United States District Court, S.D. Ohio, Western Division, Dayton
GREGORY R. FINCH II, Plaintiff,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
DECISION AND ENTRY
L. Ovington, United States Magistrate Judge.
case is before the Court upon a Motion For Allowance Of
Attorney Fees filed by Plaintiff's counsel (Doc. #218),
the Government's Response (Doc. #19), Plaintiff's
counsel's Reply (Doc. #20), and the record as a whole.
Plaintiff's counsel seeks a total award of $21, 191.25 in
attorney fees under 42 U.S.C. § 406(b)(1). He states
that if the Court awards this amount to him, he will
reimburse Plaintiff for EAJA fees Plaintiff has already paid,
leaving counsel with a net amount of attorney fees awarded
under § 406(b)(1) equaling $18, 496.25.
this case began, Plaintiff and his counsel entered into a
written contingency-fee agreement. The agreement documented
Plaintiff's agreement to pay attorney fees in the amount
of 25% of any lump sum award for past-due Social Security
benefits payable to Plaintiff. The agreement also documented
counsel's willingness to work on a contingency-fee basis.
This resulted in counsel's acceptance of the risk he
would recover zero attorney fees in the event Plaintiff
received no past-due benefits. See Doc. #18,
case proceeded, the undersigned Judicial Officer concluded
that a remand for further administrative proceedings was
warranted, and Judgment was entered accordingly. On remand,
the Social Security Administration awarded Plaintiff past-due
benefits and withheld from those benefits $21, 191.25 for
payment of attorney fees. Id. at 1413-14.
Government points out that the amount of Plaintiff's
counsel's total-fee request ($21, 191.25) divided by the
number of hours reflected in his billing records (29.75)
results in an hourly rate of $712.31. This, in the
Government's view, constitutes a windfall for
Plaintiff's counsel. The Government also argues that the
requested hours in Plaintiff's billing records describe
administrative work, rather than attorney work, in .25-hour
increments. This matters to the Government because
eliminating all the .25 entries from counsel's billing
records leaves 20 hours of work and leads to a hypothetical
hourly rate of $1, 059.56 ($21, 191.25 ÷ 20 = $1,
059.56)-again an inappropriate windfall from the
Government's perspective. Plaintiff's counsel does
not address this description of his billing records.
See Doc. #20.
Government is partly correct, although it overgeneralizes the
entries in Plaintiff's counsel's billing records.
Careful review of those records reveals that some, but not
all, of Plaintiff's counsel's .25 entries describe
non-attorney administrative or clerical work, or are
excessive for the tasks performed such as filing documents
with the Court and downloading the administrative transcript
to a disc. Such non-attorney work is not compensable as
attorney fees. See Dulin v. Colvin, 3:14cv00288,
2015 WL 6689370, at *2 (S.D. Ohio 2015) (and cases cited
therein), Report & Recommendations adopted, 2015
WL 7571839 (S.D. Ohio 2015). As a result, the billing entries
on the following dates (for either .25 or .50 hours) of work
must be excluded: 6/15/16 (.50 hour), 7/8/16 (.50), 7/24/16
(.25), 8/22/16 (.50), 10/3/16 (.25), 10/3/16 (.25), 10/10/16
(.25), 11/28/16 (.25), 12/28/16 (.25), and 2/10/17 (.25).
excluded entries add up to 3.25 hours. Subtracting this from
the total attorney-work hours counsel's billing records
document leaves a total of 26.50 hours (29.75 - 3.25 =
26.50). Using this number of attorney work hours increases
Plaintiff's counsel's hypothetical hourly rate but
not as much as the Government proposes. The hypothetical
hourly rate-the total amount of attorney fees Plaintiff's
counsel seeks divided by 26.50 hours-is $799.67 ($21, 191.25
÷ 26.50 = $799.67). As will be apparent below, this
hypothetical hourly rate plays a prominent role in
determining whether Plaintiff's requested award-again,
$21, 191.25-constitutes a windfall.
406(b) authorizes this Court to award attorney's fees
when a plaintiff brings a successful challenge to the Social
Security Administration's denial of his or her
application for benefits. See Damron v. Comm'r of
Soc. Sec., 104 F.3d 853, 856 (6th Cir. 1997). The award
may not exceed 25% of the past-due benefits that the
plaintiff received as a result of the successful challenge.
See id.; see also 42 U.S.C. §
succeed under § 406(b), the plaintiff's counsel must
show, and the court must affirmatively find, that the
contingency fee sought-even one within the 25% cap-is
reasonable for the services rendered. Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002); see
Lasley v. Comm'r of Soc. Sec., 771 F.3d 308, 309
(6th Cir. 2014). Section 406(b) “does not displace
contingent-fee agreements” but instead “calls for
court review of such arrangements as an independent check, to
assure that they yield reasonable results in particular
cases.” Gisbrecht, 535 U.S. at 807.
determine whether an award under § 406(b) is reasonable,
a floor/ceiling approach guides the way. The ceiling is
§ 406(b)'s 25% cap, which “accords a
rebuttable presumption of reasonableness to contingency
agreements that comply with § 406(b)'s
25%-cap.” Lasley, 771 F.3d at 309. The floor
is “[the] hypothetical rate that is twice the standard
rate for such work in the relevant market.” Hayes
v. Sec'y of Health & Human Servs., 923 F.2d 418,
422 (6th Cir. 1991). “‘[A] hypothetical hourly
rate that is less than twice the standard rate is per
se reasonable ...'” Lasley, 771 F.3d
at 309 (quoting Hayes, 923 F.2d at 421).
the range set by this floor and this ceiling, “a
hypothetical hourly rate that is equal to or greater than
twice the standard rate may well be reasonable.'”
Lasley, 771 F.2d at 309 (quoting Hayes, 923
F.2d at 421). Courts may consider arguments attacking the
rebuttable presumption of reasonableness that attaches to
awards above the double-the-standard-rate floor and below the
25% statutory ceiling. Id. at 309.
remains the heart of the matter. And, care must be taken to
consider the presumption a rebuttable-not a
strict-presumption of reasonableness. Lasley, 771
F.2d at 309 (noting, “Gisbrecht ... elides
strict presumptions altogether.”). Reducing a
sought-after award is warranted to avoid windfalls especially
“‘[i]f the benefits are large in comparison to
the amount of time counsel spent on the case ....'”
Id. at 310 (quoting Gisbrecht, 535 U.S. at
the “standard rate” in this case? This
straightforward question becomes somewhat gnarled by the
reality that nearly all social-security attorneys accept
cases on a contingency-fee basis. “Accordingly, these
attorneys have no documented ‘standard' hourly
rate.” Lee v. Comm'r of Soc. Sec.,
3:14cv291, 2018 WL 2999909, at *2 (S.D. Ohio 2018) (Rice,
D.J.) (citing Ringel v. Comm'r of Soc. Sec., 295
F.Supp.3d 816, 829 (S.D. Ohio 2018); Scappino v.
Comm'r of Soc. Sec., No. 1:12-cv-2694, 2015 WL
7756155, at *3 (N.D. Ohio Dec. 1, 2015)).
Lee, the District Judge Rice reported,
“According to an Ohio State Bar Association survey
conducted in 2013, the hourly billing rate for attorneys in
social security cases ranged from
$210-350.” 2018 WL 2999909, at *4. Plaintiff's
attorney in this case has practiced law since 1995 and
devotes his practice to the highly specialized area of
representing social- security claimants. See Doc.
#18, PageID #1404. He therefore would likely fall
within the upper range or billing rates for social security
attorneys. Additionally, the upper rate of $350 per hour was
in place in 2013, approximately six years ago. With
inflation, market influences-given the large number of
social-security cases in this Court- and cost-of-living
increases, the upper hourly rate has likewise increased. How
much? If it increased only $8.00 per year, the hourly rate
would be $398.00. If this number is doubled, the standard
hourly rate approaches $800 per hour, slightly above
Plaintiff's counsel's hypothetical hourly rate of
$799.67. This fact, however, does not make the hypothetical
award unreasonable in this case. When the hypothetical hourly
rate of $799.67 is viewed as the product of the applicable
multiplier of 2, see Hayes, 923 F.2d at 422, it
translates to an hourly rate of $399.83 ($399.83 x 2 =
$799.66). This is just a bit less than the probable upper
limit of the standard hourly rate for an attorney, like
Plaintiff's, who accepts the risk of contingent
representation in social-security cases-sometimes recovering
fees, other times recovering zero fees. “Contingent fee
agreements, which are the norm in social security cases,
often result in large hourly rates, but in these types of
cases, attorneys ‘will not prevail every time ...