United States District Court, S.D. Ohio, Eastern Division
CLIFFORD H. DOWLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Deavers, Magistrate Judge
OPINION & ORDER
ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney Fees pursuant to 42 U.S.C. § 406(b) of the
Social Security Act. (ECF No. 28). For the reasons set forth
below, Plaintiff's Motion for Attorney Fees is
7, 2016, Plaintiff filed suit against the Commissioner of
Social Security seeking a reversal of the Commissioner's
determination that he was not entitled to disability
benefits, and an award of annual and past due benefits. (ECF
No. 3). On April 26, 2017, this Court granted a Joint Motion
to Remand and remanded the action to the Administrative Law
Judge for further proceedings. (ECF No. 27). On remand,
Plaintiff was awarded $100, 524.00 in past-due benefits, with
$25, 131.00, equal to 25% of the past-due award, withheld for
attorney's fees. (ECF No. 28). Plaintiff's attorney
now comes before this Court seeking attorneys' fees in
the amount of $5, 500.00 for the 14.90 hours of work
representing Plaintiff in this Court. Plaintiff's counsel
seeks to refund the EAJA fee amount of $3, 049.00 to
Plaintiff directly, upon payment of the §406(b) fees.
(ECF No. 20.)
STANDARD OF REVIEW
cases in which a Plaintiff is represented in federal court
and receives a favorable judgement, the court may award a
reasonable fee for an attorney's representation. 42
U.S.C. § 406(b). If awarded, the attorneys' fees are
to be paid out of a plaintiff's past-due benefits. 42
U.S.C. § 406(b). Federal courts review such requests for
attorney fees under §406(b) for reasonableness, acting
as an independent check and seeking to ensure reasonable
results. Gisbrecht v. Barnhart, 535 U.S. 789, 796
(2002). This review should evaluate the character of the
representation and the results the representative achieved.
Id. at 808. Although §406(b) does not displace
contingent-fee agreements as the primary means by which fees
are set for successfully representing Social Security
benefits claimants in court, Congress has rendered
unenforceable agreements which provide for fees in excess of
25 percent of the past-due benefits. Id. at 807.
Sixth Circuit, an attorney who represents the claimant before
the Commissioner and in court may separately receive fees for
both representations, meaning the attorney may receive total
fees exceeding twenty-five percent of the claimant's
benefits award. Booth v. Commissioner of Social
Sec., 645 Fed.Appx 455, 457 (6th Cir. 2016) (citing
Horenstein v. Sec'y of Health & Human
Servs., 35 F.3d 261, 262-63 (6th Cir.1994)). The Sixth
Circuit has additionally limited instances in which courts
may reduce fees to only two circumstances: “(1) those
occasioned by improper conduct or ineffectiveness of counsel;
and (2) situations in which counsel would otherwise enjoy a
windfall because of either an inordinately large benefit
award or from minimal effort expended.” Rodriquez
v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989). As such,
25% contingency fee contracts “should be given the
weight ordinarily accorded a rebuttable presumption.”
Id. at 746.
LAW AND ANALYSIS
instant case, Plaintiff's attorney is entitled to a fee
award as the representative responsible for Plaintiff's
obtaining a favorable judgment following his appeal in this
Court. Gisbrecht v. Barnhart, 535 U.S. 789, 795
(2002). This Court is tasked with evaluating the
reasonableness of Plaintiff's request for a fee award of
$5, 500.00 for the 14.90 hours spent representing Plaintiff
in this Court. This request represents a rate of $369.13 per
hour for his work in this case. Plaintiff's counsel
contends that this award is reasonable when taking into
account his qualifications, prior experience, the
considerable risk taken in representing Plaintiff, and the
challenging nature of the case. (ECF No. 28.)
Sixth Circuit has held that “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. Secretary of Health &
Human Services, 923 F.2d 418, 422 (6th Cir. 1991). An
hourly rate that is twice the standard rate is a
“floor”, and thus only in cases in which the
calculated hourly rate is above the double-the-standard-rate
floor may the court consider “arguments designed to
rebut the presumed reasonableness of the attorney's
fee.” Id. at 422. In downtown Columbus, the
average hourly rate for legal work is $275 and the average
rate for work on Social Security cases in Ohio is $250.
The Economics of Law Practice in Ohio in 2013, The Ohio
State Bar Association (2013). As such, the floor in the
present case, determined by doubling the standard rate of the
hourly average, would be $550 for a firm located in downtown
Columbus, and $500 per hour for a Social Security case
adjudicated in Ohio.
instant case, Plaintiff has requested a rate of $390.13 per
hour which is lower than the calculated floor in the present
case. The hourly rate requested by Plaintiff's counsel is
reasonable in light of Plaintiff counsel's favorable
results, the skill and experience of counsel, and his effort
in the present case. See, e.g., Lery v.
Commissioner of Social Security, 2019 WL 1856278, at *1
(S.D. Ohio Apr. 25, 2019) (approving hypothetical hourly rate
of $530.22); Bush v. Commissioner of Social
Security, 2019 WL 1300311, at *2 (S.D. Ohio Mar. 21,
2019) (approving hourly rate of $599.00); Barrett v.
Commissioner of Social Security, 2018 WL 4846263, at *2
(S.D. Ohio Oct.5, 2018) (approving hourly rate of $656.20).
Plaintiff counsel admits he caused delay in the instant case
due to the filing of several Motions for Extension of Time.
However, Plaintiff properly deducted the amount he would have
received as a percentage of Plaintiff's past-due benefits
that increased as a result from Plaintiff's counsel's
delays. Although the delays were meaningful, neither of the
two circumstances provided by the Sixth Circuit that permit
the reduction of fees exist in the present case.
Counsel's representation of his client was neither
improper or ineffective and the requested amount of $5,
500.00 does not constitute a windfall. Additionally, it does
not appear that Plaintiff's counsel expended minimal
effort in his representation of Plaintiff in this case.
Finally, this Motion is not contested by the Commissioner.
Therefore, this Court is persuaded that the requested award
for attorney's fees totaling $5, 500.00 for 14.90 hours
at $390.13 per hour satisfies the requirements of 42 U.S.C.
§ 406(b) and is a reasonable reward in the present case.
foregoing reasons, Plaintiff's Motion for Attorney Fees
is GRANTED. Plaintiff's attorney will
receive $5, 500 of the past-due benefits award as
compensation for his services related to the proceedings in