Card v. O'Malley

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________________________
Mary Card,
Plaintiff, 3:24-CV-0481 (MJK)
v.
Frank Bisignano,
Commissioner of Social Security,
Defendant.
_________________________________________________________________
Peter Gorton, Esq., attorney for Plaintiff
Kristina Cohn, Esq., Special Assistant United States Attorney for
Defendant
DECISION AND ORDER
Before the court is Card’s Amended Notice of Motion for
Additional Attorney’s Fees (“Revised Motion”) pursuant to 42 U.S.C.
§406(b)(1). (Dkt. No. 19). The Commissioner filed a response. (Dkt. No.
20). Card’s counsel attests that the Amended Motion was sent to Card
in accordance with L.R. 5.5(g)(2).1 The parties consented to the
jurisdiction of the Magistrate Judge. (G.O. 18 and Dkt. No. 7).
1 The obligation to attest that the plaintiff has been notified of the fee motion is now
found at Section F(2) of G.O. 18.
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Card entered a contingency fee contract with her attorney, Peter
Gorton (Dkt. No. 19-4), pursuant to which Card agreed to a twenty-five
percent (25%) contingency fee on all past due benefits awarded to her,
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
$17,360.50, noting his obligation to refund Card the sum of $6,590.28
which he previously received, which was awarded by a stipulated order
(Dkt. No. 19-1, ¶2) under EAJA (dkt. 19-2, pgs,2,4).
Attorney Gorton attests that he was retained by Card on May 15,
2021. Dkt. 19-1, ¶3.2 He represented Card at her first hearing and
subsequent appeal to the Appeals Council, which was then appealed to
this Court, resulting in a remand on March 15, 2023. Id. Attorney
Gorton then represented Card in her second administrative hearing and
subsequent appeal to this Court. Attorney Gorton filed a complaint on
April 5, 2024 (Dkt. No. 1), and a brief on September 13, 2024 (Dkt. No.
9) which resulted in a stipulated order of remand on September 30,
2024 (Dkt. No. 14). Judgment was entered on October 2, 2024. (Dkt.
2 Attorney Gorton’s retention was confirmed in a written retainer agreement dated
November 4, 2022. (Dkt. No. 19-4).
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15.). On remand, the Administrative Law Judge issued a fully favorable
Decision awarding benefits to Card. (Dkt. 18-3) The Notice of Award
was issued by the Commissioner and is dated November 24, 2025. (Dkt.
No. 19-3).
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.
Second, as the record shows, Attorney Gorton was not responsible for
any undue delay (for example, the record was filed by the Commissioner
on August 1, 2024 (Dkt. No. 10), and Card’s brief was filed on
September 13, 2024 (Dkt. No. 12)). Third, Attorney Gorton has more
than 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. No. 19-1, ¶ 4). Fourth, the hours
spent by Attorney Gorton reflect his efficiency in handling these types
of cases. (Dkt. 19-2, pgs. 1,3) Fifth, there is no evidence that Card is
unsatisfied with his efforts. Sixth, the nature of these cases makes a
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favorable result uncertain, yet the effort to achieve the result is a
constant.
The court finds that the effective hourly rate of $629.01 (Dkt. No.
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 Card’s past-due
benefits in the amount of $69,442.
WHEREFORE, it is hereby
ORDERED, that the amended motion is granted, and Attorney
Peter Gorton is awarded attorney’s fees in the amount of $17,360.50,
and it is further
ORDERED, that Attorney Peter Gorton shall refund to Card any
fees he previously received under the EAJA, to wit, $6,590.28.
Dated: December 8, 2025.
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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