Berry v. Commissioner of Social Security

UNSIOTUEDTH SETRANT EDSIS DTIRSITCRTI COTF COOHUIOR T

WESTERN DIVISION

CARL E. BERRY, Case No: 1:18-cv-207

Plaintiff, Black, J.

v. Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff’s motion for attorney’s fees has been referred to the undersigned for initial

review. I recommend that the motion be construed as if filed under 42 U.S.C. §1383(d)

and be GRANTED only in part, with the amount of fees to be reduced to avoid a windfall.

I. Background

The above-captioned case arises out of Plaintiff’s judicial appeal to challenge the

Defendant’s denial of application for Supplemental Security Income payments under Title

XVI of the Social Security Act. On July 26, 2019, the undersigned recommended that the

non-disability finding be reversed and remanded for an immediate award of SSI benefits.

The presiding district judge adopted that Report and Recommendation on September 29,

2019. (Docs. 16, 19). On October 10, 2019, the Court granted the parties’ joint motion

for an award of attorney’s fees to be made to Plaintiff’s counsel under the Equal Access

for Justice Act (“EAJA”). (Doc. 22).

On December 11, 2019, the Social Security Administration issued a Notice of

Award that calculated Plaintiff’s past due SSI benefits at $51,332.12. Just prior to the

expiration of the deadline for filing a further motion for attorney’s fees under the Social

Security Act, Plaintiff’s counsel sought and was granted an extension of time in which to

file a motion for attorney’s fees under 42 U.S.C. § 406(b). (Doc. 23). Pursuant to that

extension, Plaintiff’s counsel timely filed a motion seeking an additional fee award under

the provisions of the Social Security Act. The Commissioner has filed a response in

opposition to the motion, to which counsel has filed a reply.2

II. Analysis

A. Construing the Fee Motion Under the Correct Statute

In support of the award, counsel first argues that he successfully pursued and won

for his client a large award of past-due SSI benefits under Title XVI. Notably, 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 the particular

statute on which counsel relies. As this Court previously advised last year in Pennington

v. Com’r., Case No. 1:17-cv-264, 2019 WL 3228896 (S.D. Ohio July 18, 2019), 42 U.S.C.

§ 406(b) “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).

The fact that no award may be made under 42 U.S.C. § 406(b) does not mean that

counsel must go uncompensated. Rather, Congress has provided for compensation

1Local Rule 54.2(b) specifies that a motion for attorney’s fees under the Social Security Act must be filed

within forty-five days of the Notice of Award. See Rabong v. Com’r of Soc. Sec., Case No. 1:14-cv-811,

2018 WL 558918 (S.D. Ohio Jan. 25, 2018) (directing counsel to address timeliness issue, but approving

fee amounting to $519.60 per hour); Hancock v. Com’r, Case No. 1:15-cv-198, 2018 WL 504845 (S.D. Ohio

Oct. 17, 2018) (citing untimeliness of motion and counsel’s failure to comply with Rabong, reducing award

rate to $389); Pennington v. Com’r, 2019 WL 5066850 (S.D. Ohio Oct. 9, 2019) (approving rate of $499 for

timely filed motion).

2Because counsel’s interests are adverse to those of his client in this instance, the undersigned uses

“counsel” in lieu of “Plaintiff” for the remainder of this R&R.

through a parallel statute applicable to Title XVI of the Social Security Act. See 42 U.S.C.

§1383(d)(2). As the Court did in Pennington, in the interests of justice, the undersigned

will construe counsel’s motion as if properly filed under §1383(d). Because §1383(d)

contains nearly identical language and is intended to produce the same result as

§406(b),3 the same case law and analysis applies. Both §406(d) and §1383(d) cap fees

at 25% of any past-due benefits award and impose criminal penalties upon any attorney

who would seek to exceed that maximum. In this case, 25% of the past due benefits

award yields a maximum fee of $12,833.05. See §1383(d)(2)(B)(i).

B. Determining a Reasonable Fee

Nearly two decades ago in Gisbrecht v. Barnhardt, 535 U.S. 808-809 (2002), the

Supreme Court held that the Social Security Act does not wholly displace contingent fee

agreements but does impose an affirmative duty on courts to review for reasonableness

the fees that result from those agreements. More recently in Ringel v. Com’r of Soc. Sec.,

295 F. Supp.3d 816 (S.D. Ohio 2018), a case involving another attorney from the same

law firm, this Court closely examined Sixth Circuit case law since Gisbrecht with the

“modest ambition of amplifying the concerns previously expressed in controlling case

law.” Id. at 824.

Case law emphasizes the affirmative obligation of courts 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. Lowery v. Com'r of Soc. Sec., 940 F.Supp.2d

689, 691 (S.D. Ohio 2013) (approving unopposed motion for fee where

counsel did not request full 25% fee authorized by agreement, but instead

voluntarily reduced fee to 14.5% of past-due benefits award). A primary

reason for all this scrutiny is that, unlike the EAJA award received… for the

same work, the § 406(b) fee award is paid directly out of, and therefore

directly reduces, the amount of the past-due benefits paid to the disabled

342 U.S.C. § 1383(d)(2)(A)(iv) expressly incorporates the language of § 406(b)(1)(A), but alters that

language slightly to state that the Commissioner may “pay the amount of such fee to such attorney out of,

and not in addition to, the amount of such past-due benefits.”

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fee agreement, but warning that “[c]ontingent fees in social security cases

are different than in other cases of the law because Congress has put the

responsibility on the federal judiciary to make sure that fees charged are

reasonable and do not unduly erode the claimant's benefits”).

Still, federal courts - far more accustomed to enforcing contracts than to

breaking them - are understandably reluctant to rewrite the key term of a

facially valid contract for payment between a lawyer and his/her client.

Ringel, 295 F.Supp.3d at 822.

Synthesizing the prevailing case law, Ringel meticulously set forth five

“guideposts” used by most courts within the Sixth Circuit to navigate their duty under the

Social Security Act to determine whether a standard contingency fee agreement results

in a windfall, even in a case where counsel has done no wrong.

Gisbrecht confirmed that a contingent fee agreement may result in an

inordinately large - and therefore unreasonable - fee merely by virtue of the

benefits being large “in comparison to the amount of time counsel spent on

the case.” Gisbrecht, 535 U.S. at 808, 122 S.Ct. 1817 (emphasis added).

In short, both Gisbrecht and Sixth Circuit authority through Lasley [v. Com’r,

771 F.3d 308 (6th Cir. 2014)] support reducing a contingent fee to avoid a

windfall even if counsel gave more than “minimal” effort and did nothing

wrong, where only the passage of time has caused the inordinately large

benefit award. See also Rodriquez, 865 F.2d at 746, 747 (defining a

windfall as resulting from “either an inordinately large benefit award or from

minimal effort expended,” and noting that “with the best of will on the part of

the claimant's lawyer, these disability cases are frequently drawn out over

a considerable period of time.”)(emphasis added, internal quotation

omitted).

Ringel, 295 F.Supp.3d at 828 (emphasis original). The five guideposts are: (1) the Sixth

Circuit’s long-standing Hayes test;4 (2) the amount of administrative and/or judicial delay;

(3) the quality and quantity of attorney hours expended; (4) whether counsel has

4See Hayes v. Sec’y of HHS, 923 F.2d 418, 422 (6th Cir. 1990).

compromised his fee; and (5) whether the Commissioner has filed any opposition. Id. at

842.

Although the Court does not yet have a copy to review, counsel represents that

Plaintiff signed a standard contingency fee agreement.5 Consistent with nearly all such

agreements, counsel states that the Agreement authorizes a contingency fee award equal

to the full 25% statutory maximum fee of $12,833.05.6 Counsel has attached his time

records and the Notice of Award.7

As a first step in determining whether the proposed award is “reasonable” or

amounts to a windfall under the Ringel guideposts, the undersigned calculates the

hypothetical hourly fee and compares that fee with the EAJA-based “standard rate” in

accordance with the Hayes test. In Hayes, the Sixth Circuit rejected the approach of

some courts to reduce nearly every contingency fee and acknowledged that a premium

may be paid without creating a windfall due to the contingent nature of recovery. Setting

forth an elegantly simple test that has withstood the test of time to determine when that

contingency premium might be questioned as a windfall, the Hayes court explained:

5Counsel has not included the date or a copy of the Agreement, despite a reference to it being “[a]ttached.”

(Doc. 24 at 2). However, contingency fee agreements that reflect the maximum statutory fee are standard,

with rare exceptions. See Gisbrecht, 535 U.S. at 808 n. 15 (acknowledging dissenting view that standard

social security fee agreements closely resemble adherence contracts but holding that judicial review

together with the statutory cap will ensure reasonableness). Although the undersigned accepts counsel’s

statement that Plaintiff executed such an Agreement, the final award should be conditioned on counsel’s

submission of a copy in order to complete the Court’s affirmative obligation of review.

6Counsel suggests that because he has subtracted the prior EAJA award amount from the additional

compensation he seeks, the EAJA award should not be considered. However, the prior EAJA award was

paid to counsel. Under controlling case law, counsel would be required to return the EAJA award to avoid

double-recovery for the same work performed in federal court. Janovic v. Sec’y, 868 F.2d 867 n.1 (6th Cir.

1989). Counsel’s offset of the EAJA award, in lieu of remitting the fee to Plaintiff, does not reduce the total

fee received by counsel for his 15.5 hours of work. See Ringel, 295 F. Supp.3d at 838 (rejecting the

“common error” of presenting an hourly rate after decreasing the amount sought by the amount of the EAJA

award).

7Counsel states that the Social Security Administration withheld 25% from the past due benefits award but

the attached exhibits are silent as to any withholding. However, the Agency’s failure to withhold fees does

not impact this Court’s ability to award such a fee, if warranted under the law. See Culbertson v. Berryhill,

139 S. Ct. 517 (2019)

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below which a district court has no basis for questioning, under the second

part of Rodriquez's windfall rule ..., the reasonableness of the fee. In other

words, 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.

Id., 923 F.2d at 422. Thus, in cases in which the proposed award is reasonable under

the Sixth Circuit’s longstanding Hayes test, “the windfall analysis is complete.” Ringel,

295 F. Supp.3d at 829.

Although some courts have determined a different “standard rate” to be used in

the Hayes test, the EAJA-based “standard rate” has been used by most courts for multiple

reasons, including consistency.

[C]ourts have adopted the hourly rate that the attorney receives under the

EAJA as proxy for the “standard rate” in the Hayes test. EAJA

compensation rates work well as a standard rate in the Hayes test because

in the typical social security case, the EAJA provides the only other means

by which counsel may be compensated for work performed in a judicial

appeal of a social security case. In fact, Hayes itself referenced hourly rates

that appear derived from the EAJA….

Using an EAJA-based fee for the Hayes test assures consistency, since the

same attorney usually will have recovered that rate for the same work.

Using that standard also decreases the complexity required for courts to

perform the requisite § 406(b) analysis and keeps intact the intended

simplicity of Hayes, while decreasing satellite litigation over the definition of

the “standard rate.” Additionally, the EAJA inflation-adjusted rate has been

widely adopted in a clear majority of unpublished cases employing

the Hayes test.

Ringel, 295 F. Supp.3d at 829-830. The presumptive use of EAJA rates in the Hayes test

builds in inflationary factors including consideration of state bar data over time, because

the EAJA rate ultimately is derived from that data. Id., at 831. The Sixth Circuit also has

acknowledged and affirmed the use of an EAJA-based rate as the “standard rate[ ]

applied to social security fee requests in the Southern District of Ohio.” Lasley, 771 F.3d

at 310.

Here, counsel was previously awarded $2,635.00 under the EAJA for the same

15.5 hours for which he now seeks an additional fee, a rate that translates to a “standard

rate” of $175 per hour. The proposed additional fee ($12,833.03) divided by the same

number of hours (15.5) yields a hypothetical hourly fee of $827.93, an amount that is

more than 4.7 times the previous hourly rate that counsel was awarded for the same work,

and that the Commissioner points out is “well above the amount courts in the Southern

District of Ohio have found reasonable.” (See Doc. 25 at 2-4, collecting cases and noting

that most courts conclude that the $350-400 hourly rate range constitutes a reasonable

award); see also Lasley, 771 F.3d 308 (approving Judge Dlott’s decision to reduce

counsel’s fee from $733 per hour to $360 per hour to avoid a windfall).

The Hayes test establishes a floor but not a ceiling. In Ringel, the court approved

a relatively high rate of $600 per hour after explaining the justification on the facts

presented, while also explaining the basis of increased scrutiny whenever counsel seeks

a higher rate:

Courts must be willing to approve multipliers above the Hayes “floor” when

appropriate. At the same time, Hayes suggests that the higher the

multiplier/rate, the more closely an award should be reviewed for windfall.

Even where counsel's conduct is above approach and achieves a good

result, the contingent fee to which the claimant agreed may still be too

much.

Ringel, 295 F.Supp.3d at 833. Although statistical outlier cases may be found, the vast

majority of cases in this district support the approach of more closely scrutinizing cases

“the higher the multiplier/rate” in order to avoid a windfall.

In support of the unusually high contingency multiplier and fee sought in this case,

counsel first focuses on his “very good” representation of Plaintiff since March 7, 2014,

when his firm began representing Plaintiff at the administrative level.8 Counsel suggests

that “because this case was granted at the District Court level, the typical approval of

administrative fees, up to the maximum $6,000.00 did not occur.” (Doc. 24 at 4). In his

reply memorandum, counsel further argues that if the $6,000 fee had been paid to counsel

at the administrative level, “it would be deducted from the withheld amount of $12,833.03,

and then the balance of $6,833.03 divided by the 15.5 hours worked would come out to

be $440.84 per hour.” (Doc. 27 at 2). Counsel explains that he chose not to petition SSA

for work at the administrative level “because the claim was granted at the District Court

level. If the full amount of fees requested herein is granted, there will be no application

for fees at the Administrative level.” (Doc. 24 at 4).9

Counsel seems to be advocating for the award of a higher fee by this Court based

upon work counsel’s firm performed before the Social Security Agency at the

administrative level. But settled and controlling case law (as well as the explicit statutory

language) prohibit this Court from awarding fees for any time outside of this federal court,

including time that his firm may have spent on work at the administrative level. See, e.g.,

Horenstein v. Sec’y of Health & Human Servs., 35 F.3d 261 (6th Cir. 1994) (en banc); 42

U.S.C. §§ 406(a), 406(b) and 1383(d).

An attorney’s willingness to compromise his fee below the maximum allowable fee

8A non-attorney representative from counsel’s firm represented Plaintiff at the hearing before the ALJ. The

extent to which counsel himself may have represented Plaintiff at the administrative level is not clear in the

record before this Court, but neither is it relevant for the reasons discussed herein.

9Contrary to counsel’s argument, this case was remanded for calculation and entry of the final award. The

statutory provisions ensure separate compensation for representatives for work performed at the

administrative level and prohibit this Court from awarding any compensation for such work. Although

counsel’s argument implies otherwise, (see Doc. 27 at 1-2), the award of a fee by this Court has no bearing

on counsel’s ability to submit a separate application for fees for work performed at the administrative level.

See Culbertson v. Berryhill, 139 S. Ct. 517 (2019).

authorized by the contingency fee agreement is laudable. And the undersigned would

have no difficulty in approving counsel’s theoretical hourly fee if that were the actual fee

being sought on the record presented. However, counsel’s suggestion that this Court

should imagine that the hourly rate is roughly half of the actual rate that counsel is seeking

is not rational, because counsel has not reduced or compromised his fee in this Court.

Moreover, counsel’s promise that his firm will not submit a future application to the Agency

for work at the administrative level (under a different statutory provision) if he is awarded

a large fee by this Court is based upon a mistaken perception that the 25% cap applies

to the aggregate of all fees received. Contrary to that perception, the Supreme Court

recently held that the 25% statutory cap “applies only to fees for court representation, and

not to the aggregate fees awarded under §§ 406(a) and (b).” See Culbertson v. Berryhill,

139 S. Ct. at 523.

Counsel next claims that other courts have held that “similar” large fees do not

constitute a windfall. Counsel does not cite to any recent published cases in the Southern

District of Ohio or even within the Sixth Circuit. Instead, counsel relies on three cases

from California and West Virginia decided close in time to Gisbrecht, when the

“reasonable” standard was still evolving. This Court previously has explained why the

same three cited cases are not persuasive in other cases involving counsel’s firm.

[I]n Claypool v. Comm'r of Soc. Sec., 294 F. Supp. 2d 829 (S.D. W. Va.

2003), the amount of past due benefits was more than double the amount

awarded in this case, and the resulting fee award, while very high,

constituted just 9% of that award. One of the other two cases cited by

counsel is unpublished as well as not within this jurisdiction, and both reflect

much lower hourly rates than sought by counsel here. See Dodson v.

Comm'r of Soc. Sec., 2002 WL 31927589 (W.D. Va. Oct. 22, 2002)

($694.44 per hour) and Hearn v. Comm'r of Soc. Sec., 262 F. Supp. 2d 1033

(N.D. Cal. 2003) ($450.00 per hour).

Iames v. Com’r of Soc. Sec., 2017 WL 574931 at *5 (S.D. Ohio Jan. 25, 2017); Hicks v.

Commissioner of Social Security, 2016 WL 7634457, at *5 (S.D. Ohio 2016); see also

Ringel, 295 F. Supp.3d at 833 n.28. The undersigned instead relies upon the more

persuasive and controlling case law cited herein.10

The second factor under Ringel is the degree to which the slow wheels of justice

have contributed to an unusually large award. As Judge Weber explained in a 2014 case:

In the typical case, the quantity and quality of an attorney's services is not

causally connected to the amount of benefits obtained. Rather, the size of

the claimant's recovery depends on factors such as the claimant's past

earnings, the number of dependents and, unfortunately, the delay inherent

in the administrative and judicial processes. Accordingly, the United States

Court of Appeals for the Sixth Circuit has counseled that courts should not

routinely approve the statutory maximum but that 25% should be used as a

bench mark and it should be given the weight ordinarily accorded a

rebuttable presumption.…

The Sixth Circuit has made clear that an “inordinately large benefit award”

occasioned by the passage of time may constitute a windfall of attorney’s

fees, irrespective of any wrongdoing by counsel.

Boston v. Commissioner of Social Sec., 2014 WL 1814012, at *1 (S.D. Ohio May 7, 2014)

(reducing hourly rate from to $400 per hour in order to avoid a windfall to counsel). Here,

as in other “windfall” cases, the size of the large past-due benefits award was not due to

any conduct by counsel.11 Rather, the unusually large fee reflects the regrettable slow

pace of resolution of Plaintiff’s claim, which required more than six years to resolve when

both administrative and judicial proceedings are considered. As another court lamented:

It seems perverse that an ultimately successful disabled claimant should be

further punished by the delays of the administrative process. Thatch filed

her application on March 24, 2006. It was more than 5 years later before

she was ultimately successful. Thus, for five years, Thatch was disabled

and not receiving the benefits to which she and her child were entitled by

10In his reply memorandum, counsel cites to an unpublished case in this district in which he was awarded

a hypothetical hourly rate of $969.62. However, based upon the published authority of Lasley, Ringel and

other case law cited infra, the instant case does not warrant a similar extreme deviation from the norm.

11Counsel sought only a routine extension of time in which to file his Statement of Errors.

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not receive their benefits in a timely manner. Second, their retroactive

benefits are reduced by 25% for the full length of the administrative process.

Thus, the only party ultimately benefitting from such a delay is the attorney.

Thatch v. Com'r of Social Sec., 2012 WL 2885432, at *6 (N.D. Ohio 2012); see also Willis

v. Com'r of Soc. Sec., Case No. 1:10–cv–594, 2014 WL 2589259 at *5–6 and n.3 (S.D.

Ohio June 10, 2014) (Barrett, J.) (reducing § 406(b) award in part because “an estimated

one-third of Plaintiff's past due benefits accrued” during administrative delay after

remand, citing cases supporting similar reductions for administrative delay); Woods v.

Colvin, 2014 WL 2918454 at *6 (N.D. Ohio June 26, 2014) (finding delay at administrative

level more relevant when fee exceeds Hayes test). While counsel’s firm is to be

commended for patience and persistence (particularly at the administrative level which is

not compensable by this Court), the fact remains that counsel spent only 15.5

compensable hours in this Court. The unearned inflation of his fee based solely upon the

slow wheels of justice weighs in favor of reduction.

The third guidepost is the quality and quantity of attorney hours expended. Mr.

Acciani is a longstanding member of the bar who very frequently appears on behalf of

social security claimants in this Court. His experience level is reflected in part in his

efficiency, with the 15.5 hours spent on this case falling on the low side of the average

time spent by other attorneys prosecuting similar cases.12 And the undersigned can

agree that the quality of representation was “very good” insofar as it produced a large SSI

award for Plaintiff. On the other hand, the two assertions of error presented to this Court

are the most common claims presented. The case law supporting those claims was well-

12Counsel’s use of standard case law and analysis was appropriate for the routine claims presented on

behalf of his client.

established and counsel understandably used language and citations from other cases in

which he has appeared.13 (See Doc. 10, Statement of Errors that argued that the ALJ

failed to give the treating physician “controlling weight” and over-relied upon consulting

physicians who did not have access to the records of the treating physician).

In Rodriquez, the Sixth Circuit explained that why the routine nature of most social

security appeals should inform a trial court's analysis of a “reasonable” fee versus a

windfall:

Although we recognize that there are cases where the lawyer's unusual skill

or diligence wins the case, typically the number of hours that are required

to prosecute an appeal from the Secretary's determination will not vary

greatly and will bear little if any relationship to the results achieved. Where

a case has been submitted on boilerplate pleadings, in which no issues of

material fact are present and where no legal research is apparent, the

benchmark twenty-five percent of awards fee would obviously be

inappropriate. The reviewing courts should not hesitate to make reductions

in such situations, and at the other end of the spectrum should only allow

maximum fees for extensive effort on the part of counsel who have

overcome legal and factual obstacles to the enhancement of the benefits

awarded to his client.

Rodriquez v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989) (footnote omitted).

To be clear, the undersigned is not suggesting that counsel expended only

“minimal” effort or effort that would be below the average for this case. However, this

case does not justify a windfall award. As the Court explained in Ringel,

The fact that counsel was guilty of no misconduct does not immunize

her fee from windfall reduction. Nor does the fact that [counsel’s] work can

be described as “simple and routine” detract from the reality that she

performed her job admirably, achieving a significant benefit on Mr. Ringel's

behalf.

13See Ringel, 295 F. Supp. at 836 (“[S]ocial security cases reflect a very standardized number of attorney

hours…with most…falling near the midpoint of a 12-30 hour range.”); Spiller v. Com’r of Soc. Sec., 940 F.

Supp.2d 647, 652 (S.D. Ohio 2013) (“Without establishing a firm, bright line rule, …the general range of

time expended on these cases is 15-25 hours.”)

Id., 295 F. Supp.3d at 837 (noting counsel’s Statement of Errors was “formulaic” and

consistent with other briefs by the same counsel, using standard arguments and case

law). The routine nature of the instant case, notwithstanding counsel’s efficient use of

standard case law and analysis, weighs in favor of reduction of the unusually high fee

award to avoid a windfall.

The fourth Ringel guidepost is whether counsel has voluntarily compromised his

fee.

In many unpublished cases in which an unusually high effective hourly rate

has been awarded, the trial court will do so after noting that

the fee requested does not, in fact, represent the full contracted amount. In

those cases, courts point out that the motions reflect a voluntary

compromise of the contingent fee well below the agreed-upon 25%, in

recognition of the fact that the contract would result in a windfall. See, e.g.,

Lowery, 940 F.Supp.2d 689 (granting unopposed motion where counsel

sought only 14.5% of past-due benefits representing an effective hourly rate

of $406, rather than full contingent fee); Willis v. Com'r, 2014 WL 2589259

at *5 (“While counsel is not required to seek less than the 25 percent

contingency fee, a discounted fee or the lack thereof is relevant to a

reasonableness determination”)(collecting cases)

Id., at 838-839.

Here, counsel’s motion clearly acknowledges the windfall potential inherent in his

standard contingency fee but offers no real compromise.

This factor can put counsel in the difficult position of bidding against

themselves, as it were, by offering to take a significantly reduced fee in lieu

of the contracted amount agreed to by their clients. Yet, the statute

authorizes only a “reasonable” fee, which does not include a windfall.

Application of Hayes and similar guideposts continue to alert both counsel

and courts of whether further windfall review is warranted. In cases where

the Hayes test or significant delay suggest possible windfall, the extent to

which counsel has offered to compromise the fee (or failed to compromise)

will be more relevant. See Willis, 2014 WL 2589259 at *5 (holding that

voluntary reduction “is particularly relevant where, as here, the Court's

judgment was followed by an administrative delay in the final award of past-

due benefits”).

Ringel, 295 F.Supp.3d at 839. After filing his motion, counsel had an additional

opportunity to compromise his fee in his reply memorandum. His choice not to do so

favors a reduction. Contrast Ringel, 295 F. Supp.3d at 840-841 (awarding higher-than-

usual fee in part because attorney had offered some minimal compromise in her initial

motion and additional compromise in her reply memorandum).

The fifth guidepost also favors a reduction, since the Commissioner has filed a

well-supported memorandum as a trustee for the Plaintiff. Such opposition is relatively

rare and should be taken seriously.

Unlike the underlying judicial appeal or an EAJA award, the Commissioner

has no direct financial stake in the § 406(b) fee. Filing any opposition to

a fee motion not only requires the Commissioner's attorney to devote

scarce resources to briefing a matter in which his client will not benefit, but

also requires counsel to reverse his/her earlier role and advocate in support

of the Commissioner's previous opponent, who has not asked for such

assistance. Accord Wells v. Sullivan, 907 F.2d 367, 372 (2nd Cir.

1990) (noting “the anomalous role of the Social Security Administration in

first denying benefits to a claimant, and then after losing the case, posing

as a protector of the plaintiff, but spending more time and money in order to

reduce the fees to be paid to the claimant's attorney.”) In cases like Mr.

Ringel's, the Supreme Court accurately predicted that the Commissioner

would play “a part ... resembling that of a trustee for the

claimants,” see Gisbrecht, 535 U.S. at 798 n.6, 122 S.Ct. 1817, but scores

of unopposed motions give testament that such opposition remains

rare. See Bailey v. Heckler, 777 F.2d 1167, 1169 (6th Cir. 1985) (rejecting

argument that the fee should be approved because it is unopposed, since

“claimant is unlikely to object to an allowance of a fee in accordance with

his contingent fee arrangement, for, rightly or wrongly, he will usually give

the lawyer all of the credit for the success in winning an award of benefits

for him”) (internal quotation and citation omitted).

Ringel, 295 F. Supp.3d at 823 (footnote omitted).

In conclusion, none of the five common guideposts cited in Ringel, nor any other

persuasive or controlling authority cited by counsel supports such a high hourly rate of

$827.93 as “reasonable” in this case, even considering the “contingency premium” and

all other relevant factors. Based upon the controlling authority of the Supreme Court and

the Sixth Circuit, and other authority cited herein that requires this Court to disapprove of

any fee that would result in a windfall to counsel, the undersigned concludes that any

presumption of reasonableness has been thoroughly rebutted. Instead, based upon the

exercise of judicial discretion and the record presented, the undersigned concludes that

a “reasonable” fee consistent with the contingent nature of recovery is $440.84, the

hypothetical hourly rate suggested by counsel himself as fair and reasonable for his 15.5

hours of work in this Court. That sum represents 2.5 times the “standard rate” that

counsel previously received for the same work and awards him a “contingency premium”

without straying into the realm of a windfall at the expense of his long-suffering client.

The calculation of the recommended award would result in a total contingency fee

award of $6,833.02 for the 15.5 hours of work spent in this Court (15.5 x $440.84). The

prior EAJA award must be subtracted from that sum as an offset in order to avoid a double

recovery. Thus, the total additional fee to be awarded under 42 U.S.C. §1383(d) equals

$4,538.02, or $6,833.02 - $2295.00 (the prior EAJA fee not including costs)

III. Conclusion and Recommendation

Plaintiff’s motion should be granted only in part to avoid a windfall for the reasons

stated herein. Having determined a “reasonable” fee under Ringel and controlling case

law, IT IS RECOMMENDED THAT the motion for an award of attorney’s fees be

construed as if filed under 42 U.S.C. § 1383(d) and be GRANTED in part. Specifically,

the undersigned recommends that counsel be awarded the additional net fee of

$4,538.02, conditioned on counsel’s submission to the Court of a copy of the referenced

fee agreement.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CARL E. BERRY, Case No: 1:18-cv-207

Plaintiff, Black, J.

v. Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).