United States District Court, S.D. Ohio, Western Division
DIANA M. TRIMBLE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on plaintiffs motion for attorney
fees under the Social Security Act, 42 U.S.C. §
406(b)(1) (Doc. 29) and plaintiffs addendum to its
motion for approval of attorney fees (Doc. 34).
The Commissioner filed a response to plaintiffs addendum
indicating no opposition to the motion. (Doc. 35).
6, 2017, the undersigned recommended that this case be
reversed and remanded for further proceedings pursuant to
Sentence Four of 42 U.S.C. § 405(g). (Doc. 18). On
September 18, 2017, the District Judge rejected the
Commissioner's objections and adopted the Report and
Recommendation in its entirety. (Doc. 21). On remand, a new
hearing was held and the ALJ issued a favorable decision on
August 6, 2018, finding plaintiff disabled as of November 19,
2012. (Doc. 29 at 3). On January 8, 2018, the Court awarded
plaintiff $4, 080.00 in attorney fees and S400.00 in costs
under the Equal Access to Justice Act ("EAJA"), 28
U.S.C. § 2412(d). (Doc. 24).
states that she petitioned for $6, 000.00 in attorney fees
for representation at the administrative level. (Doc. 34 at
Plaintiff further states that pursuant to §
406(b)(1)(A), the Commissioner withheld 25 percent of
past-due benefits or $11, 763.02-as a potential contingency
fee to be awarded to plaintiffs counsel. (Id. at 2,
n.2). Plaintiff now seeks an award of $1, 283.02 in attorney
fees under § 406(b) for 32 hours of work performed
before the Court. (Doc. 29 at 4, Doc. 34 at 2). The $1,
283.02 fee request represents 25 percent of plaintiffs
past-due benefits (SI 1, 763.02), less the amount plaintiff
petitioned for work performed at the administrative level
($6, 000.00), less the EAJA fee previously awarded by the
Court ($4, 480.00) (to be credited to plaintiff).
to 42 U.S.C. § 406(b)(1)(A), a court may award a
prevailing claimant's attorney a reasonable fee not in
excess of 25 percent of past-due benefits recovered by the
claimant for work done in a judicial proceeding. 42 U.S.C.
§ 406(b)(1)(A). See Horenstein v. Sec'y of
H.H.S., 35 F.3d 261, 262 (6th Cir. 1994) (en banc)
(court may award fees only for work performed before the
court, and not before the Social Security Administration).
Fees are awarded from past-due benefits withheld from the
claimant by the Commissioner and may not exceed 25 percent of
the total past-due benefits. Gisbrecht v. Barnhart,
535 U.S. 789, 792 (2002).
determining the reasonableness of fees under § 406(b),
the starting point is the contingency fee agreement between
the claimant and counsel. Gisbrecht, 535 U.S. at
807. When a claimant has entered into a contingency fee
agreement entitling counsel to 25 percent of past-due
benefits awarded, the Court presumes, subject to rebuttal,
that the contract is reasonable. Rodriguez v. Bowen,
865 F.2d 739, 746 (6th Cir. 1989) (en banc). Within the 25
percent boundary, the attorney for the claimant must show
that the fee sought is reasonable for the services rendered.
Gisbrecht, 535 U.S. at 807. The Court should
consider factors such as the character of the representation,
the results achieved, the amount of time spent on the case,
whether the attorney was responsible for any delay, and the
attorney's normal hourly billing rate for noncontingent
fee cases. Id. at 808. See also Rodriguez,
865 F.2d at 746. Additionally, the Court should consider
instances of improper conduct or ineffectiveness of counsel;
whether counsel would enjoy a windfall because of either an
inordinately large award or from minimal effort expended; and
the degree of difficulty of the case. Hayes v. Sec 'y
of HHS, 923 F.2d 418, 422 (6th Cir. 1990);
Rodriquez, 865 F.2d at 746. An award of 25 percent
of past-due benefits may be appropriate where counsel has
overcome legal and factual obstacles to enhance the benefits
awarded to the client; in contrast, such an award may not be
warranted in a case submitted on boilerplate pleadings with
no apparent legal research. Rodriquez, 865 F.2d at
award of fees under § 406(b) is not improper merely
because it results in an above-average hourly rate.
Royzer v. Sec 'y of HHS, 900 F.2d 981, 981-82
(6th Cir. 1990). As the Sixth Circuit determined:
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 [by 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, 923 F.2d at 422. See also Lasley v. Comm
'r of Soc. Sec, 111 F.3d308, 309 (6th Cir. 2014).
acknowledges that the Social Security Administration withheld
$11, 763.02 -25% of plaintiff s past-due benefits - from
those benefits for attorney fees. (Doc. 34 at 2, n.2).
Plaintiff has petitioned the Administration for an award of
S6, 000.00 for work performed at the administrative level,
leaving a potential contingency fee amount of 55, 763.02.
Even though plaintiff has heen awarded EAJA fees of $4,
480.00, the effective hourly rate must be based on the total
of the remaining potential contingency fee of $5, 763.02,
without reduction of the EAJA fee award. See Ringel v.
Comm 'r of Soc. Sec., 295 F.Supp.3d 816, 839-40
(S.D. Ohio 2018). As explained in Ringel:
It is true that the EAJA's Savings Clause bars
duplicative awards, and that an attorney who recovers a
second, larger fee under 42 U.S.C. § 406(b) must refund
the duplicate EAJA fee to the claimant. However, the
effective hourly rate can be calculated only prior to the
subtraction of the duplicate prior EAJA award; subtracting
the EAJA award from the total fee sought is incorrect, as the
EAJA fee is a wash. Here, [the] . . . effective hourly rate
is calculated by reference to [the total fee requested]
(including her prior EAJA award) divided by the total number
of hours expended. The return of an EAJA fee is not a
compromise and does not reduce the effective hourly fee
sought but only prevents double recovery for the same work.
Id. (footnotes omitted). Thus, the proper approach
is to perform the Hayes calculation using the full
25% contingency amount of $5, 763.02, without reducing that
amount by the prior EAJA fee award. The Court will therefore
treat plaintiffs request for a § 406(b) fee award as a
request for the full contingency amount of $5, 763.02 in
analyzing whether the fee request is reasonable.
the fee of $5, 763.02 that plaintiff requests falls within
the 25 percent boundary. Thus, the issue is whether the
requested fee is reasonable. Gisbrecht, 535 U.S. at
807. Plaintiff asserts the requested attorney fee is
reasonable given attorney Henry D. Acciani's experience
and background, which includes admission to several bars and
representing clients in Social Security cases since 1979.
(Doc. 29 at 3-4). Plaintiff has also submitted an itemized
billing sheet demonstrating that his attorney performed a
total of 32 hours of work on the case in this Court.
(Id. at 6; Doc. 34 at 4). Plaintiff has also
submitted a copy of the contingency fee agreement he entered
into with counsel under which he agreed to pay counsel a
contingency fee of 25% of past-due benefits. (Doc. 29 at 7).
the $5, 763.02 requested by plaintiff by the 32 hours counsel
worked on this case before the Court yields a hypothetical
hourly rate of $180.09. In determining whether counsel
"would enjoy a windfall because of either an
inordinately large benefit or from minimal effort
expended," Hayes, 923 F.2d at 422 (quoting
Rodriquez, 865 F.2d at 746), the Court notes that
"a windfall can never occur when, in a case where a
contingent fee contract exists, the hypothetical hourly rate
determined by dividing the number of hours worked for the
claimant into the amount of the fee permitted ...