Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ENRIQUE C. CABRERA,
REPORT AND
RECOMMENDATION
23-CV-6065 (EK) (TAM)
Plaintiff,
-against-
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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TARYN A. MERKL, United States Magistrate Judge:
Plaintiff filed this case to challenge a decision by the Social Security
Administration (“SSA”) denying his application for Social Security Disability benefits.
Compl., ECF 1. Following remand to the agency, an SSA administrative law judge
(“ALJ”) issued a decision in Plaintiff’s favor and awarded past due benefits. Plaintiff’s
counsel now seeks attorney’s fees. Fee Mot., ECF 16. The Court respectfully
recommends that Plaintiff’s motion for fees be granted.1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On August 10, 2023, Plaintiff filed a complaint asserting that the denial of his
claim for social security disability by an ALJ was wrong as it was not supported by
substantial evidence and was contrary to law. Compl., ECF 1, ¶¶ 6, 9. On November 7,
2023, Plaintiff filed a motion for judgment on the pleadings and a memorandum of law
in support, detailing his arguments as to why the decision was erroneous and remand
1 Federal Rule of Civil Procedure 54(d)(2)(D) expressly provides that the court “may
refer a motion for attorney’s fees to a magistrate judge under Rule 72(b) as if it were a
dispositive pretrial matter.”
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was warranted. Pl.’s Mot. for J., ECF 8; Pl.’s Mem. in Supp. of Mot., ECF 8-1. In lieu of
filing a substantive response to Plaintiff’s motion, the government stipulated to remand
the case for further administrative proceedings because the ALJ “did not properly
evaluate the medical opinion evidence, the claimant’s subjective complaints, and the
vocational evidence.” Joint Mot. to Remand, ECF 10; Stip. & Proposed Order, ECF 10-1.
On December 12, 2023, the Honorable Eric Komitee signed an order remanding the case
based on the parties’ stipulation, and judgment was entered the next day. Stip. & Order,
ECF 11; Clerk’s J., ECF 12.
On January 5, 2024, the parties filed a joint motion for attorney’s fees under the
Equal Access to Justice Act (“EAJA”), seeking $8,400.00 in fees in favor of Plaintiff’s
counsel. Joint Mot. for Att’y’s Fees, ECF 13. On July 15, 2024, Judge Komitee awarded
Plaintiff fees under the EAJA in the amount of $8,400.00, as well as $402.00 in costs.
Order, ECF 15.2
On remand, an SSA ALJ issued a new decision, finding that Plaintiff was
disabled within the meaning of the Social Security Act since December 15, 2019. Burko
Affirmation, ECF 16-2, ¶ 5. Accordingly, on September 15, 2025, the SSA issued an
award to Plaintiff of $77,220.00 in past due benefits.3 See id. ¶ 11; Notice of Award, ECF
16-5, at 3–4. From these amounts, the SSA withheld 25%, or $19,305.00, in attorney’s
fees. Burko Affirmation, ECF 16-2, ¶¶ 11–12. Counsel represents that his office received
2 Judge Komitee’s order awarding EAJA fees also stated: “The attorney fees may be paid
to Plaintiff’s counsel if Plaintiff agrees to assign the fees to counsel, and provided that Plaintiff
owes no debt to the Federal Government that is subject to offset under the U.S. Treasury Offset
Program.” Order, ECF 15.
3 The Court approximates the September 15, 2025 total award based on the Notice of
Award attached to Plaintiff’s Motion. See Notice of Award, ECF 16-5, at 4 (stating that “25
percent of the past due benefits” is “$19,305.00,” which equates to a total award of $77,220.00).
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the notice from the Social Security Administration dated September 15, 2025, indicating
that $19,305.00 in attorney’s fees was being withheld from the claimant’s past due
benefits, but did not specify when his office received this notice. Id. ¶ 11. Counsel then
filed the instant application requesting the award of the withheld attorney’s fees under
§ 406(b). Pl.’s Proposed J., ECF 16-1. In support of the application, counsel included an
affirmation, a copy of Plaintiff’s September 15, 2025 Notice of Award, a summary of the
hours worked on the case, and a copy of Plaintiff’s retainer agreement, which states that
counsel may recover a contingency fee of 25% of past due benefits recovered as a result
of a favorable determination. Retainer Agreement, ECF 16-3; see also Burko Affirmation,
ECF 16-2; Attorney Time Records, ECF 16-4; Notice of Award, ECF 16-5. On October 7,
2025, Judge Komitee referred the motion for attorney’s fees to the undersigned
Magistrate Judge for a report and recommendation. See Oct. 7, 2025 ECF Order
Referring Case.
For the reasons set forth herein, the Court respectfully recommends that
counsel’s fee application should be granted, awarding counsel $19,305.00 in fees and
directing counsel to reimburse Plaintiff any fees received under the EAJA.
DISCUSSION
I. 	Legal Standards
The Supreme Court has clearly stated that 42 U.S.C. “‘§ 406(a) governs fees for
representation in administrative proceedings; § 406(b) controls fees for representation in
court.’” Culbertson v. Berryhill, 586 U.S. 53, 55 (2019) (quoting Gisbrecht v. Barnhart, 535
U.S. 789, 794 (2002)). Of relevance here, § 406(b) “authorizes a court that enters a
judgment favorable to a social security claimant to award, ‘as part of its judgment,’ a
reasonable fee for counsel’s representation before the court, not to exceed 25% of the
total past-due benefits to which the claimant is entitled ‘by reason of such judgment.’”
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Sinkler v. Berryhill, 932 F.3d 83, 86 (2d Cir. 2019) (quoting 42 U.S.C. § 406(b)(1)(A)).
Subsection (b) also expressly allows “withholding of past-due benefits to pay these fees
directly to the attorney.” Culbertson, 586 U.S. at 56 (quotation marks omitted). Plaintiff’s
counsel now seeks fees under § 406(b) for work done related to this federal case. See
Burko Affirmation, ECF 16-2, ¶¶ 7, 9 (summarizing attorney hours); Attorney Time
Records, ECF 16-4.
When “there is a contingency fee agreement in a successful social security case,
the district court’s determination of a reasonable fee under section 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.” Wells v.
Sullivan, 907 F.2d 367, 371 (2d Cir. 1990); see also Devenish v. Astrue, 85 F. Supp. 3d 634,
636 (E.D.N.Y. 2015). In determining whether a requested fee is “unreasonable,” district
courts “should consider: (i) ‘whether the contingency percentage is within the 25% cap’;
([ii]) ‘whether there has been fraud or overreaching in making the agreement’; and
(iii) ‘whether the requested amount is so large as to be a windfall to the attorney.’”
Devenish, 85 F. Supp. 3d at 636 (quoting Wells, 907 F.2d at 372); see also Fields v. Kijakazi,
24 F.4th 845, 849 (2d Cir. 2022) (identifying factors for consideration in an
unreasonableness inquiry under § 406(b) including “the character of the representation
and the result the representative achieved,” whether counsel caused undue delay, and
“whether there was fraud or overreaching in the making of the contingency
agreement,” and discussing how to evaluate a potentially problematic “windfall” for
counsel); Hanna v. Kijakazi, No. 21-CV-5543 (EK) (SJB), 2024 WL 4252032, at *1 (E.D.N.Y.
Aug. 14, 2024) (similar), report and recommendation adopted, 2024 WL 4252039 (E.D.N.Y.
Sept. 20, 2024). In addition, although fees may be awarded under both the EAJA and
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§ 406(b), “the claimant’s attorney must refund the claimant the amount of the smaller
fee.” Devenish, 85 F. Supp. 3d at 636; see Gisbrecht, 535 U.S. at 796.
II. Analysis
A. Timeliness
Federal Rule of Civil Procedure 54(d) requires motions for attorney’s fees,
including those filed under 42 U.S.C. § 406(b), to be filed “no later than 14 days after the
entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B)(i); see Sinkler, 932 F.3d at 87–88. However,
in Sinkler, the Second Circuit noted that the “fourteen-day limitations period is not
absolute.” Sinkler, 932 F.3d at 89. Rather, the 14-day period applies “‘[u]nless a statute or
a court order provides otherwise.’” Id. (quoting Fed. R. Civ. P. 54(d)(2)(B)). Importantly,
the 14-day period begins to run when “counsel receives notice of the benefits award,”
and the law presumes that “a party receives communications three days after mailing.”
Id. at 88, 89 n.5; see Hill v. Comm'r of Soc. Sec., No. 20-CV-3821 (PKC), 2023 WL 4827265,
at *1–2 (E.D.N.Y. July 27, 2023).
Here, the Notice of Award letter is dated September 15, 2025. See Notice of
Award, ECF 16-5, at ECF p. 1. Counsel asserts that his “office received a notice from the
Social Security Administration dated September 15, 2025,” without providing a date of
receipt. Burko Affirmation, ECF 16-2, ¶ 11. In response, the SSA observed in its
November 17, 2025 letter to the Court that: “Plaintiff’s counsel filed the Section 406(b)
motion on October 2, 2025, which is 17 days after the Notice of Award letter.” SSA’s
Resp. to Mot., ECF 17, at 1. Nevertheless, factoring in the three-day mailing rule, the
filing of Plaintiff’s motion on October 2, 2025, 17 days after the Notice of Award, was
timely. See Pl.’s Reply, ECF 18, at 1–2; see also Hill, 2023 WL 4827265, at *1–2 (applying
the mailing rule and finding motion for attorney’s fee timely when filed 17 days after
Notice of Award).
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B. Reasonableness
In considering the reasonableness of the requested fee, the Court starts with the
language of the retainer agreement and notes that it plainly provides for a 25%
contingency fee, an amount consistent with the statutory cap. Retainer Agreement, ECF
16-3. The Court further observes that counsel has been representing Plaintiff for close to
five years and achieved a favorable result in part through effective and efficient
advocacy in this federal case as detailed above, and counsel does not appear to have
caused any undue delay. Burko Affirmation, ECF 16-2, ¶¶ 3–5; Retainer Agreement,
ECF 16-3 (executed on December 23, 2020). There is also no evidence of fraud or
overreaching in the arrangement between client and counsel, who provided a summary
of his firm’s work on the case, which indicates that counsel devoted 35.4 hours to these
federal court proceedings. Burko Affirmation, ECF 16-2, ¶¶ 7, 9; see also Attorney Time
Records, ECF 16-4 (representing 35.4 hours of attorney work on the federal court case
between July 16, 2023 and December 13, 2023). Given that all of the circumstances of the
fee application here are fair and reasonable and within the statutory framework, that
the award would not provide a problematic windfall to counsel, and in light of the
importance of contingency arrangements in ensuring that “people in need of good
lawyers” are able to hire them, the Court finds that counsel’s fee request is not
unreasonable and should be approved. Fields, 24 F.4th at 849.4
4 If evaluated on an hourly basis, the requested fee would compensate counsel at the rate
of $545.34 per hour, a number that is within the range of rates that have been found reasonable
by courts after the Supreme Court’s decision in Gisbrecht. See Farrar v. Comm’r of Soc. Sec., No.
22-CV-8844 (JCM), 2025 WL 2855628, at *3 (S.D.N.Y. Oct. 8, 2025) (discussing range of hourly
rates found reasonable, from approximately $608 per hour to over $2,000) (collecting cases).
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CONCLUSION
For the foregoing reasons, the Court respectfully recommends that Plaintiff’s
motion for attorney’s fees be granted and that Plaintiff’s counsel be awarded $19,305.00
in fees under § 406(b). Plaintiff’s counsel should further be directed to refund to Plaintiff
any and all amounts received in connection with the fee previously awarded under the
EAJA.
* 	* 	* 	* 	*
This Report and Recommendation will be filed electronically. Objections to this
Report and Recommendation must be filed, with a courtesy copy sent to the Honorable
Eric Komitee at 225 Cadman Plaza East, Brooklyn, New York 11201, within fourteen
(14) days of filing. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ.
P. 6(a) (providing the method for computing time). Failure to file objections within the
specified time waives the right to appeal both before the district court and appellate
courts. See, e.g., Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (explaining
that “failure to object timely to a . . . report [and recommendation] operates as a waiver
of any further judicial review of the magistrate [judge’s] decision” (quotation marks
omitted)).
SO ORDERED.
Dated: Brooklyn, New York
December 10, 2025
_____________________________________
TARYN A. MERKL
UNITED STATES MAGISTRATE JUDGE
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