Balz v. Saul

• Court: District Court, S.D. New York
• Decided: April 3, 2024
• Docket: 7:20-cv-07729
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GREGORY BALZ, Plaintiff, No. 20-CV-7729 (KMK) v. ORDER ADOPTING REPORT & KILOLO KIJAKAZI, Acting Commissioner RECOMMENDATION of Social Security, Defendant. Appearances: Richard Blake Seelig, Esq. Seelig Law Offices, LLC New York, NY Counsel for Plaintiff Christopher N. Hurd, Esq. Social Security Administration, Office of the General Counsel Baltimore, MD Counsel for Defendant Rebecca Hope Estelle, Esq. Catherine Louise Zurbrugg, Esq. Social Security Administration, Office of the General Counsel New York, NY Counsel for Defendant KENNETH M. KARAS, United States District Judge: Plaintiff Gregory Balz (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application for Social Security Disability (“SSD”) benefits. (See Compl. ¶ 1 (Dkt. No. 1).)1 Before the Court is Plaintiff’s Motion for Attorneys’ Fees under 42 U.S.C. § 406(b). (See Not. of Mot. (Dkt. No. 36).) Plaintiff applied for SSD benefits on December 28, 2018, alleging onset of disability beginning March 31, 2024. (Compl. ¶¶ 1, 6.) On February, 12, 2020, Administrative Law Judge

(“ALJ”) Vincent Cascio issued a written decision concluding that Plaintiff was not disabled within the meaning of the Social Security Act. (SSA Admin. Record at 10–26 (Dkt. No. 18).)2 That decision became final on July 21, 2020, when the Appeals Council denied Plaintiff’s request for review. (Id. at 5–7.) Plaintiff commenced this Action on September 18, 2020, (see Compl.) after which the Parties filed cross motions for judgment on the pleadings, (Dkt. Nos. 19, 24). On January 25, 2022, the Honorable Paul E. Davison issued a Report and Recommendation concluding that the Court should grant Plaintiff’s motion. (Dkt. No. 27.) The Court adopted that R&R in full, reversed ALJ Cascio’s decision, and remanded for further proceedings. (See Order (Dkt. No. 31).) Because Plaintiff prevailed in his appeal, the Court also awarded $11,200 in attorneys’ fees

under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (See Stip & Order for Allowance of Fees (Dkt. No. 34).) On remand, the Commissioner approved Plaintiff for SSD benefits and issued a Notice of Award informing Plaintiff that his past-due benefits totaled $152,114. (Decl. of Richard Seelig in Supp. of Mot. (“Seelig Decl.”) Ex. B (Not. of Reward) at 4, 9 (Dkt. No. 38-2).) The Commissioner withheld $38,028.50—25% of the total award—for attorneys’ fees. (Id.) On

1 As Judge Reznik’s Report and Recommendation noted, Kilolo Kijakazi is now the Acting Commissioner of Social Security and was substituted for former Commissioner Andrew Saul as the Defendant in this Action, pursuant to Federal Rule of Civil Procedure 25(d).

2 Cites to the Administrative Record use ECF pagination. November 2, 2023, Plaintiff’s counsel filed the instant Motion, seeking to recover the withheld funds. (See Pl’s Mem. of Law in Supp. of Mot. (Dkt. No. 37).) On December 15, 2023, the Honorable Victoria Reznik issued a Report and Recommendation (the “R&R”) recommending that this Court grant Plaintiff’s Motion. (Dkt. No. 41.)3 Judge Reznik also recommended that counsel for Plaintiff be directed to refund the

previously awarded $11,200 in attorneys’ fees directly to Plaintiff. Defendant has not filed any objections to the R&R. (See generally Dkt.)4 When no objections are filed, the Court reviews a R&R for clear error. See Muniz v. Comm’r of Soc. Sec., No. 18-CV-8295, 2021 WL 293381, at *1 (S.D.N.Y. Jan. 28, 2021); Andrews v. LeClaire, 709 F. Supp. 2d 269, 271 (S.D.N.Y. 2010) (same). The Court has reviewed the R&R and the Motion for Attorneys’ Fees, and finding no substantive error, clear or otherwise, adopts the R&R. Accordingly, it is hereby ORDERED that the Report and Recommendation, dated December 15, 2023, is

ADOPTED in its entirety. ORDERED that Plaintiff's Motion is GRANTED. ORDERED that counsel for Plaintiff be directed to refund the previously awarded $11,200.00 in attorneys’ fees, under the EAJA, directly to Plaintiff. ORDERED that the Clerk of the Court is respectfully directed to close this case.

3 This Action was redesignated to Judge Reznik on November 14, 2023. (See Dkt. (Notice of Redesignation).)

4 Judge Reznik provided notice that, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, objections to the R&R were due within fourteen days from the receipt of the R&R and that failure to file timely objections would preclude later appellate review of any order of judgment that will be entered. (R&R 8.) SO ORDERED.

Dated: April 3, 2024 White Plains, New York

KENNETH M. KARAS United States District Judge