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Sargent v. Social Security Administration, Commissioner

United States District Court, D. Vermont

October 22, 2019

BARBARA B. SARGENT, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant.

          ORDER ON REPORT AND RECOMMENDATION (DOC. 36)

          GEOFFREY W. CRAWFORD JUDGE

         On April 15, 2019, plaintiffs counsel, Siobhan M. McCloskey ("McCloskey"), filed a motion for attorney's fees pursuant to 42 U.S.C. § 406(b). (Doc. 26.) In his Report and Recommendation ("R&R") dated July 23, 2019, United States Magistrate Judge John M. Conroy recommended denial of the motion as untimely. (Doc. 36.) McCloskey filed a timely objection to the R&R. (Doc. 39.) For the reasons that follow, this court ADOPTS Judge Conroy's R&R (Doc. 36) and DENIES plaintiffs motion (Doc. 26) for attorney's fees.

         Facts

         This factual statement is drawn from the court's docket, as well as McCloskey's motion for attorney's fees and the response filed by the Social Security Administration ("SSA"). (Doc. 29.) The parties have no factual disagreement.

         This case commenced in June 2008 at the administrative level when plaintiff applied for Social Security disability benefits on grounds of rheumatoid arthritis, Lyme disease and depression.[1] (See Doc. 13.) Plaintiff received an initial denial in July 2009. She appealed. (Id.) Following a hearing before Administrative Law Judge Dory Suker in July 2010, she received a partially favorable decision in August 2010. (Id.) The decision was selected for review by the Decision Review Board. The Board was unable to complete its review within 90 days and automatically affirmed Judge Suker's decision in December 2010. (Id.)

         Plaintiff disagreed with the onset date determined by Judge Suker. In February 2011, plaintiff filed a prose complaint seeking judicial review. (Doc. 1.) In September 2011, plaintiff, still representing herself, filed a motion seeking reversal of the administrative ruling. (Doc. 10.) In February 2012, the SSA filed a motion seeking affirmance of the ALJ's ruling. (Doc. 18.) Later in August 2012, plaintiff, now represented by McCloskey, filed a second motion to reverse and remand. (Doc. 22.)

         In October 2012, the SSA filed a stipulated motion for judgment under Sentence four of 42 U.S.C. § 405(g). (Doc. 23.) The court granted the motion for remand to the ALJ on October 26, 2012, and entered a final judgment order on the same date. (Docs. 24, 25.) There were no further court filings or orders of any kind until six and a half years later on April 15, 2019, when McCloskey filed a motion for attorney's fees. (Doc. 26.)

         Following the voluntary remand, plaintiff and her attorney continued to seek an earlier onset date than the date originally ordered by Judge Suker. Almost five years later, on August 21, 2017, a different ALJ found that plaintiff was disabled as of May 1, 2003. (Id.)

         On September 17, 2017, the SSA issued notices of award to plaintiff and her two children. (Docs. 29-2-29-4.) The total amount of the back payment was $42, 979.50. (Id.) The SSA also provided notice that it withheld $14, 326 from the three claimants. (Id.)

         On February 13, 2018, the SS A issued amended notices of award to plaintiff and her children. The amended notices corrected the amount to be withheld for attorney fees to $16, 745.25, while the amount owed to plaintiff remained the same. (Docs. 29-5-29-7.) Again, the SSA provided notice that it had withheld 25 percent. McCloskey received copies of the notices.

         By letter dated November 15, 2018, the SSA asked McCloskey whether she would be filing a claim for legal services. McCloskey responded on December 20, 2018 that she would file soon. (See Doc. 26-5 at 2; Doc. 39 at 2.)

         By letter dated April 3, 2019, the SSA advised McCloskey that it had originally withheld $16, 745.25. (Id.) From this amount it paid counsel $8, 700 in October 2018 pursuant to 33 V.S.A. § 406(a). The letter requested that McCloskey file a motion with the court within 20 days. (Id.)

         Standard of Review

         A district judge must make a de novo determination of those portions of a magistrate judge's R&R to which an objection is made. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1); U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester Cty., NY,712 F.3d 761, 768 (2d Cir. 2013). The district judge may "accept, reject, or modify, in whole or in part, the findings or ...


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