Opinion
1:19-cv-3742 (GBD) (KHP)
09-13-2021
JAMIE LEE WINDOVER, Plaintiff, v. KILOLO KOJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.
THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE.
SUPERSEDING REPORT AND RECOMMENDATION
THE HONORABLE KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is issued pursuant to Federal Rule of Civil Procedure to correct a mistake in the Report and Recommendation issued at ECF 34. The Report and Recommendation at ECF 34 is hereby vacated.
On November 26, 2019, this case was remanded to the Commissioner of Social Security, pursuant to sentence four of 42 U.S.C. § 405(g), for the purpose of conducting further administrative proceedings. (ECF Nos. 24-25.) On February 18, 2020, the Honorable George B. Daniels approved an attorney's fee award of $8,300.00 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (ECF No. 30.) On July 18, 2021, after proceedings on remand were complete, Plaintiff's counsel filed a motion for additional fees and costs pursuant to 42 U.S.C. § 406(b) in the amount of $36,125.63. (the “Motion”) (ECF. Nos. 31-33.) The Commissioner was served with this request on July 18, 2021, but did not respond. Therefore, I recommend awarding Plaintiff's counsel's motion for additional fees.
The Plaintiff notes that the motion was filed timely because the Social Security Administration issued a Notice of Award on July 14, 2021 and this motion was filed 4 days later. Sinkler v. Comm'r of Soc. Sec., 932 F.3d 83, 89 (2d Cir. 2019) (holding that 14-day filing period commences upon claimant's receipt of notice of benefits calculation and that this deadline is subject to equitable tolling by the district courts).
42 U.S.C. § 406(b) provides:
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). Factors relevant to a request for approval are summarized in this Court's decision in Blizzard v. Astrue. They include: “1) whether the attorney's efforts were particularly successful for the plaintiff, 2) whether there is evidence of the effort expended by the attorney demonstrated through pleadings which were not boilerplate and through arguments which involved both real issues of material fact and required legal research, and finally, 3) whether the case was handled efficiently due to the attorney's experience in handling social security cases.” Blizzard v. Astrue, 496 F.Supp.2d 320, 323 (S.D.N.Y. 2007) (citation omitted).
With regards to contingent fees, the law permits counsel to charge fees of up to twenty-five percent of the past due benefits so long as the fees are reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 795 (2002). A lodestar method, which considers whether the rate charged and time spent were reasonable, need not be employed if there is no reason to question the terms of the contingency fee agreement between the lawyer and plaintiff or the character of the representation provided. Id. at 806-08. However, a fee is not automatically recoverable simply because it is equal to or less than 25% of the client's total past-due benefits. Id at 807. Several factors are relevant to the reasonableness analysis, including the following: (1) “whether the contingency percentage is within the 25% cap”; (2) “whether there has been fraud or overreaching in the agreement”; and (3) “whether the requested amount is so large as to be a windfall to the attorney.” Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990). Also relevant are the following: (1) “the character of the representation and the results the representative achieved”; (2) “the amount of time counsel spent on the case”; (3) whether “the attorney was responsible for any delay”; and (4) “the lawyer's normal hourly billing charge for noncontingent-fee cases.” Gisbrecht, at 808.
Here, the Court finds that all factors weigh in favor of the fee request. The fee of $36,125.63 is not more than twenty-five percent of past due benefits and would yield an hourly rate of $950.00 based on the expenditure of approximately 38 hours of attorney work spent on Plaintiff's social security case. Additionally, the hours worked are reasonable given the nature of the services provided and that Plaintiff's attorneys were successful in the outcome of the case.
The Court further finds the requested fee is not an amount so large as to be a windfall to counsel. Cases in this circuit have been deferential - accepting de facto hourly rate that exceed those for non-contingent fee cases. See, e.g., 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 at 637-38 (S.D.N.Y. 2018) (collecting cases with hourly fees ranging from $1,072.17 to $2,100.00 given efficient and impressive work from counsel); Daniel v. Astrue, No. 04-01188, 2009 WL 1941632, at *2-3 (C.D. Cal. July 2, 2009) (approving fees amounting to $1,491.25 per hour); Palos v. Colvin, No. 15-04261, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (finding reasonable “an hourly rate of $1,546.39 for attorney and paralegal services”).
Finally, the Court also finds the remaining relevant factors weigh in favor of finding that counsel's request is reasonable. There is no evidence of fraud or overreaching in the making of the agreement, counsel was not responsible for any delay, and counsel provided effective representation.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff's application for fees and costs be GRANTED. The motion for approval of attorney's fees (ECF Nos. 31-33.) should be granted in the amount of $36,125.63 and that Plaintiff's attorneys refund the award of attorney's fees under 28 U.S.C. § 2412.
SO ORDERED.
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 George B. Daniels at the United States Courthouse, 40 Foley Square, 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 Daniels. 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).