Underwood v. O'Malley

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Joline Underwood,
Plaintiff 5:23-CV-00961-MJK
v.
Frank Bisignano
Commissioner of Social Security,
Defendant.
Peter A. Gorton, Esq., Attorney for Plaintiff
Hugh Dun Rappaport, Esq., Special Assistant United States Attorney
for Defendant
DECISION AND ORDER
Before the Court is Underwood’s Amended Notice of Motion for
Additional Attorney’s Fees pursuant to 42 U.S.C. § 406(b)(1). (Dkt. 20).1
The Commissioner filed a response neither supporting nor opposing the
motion. (Dkt. 23). Although Underwood’s counsel attests that the
motion (Dkt. 20, as amended) was sent to Algarin in accordance with
1 Underwood’s initial Notice of Motion For Additional Attorney’s Fees (Dkt.)
requested fees in the amount of $11, 2019.86 which is the amount of the fees
already received. (Dkt. 19-1, ¶ 2). The Amended Notice For Additional Attorney’s
Fees requests fees in the amount of $14,473.00 (Dkt. 20) which is consistent with
the amount set forth in Attorney Gorton’s declaration (Dkt. 19-1). It appears that
counsel made a typographical error in the initial Notice of Motion.
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L.R. 5.5(g)(2), the requirement to do so is no longer found in the Local
Rules. This obligation is found at section F(2) of General Order No. 18.2
The parties consented to the jurisdiction of the Magistrate Judge. (G.O.
18 and Dkt. 6).
Underwood entered a contingency fee agreement with her
attorney, Peter Gorton (Dkt. 19-4), under which Underwood agreed to a
twenty-five (25%) percent contingency fee on all past due benefits
awarded to him, subject to repayment of any fees paid to her counsel
under the Equal Access to Justice Act (“EAJA”). Attorney Gorton seeks
the total sum of $14,473, noting his obligation to refund Underwood
$11,219.86 that he previously received. (Dkt. 19-1, ¶6).
Attorney Gorton attests that he was retained by Underwood on
May 6, 2020. (Dkt. 19-1, ¶3). He represented Underwood at her first
hearing and subsequent appeal, which was later appealed to this Court,
resulting in a remand on December 7, 2021. Id. Attorney Gorton
represented Underwood at her second hearing and subsequent appeal,
which was later appealed to this Court, resulting in remand on March
20, 2024. Id. Attorney Gorton represented Underwood at her third
2 Counsel is directed to be more cognizant of the Court’s General Orders.
Case 5:23-cv-00961-MJK Document 24 Filed 01/14/26 Page 2 of 4

hearing, which resulted in a fully favorable decision, generating an
award notice dated September 13, 2025 (Dkt. 19-3).
The Court must determine whether the attorney’s fees award
requested was reasonable. See Gisbrecht v. Barnhart, 535 U.S. 789, 798
n.6 (2002). To make this finding, the Court considers the factors set
forth in Fields v. Kijakazi, 24 F.4th 845,853-56 (2d Cir. 2022). First, the
fully favorable outcome achieved by Attorney Gorton speaks for itself.
Second, as the record shows, Attorney Gorton was not responsible for
any undue delay (for example, the record was filed by the Commissioner
on January 9, 2024 (Dkt. 6), and Plaintiff’s brief was filed on February
19, 2024. (Dkt. 13). Third, Attorney Gorton has well over thirty years of
experience, and his practice is highly concentrated in the handling of
Social Security Disability cases at the administrative level and before
federal courts. (Dkt. 19-1, ¶ 4). Fourth, the hours spent by Attorney
Gorton reflect his efficiency in handling these types of cases. (Dkt. 19-2).
Fifth, there is no evidence that Underwood is unsatisfied with his
efforts. Sixth, the nature of these cases makes a favorable result
uncertain, yet the effort to achieve the result is a constant.
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The Court finds that the effective hourly rate of $300.27 (Dkt. 19-
1, ¶6) is reasonable given Attorney Gorton’s experience and the Court’s
understanding of hourly rates charged by attorneys with that level of
experience in this community. The Court finds that the total fee is
reasonable and will not exceed 25% of the total of Underwood’s past-due
benefits in the amount of $57, 829.
WHEREFORE, it is hereby
ORDERED, that the motion is granted in full, and Attorney Peter
Gorton is awarded attorney’s fees in the amount of $14,473 and it is
further
ORDERED, that Attorney Peter Gorton shall refund to
Underwood any fees he previously received under the EAJA, to wit,
$11,219.86.
Dated: January 14, 2026.
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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