Brown

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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CHARLESIA ELISE BROWN,

Plaintiff, 20-cv-9122 (AEK)

-against- DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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THE HONORABLE ANDREW E. KRAUSE, U.S.M.J1

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Currently before the Court is Plaintiff Charlesia Elise Brown’s motion for attorney’s fees

pursuant to 42 U.S.C. § 406(b). ECF No. 37. For the reasons set forth below, the motion for

attorney’s fees is GRANTED.

BACKGROUND

Plaintiff filed an application for Social Security disability benefits and Supplemental

Security Income benefits with the Social Security Administration (“SSA”) on March 9, 2018,

claiming a disability onset date of December 20, 2017. ECF No. 38 (“Berger Aff.”) ¶ 1. After

the SSA denied her claim, Plaintiff requested a hearing before an administrative law judge

(“ALJ”), and a hearing was held before ALJ Roxanne Fuller on November 21, 2019. Id. ALJ

Fuller issued a decision on January 2, 2020, finding that Plaintiff was not disabled. Id. On

September 10, 2020, the SSA’s Appeals Council denied Plaintiff’s request for review of the

ALJ’s decision. See ECF No. 16 (Certified Administrative Record) at 1-6.

1 The parties have consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c).

ECF No. 28.

On October 28, 2020, Plaintiff signed a retainer agreement with attorney Daniel Berger to

pursue an appeal in federal court of the SSA’s denial of her application for benefits. Berger Aff.

¶ 2 & Ex. A (“Retainer Agreement”). Pursuant to the Retainer Agreement, Plaintiff agreed to

pay Mr. Berger up to 25 percent of any past-due benefits she received as a result of a remand to

the SSA following a successful federal court appeal and subsequent award by the SSA following

additional proceedings. Id.

Plaintiff commenced this action on October 30, 2020. ECF No. 1. The Commissioner

filed the administrative record on July 20, 2021, ECF No. 16, and Plaintiff filed her brief in

support of her position on February 17, 2022, ECF Nos. 23-24. The parties filed a proposed

stipulation and order of remand on April 26, 2022, ECF No. 29, which the Court so ordered, ECF

No. 30. Judgment was entered on behalf of Plaintiff the following day, ECF No. 31, and the case

was remanded to the SSA for further proceedings. On August 25, 2022, the Court so-ordered a

stipulation and order approving an award of fees under the Equal Access to Justice Act, 24

U.S.C. § 2412 (“EAJA”), in the amount of $8,131.60. ECF No. 36.

Upon remand to the SSA, a second administrative hearing was held, this time before ALJ

Elias Feuer, and in a decision dated December 19, 2023, ALJ Feuer found that Plaintiff had been

disabled since June 1, 2022, but not earlier. Berger Aff. ¶ 5. Plaintiff requested review by the

Appeals Council of the portion of the decision that found her not disabled, and on January 23,

2024, the Appeals Council remanded the case. Id. A third hearing was held, this time before

ALJ Sharda Singh, and on December 15, 2025, ALJ Singh found that Plaintiff had been disabled

since her alleged onset date of December 20, 2017. Id.

On January 18, 2026, the SSA issued a Notice of Award (“NOA”) to Plaintiff, setting

forth the benefits she would be receiving. Berger Aff. ¶ 9 & Ex. C (NOA). The NOA indicated

that the SSA had withheld $24,502.50—25 percent of Plaintiff’s total past-due benefits—for

payment of attorney’s fees. Id.

Mr. Berger filed the instant motion, which seeks $24,502.50 in attorney’s fees, on

February 4, 2026. ECF Nos. 37-39. The memorandum of law in support of the motion

appropriately acknowledges that should the motion be granted, counsel will pay $8,131.60—i.e.,

the amount previously received by counsel under the EAJA—directly to Plaintiff. See ECF No.

39 at 4. On April 9, 2026, the Commissioner filed a response to the motion in his limited role

“‘resembling that of a trustee for the claimant[].’” ECF No. 44 at 1 (quoting Gisbrecht v.

Barnhart, 535 U.S. 789, 798 n.6 (2002)). The Commissioner did not take a specific position

with respect to the fee request. Id.

DISCUSSION

I. Legal Standard

“Three statutes authorize attorney’s fees in social security actions. 42 U.S.C. § 406(a)

compensates attorneys for their representation at the administrative level; 42 U.S.C. § 406(b)

compensates attorneys for representation before federal courts; and the EAJA provides additional

fees if the Commissioner’s position was not ‘substantially justified.’” LaFrance v. Saul, No. 17-

cv-4709 (CM) (SN), 2019 WL 4677041, at *1 (S.D.N.Y. Aug. 26, 2019) (citing Gisbrecht, 535

U.S. at 794-96), adopted by 2019 WL 4565074 (S.D.N.Y. Sept. 20, 2019). Pursuant to § 406(b),

which is invoked here, “[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,” as long as the fee does not exceed “25

percent of the total of the past-due benefits to which the claimant is entitled.” 42 U.S.C. §

406(b)(1)(A).

II. Analysis

A. Timeliness

In Sinkler v. Berryhill, the Second Circuit concluded that the 14-day filing period for

seeking attorney’s fees set forth in Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure

applies to attorney’s fee applications under 42 U.S.C. § 406(b); the filing period runs from the

date on which the notice of award is received, and the period also may be subject to equitable

tolling. 932 F.3d 83, 85 (2d Cir. 2019). Here, the NOA is dated January 18, 2026 and is

presumed to have been received by Plaintiff on January 21, 2026. See Sinkler, 932 F.3d at 89 n.5

(“Nothing in this opinion departs from the law’s presumption that a party receives

communications three days after mailing.”). The motion for attorney’s fees was filed on

February 4, 2026, 14 days after Plaintiff is presumed to have received it. Accordingly, the

motion was timely filed.

B. Reasonableness of Fee Award

To ensure that contingency fees are employed fairly in Social Security cases, “Congress

capped contingency fees at twenty-five percent of the claimant’s past-due benefits and charged

courts with ensuring that resulting fees are ‘reasonable.’” Fields v. Kijakazi, 24 F.4th 845, 849

(2d Cir. 2022). “‘[W]here there is a contingency fee agreement in a successful social security

case, the district court’s determination of a reasonable fee under § 406(b) must begin with the

agreement, and the district court may reduce the amount called for by the contingency agreement

only when it finds the amount to be unreasonable.’” Id. at 852-53 (quoting Wells v. Sullivan, 907

F.2d 367, 371 (2d Cir. 1990)). “When conducting its analysis, the court’s primary inquiry should

be on the reasonableness of the contingency agreement in the context of the particular case and

not merely to rubber stamp the contingency fee agreement.” Caraballo v. Comm’r of Soc. Sec.,

No. 17-cv-7205 (NSR) (LMS), 2021 WL 4949217, at *2 (S.D.N.Y. Oct. 22, 2021).

To assess the reasonableness of a contingency fee, a court must first “determine whether

the contingency percentage is within the 25% cap and . . . whether there has been fraud or

overreaching in making the agreement.” Fields, 24 F.4th at 853. A court must then consider the

following factors to determine 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

representative achieved,” (2) whether “the attorney is responsible for delay, lest the attorney

profit from the accumulation of benefits during a delay that the attorney caused,” and (3) “if the

benefits are large in comparison to the amount of time counsel spent on the case, the so-called

windfall factor.” Id. (cleaned up).

Here, the requested fee is not greater than 25 percent of Plaintiff’s past-due benefits, and

there is no evidence or suggestion of fraud or overreaching in the negotiation of the Retainer

Agreement.

The Court turns next to the reasonableness factors. First, the requested fee is in line with

the character of the representation and results achieved. Mr. Berger filed this action to challenge

the denial of benefits and was able to secure the Commissioner’s agreement to remand the case

to the SSA for further proceedings after filing an opening brief; after remand, Plaintiff was

awarded $98,010 in past-due benefits. See ECF No. 39 at 3; see, e.g., Shrack v. Saul, No. 16- cv-

2064 (RMS), 2020 WL 373074, at *2 (D. Conn. Jan. 23, 2020) (finding that where the plaintiff

sought and obtained a remand to the SSA, and “the plaintiff received a fully favorable result

upon remand,” the fee was in line with character of representation and results achieved).

Second, Mr. Berger did not cause any unreasonable delay in this action. While counsel

did request and receive one agreed-upon extension of time to file Plaintiff’s brief due to

counsel’s “unusually high case-volume,” ECF No. 17, there is no reason to believe that the

extension was sought for any improper purpose.

Third, with respect to the “windfall” factor, counsel’s requested fee of $24,502.50 is not

inappropriately large in light of the 37.2 hours that Mr. Berger’s firm devoted to this case and the

successful result that was achieved. See Berger Aff. ¶ 7 & Ex. B (“Timesheet”). For purposes of

evaluating the “windfall” factor, the Second Circuit has instructed courts to look beyond the de

facto hourly rate and to assess: (1) the “ability and expertise” of the attorneys, (2) the “nature and

length of the professional relationship” with the claimant, (3) the “satisfaction of the disabled

claimant,” and (4) “how uncertain it was that the case would result in an award of benefits and

the effort it took to achieve that result.” Fields, 24 F.4th at 854-55.

The work in this matter was performed by Mr. Berger (36.6 hours) and a paralegal (0.6

hours), and included review of the administrative record and drafting Plaintiff’s brief, which

resulted in a stipulated remand. See Berger Aff. ¶ 7 & Timesheet. Mr. Berger has extensive

experience in litigating Social Security disability appeals, and maintained a multi-year

relationship with Plaintiff through the life of this matter. See Berger Aff. ¶ 8. Courts within the

Second Circuit generally and routinely endorse 20-40 hours for work performed by counsel in

Social Security disability cases. See Bass v. Kijakazi, No. 16-cv-6721 (JCM), 2022 WL

1567700, at *4 (S.D.N.Y. May 18, 2022). The hours worked by Mr. Berger here fall within this

range, and reflect counsel’s significant experience in these types of cases. In addition, the Court

has no reason to believe that Plaintiff is in any way dissatisfied with the results of the

representation. Indeed, counsel’s efforts led to the reversal of the Commissioner’s original

denial of benefits and a significant award of benefits to Plaintiff. See Berger Aff. ¶ 5; NOA at 1-

2; Bass, 2022 WL 1567700, at *5 (finding that counsel’s success in advocating on behalf of

plaintiff “militate[s] in favor of approving” fee request). Further, given that Plaintiff did not

secure a remand until after her counsel filed an opening brief, it is apparent that a favorable

outcome was uncertain. See Fields, 24 F.4th at 856 (“A windfall is more likely to be present in a

case . . . where the lawyer takes on a contingency-fee representation that succeeds immediately

and with minimal effort, suggesting very little risk of non-recovery. That kind of unearned

advantage is what the windfall concern really is about.”). Moreover, “[l]awyers who operate on

contingency—even the very best ones—lose a significant number of their cases and receive no

compensation when they do”; accordingly, when operating with a contingency agreement like

the one at issue here, “payment for an attorney in a social security case is inevitably uncertain,

and any reasonable fee award must take account of that risk.” Id. at 855-56 (cleaned up). The

award amount sought here appropriately reflects this risk.

Turning to the de facto rate—which is not dispositive, see id. at 854—counsel would

effectively be compensated here at a de facto blended hourly rate of approximately $658.67 per

hour ($24,502.50 for a total of 37.2 hours worked by both counsel and a paralegal); the de facto

hourly rate for Mr. Berger’s time only would be approximately $669.47 per hour.2 These rates

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are well within the range of de facto hourly rates approved by courts within this Circuit, and are

substantially below than the $1,556.98 de facto hourly rate approved by the Second Circuit in

Fields. See id. at 854-57; see also id. at 856 n.10 (collecting cases with de facto hourly rates

ranging from $1,289.06 to $2,100). In sum, none of these factors indicate that the award

requested by Mr. Berger would constitute a “windfall.”

2 Whether or not the paralegal time is included in the analysis is immaterial—either way,

the attorney’s fee award requested by Mr. Berger is reasonable.

CONCLUSION

For the reasons set forth above, Plaintiffs motion for attorney’s fees (ECF No. 37) is

GRANTED, and Mr. Berger is awarded $24,502.50, to be paid out of Plaintiffs past-due

benefits in accordance with SSA policy. Upon receipt of this award, Mr. Berger is directed to

promptly refund to Plaintiff $8,131.60, which represents the amount of fees that Mr. Berger

previously received under the EAJA.

Dated: July 7, 2026

White Plains, New York

SO ORDERED.

ANDREW E. KRAUSE

United States Magistrate Judge