The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DANNY L. HOERMLE,
Plaintiff, Case No. 3:17-cv-3
vs.
COMMISSIONER OF District Judge Thomas M. Rose
SOCIAL SECURITY, Magistrate Judge Michael J. Newman
Defendant.
REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFF’S COUNSEL’S INITIAL
MOTION FOR AN AWARD OF ATTORNEY’S FEES BE DENIED AS MOOT (DOC.
15); (2) PLAINTIFF’S COUNSEL’S UNOPPOSED, AMENDED MOTION FOR AN
AWARD OF ATTORNEY’S FEE (DOC. 16) BE GRANTED; (3) ATTORNEY’S FEES,
PURSUANT TO 42 U.S.C. § 406(b), IN THE AMOUNT OF $7,609.00 BE AWARDED; (4)
PLAINTIFF’S COUNSEL BE DIRECTED TO REFUND TO PLAINTIFF, WITHIN
FOURTEEN DAYS, THE EAJA FEE PREVIOUSLY AWARDED TO COUNSEL; AND
(5) THIS CASE REMAIN TERMINATED ON THE COURT’S DOCKET
On September 6, 2017, Judge Rose granted the parties’ joint motion to remand this case to
the Commissioner of Social Security for further administrative proceedings. Doc. 11.
Subsequently, Plaintiff received an award of benefits under the Social Security Act. See doc. 16
at PageID 2001-10. Thereafter, counsel sought, and was awarded in this Court, attorney’s fees in
the amount of $5,000.00 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).
Docs. 13, 14. Plaintiff’s counsel now moves2 for an award of attorney’s fees in the amount of
1 Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2 In light of counsel’s amended motion for an award of attorney’s fees (doc. 16) -- advising the
Court of a mathematical error, which, ultimately, did not impact the requested fee amount -- Plaintiff’s
initial motion (doc. 15) should be denied as moot.
$7,609.00 under 42 U.S.C. § 406(b)3. Doc. 16. Counsel’s motion is unopposed and now ripe for
decision. See id.
I.
In Supplemental Security Income (“SSI”) and/or Disability Insurance Benefit (“DIB”)
cases, the Court is authorized to award attorney’s fees following a successful Social Security
disability appeal. See 42 U.S.C. §§ 402(b)(1), 1383(d)(2). However, such contingency fees (1)
may not exceed 25% of the past-due benefits which the claimant receives as a result of an appeal,
and (2) must additionally be reasonable for the services rendered. Gisbrecht v. Barnhard, 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:
3 42 U.S.C. § 406(b) permits an award of attorney’s fees for successful DIB claims under Title II
of the Social Security Act. SSI benefits are awardable pursuant to Title XVI of the Social Security Act,
which incorporates 42 U.S.C. § 406(b) by reference, and likewise permits an award of attorney’s fees for
successful SSI claims. See 42 U.S.C. § 1383(d)(2); Napier v. Comm’r of Soc. Sec., 190 F. App’x 458, 459-
60 (6th Cir. 2006). The same analysis applies in deciding motions for attorney’s fees under both statutes.
See id.
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).
Plaintiff’s counsel represents working a total of 28.30 hours before this Court. Doc. 16 at
2022-23. Here, counsel’s requested fee of $7,609.00,4 divided by the 28.30 hours spent working
on the case, results in a hypothetical hourly rate of $286.87, 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. Id. at PageID 2046-47.
II.
Accordingly, it is RECOMMENDED THAT: (1) Plaintiff’s counsel’s initial motion for
an attorney’s fees award be DENIED as moot (doc. 15); (2) Plaintiff’s counsel’s unopposed,
amended motion for attorney’s fees under § 406(b) (doc. 16) be GRANTED; (3) Plaintiff’s
counsel be AWARDED the requested sum of $7,609.00 in attorney’s fees; (4) Plaintiff’s counsel
be ORDERED to reimburse Plaintiff, within FOURTEEN (14) DAYS, the EAJA fee previously
awarded to counsel; and (5) this case remain TERMINATED on the Court’s docket.
4 The requested fee of $7,609.00 was calculated as follows: Plaintiff was awarded $70,436.00 in
past due benefits. Doc. 16 at PageID 2013-15. Twenty-five percent of that sum is $17,609.00. Counsel has
requested a fee of $10,000.00 from the Commissioner under 42 U.S.C. § 406(a) for work performed at the
administrative level on behalf of Plaintiff. See doc. 16 at PageID 2040-45. Subtracting that sum from the
$17,609.00 leaves $7,609.00, i.e., the fee sought here by Plaintiff's counsel.
Date: June 8, 2020 /s/Michael J. Newman
Michael J. Newman
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within FOURTEEN days after being served with
this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if
served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however,
this Report and Recommendation was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the
deadline to file objections by filing a motion for extension, which the Court may grant upon a
showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation objected
to, and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based, in whole or in part, upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is extended
to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).