United States District Court, S.D. Ohio, Western Division
MARK N. VICORY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR ALLOWANCE
OF ATTORNEYS' FEES (DOC. 16)
Timothy S. Black, United States District Judge
civil action is before the Court on Plaintiffs Motion for
Allowance of Attorneys' Fees. (Doc. 16).
by and through counsel, asks the Court to award Ms. Marilyn
R. Donoff ("Counsel" or "Ms. Donoff)
attorneys' fees. (Doc. 16). Counsel represented Plaintiff
in a successful Social Security disability benefits appeal.
(Doc. 14). As a result of Counsel's representation,
Plaintiff (and his dependents) received a total of $138,
951.00 in Social Security disability benefits. (Doc. 16 at 3;
see Docs. 16-4, 16-5, 16-6, 16-7, 16-8).
and Counsel maintained a contingent fee agreement, under
which Plaintiff agreed to pay Counsel, either $2, 000 or 25%
of any award payable to him (and his dependents), whichever
was greater. (Doc. 16-3 at 1). Counsel and her staff worked
the following hours on Plaintiffs case: Ms. Donoff at 28.75
hours, Ms. Gerhardt at 33.25 hours, and Ms. Adams at 6.75
hours. (Doc. 16 at 4; Doc. 16-1 at 3; Doc. 16-2).
filed this motion on May 24, 2017. (Doc. 16). In this motion,
Plaintiff asks the Court to award Counsel $30, 012.50 in
attorneys' fees, under the 25% contingent fee
(See Id. at 4). While the Commissioner has not filed
a stipulation in support of the requested fees, the
Commissioner has not filed a brief in opposition to the
requested fees. (See id.).
STANDARD OF REVIEW
206(b)(1) of the Social Security Act provides:
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court may determine and allow as part of its
judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment....
42 U.S.C. § 406(b)(1).
contingent fee agreement is entitled to "a presumption
of reasonableness." Madura v. Comm V, Soc.
Sec. Admin., No. 3:11-CV-l 18, 2013 WL 1386330, at *1
(S.D. Ohio Apr. 4, 2013) (citing Rodriguez v. Bowen,
865 F.2d 739, 746 (6th Cir. 1989)). However, this presumption
of reasonableness is not "binding on the court."
Id. (citing citing Rodriguez, 865 F.2d at
746). The attorney must show that the 25% contingency fee
agreement is reasonable for the services rendered.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). A
reduction is appropriate if the attorney provided ineffective
assistance, or if the attorney would enjoy a
"windfall." Rodriguez, 865 F.2d at 746.
contingent fee agreement is not unreasonable simply because
it results in an above-average hourly rate. See Royzer v.
Sec 'y of Health & Human Servs., 900 F.2d 981,
981-82 (6th Cir. 1990). Indeed, the Sixth Circuit has held
that the fee requested under a 25% contingent fee agreement
"can never constitute a 'windfall' unless and
until the hypothetical hourly rate exceeds 'twice the
standard rate for such work in the relevant
market.'" Bocook v. Astrue, No.
3:08-CV-309, 2013 WL 992515, at *1 (S.D. Ohio Mar. 13, 2013)
(quoting Hayes v. Sec'y of Health & Human
Servs., 923 F.2d418, 422 (6th Cir. 1990)). This
multiplier of two is called the "Hayes
rational for the Hayes floor is as follows:
[A] multiplier of [two] 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 ...