United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice, District Judge.
AND RECOMMENDATION THAT: (1) THE MOTION BY
PLAINTIFF'S COUNSEL FOR AN ATTORNEY'S FEE AWARD (DOC.
14), AS MODIFIED BY PLAINTIFF'S REPLY BREIF (DOC. 20) BE
GRANTED; (2) FEES, PURSUANT TO 42 U.S.C. § 406(B), IN
THE AMOUNT OF $15, 479.25 BE AWARDED AS FOLLOWS: THE $6,
000.00 SUM NOW HELD IN ESCROW BE RELEASED TO PLAINTIFF'S
COUNSEL AND THE COMMISSIONER BE DIRECTED TO AWARD
PLAINTIFF'S COUNSEL THE DIFFERENCE BETWEEN THESE TWO
AMOUNTS, I.E., $9, 479.25; AND (3) THIS CASE REMAIN
TERMINATED ON THE COURT'S DOCKET
Michael J. Newman, United States Magistrate Judge.
23, 2017, Judge Rice reversed the Commissioner's
non-disability finding and remanded this case to the
Commissioner of Social Security for further proceedings. Doc.
12. Subsequently, Plaintiff received an award of benefits
under the Social Security Act. See doc. 14-4 at
PageID 693-96. Plaintiff's counsel moved for a
twenty-five percent fee award in the amount of $15,
479.25 under 42 U.S.C. §
406(b). Doc. 14. The Commissioner filed a
memorandum in opposition, and Plaintiff filed a reply. Doc.
19, 20. The Court heard oral argument with counsel from both
sides on June 18, 2019. Doc .22. Plaintiff's counsel and
the Commissioner then agreed as follows: (1) the appropriate
sum due and owing to Plaintiff's counsel is $15, 479.25;
(2) of this amount, the $6, 000.00 previously set aside by
the Commissioner, and now held in escrow, should be released
to Plaintiff's counsel; and (3) Plaintiff's counsel
should be paid the difference between these two sums,
i.e., $9, 479.25. Id.
Supplemental Security Income (“SSI”) and/or
Disability Insurance Benefit (“DIB”) cases, the
Court is authorized to award attorney's fees following a
successful Social Security disability appeal. See 42
U.S.C. §§ 402(b)(1), 1383(d)(2). However, such
contingency fees (1) may not exceed 25% of the past-due
benefits which the claimant receives as a result of an
appeal, and (2) must additionally be reasonable for the
services rendered. Gisbrecht v. Barnhard, 535 U.S.
789, 807 (2002).
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).
counsel's requested fee of $15, 479.25, divided by the
38.25 hours spent working on the case, results, in a
hypothetical hourly rate of $404.69, an hourly rate that is
-- without dispute and based upon the materials submitted in
support of Plaintiff's motion -- reasonable in light of
the skill and experience of counsel. Doc. 14 at PageID 681.
Therefore, this Court approves -- and the Commissioner does
not object -- to a total fee award of $15, 479.25. However,
because the Commissioner previously paid $6, 000.00 to
counsel, the parties agreed in the telephone conference held
on June 18, 2019, as follows: (1) the $6, 000.00 sum, which
is now held in escrow, shall be released to Plaintiff's
counsel; (2) Plaintiff's counsel shall be awarded the
amount of $15, 479.25 minus $6, 000.00, i.e., $9,
it is RECOMMENDED THAT: (1) Plaintiff's
motion for attorney's fees under the Social Security Act
(doc. 14) be GRANTED; (2) Plaintiff's
requested total sum of $15, 479.25 be
APPROVED; (3) the $6, 000.00 held in escrow
by Plaintiff's counsel shall be RELEASED
(4) the Commissioner shall PAY
Plaintiff's counsel the difference between these two
sums, i.e., $9, 479.25; and (5) this case remain
TERMINATED on the Court's docket.