United States District Court, S.D. Ohio, Western Division, Dayton
Herbert Rice, District Judge
REPORT AND RECOMMENDATIONS 
L. Ovington, Chief 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), and the record as
a whole. Plaintiff's counsel seeks an award of $13,
162.50 in attorney fees under 42 U.S.C. § 406(b)(1).
“The Commissioner submits that either reducing the fee
sought by counsel or awarding the full fee requested would be
within the Court's discretion.” (Doc. #20,
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 Plaintiff. The agreement also documented
counsel's willingness to work on a contingency-fee basis.
This resulted in counsel's acceptance of the risk she
would recover zero attorney fees in the event Plaintiff
received no past-due benefits. See Doc. #19,
case proceeded, the Court held that a remand to the Social
Security Administration for an award of benefits to Plaintiff
was warranted. Plaintiff's counsel states that she has
verified with the Social Security Administration that it has
withheld 25% of Plaintiff's past-due benefits for payment
of attorney fees. Id. at 582. Plaintiff's
counsel also states that the amount of attorney fees she
presently seeks is less than 25% of Plaintiff's total
attorney-fee award Plaintiff's counsel seeks, if granted,
would result in an award based on a hypothetical hourly rate
of $675.00 ($13, 162.50 ÷ 19.50 hours = $675.00). The
Commissioner cites cases in which Judges of this Court and
the U.S. District Court for the Northern District of Ohio
reached differing conclusions about the amount of attorney
fees that constitute a windfall. (Doc. #20, PageID
#s 602-03, and nn.8-10). These differing conclusions lead the
Commissioner to ask this court to “determine an
appropriate fee for counsel's services.”
Id. at 603.
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. Id. (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 808).
award Plaintiff's counsel requests, $13.162.50, is
reasonable and not a windfall. The amount of attorney fees
counsel seeks is far less than 25% of Plaintiff's
past-due benefits awarded by the Social Security
Administration. Further, the hypothetical hourly rate of
$675.00 (calculated above), when viewed 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 2015) Report
and Recommendation (Litkovitz, M.J.), adopted, 2015
WL 1285890 (S.D. Ohio 2015) (Barrett, D. 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 2014) (Smith, J.) (approving hypothetical
hourly rate of $750.00); Metz v. Comm'r, Soc. Sec.
Admin., 2014 WL 1908512, at *1-2 (S.D. Ohio 2014)
(Black, D.J.) (approving hypothetical hourly rate of
$780.25); Pickett v. Astrue, 2012 WL 1806136, at *2
(S.D. Ohio 2012) (Black, D. J.) (approving hypothetical
hourly rate of approximately $709).
addition, the $675.00 per hour hypothetical rate is
reasonable in light of the excellent results Plaintiff's
counsel obtained in this case. This is seen both in the
remand obtained from this Court and in the fact that the
remand resulted in the award to Plaintiff of a large amount
of past-due benefits. See Ackles v. Berrryhill,
3:14cv00249, 2017 WL 1755607, at *2 (S.D. Ohio 2017).
Additionally, counsel for social security plaintiffs bear the
risk-due to contingent nature of their fee agreements-of not
recovering any attorney fees for their efforts. Because of
this, even a somewhat elevated hourly rate would not become
unreasonable under § 406(b) when counsel's skillful
work produces significant benefits for the plaintiff. See
Willis v. Comm'r of Soc. Sec. 2014 WL 2589259, at *6
(S.D. Ohio 2014) (Barrett, D.J.).
the hypothetical hourly rate requested by Plaintiff's
counsel is ...