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Rabenda v. Colvin

United States District Court, S.D. New York

June 28, 2018





         Plaintiff 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).

         As a 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.").

         Pursuant 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).


         In its 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 Sinkler decision.

         As to 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, 808 (2002)).

         Here, 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 fee award.

         With 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 ...

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