Summary
In Fields, the plaintiff's counsel submitted a legal brief, the parties stipulated to remand for further administrative proceedings, and the SSA ultimately issued a favorable decision for the plaintiff resulting in $160,680 of past-due benefits.
Summary of this case from Ricciardi v. Comm'r of Soc. Sec.Opinion
19cv00018 (AJN) (DF)
02-18-2022
CHAVON SHANTA FIELDS, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ALISON J. NATHAN, U.S.D.J.:
On January 2, 2019, plaintiff Chavon Shanta Fields (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 405(g) to seek review of the final decision of defendant Commissioner of Social Security (“Defendant” or “the Commissioner”), denying Plaintiff's claim for disability benefits under the Social Security Act. Currently before the Court, following a voluntary remand to the SSA that resulted in Plaintiff's being awarded Social Security benefits, is a motion by Plaintiff's counsel for an award of attorneys' fees pursuant to 42 U.S.C. § 406(b). (Dkt. 32.) For the reasons set out below, I recommend that the motion be granted.
As background, this matter was remanded on January 6, 2020, when the Court endorsed the parties' proposed Stipulation to reverse the decision of the Commissioner and remand the matter to the SSA for further administrative proceedings. (See Dkts. 24, 25.) Thereafter, on June 10, 2020, the Court endorsed the parties' additional Stipulation that Plaintiff be awarded attorneys' fees under the Equal Access to Justice Act (“EAJA”) in the amount of $8,200.00. (Dkt. 31.)
Following the remand, Plaintiff received a favorable determination from the SSA. (See Affirmation [of Eddy Pierre Pierre, Esq.] in Support of Motion For Fees Pursuant to 42 U.S.C. § 406(b)(1), dated June 17, 2021 (“Pierre Aff.”) (Dkt. 34) ¶ 10.) On June 17, 2021, Plaintiff's counsel filed the now-pending motion, pursuant to 42 U.S.C. § 406(b), seeking an award of $14,677.75 in attorneys' fees, representing 25 percent of the benefits awarded retroactively to Plaintiff. (See Notice of Motion, dated June 17, 2021 (Dkt. 32).)
On August 2, 2021, the Commissioner submitted a letter to the Court, noting that the Second Circuit has held that a motion for fees pursuant to Section 406(b) should generally be filed within 14 days of the claimant's receipt of notice of a benefits award (see Letter to the Court from Susan C. Branagan, Esq., dated Aug. 2, 2021 (Dkt. 37), at 1-2 (citing Sinkler v. Comm'r of Soc. Sec., 932 F.3d 83, 89 (2d Cir. 2019))), and that the fee motion here had been filed outside that period. Nonetheless, the Commissioner also noted that “[t]he Social Security Act does not require that a fee motion be filed within a specific time limit” (id., at 2 (citing 42 U.S.C. § 406(b))), and that Plaintiff's counsel had “provided an explanation for the delay” (id.). In light of this, and recognizing that the de facto hourly rate being sought by Plaintiff's counsel would be comparable to rates that have been approved in this District (see id.) and that the total amount sought would not exceed the total of benefits withheld (id.), the Commissioner indicated that the SSA did not object to Plaintiff's counsel's motion for Section 406(b) fees (id.).
In Sinkler, the Second Circuit made clear that the 14-day limitations period for filing Section 406(b) motions “is not absolute, ” and that district courts “are empowered to enlarge that filing period where circumstances warrant.” Sinkler, 932 F.3d at 89. In this case, upon review of the submissions made in support of the fee application, this Court finds that any delay by Plaintiff's counsel in the filing of the Section 406(b) motion was brief (only six days), and was explained, at least in part, by the fact that counsel's staff was working remotely during the COVID-19 pandemic and did not have immediate access to mail sent to counsel's office. (See Memorandum of Law in Support of Plaintiff's Motion for Attorney Fees Pursuant to 42 U.S.C.§ 406(b)(1), dated June 17, 2021 (Dkt. 33), at ECF 4-6.) In addition, this Court finds that Section 406(b) would permit an award in the amount sought by counsel, as counsel's billings do not appear to have been excessive, as the requested amount falls within the range of what has been approved in similar cases, and as Section 406(b) expressly allows the grant of “‘a reasonable fee . . . not in excess of 25 percent of the . . . past-due benefits' awarded to the claimant, Gisbrecht v. Barnhart, 535 U.S. 789, 795 (2002) (quoting 42 U.S.C. § 406(b)(1)(A)), which is the percentage sought here. Accordingly, I recommend that the requested fees be awarded under Section 406(b).
As this Memorandum does not contain page numbers, the page citations herein, with the prefix “ECF, ” are to the page numbers affixed to the document by the Court's Electronic Case Filing system.
“Fee awards may be made under both [Section 406(b) and the EAJA], but the claimant's attorney must “refun[d] to the claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796 (quoting Act of Aug. 5, 1985, Pub. L. 99-80, § 3, 99 Stat. 186). Plaintiff's counsel has acknowledged this requirement here, and has represented that, if the Section 406(b) fees are granted, counsel will refund to Plaintiff the amount previously awarded under the EAJA. (See Pierre Aff. ¶ 11.)
For all the foregoing reasons, I respectfully recommend:
(1) that the motion for attorneys' fees under 42 U.S.C. § 406(b)(1) (Dkt. 32) be granted;
(2) that attorneys' fees be awarded to Plaintiff's counsel in the amount of $14,677.75, which, as counsel has stated,
represents 25 percent of the past-due benefits awarded to Plaintiff; and
(3) that Plaintiff s counsel be ordered to refund promptly to Plaintiff the $8,200.00 in attorneys' fees previously awarded by the Court, under the EAJA.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the Chambers of the Honorable Alison J. Nathan, if required by Judge Nathan's Individual Practices. Any requests for an extension of time for filing objections must be directed to Judge Nathan. 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).