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Rodriguez v. Berryhill

United States District Court, N.D. New York

July 10, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



          FOR DEFENDANT: HON. GRANT JAQUITH Acting United States Attorney

         OF COUNSEL:

          PETER A. GORTON, ESQ., EMILY M. FISHMAN, ESQ. Special Assistant U.S. Attorney



         Plaintiff John Rodriguez initiated this action in 2015, seeking judicial review of a determination by the Acting Commissioner of Social Security ("Acting Commissioner") denying his application for Social Security benefits. Having succeeded in this court and, on remand, before the Social Security Agency, resulting in an award of past due benefits to his client, plaintiff's attorney now seeks an order, pursuant to 42 U.S.C. § 406(b), awarding him attorney's fees in the amount of $11, 160.00, conditioned upon counsel's return to plaintiff of $5, 200.00 previously awarded under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. For the reasons set forth below, the motion of plaintiff's counsel, which the Acting Commissioner has not opposed, will be granted.[2]

         I. BACKGROUND

         Plaintiff commenced this action on August 18, 2015, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to challenge a final determination by the Acting Commissioner denying his application for disability insurance benefits and supplemental security income payments, pursuant to Titles II and XVI, respectively, of the Social Security Act. Dkt. No. 1. That denial was based upon an adverse decision, following a hearing, by Administrative Law Judge Hortensia Haaversen, issued on March 13, 2014, Dkt. No. 10 at 39-51, and the subsequent decision of the Social Security Administration Appeals Council denying plaintiff's request for review of that determination, Dkt. No. 10 at 5-8. Following the filing of the administrative transcript of proceedings and evidence before the agency, and plaintiff's brief in the action, the parties stipulated to the entry of an order remanding the matter to the Acting Commissioner for further consideration. Dkt. No. 14. Based upon that stipulation, I issued an order on March 7, 2016, approving the stipulation and directing that the matter be remanded to the agency pursuant to sentence four of 42 U.S.C. § 405(b). Dkt. No. 15. Judgment was subsequently entered, also on March 7, 2016, reversing the Acting Commissioner's determination, remanding the matter for further administrative action and closing the case. Dkt. No. 16.

         Following the remand, plaintiff's counsel, Peter A. Gorton, Esq., sought recovery of attorney's fees pursuant to the EAJA. Dkt. Nos. 18, 19. In that application Attorney Gorton requested an award of $5, 438.83 based upon the total number of hours expended, 27.9, to be compensated at a blended rate covering 2015 and 2016 of $194.94. Id. That application resulted in the entry of a stipulated order granting Attorney Gorton EAJA attorney's fees in the amount of $5, 200. Dkt. No. 20.

         As a result of the further administrative proceedings ordered by the court, following the remand, a notice of award was issued by the Acting Commissioner on March 27, 2016, granting plaintiff benefits in the amount of $76, 374.00 for the period November 2009 through December 2016. Dkt. No. 21-3 at 1-2. Of that amount, $19, 093.50 was withheld to defray plaintiff's attorney's fees, of which $6, 000 has been paid to Attorney Gorton for his services before the agency. Dkt. No. 21-1 at 1.

         On May 18, 2017, Attorney Gorton filed a motion seeking an additional award of attorney's fees for his prior work before the district court, pursuant to 42 U.S.C. § 406(b), based upon the favorable result and his retainer agreement, under which plaintiff agreed to compensate him to the extent of twenty-five percent of past due benefits awarded in the event of a favorable decision. Dkt. No. 21-4 at 1. In his request, Attorney Gorton seeks a total recovery of $11, 160.00 for the 27.9 hours of work performed in this court, calculated at an hourly rate of $400.[3] Dkt. No. 21-2 at 1.


         The Social Security Act permits a court to award the attorney representing a prevailing claimant "a reasonable fee for [his] representation not in excess of 25 percent of the total of the past due benefits to which the claimant is entitled . . . ." 42 U.S.C. § 406(b). In awarding attorney's fees under section 406(b) where there is an underlying contingency fee agreement, "a court's primary focus should be on the reasonableness of the ...

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