The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JULIE MASSIE,
Plaintiff, Case No. 3:18-cv-190
vs.
COMMISSIONER OF Magistrate Judge Michael J. Newman
SOCIAL SECURITY, (Consent Case)
Defendant.
ORDER AND ENTRY: (1) GRANTING PLAINTIFF’S COUNSEL’S UNOPPOSED
MOTION FOR AN ATTORNEY’S FEE AWARD UNDER 42 U.S.C. § 406(b) (DOC. 23);
(2) AWARDING PLAINTIFF’S COUNSEL $11,750.00 IN FEES; AND (3) DIRECTING
PLAINTIFF’S COUNSEL TO REFUND TO PLAINTIFF, WITHIN FOURTEEN DAYS,
THE EAJA FEE PREVIOUSLY AWARDED TO COUNSEL
On August 29, 2019, the Court reversed the ALJ’s non-disability finding and remanded
this case to the Commissioner under 42 U.S.C. § 405(g) for an immediate award of benefits. Doc.
19. Thereafter, Plaintiff’s counsel sought, and was awarded in this Court, attorney’s fees in the
amount of $3,600.00 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Docs.
21, 22. Plaintiff’s counsel now moves for an award of attorney’s fees in the amount of $11,750.00
under 42 U.S.C. § 406(b). Doc. 23. The Commissioner has not responded to counsel’s motion,
and the time for doing so has expired. Accordingly, the motion is deemed unopposed.
In Social Security cases, the Court is authorized to award attorney’s fees following the
successful prosecution of a Social Security disability appeal. See 42 U.S.C. §§ 406(b)(1),
1383(d)(2). However, such fees may not exceed 25% of the past-due benefits which the claimant
receives as a result of the appeal. Id. Furthermore, the 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 v. Barnhart, 535 U.S. 789, 807 (2002).
The Social Security Act “does not displace contingen[cy]-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 the weight
ordinarily accorded a rebuttable presumption.” Rodriquez v. Brown, 865 F.2d 739, 746 (6th Cir.
1989). A reduction of a contingency fee award may be appropriate when counsel acts improperly
or provides ineffective assistance, or when “counsel would otherwise enjoy a windfall because of
either an inordinately large benefit award or from minimal effort expended.” Id. Such an award
is not improper merely because it results in an above-average hourly rate. Royzer v. Sec’y of Health
& Human Servs., 900 F.2d 981, 981-82 (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 as the trial judge has computed it here [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 v. Sec’y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1990).
Two attorneys working on Plaintiff’s behalf represent working a total of 23.50 hours before
this Court: attorney Rake worked a total of 10.5 hours; and attorney New worked a total of 13
hours. Doc. 23 at PageID 1247-48. Counsel’s requested fee of $11,750.00, divided by the 23.50
hours spent working on the case, results in a hypothetical hourly rate of $500.00, an hourly rate
that is -- without dispute and based upon the materials submitted in support of Plaintiff’s motion
-- reasonable in light of the skill and experience of counsel.
Based upon the foregoing: (1) Plaintiff’s unopposed motion for a § 406(b) fee award (doc.
23) is GRANTED; (2) Plaintiff’s counsel are AWARDED the requested sum of $11,750.00 in
attorney’s fees; (3) Plaintiff’s counsel are ORDERED to reimburse to Plaintiff, within
FOURTEEN (14) DAYS, the EAJA fee previously awarded to counsel; and (4) as no further
matters remain pending for review, this case remains TERMINATED upon the Court’s docket.
IT IS SO ORDERED.
Date: April 14, 2020 /s/Michael J. Newman
Michael J. Newman
United States Magistrate Judge