United States District Court, S.D. New York
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Alicia Ann Rabenda filed for social security benefits and her
application was denied. See Complaint, filed May 1, 2015
(Docket # 1) ("Compl."), at ¶¶ 6-12. On
May 1, 2015, Rabenda filed the instant complaint seeking
review of the decision pursuant to 42 U.S.C. § 405(g).
Compl. ¶ 1. After both parties moved for judgment on the
pleadings, the case was remanded by stipulation. See
Stipulation and Order, filed Apr. 27, 2016 (Docket # 23).
Counsel was later awarded $4, 200 pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412, see
Stipulation and Order, filed May 31, 2016 (Docket # 25).
result of the remand, the Social Security Administration
("SSA") directed that Rabenda and her child were
entitled to awards of past-due benefits. See Notice
of Award, dated Feb. 19, 2018 (attached as Ex. C to the
Affirmation of Charles E. Binder, filed Apr. 30, 2018 (Docket
# 27) ("Binder Aff.")) ("Notice of
Award"), at 1; Notice of Award for Monthly Child's
Benefit, dated Feb. 16, 2018 (annexed as Ex. D to Binder
Aff.) ("Notice of Child's Benefit Award"), at
1. The SSA withheld $14, 231.75 of Rabenda's past-due
benefits as possible attorney's fees. Notice of Award at
3 (withholding $12, 174.50); Notice of Child's Benefit
Award at 2 (withholding $2, 057.25). We assume that this
amount represents 25% of past-due benefits awarded to Rabenda
and her child given that the law permits awarding a maximum
of 25% of such benefits in attorney's fees, 42 U.S.C.
§ 406(b)(1)(A), and the Social Security Administration
stated in the notice that it "usually withhold[s] 25
percent of past due benefits in order to pay the approved
representative's fees," Notice of Award at 3; see
also Notice of Child's Benefit Award at 2
("We cannot withhold more than 25 percent of past-due
benefits to pay an authorized fee.").
to statute, "[w]henever a court renders a judgment
favorable to a claimant... 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," but that fee may not exceed "25
percent of the total of the past-due benefits to which the
claimant is entitled." See 42 U.S.C. §
406(b)(1)(A). Counsel seeks $14, 231.75 for his work
performed in the federal court proceedings based on the
contingent fee agreement counsel made with Rabenda, which
provides that Rabenda's attorney will receive 25% of any
past-due benefits award. See U.S. District Court Retainer
Agreement and Assignment, dated Apr. 21, 2015 (annexed as Ex.
A to Binder Aff), ¶ I. Contemporaneous time records show
that counsel spent 22.9 hours in the federal court
proceeding. See Itemization of Hours Re: Alicia Rabenda v.
Commissioner of SSA, dated Aug. 2, 2015 through Mar. 24, 2016
(annexed as Ex. B to Binder Aff).
submission in response to the instant application, the
Government raised the issue of whether the application is
timely. See Letter from Kathryn Pollack, filed May
21, 2018 (Docket # 31), at 2-3. The Court does not find it
necessary to determine whether it would follow the decision
in Sinkler v. Berryhill 2018 WL 1748346 (W.D.N.Y.
Apr. 11, 2018), which held that 14-day deadline in
Fed.R.Civ.P. 54(d)(2)(B)(i) applies to this application and
runs from counsel's receipt of notification that an award
had been issued by the Commissioner. Sinkler, 2018
WL 1748346, at *8. This is because counsel's delay in
submitting the application was the result of excusable
neglect within the meaning Fed.R.Civ.P. 6(b)(1)(B) in light
of the fact that there was previously almost no case law in
this Circuit on this issue. See generally Sorenson v.
Wolfson, 683 Fed.Appx. 33, 36 (2d Cir. 2017). We note
that this argument as to excusable neglect may not be
available to plaintiffs in the future given the
the merits of the application, this Court set forth the law
governing such fee applications in the case of Blizzard
v. Astrue, 496 F.Supp.2d 320 (S.D.N.Y.2007). Familiarity
with that case is assumed. As explained in Blizzard,
496 F.Supp.2d at 322, even when there is a contractual
contingency fee arrangement, we consider the following
factors in gauging the reasonableness of a requested award:
1) whether the requested fee is out of line with the
"character of the representation and the results the
representation achieved;" 2) whether the attorney
unreasonably delayed the proceedings in an attempt to
increase the accumulation of benefits and thereby increase
his own fee; and 3) whether "the benefits awarded are
large in comparison to the amount of time counsel spent on
the case," the so-called "windfall" factor.
Joslyn v. Barnhart 389 F.Supp.2d 454, 456 (W.D.N.Y.
2005) (quoting Gisbrecht v. Barnhart 535 U.S. 789,
the first two factors plainly weigh in favor of approving the
fee request. Counsel wrote a detailed and extensive
memorandum of law outlining cogent arguments for a remand.
See Memorandum of Law in Support of Plaintiff s
Motion for Judgment on the Pleadings, filed Oct. 19, 2015
(Docket #11). The briefing was effective in prompting the
remand and achieved the greatest possible success for the
claimant. Thus, the award is in line with the character and
results of the representation. Counsel did not engage in any
delay of the proceedings that might have artificially
increased past-due benefits and thus the potential attorney
respect to the third factor - whether the award constitutes a
"windfall" - Blizzard notes that courts
consider the following factors:
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.
496 F.Supp.2d at 323 (quoting Joslyn, 389 F.Supp.2d
at 456-57). Applying these factors here, they too weigh in
favor of the fee request. Rabenda's counsel was
particularly successful in that he achieved an award of
benefits. Counsel submitted a detailed, non-boilerplate brief
in support of Rabenda's case. The case was handled
efficiently in that it was handled by an experienced ...