United States District Court, S.D. Ohio, Western Division
LAURA J. BRUCE, 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. 24) and the Commissioner's response
stating the Commissioner does not oppose plaintiffs request
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 Rodriquez,
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 has 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 V of Soc. Sec, 771 F.3d 308, 309 (6th Cir.
the fee of $15, 000.00 that plaintiff requests falls within
the 25% boundary. Thus, the issue is whether the requested
fee is reasonable. Gisbrecht, 535 U.S. at 807.
Plaintiff asserts the requested fee is reasonable given
attorney James Roy Williams' experience and background,
which includes representing clients in Social Security cases
since 1982. (Doc. 24 at 8). Plaintiff has submitted an
itemized billing sheet showing that her attorney performed a
total of 30.00 hours of work on the case in this Court.
(Id. at 6). Plaintiff has also submitted a copy of
the contingency fee agreement she entered into with counsel
under which she agreed to pay counsel a contingency fee of
25% of past-due benefits. (Id. at 7).
the $15, 000.00 requested by counsel by the 30.00 hours
counsel worked on the case before this Court yields a
hypothetical hourly fee of $500.00. 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 420-21 (quoting
Rodriguez, 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 under the
contract is less than twice the standard rate for such work
in the relevant market." Id. at 422. As the
Sixth Circuit explained in Hayes:
[A] multiplier of 2 is appropriate as a floor in light of
indications that social security attorneys are successful in
approximately 50% of the cases they file in the courts.
Without a multiplier, a strict hourly rate limitation would
insure that social security attorneys would not, averaged
over many cases, be compensated adequately.
A calculation of a hypothetical hourly rate that is twice the
standard rate is a starting point for conducting the
Rodriquez analysis. It provides a floor, below which
a district court has no basis for questioning, under the
second part of Rodriguez's windfall rule for
"minimal effort expended," the reasonableness of
counsel standard hourly rate is $350.00. (Doc. 24 at 9). The
$500.00 hypothetical hourly rate is less than twice
counsel's standard rate for such work in the relevant
market. Therefore, the requested fee of $15, 000.00 does not
constitute a windfall to plaintiffs counsel. Hayes,
923 F.2d at 422. The Court notes that plaintiffs counsel did
not unduly delay the resolution of this matter, and he
achieved an excellent result in this case by obtaining a
favorable disability determination on remand with back pay
benefits in the amount of $69, 691.00 to be paid for the
period April 2010 through December 2018. (See Doc.
24 at 14). Further, plaintiff voluntarily entered into the
contingency fee agreement with counsel and counsel assumed
the risk of non-payment. The Commissioner has submitted a
response to plaintiffs motion and does not oppose the motion
"because the motion is consistent with §
406(b)'s requirements, is in accord with the fee