Perry v. Commissioner of Social Security

Filing 24

ORDER granting 19 Motion for Attorney Fees in the amount of $23,213.00, which represents 25 percent of the total past due benefits awarded to Plaintiff. The Commissioner is directed to release these funds. Because Plaintiffs counsel never received attorneys fees pursuant to the EAJA, he is not directed to return them. Signed by Hon. Michael A. Telesca on 1/22/2020. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DWIGHT THOMAS PERRY,
DECISION AND ORDER

Plaintiff,

1:17-CV-01306-MAT
-vsCommissioner of Social Security,
Defendant.
________________________________________
I.

Introduction
Plaintiff has filed a Motion for Attorney’s Fees, seeking the

amount of $23,643.50, pursuant to 42 U.S.C. § 406(b).
19.

Docket No.

Defendant filed a response on October 8, 2019, raising issues

concerning the amount of fees sought by Plaintiff’s counsel and the
timeliness of Plaintiff’s motion.

See Docket No. 21.

is now fully submitted and ready for decision.

The matter

Docket No. 23.

For

the reasons discussed below, Plaintiff’s motion is granted in part.
Plaintiff is awarded attorney’s fees in the amount of $23,213.00,
which is 25 percent of Plaintiff’s past-due disability benefits.

II.

Background
On October 4, 2017, the ALJ issued a partially favorable

decision

on

Plaintiff’s

disability

applications,

partially

approving Plaintiff’s application for Supplemental Security Income
(“SSI”),

but

application.

denying

in

its

entirety

Plaintiff’s

Title

II

See Docket No. 15; see also Docket Nos. 19-2 at ¶ 10

& 21 at 2.
portion

On January 4, 2019, this Court reversed the unfavorable

of

the

ALJ’s

decision,

and

calculation and payment of benefits.

remanded

the

Docket No. 15.

matter

for

On April 22,

2019, the Court signed a stipulation entered into by the parties,
whereby Plaintiff was awarded $6,300.14 pursuant to the Equal
Access

to

Justice

Act

(“EAJA”),

28

U.S.C.

§

2412,

in

full

satisfaction of his claim pursuant to the EAJA, for his attorney’s
services performed in connection with this action.1
Subsequently,

on

February

13,

2019,

the

Docket No. 18.

Social

Security

Administration (“SSA”) issued to Plaintiff a Notice of Award,
indicating that he was only eligible for past-due SSI benefits
between September 2015 and December 2015.
1.

See Docket No. 19-3 at

The Notice of Award further provided that this SSI payment,

which totaled $1,722.00, was previously released to Plaintiff in
2017.

Id.

On June 16, 2019, the SSA issued to Plaintiff another

Notice of Award, stating that Plaintiff was entitled to monthly
disability benefits beginning in November 2007. Docket No. 21-1 at
3.

The

Notice

of

Award

further

provided

that

the

SSA

was

withholding $23,213.00 from Plaintiff’s past-due benefits in order
to pay attorney’s fees.

Id. at 5.

The SSA issued to Plaintiff’s

counsel an Important Information letter on June 16, 2019, enclosing

1

The EAJA award was used to offset a government debt owed by Plaintiff, and
counsel never received it. Docket Nos. 19-2 at ¶ 15 & 19-5; see also Docket No.
21 at 7.

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a copy of the Notice of Award sent to Plaintiff.

Id. at 1.

As

explained further below, Plaintiff’s counsel states that he did not
receive the June 16, 2019 Important Information letter from the
SSA, until it was filed by Defendant in response to Plaintiff’s
motion for attorney’s fees.

See Docket No. 22 at 1-5.

On July 22, 2019, the SSA issued a letter to Plaintiff’s
counsel, stating that $23,213.00, which represented 25 percent of
the past-due benefits owed to Plaintiff, was being withheld to pay
attorney’s fees.

Docket No. 19-4.

As noted above, Plaintiff’s

attorney requests fees in the amount of $23,643.50. Docket No. 191.

Plaintiff’s attorney has submitted the above-mentioned Notice

of Award for his SSI claim and withholding letter (Docket Nos. 19-3
& 19-4), the fee agreement (Docket No. 19-7), and his time records
to date (see Docket No. 19-2 at ¶ 17).
III. Discussion
Title 42, Section 406(b) provides as follows:
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[.]
42 U.S.C. § 406(b)(l)(A).
“When a contingent fee has been agreed to by the parties, the
district court must determine whether the fee is reasonable[,]”
“giv[ing] due deference to the intent of the parties” while “not

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blindly approv[ing] every fee request made pursuant to a contingent
agreement.”

Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990).

Mathematical calculations are not required, but the district court
should determine whether the contingency percentage is within the
25 percent cap. Id. In addition, it should consider “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.”
A.

Id. (citations omitted).
Timeliness of Plaintiff’s Fee Request

The Court first addresses the timeliness of Plaintiff’s motion
for attorney’s fees.

Plaintiff’s counsel filed his motion for

attorney’s fees on September 17, 2019.

See Docket No. 19.

He

contends that his fee request is timely, as it was filed within the
65-day time period mandated by former L. R. Civ. P. 5.5(g)(1).2
See Docket No. 19-1 at 3.
65-day

period

from

the

Plaintiff’s counsel has calculated the
date

he

received

the

July

22,

2019

withholding letter, since the Notice of Award for Plaintiff’s Title
II claim was not received by his office.

Id.

In response, Defendant points to the aforementioned Important
Information letter dated June 16, 2019, which is addressed to

2

On January 1, 2020, L. R. Civ. P. 5.5(g)(1) was amended to provide that
counsel “may file a petition for attorney’s fees under 42 U.S.C. § 406(b) in
accordance with the time frame set forth in F.R.Civ.P. 54(d)(2)(B) and Sinkler
v. Berryhill, 932 F.3d 83 (2d Cir. 2019). Unless otherwise established, the
Court will assume that counsel representing the plaintiff in federal court
received notice of the benefits calculation at the same time as the plaintiff.”
L. R. Civ. P. 5.5(g)(1).

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Kenneth Hiller, one of Plaintiff’s attorneys.

See Docket Nos. 21

& 21-1. This letter encloses the Notice of Award sent to Plaintiff
on June 16, 2019.

See Docket No. 21-1.

September 17, 2019 - the

date that Plaintiff filed his motion for attorney’s fees - is more
than 65 days after the June 16, 2019 letter.
Plaintiff’s counsel states that he never received the June 16,
2019 Important Information letter enclosing the Notice of Award
until Defendant attached it to its response to Plaintiff’s motion
for attorney’s fees.
statement,

See Docket No. 22 at 1-5.

Plaintiff

Nos. 22-1, 22-2 & 22-3.

submits

three

In support of this

affirmations.

See

Docket

One of the affirmations is made by Kenneth

Hiller, and states that he examined Plaintiff’s electronic file in
the

firm’s

case

management

system

(Prevail),

and

the

first

notification his office received regarding Plaintiff’s past due
benefits was the July 22, 2019 withholding letter.
No. 22-1 at ¶¶ 2-3.

See Docket

Mr. Hiller further states that the electronic

file does not show that his firm received the June 16, 2019
Important Information letter until Defendant filed its response to
Plaintiff’s motion for attorney’s fees.

Id. at ¶ 2.

Plaintiff

also submits affirmations from counsel’s office manager, Cheverine
Van Berkum, and an employee, Elaine Hartman.
& 22-3.

See Docket Nos. 22-2

Ms. Van Berkum states that she has worked on Plaintiff’s

file, including using the firm’s case management system.
No. 22-2 at ¶ 5.

Docket

Ms. Van Berkum further states that while the case
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management system shows multiple documents received during the
course of Plaintiff’s case, it does not show the June 16, 2019
Notice of Award letter as received until Defendant filed its
response to Plaintiff’s motion for attorney’s fees.3
¶¶

6,

8.

Ms.

Hartman’s

affirmation

states

See id. at

that

her

job

responsibilities include opening incoming mail, scanning it, and
attaching it to the proper electronic folder in Prevail, as well as
delivering a hard copy of the document to the appropriate case
manager.

Docket No. 22-3 at ¶ 2.

Ms. Hartman further states that

she reviewed all of the scanned documents received for Plaintiff’s
file since May 10, 2019, and there is no record of the firm
receiving the June 16, 2019 Notice of Award until it received
Defendant’s response to Plaintiff’s motion for attorney’s fees.
Id. at ¶ 4. Plaintiff’s counsel has also provided redacted Prevail
screen

shots

from

Plaintiff’s

file,

further

supporting

his

assertion that he did not receive the June 16, 2019 Notice of Award
until it was included as a part of Defendant’s response papers.
See Docket No. 22-4.
Although there is a presumption that Plaintiff’s counsel
received the June 16, 2019 Important Information letter enclosing
the Notice of Award, see L. R. Civ. P. 5.5(g)(1) (“the court will

3

The Court notes that paragraph 10 of Ms. Van Berkum’s affirmation states,
“I affirm under penalties of perjury that no alterations have been made to the
history of entries in Prevail for Lindy Mack’s electronic folder.” See Docket
No. 22-2 at ¶ 10. The Court presumes that the inclusion of the name “Lindy Mack”
is a typographical error, and should state Plaintiff’s name, Dwight Perry.

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assume that counsel representing the plaintiff in federal court
received notice of the benefits calculation at the same time as the
plaintiff.”), the Court finds that the detailed evidence submitted
by Plaintiff’s counsel - which includes sworn statements by one of
Plaintiff’s

attorneys

presumption.

and

two

office

employees

-

rebuts

the

See, e.g., Mack v. Commissioner, No. 18-CV-974, 2019

WL 2422866, at *3 (W.D.N.Y. June 10, 2019) (“[These] detailed
submissions about procedures utilized by plaintiff’s attorney’s
office

when

screenshots
assertions

handling
of

of

incoming

plaintiff’s
the

late

mail,

electronic

receipt

of

along
file,

the

with
go

copies

beyond

notice,

and

of

simple

instead,

corroborate plaintiff’s allegations of her late receipt of the
Appeals

Council’s

notice.

Therefore,

the

Court

finds

that

plaintiff successfully rebutted the presumption of timely receipt
by making ‘a reasonable showing’ that she did not receive the
notice within five days of its mailing.”). Plaintiff’s counsel has
presented evidence that he did not receive the Notice of Award
until October

8,

2019,

when

Defendant

Plaintiff’s motion for attorney’s fees.

filed

its

response

to

Accordingly, the motion

for attorney’s fees, which was filed on September 17, 2019, is
timely.
Regarding the timeliness of Plaintiff’s motion, Defendant also
cites to Sinkler v. Berryhill, 932 F.3d 83 (2d Cir. 2019), a Second
Circuit case holding that the 14-day deadline to file an attorney

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fee petition, included at Fed. R. Civ. P. 54(d)(2)(B), applies to
§ 406 motions, and runs from the date the claimant receives the
notice of benefits award.

See Docket No. 21 at 4; see also

Sinkler, 932 F.3d at 89 (§ 406(b) fee request “is subject to the
fourteen-day filing limitation of Rule 54(d)(2)(B) once a party
receives notice of a benefits calculation following a sentence four
remand judgment.”).

In response, Plaintiff contends that L. R.

Civ. P. 5.5(g)(1) and the Sinkler case are not inconsistent,
because local rule provisions extending the deadline to file a Rule
54 motion are an order of court and at the discretion of the
district judge, and the Sinkler court did not rule on the propriety
of L. R. Civ. P. 5.5(g)(1).

Docket No. 22 at 5.

The Sinkler case was decided on August 2, 2019, prior to
Plaintiff’s fee request, which was filed on September 17, 2019.
Pursuant to Sinkler, Plaintiff was required to file his fee request
within 17 days of June 16, 2019 (allowing three days for mailing).
See Sinkler, 932 F.3d at 91 n.5 (“Nothing in this opinion departs
from the law’s presumption that a party receives communications
three days after mailing.”).

The Sinkler Court clarified its

holding:
In holding Rule 54 applicable in these circumstances, we
are mindful that its fourteen-day limitations period is
not absolute.
The rule expressly states that the
specified period applies “[u]nless a statute or a court
order provides otherwise.”
Thus, district courts are
empowered
to
enlarge
that
filing
period
where
circumstances warrant. To be sure, courts cannot adopt
local rules or orders that are inconsistent with federal
-8-

rules of procedure. Nevertheless, where, as here, the
rule itself affords courts the discretion to alter a
specified filing time, we will generally defer to a
district court in deciding when such an alteration is
appropriate in a particular case as, for example, when a
party needs more time to assemble and file the
administrative record.
Sinkler,

932

F.3d

at

89-90

(internal

citations

omitted).

Plaintiff’s counsel has presented compelling evidence that he did
not receive the Important Information letter enclosing the Notice
of Award until it was attached to Defendant’s response papers.
Further, the evidence submitted by counsel - including three
affirmations and screen shots from his firm’s case filing system demonstrates that his law firm did not receive the Notice of Award
on or around June 16, 2019, and therefore could not have complied
with the 14-day deadline.

For these reasons, the Court finds that

it is appropriate to enlarge the time by which Plaintiff’s motion
pursuant to § 406 may be filed.

See Almodovar v. Saul, No. 16 Civ.

7419(GBD)(SN), 2019 WL 6207784, at *2 (S.D.N.Y. Nov. 21, 2019)
(enlarging time period for plaintiff’s counsel to file § 406(b)
motion,

where

counsel

presented

proof,

including

counsel’s

statement under penalty of perjury, that although the plaintiff
received the notice of award on December 12, 2018, counsel did not
receive the notice of award until March 1, 2019); c.f. Sinkler, 932
F.3d at 90 (“Assuming we would entertain Sinkler’s notice argument,
it fails on the merits because she provides no factual basis to
support a claim that it was ‘reasonable’ to delay the filing of her

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§ 406(b) application for more than six months after she received
notice of the benefits calculation on remand.

Certainly, she

offered no explanation for this delay in the district court.”).
B.
Pursuant

Reasonableness of the Fee Request
to

the

fee

agreement

Plaintiff,

his

attorney is entitled to 25 percent of his past due benefits.

See

Docket Nos. 19-1 at 6 & 19-7.

signed

by

The July 22, 2019 letter issued by

the SSA regarding the withholding of attorney’s fees states that
the amount withheld - $23,213.00 - “represents 25 percent of the
past-due

benefits”

for

Plaintiff.

See

Docket

No.

19-4.

Plaintiff’s attorney has requested a fee of $23,643.50, which is
more than 25 percent of Plaintiff’s past-due benefits. Plaintiff’s
attorney explains that he arrived at this number by calculating
25 percent of the combined total of $1,722.00 (Plaintiff’s SSI
award) and $93,852.00 (Plaintiff’s past-due Title II benefits,
calculated by multiplying by four the amount withheld by the SSA to
pay attorney’s fees).

See Docket No. 19-1 at 2 (“Thus, the total

award of past due benefits was $94,574.00 ($93,852.00 + $1,722.00),
25% of which would be 23,643.50.”).
Defendant notes that because Plaintiff was awarded past-due
Title II benefits after his receipt of past-due SSI benefits in
2017, he no longer qualified for the past-due SSI payments.

See

Docket No. 21 at 6; see also Docket No. 21-1 at 4 (“We are
withholding your Social Security benefits for November 2007 through
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May 2019.

We may have to reduce these benefits if you received

[SSI] for this period.”).

Defendant contends that, therefore,

Plaintiff’s counsel may not collect 25 percent of the past-due SSI
payment.

Docket No. 21 at 6.

response to this argument.

Plaintiff does not offer any

As noted above, both the Notice of

Award and the July 22, 2019 letter regarding attorney’s fees
provide that the SSA was withholding $23,213.00 of Plaintiff’s
past-due benefits to pay Plaintiff’s attorney’s fees.
Nos. 19-4 & 21-1 at 5.

See Docket

The July 22, 2019 letter explicitly states

that $23,213.00 represents 25 percent of Plaintiff’s past-due
benefits.

Docket No. 19-4.

Plaintiff’s fee request, albeit only

slightly, exceeds 25 percent of Plaintiff’s past-due benefits.

He

is

is

not

entitled

to

collect

more

than

$23,213.00,

twenty-five percent of Plaintiff’s past-due benefits.
Defendant
overreaching.

has

not

identified

any

See Docket No. 21 at 7.

evidence

of

which
Id.
fraud

or

Further, given that

Plaintiff’s attorney has not requested a significantly increased
fee amount, the Court concludes that there is no evidence of fraud
or overreaching.

The Court also finds that the amount requested

does not appear to be so large as to be a windfall to the attorney.
See Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002); see also
Docket No. 19-2 at ¶ 17.

Plaintiff’s counsel has spent a total of

31.95 hours preparing Plaintiff’s case before the federal district
court (see Docket No. 19-2 at ¶ 17), which yields an hourly fee of

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$740.02 (see Docket No. 19-1 at 7), and is reasonable under the
circumstances.

See, e.g., Smith v. Saul, No. 18-CV-148F, 2020 WL

90761, at *2 (W.D.N.Y. Jan. 8, 2020) (approving attorney fee award
of $22,838.88, which resulted in an hourly rate of $613.95, and
noting that “[a]lthough this rate at first glance seems a little
high, it does not result in a windfall to counsel.”) (citing
McDonald v. Commissioner, No. 16-CV-926-FPG, 2019 WL 1375084, at
*2-3 (W.D.N.Y. Mar. 27, 2019) (approving attorney’s fees in the
amount of $30,602.75 for 29.1 hours of work, which yields an hourly
rate of $1,051.64) and Joslyn v. Barnhart, 389 F. Supp. 2d 454,
455-56 (W.D.N.Y. 2005) (approving attorney’s fees in the amount of
$38,116.50 for 42.75 hours of work, resulting in an hourly rate of
$891.61)).

Plaintiff’s counsel has worked on this case since

December 2014.

See Docket No. 19-2 at ¶ 8.

After lengthy

proceedings and multiple denials at the administrative level, see
id. at ¶¶ 5-10, Plaintiff’s counsel was ultimately successful in
securing past-due benefits for Plaintiff.
transcript in this case is over 900 pages.

The administrative
See Docket No. 7.

Plaintiff’s attorney filed an 18-page motion for judgment on the
pleadings, which persuaded the Court that Plaintiff’s disability
onset date was March 11, 2007, rather than May 14, 2014, resulting
in the recovery of over $90,000 in Title II disability benefits.
See Docket Nos. 9-1 & 15.

Accordingly, based on the fee agreement

between Plaintiff and counsel, the history of the case, and the
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favorable result, the Court finds that a fee of $23,213.00, which
represents

25

percent

of

Plaintiff’s

past-due

benefits,

is

reasonable in this case.
IV.

Conclusion
For the reasons discussed above, the Court grants in part

Plaintiff’s Motion for Attorney’s Fees (Docket No. 18).

Plaintiff

is awarded attorney’s fees in the amount of $23,213.00, which
represents 25 percent of the total past due benefits awarded to
Plaintiff.

The Commissioner is directed to release these funds.

Because Plaintiff’s counsel never received attorney’s fees pursuant
to the EAJA, he is not directed to return them.
IT IS SO ORDERED.
S/Michael A. Telesca
______________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

January 22, 2020
Rochester, New York

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