United States District Court, S.D. Ohio, Western Division, Dayton
ORDER AND ENTRY: (1) GRANTING PLAINTIFF'S
COUNSEL'S MOTION FOR AN ATTORNEY'S FEE AWARD UNDER 42
U.S.C. § 406(b) (DOC. 17); (2) AWARDING PLAINTIFF'S
COUNSEL $10, 329.00 IN FEES; AND (3) DIRECTING
PLAINTIFF'S COUNSEL TO REFUND TO PLAINTIFF, WITHIN
FOURTEEN DAYS, THE EAJA FEE PREVIOUSLY AWARDED TO
MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
February 2, 2018, the Court reversed the Commissioner's
non-disability finding and remanded this case to the
Commissioner of Social Security for further proceedings. Doc.
13. On remand, Plaintiff received an award of benefits under
the Social Security Act. See doc. 17 at PageID
1127-32. Thereafter, Plaintiff's counsel sought, and was
awarded in this Court, attorney's fees in the amount of
$4, 500.00 under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). Docs. 15, 16.
Plaintiff's counsel now moves for an award of
attorney's fees in the amount of $10, 329.00 under 42
U.S.C. § 406(b). Doc. 17. The Commissioner does not oppose
Plaintiff's motion. PageID 1119.
Supplemental Security Income (“SSI”) and/or
Disability Insurance Benefit (“DIB”) 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). 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 must show, and the Court must
affirmatively find, that a contingency fee sought, even one
within the 25% cap, is reasonable for the services rendered.
Gisbrecht v. Barnhart, 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 represents working a total of 25.5 hours before this
Court. Doc. 17 at PageID 1123. Counsel's requested fee of
$10, 329.00, divided by the 25.5 hours spent working on the
case, results, as noted, in a hypothetical hourly rate of
$405.06, an hourly rate that is -- based upon the material
submitted in support of Plaintiff's motion -- reasonable
in light of the skill and experience of counsel.
upon the foregoing: (1) Plaintiff's motion for a §
406(b) fee award (doc. 17) is GRANTED; (2)
Plaintiff's counsel is AWARDED the
requested sum of $10, 329.00 in attorney's fees; (3)
Plaintiff's counsel are ORDERED to
reimburse to Plaintiff, within FOURTEEN (14)
DAYS, the EAJA fee previously awarded to counsel;
and (4) as no further matters remain pending for review, this
case remains TERMINATED upon the Court's
IS SO ORDERED.
 42 U.S.C. § 406(b) permits an
award of attorney's fees for successful Disability
Insurance Benefits (“DIB”) claims under Title II
of the Social Security Act. Supplemental Security Income
(“SSI”) benefits are awardable pursuant to Title
XVI of the Social Security Act, which incorporates 42 U.S.C.
§ 406(b) by reference, and likewise permits the award of
attorney's fees for successful SSI claims. See
42 U.S.C. § 1383(d)(2); Napier v. Comm'r of Soc.
Sec., 190 Fed.Appx. 458, ...