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Strickland v. Commissioner of Social Security

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

July 19, 2018

JASON STRICKLAND, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Walter H. Rice District Judge.

         REPORT AND RECOMMENDATION[1] 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 COURT'S DOCKET

          Michael J. Newman United States Magistrate Judge.

         On 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).[2] 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.

         In 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 (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).

         Counsel 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 windfall.

         II.

         Accordingly, 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.

         NOTICE REGARDING OBJECTIONS

         Pursuant 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 ...


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