United States District Court, S.D. Ohio, Western Division, Dayton
H. RICE DISTRICT JUDGE.
REPORT AND RECOMMENDATIONS 
L. OVINGTON UNITED STATES MAGISTRATE JUDGE.
case is before the Court upon a Motion For Allowance Of
Attorney Fees filed by Plaintiff's counsel (Doc. #19),
the Commissioner's Response (Doc. #20), Plaintiff's
Counsel's Reply (Doc. #21), and the record as a whole.
this case began, Plaintiff and his counsel entered into a
written contingency-fee agreement. The agreement documented
Plaintiff's agreement to pay attorney fees in the amount
of 25% of any lump sum award for past-due Social Security
benefits payable to him. The agreement also documented
counsel's willingness to work on a contingency-fee basis.
This resulted in counsel's acceptance of the risk he
would recover zero attorney fees in the event Plaintiff
received no past-due benefits. See Doc. #19,
case proceeded, Plaintiff established that a remand for
payment of benefits was warranted, and Judgment was entered
accordingly. The Social Security Administration awarded
Plaintiff past-due benefits in a lump sum of $94, 243.00.
Id. at 780. The Social Security Administration has
withheld $30, 129.00 from Plaintiff's past-due benefits
for payment of attorney fees. Id. at 781.
on 42 U.S.C. § 406(b), Plaintiff's counsel presently
seeks approval of a $17, 550.00 award of attorney fees from
the funds withheld from Plaintiff's past-due benefits.
The attorney-fee award Plaintiff's counsel seeks, if
granted, would result in an award based on a hypothetical
hourly rate of $675.00 ($17, 550.00 ÷ 26 hours =
Commissioner seeks a reduction of this hourly rate to $400.00
406(b) authorizes this Court to award attorney's fees
when a plaintiff brings a successful challenge to the Social
Security Administration's denial of his or her
application for benefits. See Damron v. Comm'r of
Soc. Sec., 104 F.3d 853, 856 (6th Cir. 1997). The award
may not exceed 25% of the past-due benefits that the
plaintiff received as a result of the successful challenge.
See id.; see also 42 U.S.C. §
succeed under § 406(b), the plaintiff's counsel must
show, and the court must affirmatively find, that the
contingency fee sought-even one within the 25% cap-is
reasonable for the services rendered. Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002); see Lasley v.
Comm'r of Soc. Sec., 771 F.3d 308, 309 (6th Cir.
2014). Section 406(b) “does not displace contingent-fee
agreements” but instead “calls for court review
of such arrangements as an independent check, to assure that
they yield reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807.
determine whether an award under § 406(b) is reasonable,
a floor/ceiling approach guides the way. The ceiling is
§ 406(b)'s 25% cap, which “accords a
rebuttable presumption of reasonableness to contingency
agreements that comply with § 406(b)'s
25%-cap.” Lasley, 771 F.3d at 309. The floor
is “[the] hypothetical rate that is twice the standard
rate for such work in the relevant market.” Hayes
v. Sec'y of Health & Human Servs., 923 F.2d 418,
422 (6th Cir. 1991). “‘[A] hypothetical hourly
rate that is less than twice the standard rate is per
se reasonable ...'” Lasley, 771 F.3d
at 309 (quoting Hayes, 923 F.2d at 421).
the range set by this floor and this ceiling, “a
hypothetical hourly rate that is equal to or greater than
twice the standard rate may well be reasonable.'”
Lasley, 771 F.2d at 309 (quoting Hayes, 923
F.2d at 421). Courts may consider arguments attacking the
rebuttable presumption of reasonableness that attaches to
awards above the double-the-standard-rate floor and below the
25% statutory ceiling. Id. at 309.
remains the heart of the matter. And, care must be taken to
consider the presumption a rebuttable-not a
strict-presumption of reasonableness. Lasley, 771
F.2d at 309 (noting, “Gisbrecht ... elides
strict presumptions altogether.”). Reducing a
sought-after award is warranted to avoid windfalls especially
“‘[i]f the benefits are large in comparison to
the amount of time counsel spent on the case ....'”
Id. at 310 (quoting Gisbrecht, 535 U.S. at
award Plaintiff's counsel requests, $17, 550.00, is
reasonable and not a windfall. The amount of attorney fees he
seeks is far less than 25% of Plaintiff's past-due
benefits, or $23, 560.75 ($94, 243.00 x .25 = $23, 560.75),
awarded by the Social Security Administration.
parties correctly calculate that Plaintiff's counsel
proposes a hypothetical hourly rate of $675.00 ($17, 550.00
/26 hours = $675.00). Viewing this as the product of the
applicable multiplier of 2, see Hayes, 923 F.2d at
422, translates to an hourly rate of $337.50. This is below
the hourly rates and the hypothetical hourly rates permitted
in a number of well-reasoned decisions in this District.
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 hypothetical 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 hypothetical hourly rate of $750.00);
Metz v. Comm'r, Soc. Sec. Admin., ...