United States District Court, S.D. Ohio, Western Division
YVETTE C. BLACK, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION  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
Michael J. Newman United States Magistrate Judge
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
Doc. 19. Plaintiffs counsel requests an order authorizing a
25% contingency fee award in the amount of $31, 188.50.
Id. at PageID603.
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.
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).
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).
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).
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
the undersigned RECOMMENDS THAT:
1. Plaintiff s counsels' unopposed motion for
attorney's fees under the Social Security Act ...