United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiffs motion for attorney
fees under the Social Security Act, 42 U.S.C. §
406(b)(1). (Doc. 25). The Commissioner has not filed a
memorandum in opposition to plaintiffs motion.
February 24, 2014, the Court reversed and remanded this case
for further proceedings pursuant to Sentence Four of 42
U.S.C. § 405(g). (Docs. 19, 20). On remand, the
Commissioner determined that plaintiff was disabled as of
January 19, 2009. (Doc. 25 at 2). The Court awarded plaintiff
$2, 805.00 in attorney fees and $400.00 in costs under the
Equal Access to Justice Act ("EAJA"), 28 U.S.C.
§ 2412(d). (Doc. 23). Plaintiff states that he also
received $6, 000.00 in attorney fees for representation at
the administrative level. (Doc. 25 at 2). Plaintiff further
represents that the Commissioner withheld 25 percent of
past-due benefits ($57, 295.00) -or $14, 323.75 - as a
potential contingency fee to be awarded to plaintiffs
counsel. (Id.; Doc. 25-1 at 1). Plaintiff now seeks
an award of $5, 870.75 in attorney fees under § 406(b)
for 16.50 hours of work performed before the Court. The $5,
870.75 fee request represents 25 percent of plaintiffs
past-due benefits ($14, 323.75), less the amount paid by the
Commissioner for work performed at the administrative level
($6, 000), less the amount of EAJA fees counsel previously
received ($2, 453.00).
to 42 U.S.C. § 406(b)(1)(A), a court may award a
prevailing claimant's attorney a reasonable fee not in
excess of 25 percent of past-due benefits recovered by the
claimant for work done in a judicial proceeding. 42 U.S.C.
§ 406(b)(1)(A). See Horenstein v. Sec'y of
H.H.S., 35 F.3d 261, 262 (6th Cir. 1994) (en banc)
(court may award fees only for work performed before the
court, and not before the Social Security Administration).
Fees are awarded from past-due benefits withheld from the
claimant by the Commissioner and may not exceed 25 percent of
the total past-due benefits. Gisbrecht v. Barnhart,
535 U.S. 789, 792 (2002).
determining the reasonableness of fees under § 406(b),
the starting point is the contingency fee agreement between
the claimant and counsel. Gisbrecht, 535 U.S. at
807. When a claimant has entered into a contingency fee
agreement entitling counsel to 25 percent of past-due
benefits awarded, the Court presumes, subject to rebuttal,
that the contract is reasonable. Rodriguez v. Bowen,
865 F.2d 739, 746 (6th Cir. 1989) (en banc). Within the 25
percent boundary, the attorney for the claimant must show
that the fee sought is reasonable for the services rendered.
Gisbrecht, 535 U.S. at 807. The Court should
consider factors such as the character of the representation,
the results achieved, the amount of time spent on the case,
whether the attorney was responsible for any delay, and the
attorney's normal hourly billing rate for noncontingent
fee cases. Id., at 808. See also Rodriquez,
865 F.2d at 746. Additionally, the Court should consider
instances of improper conduct or ineffectiveness of counsel;
whether counsel would enjoy a windfall because of either an
inordinately large award or from minimal effort expended; and
the degree of difficulty of the case. Hayes v. Sec y of
HHS, 923 F.2d 418, 422 (6th Cir. 1990);
Rodriguez, 865 F.2d at 746. An award of 25 percent
of past-due benefits may be appropriate where counsel has
overcome legal and factual obstacles to enhance the benefits
awarded to the client; in contrast, such an award may not be
warranted in a case submitted on boilerplate pleadings with
no apparent legal research. Rodriquez, 865 F.2d at
award of fees under § 406(b) is not improper merely
because it results in an above-average hourly rate.
Royzer v. Sec'y of HHS, 900 F.2d 981, 981-82
(6th Cir. 1990). As the Sixth Circuit determined:
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 [by 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, 923 F.2d at 422.
the fee of $5, 875.00 that plaintiff requests falls within
the 25 percent boundary. Thus, the issue is whether the
requested fee is reasonable. Gisbrecht, 535 U.S. at
807. Plaintiff asserts the requested attorney fee is
reasonable given attorney Henry D. Acciani's experience
and background, which includes admission to several bars and
representing clients in Social Security cases since 1979.
(Doc. 25 at 3-4). Plaintiff has also submitted an itemized
billing sheet demonstrating that her attorney performed a
total of 16.30 hours of work on the case in this Court.
(Id. at 6).
the $5, 875.00 requested by plaintiff by the 16.50 hours
counsel worked on this case before the Court yields a
hypothetical hourly rate of $356.06. In determining whether
counsel "would enjoy a windfall because of either an
inordinately large benefit or from minimal effort expended,
" Hayes, 923 F.2d at 422 (quoting
Rodriquez, 865 F.2d at 746), the Court notes that
"a windfall can never occur when, in a case where a
contingent fee contract exists, the hypothetical hourly rate
determined by dividing the number of hours worked for the
claimant into the amount of the fee permitted under the
contract is less than twice the standard rate for such work
in the relevant market." Id. As the Sixth
Circuit explained in Hayes:
[A] multiplier of 2 is appropriate as a floor in light of
indications that social security attorneys are successful in
approximately 50% of the cases they file in the courts.
Without a multiplier, a strict hourly rate limitation would
insure that social security attorneys would not, averaged
over many cases, be compensated adequately.
A calculation of a hypothetical hourly rate that is twice the
standard rate is a starting point for conducting the
Rodriquez analysis. It provides a floor, below which
a district court has no basis for questioning, under the
second part of Rodriquez's windfall rule for