United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
matter is before the Court on plaintiffs motion for attorney
fees under the Social Security Act, 42 U.S.C. §
406(b)(1). (Doc. 27). The Commissioner has not filed any
opposition to plaintiffs motion.
December 30, 2014, the Court reversed and remanded this case
for further proceedings pursuant to Sentence Four of 42
U.S.C. § 405(g). (Doc. 25). The ALJ issued a decision on
remand dated November 22, 2016, finding that plaintiff has
been under a disability since August 16, 2006. (Doc. 27-4).
The Commissioner determined that plaintiff was entitled to
disability benefits starting October 2008. (See
Notice of Award, Doc. 27-3). Acting pursuant to §
406(b)(1)(A), the Commissioner withheld 25 percent of past
due benefits, or S26, 916.00, as potential fees to be awarded
to plaintiffs counsel. (See Doc. 27-3 at 2). From
that amount, plaintiffs counsel seeks an award of $15, 000.00
in attorney fees under § 406(b)(1) for 59.50 hours of
work performed before this Court.
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 HHS, 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
(SSA)). 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. Id. 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. Rodriguez 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 non-contingent 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 due to minimal effort expended;
and the degree of difficulty of the case. Hayes v.
Sec'y of HHS, 923 F.2d 418, 420, 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.
Rodriquez, 865 F.2d at 747.
award of fees under § 406(b) is not improper merely
because it results in an above-average hourly rate.
Royzer v. Sec 'y of HHS, 900 F.2d 981, 981-82
(6th Cir. 1990). As the Sixth Circuit determined:
It 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 beast.
Id. at 981. "[A] hypothetical hourly rate that
is less than twice the standard rate is per se 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 $15, 000.00 requested by plaintiff falls within
the 25 percent boundary. Thus, the issue is whether the
requested fee is reasonable. Gisbrecht, 535 U.S. at
807. Plaintiff asserts the requested fee is reasonable given
his attorney's background and experience, the contingency
fee agreement, and counsel's success in achieving a
favorable result on remand before the Commissioner. (Doc. 27
at 1-2). Plaintiff has submitted counsel's statement in
which counsel asserts he has represented social security
claimants since 1980 both during the administrative claims
process and in appeals to the federal district and appellate
courts. (Doc. 27-1). Plaintiff has also 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. 27-2). In addition,
plaintiff has attached itemized billing sheets demonstrating
that his attorney performed a total of 59.50 hours of work on
the case in the District Court. (Doc. 27-1). Plaintiff
requests that the Court award a total of $15, 000.00 in
attorney fees from the 25 percent in past due benefits - $26,
916.00 - which the SSA withheld for the payment of such fees.
(Doc. 27-3). As stated above, the Commissioner has not filed
any opposition to the fee request.
the requested fee of $15, 000.00 by the 59.50 hours counsel
worked on the case before this Court produces a hypothetical
hourly rate of $252.10. 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, 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
Rodriguez analysis. It provides a floor, below which
a district court has no basis for questioning, under the
second part of Rodriquez's windfall rule for
"minimal effort expended, " the reasonableness of
counsel has not provided his hourly rate for non-contingency
fee cases. Although the Court will ordinarily adopt the
hourly rate approved by the Court in connection with a fee
petition under the EAJA, see, e.g., Edwards v.
Comm'rof Soc. Sec, No. 1:08-cv-815, 2011
WL 1002186, at *1 (S.D. Ohio Mar. 16, 2011), plaintiff did
not submit an EAJA fee petition in this case. However, judges
in this Court have approved significantly higher effective
hourly rates in contemporaneous and comparable disability
appeals than the $252.10 hourly rate requested by plaintiff
here. See, e.g., Jodrey v. Comm'r of Soc. Sec.,
No. 1:12-cv-725, 2015 WL 799770, at *3-4 (S.D. Ohio Feb. 25,
2015) (Report and Recommendation) (Litkovitz, M.J.),
adopted, 2015 WL 1285890 (S.D. Ohio Mar. 19, 2015)
(Barrett, J.) (approving effective hourly rate of $700.00);
Havens v. Comm'r of Soc. Sec., No. 2:12-cv-637,
2014 WL 5308595, at *2 (S.D. Ohio Oct. 16, 2014) (Report and
Recommendation) (Kemp, M.J.), adopted, 2014 WL
6606342 (S.D. Ohio Nov. 20, 2014) (Smith, J.) (approving
effective hourly rate of $750.00); Metz v. Comm'r,
Soc. Sec. Admin., No. 3:1 l-cv-391, 2014 WL 1908512, at
* 1-2 (S.D. Ohio May 12, 2014) (approving effective hourly
rate of $780.25); Smith v. Comm'rof Soc.
Sec, No. 2:10- ...