United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman, United States Magistrate Judge.
October 1, 2014, Plaintiff Sandra Daniel 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). On September 21, 2015, the Court reversed the
adverse disability decision, remanding to the agency for
further development of the administrative record. (Doc. 13).
Plaintiff's counsel subsequently was awarded payment of
an attorney's fee under the Equal Access for Justice Act
(“EAJA”), in the amount of $8, 190.00. (Doc. 17).
remand, on December 21, 2016, the Social Security
Administration notified Plaintiff that it had determined she
was disabled and entitled to an award of past-due benefits
for the period of August 2011 through December 2016. (Doc. 19
at 8). Plaintiff's counsel promptly filed a motion
seeking an additional attorney's fee award of 25% of the
past due benefits, pursuant to a contingency fee agreement,
and the authority provided under 42 U.S.C. §406(b). The
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.
signed a contingency fee agreement, permitting payment up to
the statutory maximum of 25% of the past-due benefits award,
a sum that in this case equals $17, 448.95. (Doc. 19 at 7).
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
appropriately acknowledges that his previously received EAJA
award must be refunded or 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 of $8, 190.00, counsel acknowledges receipt of an
additional payment of $6, 000.00 for his work at the
administrative level, pursuant to 42 U.S.C. § 406(a).
Therefore, while seeking a total fee award of $17, 448.95,
most of that sum has already been paid to counsel and he
seeks only the additional sum of $3, 258.95 in the present
the Commissioner filed no response, 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). A contingency fee
may be reduced if the fee requested would constitute a
windfall. Id., 535 U.S. at 808, citing Rodriguez
v. Sec'y of HHS, 865 F.2d 739, 746-747 (6th Cir.
1989) (en banc).
undersigned has closely examined the fee petition and
concludes that counsel's motion should be granted in
full, because it was timely filed and does not reflect a
windfall. The motion was filed just days after counsel's
receipt of the Notice of Award, well within the allotted
45-day period permitted under local rule. See Local
addition, the requested fee is clearly reasonable. Counsel
has long experience representing social security claimants,
and obviously achieved an excellent result for his client in
this case. The requested fee for work performed in this
Court, when divided into the number of hours expended,
amounts to an effective hourly rate of $283.00 per hour.
Counsel previously received an EAJA fee for the exact same
work that represented a rate of $185.00 per hour. Thus,
counsel's current request reflects a contingency fee
award that is less than two times the rate he was previously
awarded. As such, the award is “per se
reasonable” under controlling Sixth Circuit law.
See Hayes v. Secretary of Health and Human Servs.,
923 F.3d 418, 421-22 (6th Cir. 1990).
Conclusion and Recommendation
reasons stated, it is RECOMMENDED THAT
Plaintiff's motion for an award of attorney's fees
under 42 U.S.C. § 406(b) (Doc. 19) should be
GRANTED, with counsel to be awarded an
additional attorney's fee in the amount of $3, 258.95,
representing a total contingency fee ...