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. #20),
the Commissioner's Response (Doc. #21), and the record as
a whole. Plaintiff's counsel seeks an award of $11,
958.00 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. # 21,
PageID # 1029).
this case began, Plaintiff and her 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 he
would recover zero attorney fees in the event Plaintiff
received no past-due benefits. See Doc. #20,
case proceeded, the parties stipulated that a remand for
further proceedings was warranted, and Judgment was entered
accordingly. On remand, the Social Security Administration
awarded Plaintiff past-due benefits and withheld from those
benefits $11, 974.50 for payment of attorney fees.
Id. at 967, 978. The Administration also withheld
$4, 553.50 from the payment of attorney fees from the
Disabled Widow's Benefits payable to Plaintiff.
Id. at 967, 987.
on 42 U.S.C. § 406(b), Plaintiff's counsel presently
seeks approval of a $11, 958.00 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 $581.90 ($11, 958.00 ÷ 20.55 hours =
$581.90). 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.
#21, PageID #s 1028-29, nn.4-6). These differing
conclusions lead the Commissioner to ask this court to
“determine an appropriate fee for counsel's
services.” Id. at 1029.
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, $11, 958.00, 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
$581.90 (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 $290.95. This is not
unreasonably above the hourly rate used and permitted in the
well-reasoned decision in Pencil v. Astrue, No.
3:10-cv-394, 2012 WL 4364273, at *2 (S.D. Ohio Sept. 24,
2012). As a result, the proposed hypothetical hourly rate in
this case ($581.90) does not constitute a windfall to
Plaintiff's counsel. Accord Wright v. Astrue,
No. 3:09-cv-115, 2012 U.S. Dist. LEXIS 93489, at *6-7, 2012
WL 2700393, at *2-3 (S.D. Ohio July 6, 2012) (Merz, M.J.),
adopted by 2012 U.S. Dist. LEXIS 103014 at *1, 2012 WL
3023258 at *1 (S.D. Ohio July 24, 2012) (Rice, D.J.)
(approving a hypothetical hourly rate of $539.57).
the $290.50 hourly rate is not excessively above the median
$223 hourly rate used by attorneys working in Dayton, Ohio in
or near 2012. See The Economics of Law Practice in Ohio
in 2013, Ohio State Bar Association. It is also
relatively near the $250 hourly rate used by the 75th
percentile of attorneys practicing in Dayton before, during,
and after 2012. See id.; see also Pencil,
2012 WL 4364273 at *2. And, the extensive experience (over 40
years) Plaintiff's counsel has in litigating social
security cases and the skill he exhibited in litigating this
case are commensurate with an hourly rate near the 75th
percentile of attorneys in Dayton. See Pencil, 2012
WL 4364273 at *2.
the hypothetical hourly rate requested by Plaintiff's
counsel is ...