations period for filing
Section 406(b) motions is fourteen days. See Sinkler v. Berryhill, 932 F.3d 83, 88 (2d Cir.
2019). And the “fourteen-day filing period prescribed . . . is subject to equitable tolling when §
406(b) motions must await the SSA Commissioner’s calculation of benefits following a district
court’s sentence four remand judgment. In that circumstance, the fourteen-day filing period
starts to run when the claimant receives notice of the benefits calculation.” Id. at 91.
Here, the NOA was issued on September 30, 2019, and received by plaintiff’s counsel on
October 5, 2019. As plaintiff concedes, the motion was due on October 24, 2019. (See Doc. #25
at 1 & n.1). However, on October 31, and December 2, 2019, plaintiff submitted written
requests to the Commissioner of Social Security for a statement of the actual total amount of
plaintiff’s past-due disability benefits. (See Alegria Decl. ¶ 6). To date, plaintiff has not received
a response. Plaintiff filed the application for attorney’s fees on December 12, 2019—seventythree days after the NOA was issued and forty-nine days after the deadline to file had lapsed.
Unlike Sinkler, here, plaintiff has “come forward with a factual basis for deeming” the
delay reasonable. Sinkler v. Berryhill, 932 F.3d at 85. After receiving the NOA on October 5,
2019, plaintiff twice sought a more definitive statement of the Commissioner’s calculation of
plaintiff’s past-due benefits. Plaintiff ultimately filed the motion for attorney’s fees on
December 12, 2019, ten days after sending the second letter to the Social Security
Administration. (See Alegria Decl. Ex. 3). The Court finds such a delay in filing the application
reasonable given the circumstances.
Accordingly, it is HEREBY ORDERED:
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1.
Plaintiff’s motion for attorney’s fees pursuant to 42 U.S.C. § 406(b) is
GRANTED.
2.
Plaintiff’s counsel is awarded $8,994.25 in attorney’s fees, and the Social Security
Administration is directed to pay that amount to plaintiff’s counsel out of plaintiff’s past-due
disability benefits award.
The Clerk is instructed to terminate the motion. (Doc. #24).
Dated: June 24, 2020
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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