The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOANNA M. WILKINSON,
Plaintiff, Case No. 3:18-cv-305
vs. District Judge Michael J. Newman
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
______________________________________________________________________________
ORDER (1) GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR AN AWARD OF
ATTORNEY’S FEES UNDER 42 U.S.C. § 406(b) (DOC. NO. 28); (2) AWARDING
PLAINTIFF’S COUNSEL $8,727.25 IN FEES; AND (3) DIRECTING PLAINTIFF’S
COUNSEL TO REFUND TO PLAINTIFF, WITHIN FOURTEEN DAYS, THE EAJA
FEE PREVIOUSLY AWARDED TO COUNSEL
On September 23, 2019, the Court reversed the ALJ’s non-disability finding and remanded
this case to the Commissioner under Sentence Four of 42 U.S.C. § 405(g) for further proceedings.
Doc. No. 19. On remand, Plaintiff was awarded benefits. Doc. No. 27. Upon Plaintiff’s motion,
the Court previously awarded to Plaintiff’s counsel attorney’s fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Doc. No. 27. Plaintiff’s counsel now moves for an
award of attorney’s fees in the amount of $8,727.25 under 42 U.S.C. § 406(b). Doc. No. 28.
Counsel’s motion is unopposed. Doc. No. 30.
I.
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).
II.
In this case, Plaintiff’s counsel represents working a total of 37 hours (29.8 attorney hours
and 7.2 paralegal hours) before this Court. Doc. No. 28, PageID 1965. If the paralegal hours are
billed at $80 per hour and deducted, counsel’s requested fee of $8,727.25 divided by the 29.8 hours
spent working on the case, results in a hypothetical hourly rate of $273.53, 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. See Doc. No. 30 at PageID 1990-91.
III.
Based upon the foregoing: (1) Plaintiff’s unopposed motion for a § 406(b) fee award (Doc.
No. 28) is GRANTED; (2) Plaintiff’s counsel is AWARDED the requested sum of $8,727.25 in
attorney’s fees; (3) Plaintiff’s counsel is 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.
June 30, 2021 s/Michael J. Newman
Hon. Michael J. Newman
United States District Judge