Opinion
20-CV-2220 (AT) (OTW)
06-21-2023
MARIANGELA ELIZABETH FEDERICO, Plaintiff, v. ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION TO THE HONORABLE ANALISA TORRES
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE:
I. INTRODUCTION
On September 28, 2022, Plaintiff Mariangela Elizabeth Federico (“Plaintiff”) moved against Defendant the Acting Commissioner of Social Security (“Commissioner”) for attorneys' fees pursuant to 42 U.S.C. § 406(b). (ECF 26 at 1). Pursuant to a retainer and assignment between Plaintiff and Charles E. Binder & Harry J. Binder Attorneys at Law, LLP (“Binder & Binder”), Plaintiff agreed to pay Binder & Binder 25 percent of her past-due benefits pursuant to 42 U.S.C. § 406(b) (“Fee Agreement”). (ECF 27-1 at 2). By Notice of Award, dated September 14, 2022, the Social Security Administration (“SSA”) concluded that Plaintiff's past-due benefits totaled $94,160. (ECF 27 at 8).
The matter has been referred to me for approval of the award of $23,540, approximately 25 percent of the Plaintiff's past-due benefits.(ECF 27 at 8); (ECF 28 at 3). The parties previously stipulated to the payment of $7,235 to Plaintiff under the Equal Access to Justice Act 28 U.S.C. § 2412 (“EAJA”) on April 14, 2021. (ECF 24). As of the date of this order, the Commissioner has not responded to Binder & Binder's motion.
Twenty-five percent of $94,160 is $23,540. ($94,160 x .25 = $23,540).
For the reasons set forth below, I recommend that the Court GRANT Plaintiff's motion for attorney's fees under 42 U.S.C. § 406(b). I further recommend the Court direct the SSA to approve a payment of $23,540 to Binder & Binder, and upon receipt of that payment, counsel shall refund $7,235 to Plaintiff.
II. DISCUSSION
Section 406(b) of the Social Security Act states:
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. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.42 U.S.C. § 406(b)(1)(A).
Section 406(b) “does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002); accord Wells v. Sullivan, 907 F.2d 367, 370 (2d Cir. 1990). Instead, it “calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht, 535 U.S. at 807. The Court's reasonableness analysis looks at three factors: (1) whether the requested fees exceed the 25 percent limit, (2) whether the contingent fee agreement was reached through “fraud or overreaching,” and (3) whether the requested fees would represent a windfall to counsel. Wells, 907 F.2d at 373; see, e.g., Annabi v. Comm'r of Soc. Sec., 16-CV-9057 (BCM), 2020 WL 1819783, at *1 (S.D.N.Y. Apr. 9, 2020).
Binder & Binder's $23,540 award is reasonable. The requested amount is 25 percent of the Plaintiff's total past-due benefits and falls within the statutory limit. 42 U.S.C. § 406(b)(1)(A); (ECF 27 at 8). As reflected in the Fee Agreement's notice of § 406's provisions on past-due benefits, there is no evidence of fraud or overreaching from Binder & Binder. “Compensated hours generally range from twenty to forty hours” for attorneys' work on Social Security benefits cases. See e.g. Torres v. Barnhart, 2007 U.S. Dist. LEXIS 45526 (S.D.N.Y 2007); DiGennaro v. Bowen, 666 F.Supp. 426, 433 (E.D.N.Y. 1987). Counsel worked a total of 33.90 hours, which falls within the general range. (ECF 27 at 5).
To assess if the requested fees are a windfall, the Court considers: (1) the ability, expertise, and efficiency of counsel, (2) the nature and length of relationship with the claimant, (3) the satisfaction of the disabled claimant with counsel's services, and (4) the uncertainty of an award of benefits. Wells, 907 F.2d at 372. Here, there will not be a windfall. First, counsel has strong credentials in the practice of Social Security law. (ECF 27 at 3-4). Second, Binder & Binder was retained by the Plaintiff in December 2017, have drafted several motions, and have appeared throughout the duration of the appeal until March 2021. (ECF 27 at 5). Third, Plaintiff is not dissatisfied with counsel's services since they obtained a successful outcome for Plaintiff. Fourth, due to multiple denials of Plaintiff's benefits over a ten-year period, there was substantial uncertainty as to the result.
III. CONCLUSION
For the foregoing reasons, I recommend that the Court GRANT Plaintiff's motion for attorney's fees under 42 U.S.C. § 406(b). I further recommend the Court direct the SSA to approve a payment of $23,540 to Binder & Binder, and upon receipt of that payment, counsel shall refund $7,235 to Plaintiff.
IV. OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Analisa Torres, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
SO ORDERED.