Opinion
1:20-cv-09653 (AT) (KHP)
04-07-2022
JEANETTE ESCOBAR, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON ATTORNEY'S FEES
KATHARINE H. PAKER United States Magistrate Judge.
Counsel for Plaintiff, Mark J. Keller, Esq. (“Keller”), filed a motion seeking an award of attorneys' fees in the amount of $18,297.00, pursuant to a contingency fee agreement (the “Agreement”), 42 U.S.C.S. § 406(b)(1) and Fed.R.Civ.P. 54(d)(2)(B). (ECF No. 26.) The Commissioner of Social Security (the “Commissioner”) does not object to the requested amount, provided that Keller is directed to return the previously awarded $8,413.00 Equal Access to Justice Act (“EAJA”) award, which he agrees to do. (ECF Nos. 26-1, 29.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion be GRANTED in its entirety.
BACKGROUND
On June 10, 2014, Jeanette Escobar (“Escobar”), filed an application for Social Security Disability benefits (“SSD Benefits”), alleging a disability onset date of July 31, 2012. (ECF No. 261.) Her application was denied at the initial level on August 25, 2014, and she timely requested a hearing before an Administrative Law Judge (“ALJ”). (Id.) On January 24, 2018, ALJ Judge Theodore W. Grippo (“ALJ Grippo”) denied the claim for benefits after a hearing. (Id.) The Appeals Council denied review, rendering ALJ Grippo's decision final (the “2018 Decision”). (Id.)
During the pendency of that proceeding, in May 2016, Escobar signed a retainer agreement engaging Keller to represent her in connection with her application for SSD Benefits (the “Retainer”). (ECF No. 26-5.) The Retainer provided that Keller would represent Escobar on a contingency fee basis, such that “[i]f the first Administrative Law Judge decision is a denial and the case is subsequently won following an appeal to the Appeals Council, Federal Court or after a remand from Federal Court,” she would pay Keller “25% of the retroactive benefits awarded subject to the approval of the Social Security Administration.” (Id.) The Retainer also provided that “[t]o the extent that attorney fees can be paid under the EAJA,” Keller would “receive any payment of court awarded EAJA attorney fees and/or costs.” (Id.)
On November 14, 2018, Escobar filed an action in this Court seeking review of the 2018 Decision. See Escobar v. Comm'r of Social Sec., No. 18-cv-10528 (ECF No. 1.) On August 27, 2019, after Escobar moved for judgment on the pleadings, the parties agreed to remand the action for further administrative proceedings. (Id., ECF No. 20.) On December 11, 2019, the Commissioner agreed to pay Keller EAJA fees in the amount of $7,800. (Id.)
On remand, ALJ Grippo did not hold a second hearing or obtain new evidence, and instead issued another decision denying benefits dated July 29, 2020 (the “2020 Decision”). (ECF No. 26-1.) On November 17, 2020, Escobar filed this action seeking review of the 2020 Decision. (ECF No. 1.) By stipulation and order dated June 16, 2021, the action was remanded for a new hearing before a different ALJ, pursuant to sentence four of 42 U.S.C. § 405(g), in connection with the Supreme Court's decision in Carr v. Saul, 141 S.Ct. 1352 (2021). (ECF No. 22.) On August 24, 2021, the Commissioner agreed to pay Keller EAJA fees in the amount of $1,013.00 ($613.00 in attorney fees and $400 in costs). (ECF No. 25.)
On the second remand, the case was reassigned to ALJ John Carlton, who conducted a hearing on January 5, 2022, and issued a “Partially Favorable” decision on January 27, 2022, finding Plaintiff disabled from November 29, 2015, not July 31, 2012. (ECF No. 26-2.) On February 12, 2022, the Social Security Administration (“SSA”) issued a Notice of Award awarding Escobar past-due benefits from May 2016 through December 2021 in the amount of $73,190.10, as well as continuing benefits. (ECF No. 26-3.) The Notice of Award stated that Keller was entitled to no more than $6,000 for his work. (Id.)
Keller filed the instant motion on February 26, 2022, ten days after receiving the Notice of Award. (ECF No. 26.) Keller requests an award of attorney's fees in the amount of $18,297.00, which is 25% of the total retroactive benefits awarded to Escobar. (Id.) Keller also agrees to refund the previously awarded EAJA fees in the amount of $8,413. (Id.) Keller attests that he expended 51.6 hours working on Escobar's two District Court appeals and provided billing records of his time spent. (ECF Nos. 26-1, 26-4.) The fee requested amounts to a de facto hourly rate of $354.59. As to his experience, Keller has represented claimants before the Social Security Administration for the past twenty-eight years, has represented over a thousand claimants, and has a successful history obtaining benefits for his clients. (ECF No. 26-1.)
This motion was timely filed pursuant to Fed.R.Civ.P. 54(d)(2)(b). See Sinkler v. Berryhill, 932 F.3d 83, 91 (2d Cir. 2019) (“the fourteen-day filing period starts to run when the claimant receives notice of the benefits calculation.”).
Keller's Memorandum of Law in support of the instant motion states he spent 54.3 hours on this matter, yet he cites his billing records which show 51.6 hours spent. (ECF No. 26-6.) In addition, Keller's Attorney Declaration states 51.6 hours. (ECF No. 26-1.) This Court uses 51.6 hours as representing the accurate calculation of hours spent.
DISCUSSION
Section 406(b) of the Social Security Act provides that:
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)(1)(A). Congress capped contingency fees at 25% of the claimant's past-due benefits and charged courts with ensuring that resulting fees are “reasonable.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002); Fields v. Kijakazi, 24 F.4th 845, 849 (2d Cir. 2022). The Court's analysis of reasonableness “must begin with the agreement [between a plaintiff and her counsel], and the district court may reduce the amount called for by the contingency agreement only when it finds the amount to be unreasonable.” Fields, 24 F.4th at 852-53 (quoting Wells v. Sullivan, 807 F.2d 367, 371 (2d Cir. 1990)). Factors relevant to determining the reasonableness of a fee request include: 1) “the character of the representation and the result the representative achieved,” 2) “whether a claimant's counsel is responsible for undue delay,” and 3) whether there was fraud or overreaching in the making of the contingency agreement.” Id. at 849 (citations omitted).
A “district court must also consider whether a requested fee would result in a ‘windfall' to counsel.” Id. (citations omitted). The Second Circuit in Fields clarified that courts “must consider more than the de facto hourly rate” in determining whether there is a “windfall,” and instead should look to four factors: 1) “the ability and expertise of the lawyers and whether they were particularly efficient, accomplishing in a relatively short amount of time what less specialized or less well-trained lawyers might take far longer to do;” 2) “the nature and length of the professional relationship with the claimant-including any representation at the agency level;” 3) “the satisfaction of the disabled claimant;” and 4) “how uncertain it was that the case would result in an award of benefits and the effort it took to achieve that result.” Id. at 854-55.
Here, the Court finds that all of these factors weigh in favor of the fee request. First, the fee of $18,297.00 is not more than twenty-five percent of past-due benefits. Second, after bringing two actions in this Court to challenge the denial of benefits, Keller's representation achieved a successful result for Escobar. As a result of Keller's advocacy, Escobar received $73,190.10 in past-due benefits, as well as continuing benefits. There is also no indication that Keller did so with undue delay; in fact, the only requests for extensions of time in this action came from the Commissioner. (ECF Nos. 12, 14, 19, 28.) And there is no indication of fraud or overreaching in the making of the Retainer Agreement.
Due to the death of his father, Keller requested a single extension of time to serve Plaintiff's motion for judgment on the pleadings in the first action. Escobar v. Comm'r, No. 18-cv-10528 (ECF Nos. 12-13.)
The Court further finds the requested fee of $18,297.00, which yields a de facto hourly rate of $354.59, to not be an amount so large as to be a windfall to counsel. Keller is experienced in social security law, has represented over a thousand claimants, has successfully appealed decision to district courts, and expended 51.6 hours over more than three years litigating the instant matter before this Court. Keller's representation, which included reviewing the administrative record, drafting a memorandum of law, and a remand and successful hearing before ALJ Carlton, also notably resulted in multiple stipulations with the Commissioner, thus avoiding unnecessary motion practice before the Court. Therefore, the hours worked are reasonable given the nature of the services provided. Courts in this circuit have accepted de facto hourly rates that far exceed those for non-contingent fee cases and that far exceed Keller's de facto hourly rate in this matter. See, e.g., Fields, 24 F.4th at 856 (finding the de facto hourly rate of $1,556.98 to be reasonable based on effective representation); Stovall v. Berryhill, 2022 WL 798160 (E.D.N.Y. March 3, 2022) (finding the de facto hourly rate of $902.33 for 32.3 hours expended to be reasonable); Kirk W. v. Kijakazi, 2022 WL 883774 (W.D.N.Y. March 25, 2022) (finding de facto hourly rate of $1,574.82 for 29.2 hours to be reasonable); Ferreira v. Kijakazi, 2022 WL 123623, at *4 (S.D.N.Y. Jan. 13, 2022) (finding de facto hourly rate of $1,000 for 11.4 hours expended to be reasonable and collecting cases approving rates above $1,000 per hour); Bates v. Berryhill, 2020 WL 728784 at *3 (S.D.N.Y. Feb. 13, 2020) (finding the de facto hourly rate of $1,506.32 was product of competent and efficient advocacy); Baron v. Astrue, 311 F.Supp.3d 633, 637-38 (S.D.N.Y. 2018) (collecting cases with hourly fees ranging from $1,072.17 to $2,100 given efficient and impressive work from counsel). The Court also notes that counsel is required to return the previously awarded EAJA fee of $8,413. See Gisbrecht, 535 U.S. at 796 (“Fee awards may be made under both [EAJA and 406(b)], but the claimant's attorney must refund to the claimant the amount of the smaller fee...”).
Furthermore, there is no reason to believe that Escobar is not satisfied with the result, as there is no indication that Escobar objects to the fee award. Even the Commissioner does not object to the fee award. And this Court is well aware that “'payment for an attorney in a social security case is inevitably uncertain.'” Fields, 24 F.4th at 855-56 (quoting Wells, 907 F.2d at 371). Here, the success of Escobar's claim was not certain, as evinced by the multiple denials of her application at the agency level beginning with the initial claim, necessitating two federal actions before Escobar received the SSD Benefits she was due.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff's application for attorney's fees (ECF No. 26) be GRANTED in its entirety. I recommend that the Social Security Administration should approve and effectuate a payment of $18,297.00 to Plaintiff's counsel, and that Keller be directed to refund the previously awarded $8,413.00 EAJA award within 14 days after receiving his § 406(b)(1) award.
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).