United States District Court, S.D. Ohio, Western Division
DEBORAH A. RABONG, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Stephanie K. Bowman, United States Magistrate Judge.
October 16, 2014, Plaintiff Deborah Rabong filed this Social
Security appeal in order to challenge the Defendant's
finding that she was not disabled. See 42 U.S.C.
§405(g). The parties subsequently filed a joint motion
to remand for further development of the record, which was
granted by this Court, as was a timely filed motion for
attorney's fees filed under the Equal Access for Justice
Act. (See Docs. 16, 18, 19, 19). Following remand,
an Administrative Law Judge (“ALJ”) issued a
favorable decision, indicating that Plaintiff was entitled to
past due benefits in the amount of $29, 098.00 for November
2011 through May 2016. (Doc. 20-1 at 2). Plaintiff's
counsel has now filed a motion seeking a fee award of 25% of
the past due benefits, the maximum permitted under the Social
Security Act, 42 U.S.C. §406(b).
pending motion has been referred to the undersigned for
initial review and a Report and Recommendation. I now
recommend that the motion be granted in full.
states that Plaintiff signed a contingency fee agreement,
permitting payment up to the statutory maximum, or $7,
274.50. Unlike an Equal Access to Justice Act award that is
paid directly by the United States, a fee award under
§406(b) impacts the social security claimant, because it
is paid directly out of her past benefits award. However,
also in contrast to the EAJA which permits payment of
attorney's fees upon judicial remand alone, a
§406(b) fee can be awarded only if the agency
awards benefits after remand.
appropriately acknowledges that the previously received EAJA
award must be applied as an offset against any fee awarded
under 42 U.S.C. § 406(b), in order to avoid a
double-recovery for the same work. In addition to the prior
EAJA award, counsel acknowledges that he has received an
additional payment of $1, 909.00 from the Payment Center.
Therefore, while seeking a total award of $7, 274.50, most of
that sum has already been paid to counsel and he seeks only
the additional sum of $2585.50 in the present motion.
the Commissioner has filed a response indicating no
opposition to the motion, this Court has an affirmative duty
under Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct.
1817 (2002) and related Sixth Circuit authority to examine
the “reasonableness” of the amount of fees sought
under §406(b). As Plaintiff acknowledges, a contingency
fee may be reduced if the fee requested would constitute a
windfall. Gisbrecht, 535 U.S. at 808, citing
Rodriguez v. Sec'y of HHS, 865 F.2d 739, 746-747
(6th Cir. 1989) (en banc). The Court's
affirmative duty to examine the fee for reasonableness
includes an examination of the timeliness of the motion.
respect to timeliness, Plaintiff's motion indicates that
she received a fully favorable decision after remand on
May 26, 2016. However, counsel did not file
the motion seeking a fee award until May 4,
2017. Since January 1, 2016, Local Rule 54.2(b) has
stated: “An attorney seeking fees awarded under §
206(b) of the Social Security Act, 42 U.S.C. § 406(b),
must file a motion for fees no later than forty-five days
after entry of judgment or the date shown on the face of the
social security certificate award (notice of award),
whichever is later.” In this case, counsel has attached
what appears to be an amended Notice of “Change in
Benefits” rather than the original Notice of Award. The
Notice attached to the motion indicates that it is intended
to replace “the attorney fee paragraphs on your
award notice dated August 17, 2016 and the notice dated
January 14, 2017.” (Doc. 20-1 at 1, emphasis added)
has long experience representing social security claimants,
and other attorneys in his firm appear frequently in this
Court to appeal adverse social security decisions. See
e.g. Ferry v. Com'r of Soc. Sec., 2016 WL 4471672
(S.D. Ohio August 4, 2016), adopted at 2016 WL 4447819 (S.D.
Ohio Aug. 24, 2016) (expressly warning attorney in same firm
of enactment of local rule).
the question of timeliness evident from the face of the
motion and the fact that Local Rule 54.2(b) was enacted more
than two years ago, the undersigned will recommend that the
motion be conditionally granted in full on this one
occasion. In counsel's favor, the issue of
timeliness was not raised by the Commissioner, and it is
conceivable that counsel could present a colorable argument
that the time should be tolled based upon the Agency's
amendments to the original notice. Accord, e.g.,
Ferry (applying equitable tolling “on this one
occasion” to grant a motion for fees that was untimely
under Local Rule 54.2(b)); Hicks v. Com'r, Case
No. 1:15-cv-110 (reducing fee award under 406(b) where motion
was filed 36 days late, and would constitute a windfall);
but see Iames v. Com'r, Case No. 1:12-cv-829
(denying untimely § 406(b) motion in its entirety where
counsel had been warned to comply with Local Rule 54.2(b)).
Moreover, counsel obviously achieved excellent results and -
unlike other counsel in his firm - does not appear to have
been expressly warned on any prior occasion that a failure to
timely file his § 406(b) motion could result in a
reduction or denial of his fee. In addition, the Court
calculates the hypothetical hourly rate to be within the
bounds of a “reasonable” range under the unique
circumstances of this case ($519.60). But see Clark v.
Com'r, Case No. 14-330 (reducing § 406(b) award
from hypothetical hourly rate of $554.50 to $360 per hour,
based in part upon untimeliness of motion in violation of
Local Rule 54.2(b)); see also Hicks v. Com'r,
Case No. 1:15-cv-110 (reducing fee award under 406(b) where
motion was filed 36 days late, and would constitute a