United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.
motion for attorney's fees has been referred to the
undersigned for initial review. I recommend that the
unopposed motion be GRANTED, but write further to provide
guidance in future cases.
above-captioned case represents Plaintiff Lonelle
Pennington's second judicial appeal to challenge the
Defendant's denial of application for Supplemental
Security Income payments under Title XVI of the Social
Security Act. Plaintiff filed her first appeal in this Court
in 2013, docketed as Case No. 1:13-cv-591. In 2014, this
Court reversed the non-disability finding and remanded for
further development of the record. Plaintiff sought and was
granted an award of attorney's fees, to be paid by the
Commissioner under the Equal Access to Justice Act
(“EAJA”), in Case No. 1:13-cv-59.
remand, the ALJ issued a second adverse decision. After the
Commissioner declined additional review, Plaintiff initiated
this second lawsuit, again seeking judicial relief from the
adverse decision. In September 2018, the Court reversed and
remanded for an immediate award of SSI benefits. (Docs. 18,
21). On February 21, 2019, the Court granted Plaintiff's
motion for EAJA fees in the above-captioned case, since
Plaintiff was again a prevailing party. (Docs. 23, 25).
3, 2019, Plaintiff's counsel filed a second motion for
fees in this case, seeking an additional award under the
provisions of the Social Security Act, 42 U.S.C.
§406(b). On July 11, 2019, the Commissioner filed a
one-sentence response that states that the Commissioner does
not object to the counsel's motion.
the undersigned appreciates the Commissioner's lack of
objection, the Commissioner has no financial interest in
whether or not a motion for § 406(b) fees is granted.
Unlike EAJA fee awards that are paid by the Commissioner, the
current motion seeks fees that will be paid directly by the
Plaintiff from her past-due benefits award. Courts therefore
have an “affirmative obligation… to determine
whether a fee award is ‘reasonable,' even when
supported by an unopposed motion that relies on a standard
contingency fee agreement within the 25% statutory
cap.” Ringel v. Com'r of Soc. Sec., 295
F.Supp.3d 816, 822 (S.D. Ohio 2018) (citing Lowery v.
Com'r of Soc. Sec., 940 F.Supp.2d 689, 691 (S.D.
Plaintiff's counsel successfully pursued and won for his
client a large award of past-due SSI benefits under Title
XVI. However, counsel did not pursue an award of past-due DIB
benefits under Title II. Because Plaintiff was not awarded
DIB benefits, this Court may not award attorney's fees
under 42 U.S.C. § 406(b). The referenced statutory
provision “covers only attorneys whose clients bring
successful claims under Title II of the Social Security
Act.” Napier v. Commissioner, 190 Fed.Appx.
458, 459-60 (6th Cir.2006); see also generally Bowen v.
Galbreath, 108 S.Ct. 892 (1988) (citing 42 U.S.C. §
406(b)); McCarthy v. Sec'y of Health and Human
Servs., 793 F.2d 741 (6th Cir. 1986).
fact that no award may be made under 42 U.S.C. § 406(b)
does not mean that Plaintiff's counsel must go
uncompensated. Rather, Congress has provided for compensation
through a parallel statute applicable to Title XVI.
See 42 U.S.C. §1383(d)(2). In the interests of
justice, the undersigned construes counsel's motion under
§1383(d). Because §1383(d) contains nearly
identical language and is intended to produce the same
result,  the same case law and analysis applies to
a motion filed under that statute.
Ringel, this Court meticulously set forth the
“guideposts” most frequently used to determine
whether a fee is “reasonable” under §406(b).
The provision for an attorney fee award to be paid under
§1383(d) requires the same “reasonableness”
determination, with all awards subject to the same 25%
statutory cap. The relevant guideposts to determine
reasonableness include: (1) the Hayes
test; (2) the amount of administrative and/or
judicial delay; (3) the quality and quantity of attorney
hours expended; (4) whether counsel has compromised his/her
fee; (5) whether the Commissioner has filed any opposition;
and (6) a small number of less “common” factors.
Based upon the time period that elapsed between
Plaintiff's first appeal in this Court and the ultimate
grant of benefits, Plaintiff's past-due benefits award
had grown to the sum of $60, 573.92 at the time the final
award was determined. Calculating the statutory cap of 25% of
that past-due benefits award yields a maximum possible fee of
instant case is somewhat unique insofar as counsel seeks
compensation not only for the time expended on the
above-captioned case, but also for time spent obtaining
remand in the first case that he filed on Plaintiff's
behalf. Plaintiff's counsel has attached as exhibits to
the motion a contingency fee agreement that authorizes a 25%
fee of past-due benefits in the instant case, a Notice of
Award bearing the date of April 22, 2019, and counsel's
time records for both cases. (See Doc. 30 at 7-10).
In order to avoid a duplicate recovery for hours previously
compensated through the EAJA awards, counsel explains that he
is requesting only $9, 328.48 as an additional fee, rather
than the full $15, 143.48. See Jankovich v.
Sec'y, 868 F.2d 867, 871 n.1 (6th Cir. 1989)
(holding that remittance of the EAJA award for the duplicate
work in federal court is required under §406(b)). Thus,
counsel seeks the net sum of $9, 328.48, calculated by
subtracting the total sum of the two previous EAJA fee awards
($5, 815.00) from the maximum fee authorized by
statute. (Doc. 30 at 5-6).
upon the April 28, 2014 date, the contingency fee agreement
attached to the motion appears to cover only the current
federal case. However, the Court will assume, for purposes of
the pending motion, that Plaintiff executed a similar
agreement in Case No. 1:13-cv-591. The referenced Agreement
states that counsel is entitled to “a fee equal to 25%
of the past due benefits” for “all services
through the initial hearing(s) and one appeal to the Appeals
Council.” (Doc. 30 at 9). The Agreement further
provides that fees for work beyond that scope of work
“will still be 25% of ...