United States District Court, S.D. Ohio, Western Division
NORMAN F. SUTTON, III, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
matter is before the Court on plaintiffs motion for attorney
fees under the Social Security Act, 42 U.S.C. §
406(b)(1) (Doc. 22) and supplement thereto (Doc. 24). The
Commissioner has not filed any opposition to plaintiffs
April 22, 2016, the Court granted the parties' joint
motion to remand and remanded this matter for further
administrative proceedings pursuant to Sentence Four of 42
U.S.C. § 405(g). (Doc. 18). On remand, the Commissioner
determined that plaintiff was disabled. (See Notice
of Award, Doc. 22 at 8). The Court previously awarded
plaintiff $ 1, 500.00 for attorney fees under the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. §
2412(d). (Doc. 21). Plaintiff represents that $6, 000.00 in
attorney fees have also been awarded for work performed at
the administrative level. (See Doc. 22 at 4).
Plaintiff represents that acting pursuant to §
406(b)(1)(A), the Commissioner withheld 25 percent of
past-due benefits-or $14, 162.25-as a potential contingency
fee to be awarded to plaintiffs counsel. (See Doc.
22 at 4, 9). From that amount, plaintiff now seeks an award
of $6, 662.25 in attorney fees available under § 406(b)
for 11.75 hours of work that plaintiff represents was
performed before the Court. (See Doc. 22 at 4- 5).
The $6, 662.25 requested represents 25 percent of plaintiff s
past-due benefits (SI 4, 162.25), less the amount awarded by
the Commissioner for work performed at the administrative
level ($6, 000), and less the amount of EAJA fees previously
received ($1, 500.00). (See id.).
to 42 U.S.C. § 406(b)(1)(A), a court may award a
prevailing claimant's attorney a reasonable fee not in
excess of 25 percent of past-due benefits recovered by the
claimant for work done in a judicial proceeding. 42 U.S.C.
§ 406(b)(1)(A). See Horenstein v. Sec'y of
H.H.S., 35 F.3d 261, 262 (6th Cir. 1994) (en banc)
(court may award fees only for work performed before the
court, and not before the Social Security Administration).
Fees are awarded from past-due benefits withheld from the
claimant by the Commissioner and may not exceed 25 percent of
the total past-due benefits. Gisbrecht v. Barnhart,
535 U.S. 789, 792 (2002).
determining the reasonableness of fees under § 406(b),
the starting point is the contingency fee agreement between
the claimant and counsel. Gisbrecht, 535 U.S. at
807. When a claimant has entered into a contingency fee
agreement entitling counsel to 25 percent of past-due
benefits awarded, the Court presumes, subject to rebuttal,
that the contract is reasonable. Rodriquez v. Bowen,
865 F.2d 739, 746 (6th Cir. 1989) (en banc). Within the 25
percent boundary, the attorney for the claimant must show
that the fee sought is reasonable for the services rendered.
Gisbrecht, 535 U.S. at 807. The Court should
consider factors such as the character of the representation,
the results achieved, the amount of time spent on the case,
whether the attorney was responsible for any delay, and the
attorney's normal hourly billing rate for noncontingent
fee cases. Id. at 808. See also Rodriquez,
865 F.2d at 746. Additionally, the Court should consider
instances of improper conduct or ineffectiveness of counsel;
whether counsel would enjoy a windfall because of either an
inordinately large award or from minimal effort expended; and
the degree of difficulty of the case. Hayes v. Sec 'y
of HHS, 923 F.2d 418, 422 (6th Cir. 1990);
Rodriquez, 865 F.2d at 746. An award of 25 percent
of past-due benefits may be appropriate where counsel has
overcome legal and factual obstacles to enhance the benefits
awarded to the client; in contrast, such an award may not be
warranted in a case submitted on boilerplate pleadings with
no apparent legal research. Rodriguez, 865 F.2d at
award of fees under § 406(b) is not improper merely
because it results in an above-average hourly rate.
Royzer v. Sec y o/HHS, 900 F.2d 981, 981-82 (6th
Cir. 1990). As the Sixth Circuit determined:
is not at all unusual for contingent fees to translate into
large hourly rates if the rate is computed as the trial judge
has computed it here [by dividing the hours worked into the
amount of the requested fee]. In assessing the reasonableness
of a contingent fee award, we cannot ignore the fact that the
attorney will not prevail every time. The hourly rate in the
next contingent fee case will be zero, unless benefits are
awarded. Contingent fees generally overcompensate in some
cases and undercompensate in others. It is the nature of the
Id. "[A] hypothetical hourly rate that is less
than twice the standard rate is perse reasonable,
and a hypothetical hourly rate that is equal to or greater
than twice the standard rate may well be reasonable."
Hayes, 923 F.2d at 422.
the fee of $6, 662.25 that plaintiff requests falls below the
25 percent boundary. Thus, the issue is whether the requested
fee is reasonable. Gisbrecht, 535 U.S. at 807.
Plaintiff asserts the requested attorney fee is reasonable
given that attorney Eric Allen represented him on a
contingency basis and achieved excellent results.
(See Doc. 22 at 3). Plaintiff also notes that his
counsel has been practicing since 1987 and has represented
clients in Social Security cases before this Court since
1989. (See id.). Counsel has submitted an affidavit
that details his experience representing Social Security
claimants. (Affidavit of Eric Allen, Doc. 24 at 3-4). Counsel
has also submitted time records showing that he performed a
total of 11.75 hours of work on the case in this Court.
(See Doc. 24 at 8). Plaintiff has submitted a copy
of the contingency fee agreement he entered into with counsel
under which he agreed to pay counsel a contingency fee of 25
percent of past-due benefits. (Doc. 22 at 7).
the $14, 162.25 withheld by the Social Security
Administration less the $6, 000 awarded for work at the
administrative level-$8, 162.25-by the 11.75 hours counsel
worked on this case before the Court produces a hypothetical
hourly rate of $694.66. In determining whether counsel
"would enjoy a windfall because of either an
inordinately large benefit or from minimal effort expended,
" Hayes, 923 F.2d at 422 (quoting
Rodriguez, 865 F.2d at 746), the Court notes that
"a windfall can never occur when, in a case where a
contingent fee contract exists, the hypothetical hourly rate
determined by dividing the number of hours worked for the
claimant into the amount of the fee permitted under the
contract is less than twice the standard rate for such work
in the relevant market." Id. As the Sixth
Circuit explained in Hayes:
[A] multiplier of 2 is appropriate as a floor in light of
indications that social security attorneys are successful in
approximately 50% of the cases they file in the courts.
Without a multiplier, a strict hourly rate limitation would
insure that social security attorneys would not, averaged
over many cases, be compensated adequately.
A calculation of a hypothetical hourly rate that is twice the
standard rate is a starting point for conducting the
Rodriquez analysis. It provides a floor, below which
a district court has no basis for questioning, under the
second part of Rodriguez''s windfall rule