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Black v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division

January 11, 2018

YVETTE C. BLACK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION [1] THAT: (1) PLAINTIFF'S COUNSELS' UNOPPOSED MOTION FOR ATTORNEY'S FEES (DOC. 19) BE GRANTED; (2) FEES, PURSUANT TO 42 U.S.C. § 406(b), IN THE AMOUNT OF $31, 188.50 BE AWARDED; AND (3) THIS CASE REMAIN TERMINATED ON THE COURT'S DOCKET

          Michael J. Newman United States Magistrate Judge

         On February 23, 2016, Judge Rice reversed the Commissioner's non-disability finding and remanded this case for the payment of benefits. Doc. 14. This case is back before the undersigned on the motion of Plaintiff s counsel seeking an award of attorney's fees under the Social Security Act.[2] Doc. 19. Plaintiffs counsel requests an order authorizing a 25% contingency fee award in the amount of $31, 188.50. Id. at PageID603.

         In support of the motion for attorney's fees, Plaintiffs counsel attaches a contingency fee agreement executed by Plaintiff. Doc. 19-2. Counsel also submits a copy of the Commissioner's award letter evidencing that the fee sought by counsel in this case does not exceed 25% of Plaintiffs past-due benefits. Doc. 19-1 at PageID612-14.

         I.

         In Social Security DIB and SSI cases, the Court is authorized to award attorney's fees following the successful prosecution of a Social Security disability appeal. See 42 U.S.C. §§ 402(b)(1) and 1383(d)(2). However, such fees may not exceed 25% of the past-due benefits which the claimant receives as a result of the appeal. Id. Furthermore, the attorney must show, and the Court must affirmatively find, that a contingency fee sought, even one within the 25% cap, is reasonable for the services rendered. Gisbrecht v. Barnhard, 535 U.S. 789, 807 (2002).

         The Social Security Act "does not displace contingen[cy]-fee agreements, " but rather "calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases." Id. A 25% contingency fee agreement "should be given the weight ordinarily accorded a rebuttable presumption." Rodriquez v. Brown, 865 F.2d 739, 746 (6th Cir. 1989). A reduction of a contingency fee award may be appropriate when counsel acts improperly or provides ineffective assistance, or when "counsel would otherwise enjoy a windfall because of either an inordinately large benefit award or from minimal effort expended." Id. Such an award is not improper merely because it results in an above-average hourly rate. Royzer v. Sec 'y of Health & Human Servs., 900 F.2d 981, 981-82 (6th Cir. 1990).

         As the Sixth Circuit explained:

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 [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. "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 v. Sec 'y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1990).

         Here, counsels' itemized billing statements set forth a total of 58.49 hours representing Plaintiff before this Court. See doc. 19-4. Counsels' requested fee of $31, 188.50 divided by the 42.79 hours spent working on the case results in a hypothetical hourly rate of $533.23. There has been no objection to the reasonableness of the requested fee. In light of counsels' extensive experience in these matters and the hypothetical rates awarded in previous cases, see doc. 19 at PageID607-08, the fee sought is reasonable and does not result in an undeserved windfall. Moreover, no allegations of improper conduct, ineffectiveness or insufficient effort of counsel are present. Quite the contrary: the record reveals that Plaintiffs attorneys - who are experienced Social Security practitioners - diligently and zealously worked on her behalf and did so in a timely fashion.

         II.

         Accordingly, the undersigned RECOMMENDS THAT:

1. Plaintiff s counsels' unopposed motion for attorney's fees under the Social Security Act ...

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