United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
AND RECOMMENDATION THAT: (1) THE UNOPPOSED
MOTION BY PLAINTIFF'S COUNSEL FOR AN ATTORNEY'S FEE
AWARD (DOC. 15) BE GRANTED; (2) FEES, PURSUANT TO 42 U.S.C.
§ 406(b), IN THE AMOUNT OF $10, 000.00 BE AWARDED TO
COUNSEL; AND (3) THIS CASE REMAIN TERMINATED ON THE
Michael J. Newman United States Magistrate Judge.
February 24, 2017, Judge Rice reversed the Commissioner's
non-disability finding and remanded this case to the
Commissioner of Social Security for further proceedings. Doc.
11. Subsequently, Plaintiff received an award of benefits
under the Social Security Act. See doc. 18 at PageID
635-67. Thereafter, Plaintiff's counsel sought, and was
awarded in this Court, attorney's fees in the amount of
$3, 441.00 under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). Docs. 13, 14.
Plaintiff's counsel now moves for an award of
attorney's fees in the amount of $10, 000.00 under 42
U.S.C. § 406(b). Doc. 15. The Commissioner did not oppose
Plaintiff's counsel's motion, and the time for doing
so has expired. Accordingly, counsel's unopposed motion
for attorney's fees is ripe for decision.
Social Security 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.
§§ 406(b)(1), 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 requesting a fee award 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. Barnhard, 535 U.S. 789, 807
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).
represents that he and another attorney at his firm worked a
total of 19.40 hours. See doc. 18 at PageID 670-71.
Counsel's requested fee of $10, 000.00 divided by the
19.40 hours spent working on the case results in a
hypothetical hourly rate of $515.46, a rate the Commissioner
has not opposed. Having considered counsel's unopposed
motion and all attachments thereto, and further considering
counsel's experience and the result obtained in this
case, the undersigned agrees that, although the hourly rate
is higher than the Court typically approves, the $10, 000.00
fee sought is reasonable and does not result in an undeserved
it is RECOMMENDED that: (1) the unopposed
motion for attorney's fees by Plaintiff's counsel
(doc. 15) be GRANTED; (2) counsel be
AWARDED the requested sum of $10, 000.00 in
attorney's fees; and (3) this case remain
TERMINATED on the Court's docket.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after
being served with this Report and Recommendation. This period
is not extended by virtue of Fed.R.Civ.P. 6(d) if served on
you by electronic means, such as via the Court's CM/ECF
filing system. If, however, this Report and Recommendation
was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of
Fed.R.Civ.P. 6(d). Parties ...