Algarin v. O'Malley

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________________________
Modesta Algarin,
Plaintiff, 3:24-cv-231 (MJK)
v.
Frank Bisignano,
Commissioner of Social Security,
Defendant.
_________________________________________________________________
Peter A. Gorton, Esq., attorney for Plaintiff
Vernon Norwood, Esq., Special Assistant United States Attorney for
Defendant
DECISION AND ORDER
Before the Court is Algarin’s Notice of Motion for Additional
Attorney’s Fees pursuant to 42 U.S.C. §406(b)(1). (Dkt. 15). The
Commissioner filed a response neither supporting nor opposing the
motion. (Dkt. 16). Although Algarin’s counsel attests that the motion
(Dkt. 15) was sent to Algarin in accordance with 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. The parties
consented to the jurisdiction of the Magistrate Judge. (G.O. 18 and Dkt.
7).
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Algarin entered a contingency fee agreement with his attorney,
Peter Gorton (Dkt. 15-4), under which Algarin 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
$13,630, noting his obligation to refund Algarin $6,743.43 that he
previously received. (Dkt. 15-1 ¶2).
Attorney Gorton attests that he was retained by Algarin on
February 4, 2022. (Dkt. 15-1, ¶3). He represented Algarin at his first
hearing and subsequent appeal, which was later appealed to this Court,
resulting in a remand on August 13, 2024. Id. Attorney Gorton
represented Algarin at his second hearing, which resulted in a fully
favorable decision, generating an award notice dated December 8, 2025.
(Dkt. 15-3).
The Court must determine whether the attorney’s fees award
requested is 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.
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Second, as the record shows, Attorney Gorton was not responsible for
any undue delay (for example, the record was filed by the Commissioner
on May 21, 2024. (Dkt. 8), and Plaintiff’s brief was filed on July 2, 2024.
(Dkt. 9)). Third, Attorney Gorton has 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. 15-1, ¶ 4). Fourth, the hours spent by Attorney Gorton
reflect his efficiency in handling these types of cases. (Dkt. 15-2). Fifth,
there is no evidence that Algarin is unsatisfied with his efforts. Sixth,
the nature of these cases makes a favorable result uncertain, yet the
effort to achieve a favorable result is a constant.
The Court finds that the effective hourly rate of $488.54 (Dkt. 15-
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 $64,351.
WHEREFORE, it is hereby
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ORDERED, that the motion is granted in full, and Attorney Peter
Gorton is awarded attorney’s fees in the amount of $13,630, and it is
further
ORDERED, that Attorney Peter Gorton shall refund to Algarin
any fees he previously received under the EAJA, to wit, $6,743.43.
Dated: January 14, 2026.
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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