United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff for an
award of attorney fees pursuant to 42 U.S.C. § 406(b) in
the amount of $6, 545.00. (Doc. No. 25 [“Mot.”].)
The defendant has responded that the Commissioner does not
oppose the motion. (Doc. No. 26.) For the reasons that
follow, the motion is granted.
filed this action on October 29, 2015, seeking review of the
Commissioner of Social Security's denial of her
application for social security disability benefits. (Doc.
No. 1.) The Court adopted the unopposed report and
recommendation of the magistrate judge vacating the
Commissioner's decision and remanding the matter to the
Commissioner for further proceedings. (Doc. Nos. 19 and 20.)
the Court granted the parties' stipulation and petition
for an award of attorney fees under the Equal Access to
Justice (“EAJA”) (28 U.S.C. § 2412) in the
amount of $3, 650.00. (Doc. Nos. 23 and 24.) The instant
motion seeks attorney fees pursuant to 42 U.S.C. §
406(b) in the amount of $6, 545.00.
Attorney fee awards under § 406(b)
42 U.S.C. § 406(b)(1), following a favorable judgment on
a Social Security disability appeal, the Court may award
attorney fees not in excess of 25% of the past-due benefits
received by the claimant. Michelle R. Boggs v. Comm'r
of Soc. Sec., No. 2:14-CV-613, 2017 WL 3608249, at *1
(S.D. Ohio Aug. 21, 2017) (citing 42 U.S.C. § 406(b)(1);
Lowery v. Comm'r of Soc. Sec., 940
F.Supp.2d 689, 691 (S.D. Ohio 2013)). Section 406(b)(1)
places a 25% cap on the amount of fees recoverable, and
requires that the fee award be reasonable in light of
services rendered. Id. (citing 42 U.S.C. §
406(b)(1); Gisbrecht v. Barnhart, 535 U.S. 789, 807,
122 S.Ct. 1817, 152 L.Ed.2d 996 (2002)).
Circuit “precedent accords a rebuttable presumption of
reasonableness to contingency-fee agreements that comply with
§ 406(b)'s 25-percent cap.” Lasley v.
Comm'r of Soc. Sec., 771 F.3d 308, 309 (6th Cir.
2014) (citing Hayes v. Sec'y of Health & Human
Servs., 923 F.2d 418, 421 (6th Cir. 1991); Rodriquez
v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989) (en banc)).
Deductions to large fees are only made in two situations:
“1) those occasioned by improper conduct or
ineffectiveness of counsel; and 2) situations in which
counsel would otherwise enjoy a windfall because of
either an inordinately large benefit award or from minimal
effort expended.” Hayes, 923 F.2d at
420-421 (emphasis added in original) (quoting
Rodriquez, 865 F.2d at 746). The Sixth Circuit has
held 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. at 422
(footnotes omitted). If the above two situations are not
applicable to a § 406 fee petition, then “an
agreement for a 25% fee, the maximum permitted under §
206(b) of the Social Security Act, 42 U.S.C. § 406(b),
is presumed reasonable.” Id. at 421.
entered into a fee agreement with counsel whereby she agreed
to pay her attorney 25% of all past-due benefits awarded in
agency proceedings if the Social Security Administration
rendered a favorable decision after proceedings in federal
court. (See Doc. No. 25-2 at 1753.) Plaintiff was
awarded past-due social security benefits after remand to the
Commissioner by order of this Court, and the Commissioner
withheld $12, 859.25-25% of the past-due amount-for payment
of attorney fees. (Doc. No. 25-1 at 1748.)
seeks a fee award of $6, 545.00. There is no evidence of
improper conduct or ineffective representation by counsel in
this case. The Court will next consider whether this amount
constitutes a windfall to plaintiff's counsel that would
support a reduction of the amount requested.
has submitted a time sheet documenting 18.70 hours expended
by her counsel in connection with the federal court
litigation (Doc. No. 25-3), and plaintiff's counsel (an
experienced attorney) submitted an affidavit stating that
$350.00 is the hourly normally charged in social security
disability cases (Doc. No. 25-4). The fee award sought equals
the normal hourly rate of plaintiff's counsel multiplied
by the number of hours expended by counsel in the federal
court litigation. Other courts in the Northern District of
Ohio have determined that an hourly rate of $350.00 “is
an appropriate upper limit in awarding attorney fees pursuant
to § 406(b).” Hayes v. Comm'r of Soc.
Sec., No. 1:13CV2812, 2015 WL 4275506, at *3 (N.D. Ohio
July 14, 2015) (collecting cases). Moreover, the fee award
sought does not exceed the 25% cap set forth in § 406(b)
or the 25% fee amount agreed to by plaintiff. Thus, the Court
concludes that $6, 545.00 does not constitute a windfall to
counsel and is reasonable. See Hayes, 923 F.3d at
plaintiff's counsel points out, the Court has already
awarded attorney fees in this case under the EAJA in the
amount of $3, 650.00. As plaintiff's counsel further
concedes, she may not receive fees under both statutes.
Bowman v. Colvin, No. 1:09 CV 248, 2014 WL 1304914,
* 2 (N.D. Ohio Mar. 27, 2014) (citing Jankovich v.
Bowen,868 F.2d 867, 871, n. 1 (6th Cir. 1989)) (further
citation omitted). If fees are awarded under both the EAJA
and § ...