United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff Matthew
Trenka (“Trenka”) for an order authorizing the
payment of attorney fees under the Social Security Act, 42
U.S.C. § 406(b), in the amount of $14, 220.50. (Doc. No.
23 [“Mot.”].) Trenka's counsel agrees that,
if the requested amount is authorized under § 406(b),
counsel will remit to Trenka the fees previously awarded and
paid under the Equal Access to Justice Act
(“EAJA”). (Mot. at 1071.) Defendant Commissioner of
Social Security Administration (“Commissioner”)
does not oppose the fee request but does not stipulate to the
amount because any award under § 406(b) would be paid
out of Trenka's past-due benefits, not agency funds.
(Doc. No. 24 [“Res.”] at 1082.)
action, filed pursuant to 42 U.S.C. § 405(g), sought
judicial review of the Commissioner's denial of
Trenka's application for Disability Insurance Benefits
and Supplemental Security Income. (Doc. No. 1 (Complaint).)
On December 29, 2016, the Court reversed the
Commissioner's decision and remanded the matter to the
Commissioner for further proceedings. (Doc. No. 18.) The
parties subsequently requested that Trenka be awarded
attorney fees under the EAJA, 28 U.S.C. § 2412. (Doc.
No. 21.) On July 26, 2017, the Court granted the parties'
joint motion and awarded Trenka $6, 501.03 in attorney fees.
(Doc. No. 22.) On remand, and following a hearing, a fully
favorable decision was rendered to Trenka on July 20, 2018.
counsel now requests the Court to authorize a fee award,
under 42 U.S.C. § 406(b), in the amount of $14, 220.50.
In support of her motion, counsel has attached an affidavit
setting forth her professional background and experience
(Doc. No. 23-1), counsel's time sheets (Doc. No. 23-2),
the contingency fee agreement between Trenka and counsel
(Doc. No. 23-3), and the Commissioner's award (Doc. No.
23-5). The award reflects that the sum of $20, 220.50, or an
amount equal to 25% of the total award, has been withheld to
compensate Trenka's legal representative. (Doc. No. 23-5
Law and Analysis
are two statutes under which a plaintiff may recover attorney
fees in a social security disability case. First, under the
EAJA, a plaintiff may recover attorney fees which, if
awarded, are paid by the government. See 28 U.S.C.
§ 2412. Second, as part of the judgment rendered in
favor of a plaintiff, a court may award a reasonable fee for
an attorney's representation in court which, if awarded,
is to be paid out of a plaintiff's past-due benefits, not
as an addition to the amount of past-due benefits.
See 42 U.S.C. § 406(b). The fees awarded
pursuant to 42 U.S.C. § 406(b) may not be in excess of
25 percent of the total past-due benefits. Id.
Further, a plaintiff's counsel may not receive fees under
both statutes for the same work. Bowman v. Colvin,
No. 1:09 CV 248, 2014 WL 1304914, at *2 (N.D. Ohio Mar. 27,
2014). Thus, if a court awards both EAJA fees and fees under
42 U.S.C. § 406(b), the plaintiff's attorney is
required to refund the smaller amount to the plaintiff.
Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S.Ct.
1817, 152 L.Ed.2d 996 (2002).
entitled to an award under § 406(b), an 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, 535
U.S. at 807. Section 406(b) “does not displace
contingent-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 weight ordinarily accorded a
rebuttable presumption.” Rodriquez v. Bowen,
865 F.2d 739, 746 (6th Cir. 1989). A deduction of a
contingency fee award may be appropriate when (1) counsel
acted improperly or provided ineffective assistance, or (2)
“counsel would . . . enjoy a windfall because of either
an inordinately large benefit award or from minimal effort
expended.” Id. If the foregoing reasons are
not applicable, “an agreement for a 25% fee, the
maximum permitted under § 206(b) of the Social Security
Act, 42 U.S.C. § 406(b), is presumed reasonable.”
Hays v. Sec'y of Health & Human Servs., 923
F.2d 418, 421 (6th Cir. 1991).
award will not be considered improper merely because it
results in an above-average hourly rate. Royzer v.
Sec'y of Health & Human Servs., 900 F.2d 981,
982 (6th Cir. 1990). As the Sixth Circuit explained:
It is not at all unusual for contingent fees to translate
into large hourly rates if the rate is computed [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. Accordingly, the Court will not find that a
contingency fee agreement has generated a windfall to the
attorney where “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.” Hayes, 923 F.2d at 422.
counsel and Trenka have a contingency fee agreement which
provides that counsel's fees will be 25% of Trenka's
past-due benefits. (Doc. No. 23-3 at 1078.) The submitted
time sheets show that counsel spent 38.25 hours representing
Trenka before this Court. (Doc. No. 23-2 at 1077.) The fee
sought by counsel of $14, 220.50 translates into a
hypothetical hourly rate of $371.77. This rate is less than
twice the hourly rate of $350.00 normally charged by
Trenka's counsel and is per se reasonable.
See Hayes, 923 F.2d at 422. (See Doc. No.
23-1 at 1076, ¶ 6.) Moreover, there have been no
allegations, nor has the Court found any instances, of
improper attorney conduct or ineffectiveness of counsel which
would cause the Court to reduce the amount of the requested
fee. Quite the contrary, Trenka was well represented by
counsel in this case. The Court finds that counsel has
satisfied her burden of demonstrating the reasonableness of
the requested fee.
reasons set forth herein, the Court hereby GRANTS the motion
and AWARDS attorney fees in the amount of $14, 220.50 under
42 U.S.C. § 406(b) provided that Trenka's counsel
refunds to Trenka $6, 501.03 in ...