McCarthy v. Colvin
Filing
20
ORDER granting 15 Motion for Attorney Fees as set forth in this Order. Signed by Hon. Michael A. Telesca on 6/15/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Michael McCarthy,
Plaintiff,
-v-
13-CV-06467
ORDER
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.
I. Introduction
Represented by counsel, Michael McCarthy (“plaintiff”) brought
an action pursuant to Title II of the Social Security Act (“the
Act”) seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
disability insurance benefits (“DIB”). On November 14, 2014, that
decision was reversed and the case was remanded solely for the
payment and calculation of benefits. On January 25, 2015, the
Social Security Administration (“SSA”) issued Notices of Award
stating that plaintiff was entitled to monthly disability benefits
beginning October 2008. Doc. 15-2. The amount of $19,043.23 was
withheld for attorneys’ fees constituting 25% of the past due
amount due to the plaintiff. Id.
Plaintiff now moves for an award of attorney's fees in the
amount of $19,043.23 pursuant to 42 U.S.C. §406(b) (“Section
406(b)”),
asking
that
the
Court
approve
the
contingent
fee
arrangement between plaintiff and his attorney, whereby plaintiff
agreed to pay his attorney 25 percent of any past-due benefits
payable to him in exchange for the provision of legal services in
this proceeding. Doc. 15-2. Plaintiff’s counsel previously applied
for and received $4,866.39 under the Equal Access to Justice Act
(“EAJA”), an amount that he agrees to refund plaintiff upon the
receipt of $19,043.23. See § 2412 of the Equal Access to Justice
Act.
The Commissioner does not oppose plaintiff’s motion. Doc. 18.
For the reasons discussed below, the plaintiff’s counsel’s motion
is granted.
II. Discussion
Section 406(b) provides in relevant part that:
“[w]henever a court renders a judgment favorable to a
claimant under this title 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
such judgment . . .”
42 U.S.C. § 406(b)(1)(A). “The Commissioner’s failure to oppose
this motion is not dispositive, as ‘section 406 (b) requires an
affirmative
judicial
finding
that
the
fee
allowed
is
‘reasonable[.]’” Ewald v. Commissioner of Social Sec., 2008 WL
4104458, *1 n.1 (E.D.N.Y. Sept. 3, 2008) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 807 n.17 (2002)); see also Gisbrecht, 535
U.S. at 807 (“[Section] 406(b) calls for court review of such
[contingent-fee] arrangements as an independent check, to assure
that they yield reasonable results in particular cases.”) (footnote
omitted); id. at 808-09. To fall “[w]ithin the 25 percent boundary”
-2-
established by Congress in § 406(b)(1)(A), “the attorney for the
successful claimant must show that the fee sought is reasonable for
the services rendered.” Id. at 807 (footnote omitted).
Courts
reviewing
Section
406(b)
motions
should
consider
factors such as the character of the representation, the results
achieved, the amount of time spent on the case, whether the
attorney was responsible for any delay, and the attorney’s normal
hourly billing rate for noncontingency cases. See Gisbrecht, 535
U.S. at 808. Other factors properly considered are any instances of
misconduct or ineffectiveness of counsel; whether counsel would
enjoy a windfall because of either an inordinately large award or
because minimal effort was expended; and the degree of difficulty
of the case. See Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir.
1990).
The
Court
begins
its
reasonableness
analysis
with
the
contingency agreement itself, which is unambiguous. The 25 percent
fee for which it provides does not exceed the statutory cap;
furthermore, 25 percent is a standard contingency fee for a Social
Security case. Ewald, 2008 WL 4104458, at *2 (citing Gisbrecht, 585
U.S. at 803) (noting that “[c]haracteristically. . . , attorneys
and clients enter into contingent-fee agreements specifying that
the fee will be 25 percent of any past-due benefits” (internal
quotation marks and citations omitted)). Neither party suggests
that the fee agreement was the product of fraud or overreaching.
Counsel provided effective representation to plaintiff by securing
-3-
a favorable reversal of the Commissioner’s earlier denial and the
immediate award of benefits.
Counsel
asserts
that
25
percent
of
plaintiff’s
past-due
benefits totaled $19,043.23. While the fee applicant bears the
burden of establishing that the requested fees are reasonable,
plaintiff and the Commissioner agree that the following factors
support
such
an
award:
1)
the
attorneys
spent
a
total
of
25.10 hours representing Plaintiff (22.50 hours by attorney Eddy
Pierre Pierre and 2.60 hours by Charles E. Binder);1 2) both
attorneys
whom
worked
on
Plaintiff’s
case
are
experienced
litigators in the field of Social Security Disability law; 3) the
attorneys received a favorable result for plaintiff in this action;
4) the Second Circuit has upheld as non-“windfalls” a higher de
facto hourly rate than that found here, which totaled $758.69 per
hour when calculated using all 25.10 hours, and $846.36 per hour
when calculated using only Mr. Pierre’s 22.50 hours;2 5) counsel
will refund the smaller of the two fee awards, here, the EAJA
$4,866.39 award, to plaintiff;3 and 6) the total fee requested does
1
District courts in this Circuit have held that a routine social
security case requires from twenty to forty hours of attorney time. See e.g.,
Cruz v. Apfel, 48 F.Supp.2d 226, 230 (E.D.N.Y.1999); Grey v. Chater, 1997 WL
12806 at *1 (S.D.N.Y.1997). Further, this time may include the time spent on
EAJA fees applications. See Trichilo v. Secretary of Health and Human
Services, 823 F.2d 702, 708 (2d Cir.1987).
2
See, e.g. Torres v. Colvin, No. 11 CIV. 5309 JGK, 2014 WL 909765, at
*4 (S.D.N.Y. Mar. 6, 2014) (“[i]n opposing the requested award, defendant
seems to rely exclusively on the notion that the resultant hourly
rate—$1,000.00—is too high to be reasonable, citing two cases in which courts
held that rates of $1,034.48 and $1,333.33, respectively, amounted to a
windfall. This argument is unpersuasive.”)(internal citations omitted).
3
See, e.g., Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988) (“dual fee
applications are not improper as long as the lesser of any two amounts awarded
goes to the attorney's client.”).
-4-
not
exceed
25
percent
of
the
past-due
benefits
awarded
to
plaintiff. Gaudino v. Colvin, No. 10-CV-6656 CJS, 2013 WL 4647641,
at *1 (W.D.N.Y. Aug. 29, 2013).
Contemporaneous time records from plaintiff’s counsel which
“specify, for each attorney, the date, the hours expended, and the
nature of the work done” must also be submitted. Cruz v. Local
Union No. 3 of Intern. Broth. of Elec. Workers, 34 F.3d 1148, 1160
(2d Cir.1994). “Where the documentation of hours is inadequate, the
district court may reduce the award accordingly.” Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
Here, counsel has submitted a dated “Itemization of Hours” (Doc.
15–2)
that
is
sufficiently
specific,
legible,
and
coherently
recorded for the Court to determine whether it was reasonable to
spend the stated hours with the correlated tasks, and to determine
whether the enumerated tasks were properly non-clerical in nature.4
Moreover, the tasks are separately listed rather than block-billed.
C.f. Guadagno v. Astrue, No. 10-CV-6348, 2011 WL 3902749, at *2
(W.D.N.Y. Sept. 6, 2011) (“block-billed time entries may hinder the
Court's
ability
to
determine
whether
the
fees
requested
are
reasonable; and, in such cases, district courts are authorized to
make
across
the-board
reductions,
4
rather
than
undertaking
However, the Court is not required to “scrutinize each action taken
or the time spent on it” when determining what is reasonable. See Aston, 808
F.2d at 11; see also New York Ass'n for Retarded Children v. Carey, 711 F.2d
1136, 1146 (2d Cir.1983).
-5-
a
painstaking
review
of
each
time
entry”)
(internal
citations
omitted).
For the reasons set forth above, Plaintiff's application for
attorney's fees under 42 U.S.C. § 406(b)(1) in the amount of
$19,043.23 is reasonable and granted. Plaintiff's counsel shall pay
the amount of the EAJA award, $4,866.39 to Plaintiff. The Court
directs the Commissioner to remit to plaintiff’s counsel the
requested $19,043.23 fee award.
III. Conclusion
Plaintiff’s motion for attorneys’ fees is granted and the
Commissioner
is
directed
forthwith
to
remit
$19,043.23
to
plaintiff’s counsel. Upon receipt of the award, counsel is directed
to refund the EAJA award of $4,866.39 to plaintiff.
IT IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
June 15, 2016
Rochester, New York
-6-
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