Sumner

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (DAYTON)

RONALD SUMNER, : Case No. 3:21-cv-00098

:

Plaintiff, : Magistrate Judge Caroline H. Gentry

: (upon full consent of the parties)

vs. :

:

COMMISSIONER OF THE SOCIAL :

SECURITY ADMINISTRATION, :

:

Defendant. :

DECISION AND ENTRY

This matter comes before the Court upon Plaintiff’s Motion for Allowance of

Attorney Fees (Doc. No. 21), which seeks an award of attorney’s fees pursuant to 42

U.S.C. § 406(b)(1) in the amount of $12,000.00. The Commissioner did not file a

response, and Plaintiff has represented that the Motion is unopposed. (Id. at PageID#

1854.) For the reasons set forth below, the Motion is GRANTED.

I. BACKGROUND

Previously in this Social Security appeal, Plaintiff filed a Statement of Specific

Errors that raised three issues. (Doc. No. 12.) The Commissioner chose not to file a

response but instead jointly moved for a remand for further proceedings under Sentence

Four of 42 U.S.C. § 405(g). (Doc. No. 17.) Upon the parties’ joint motion (Doc. No. 19),

the Court also awarded attorneys’ fees to Plaintiff’s counsel under the Equal Access to

Justice Act (“EAJA”), 28 U.S.C. § 2142(d), in the amount of $2,900.00. (Doc. No. 20.)

On remand, the Commissioner awarded benefits to Plaintiff. (Doc. No. 21,

PageID# 1862.) The Commissioner withheld 25 percent of the amount of Plaintiff’s past

due benefits, or $35,980.93, to be applied toward an award of attorney’s fees under

Section 406(b)(1). (Id. at PageID# 1865.) Plaintiff’s counsel now requests an attorney’s

fee award in the amount of $12,000.00.

II. APPLICABLE LAW

If a Social Security claimant obtains benefits after filing an appeal in this Court,

then his counsel may ask the Court to award the amount of attorney’s fees owed under a

contingency fee agreement. 42 U.S.C. § 406(b)(1). The fee award may not exceed 25% of

the past-due benefits, id., and it must only compensate counsel for work performed in the

federal court proceeding. Horenstein v. Secretary of HHS, 35 F.3d 261, 262 (6th Cir.

1994) (en banc). The Commissioner routinely withholds 25% of a claimant’s past-due

benefits to pay for such a fee award. See 42 U.S.C. § 406(b)(1)(A) (“[T]he Commissioner

… may … certify the amount of such fee for payment to such attorney out of, and not in

addition to, the amount of such past-due benefits.”).

However, even if a claimant agrees to pay his counsel a contingency fee award in

the amount of 25% of past-due benefits, that amount is not automatically awarded.

Instead, Plaintiff’s counsel must show, and the Court must find, that the requested fee

award is reasonable for the services rendered. Gisbrecht v. Barnhart, 535 U.S. 789, 807

(2002) (noting the Social Security Act “does not displace contingen[cy]-fee agreements”

but “calls for court review of such arrangements as an independent check, to assure that

they yield reasonable results in particular cases.”). Therefore, a request for a contingency

fee award in the amount of 25% of past-due benefits “is not to be viewed as per se

reasonable,” but instead shall be given “the weight ordinarily accorded a rebuttable

presumption.” Rodriquez v. Brown, 865 F.2d 739, 746 (6th Cir. 1989).

To assist the Court with assessing the reasonableness of a request for attorney’s

fees, counsel should submit a record of hours worked and a statement of his normal

hourly billing rate for noncontingent-fee cases (if any). Gisbrecht, 535 U.S. at 808. The

Court may also consider evidence of the standard hourly rate for similar work performed

in the relevant market. Hayes v. Secretary of HHS, 923 F.2d 418, 422 (6th Cir. 1990).

But even fee awards that reflect above-average hourly rates may be reasonable:

It is not at all unusual for contingent fees to translate into large hourly rates

…. 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.

Royzer v. Secretary of HHS, 900 F.2d 981, 981-82 (6th Cir. 1990). Thus, the rule in the

Sixth Circuit is that “[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, 923 F.2d at 422.

Notably, “a high effective hourly rate cannot on its own justify reducing a fee

award—district courts must provide additional reasoning.” Tucker v. Comm’r of Soc.

Sec., 136 F.4th 639, 644 (6th Cir. 2025) (emphasis in original). Therefore, in addition to

“consider[ing] the effective hourly rate in weighing reasonableness,” id., the Court will

consider whether the requested fee should be reduced for other reasons. For example,

there may be evidence that counsel acted improperly or would receive a windfall due to

the discrepancy between relatively few hours worked and a sizeable award of past-due

benefits. Gisbrecht, 535 U.S. at 808; Rodriquez, 865 F.2d at 746. The Court will consider

the complexity and difficulty of the case, the results achieved, and whether any remand to

the Commissioner was the result of a joint stipulation or a court order. Tucker, 136 F.4th

at 644-45, 648. Finally, the Court will consider this guidance from the Sixth Circuit:

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, 865 F.2d at 747.

After determining the amount of a reasonable contingency fee award under the

Social Security Act, 42 U.S.C. § 406(b)(1), the Court will order counsel to refund to

Plaintiff all fees previously awarded under the EAJA. See Jankovich v. Bowen, 868 F.2d

867, 871 n.1 (6th Cir. 1989).1

1 Although the EAJA Savings Provision literally requires attorneys to refund the smaller fee to the

claimant, some courts permit attorneys to “set off” the amount of the EAJA fee from their requested

Section 406(b)(1) fee and then award the amount equal to the difference between the fees. E.g., Parrish,

698 F.3d at 1221 (9th Circuit); Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1269 (11th Cir. 2010).

III. ANALYSIS OF PLAINTIFF’S MOTION

As instructed by Gisbrecht and Rodriquez, the Court begins its analysis with the

text of the contingency fee agreement. It provides, in relevant part:

Legal services rendered by Horenstein, Nicholson & Blumenthal, Attorneys

at Law, shall be on a contingent fee basis….

If the first ALJ decision is a denial and the case is subsequently won

following an appeal to the Appeals Council or Federal Court, the fee will be

25% of the back-benefits awarded or a minimum $3,000.00, whichever is

greater and will be sought be Fee Petition and will require approval by the

Social Security Administration….

(Doc. No. 21, PageID# 1861.) “Contingent-fee contracts … [at] the 25 percent ceiling …

are the most common fee arrangement between attorneys and Social Security claimants.”

Gisbrecht, 535 U.S. at 800. Although this Court “is not bound to award recovery

according to the stated [25% fee] agreement,” the Court “should give close attention” to

the agreement and treat it as a rebuttable presumption. Rodriquez, 865 F.2d at 746.

Plaintiff’s counsel submitted documentation of the hours worked by his firm.

(Doc. No. 21, PageID# 1871-73.) Attorney Michael Rake worked 12.75 hours, and his

paralegal Marci Stark worked 6.85 hours, for a total of 19.60 hours. (Id. at PageID#

1871.) Combining these hours, Plaintiff’s counsel asserts that if “$12,000.00 is awarded

for Plaintiff’s attorney’s 12.75 hours of time and [p]aralegal’s 6.85 hours of time … the

hourly rate would be $612.24.” (Id. at PageID# 1856.) Plaintiff’s counsel argues that this

hypothetical hourly rate is reasonable and will not provide a windfall. (Id.)

A. The Court Will Separately Assess the Reasonableness of The

Hypothetical Attorney and Paralegal Hourly Rates

As this Court has noted, federal courts that calculate hypothetical attorney hourly

rates use different approaches when a Section 406(b)(1) fee application includes work

performed by paralegals. See Amanda G. v. Comm’r of Soc. Sec., No. 1:20-cv-987, 2024

U.S. Dist. LEXIS 141479, at *6 (S.D. Ohio Aug. 8, 2024) (Litkovitz, MJ) (citing cases).

At one end of the spectrum, some courts omit all paralegal hours from the hypothetical

attorney hourly rate calculation, which assigns no value to paralegal work. Id. at *7. At

the other end of the spectrum, some courts combine the attorney and paralegal hours

when calculating the hypothetical attorney hourly rate, which gives equal value to the

work performed by attorneys and paralegals. Id. at *6.

This Court declines to follow either approach. Instead, because the substantive

legal work performed by paralegals is both valuable and compensable—but is routinely

charged at lower rates than rates charged by attorneys—the Court will separately assess

the reasonableness of the hypothetical attorney hourly rate and the (lower) hypothetical

paralegal hourly rate. Although the Court could utilize an arbitrary hourly paralegal rate

(e.g., $100) for this calculation, such an approach would ignore the fact that hypothetical

rates in contingency fee cases are typically higher than standard hourly billing rates

because fees are not awarded in every contingency case. See Royzer, 900 F.2d at 981-82.

Accordingly, the Court will adopt Magistrate Judge Litkovitz’s approach in

Amanda G. and “include appropriate paralegal hours at half the attorney hourly rate in

calculating the effective hourly rate” when analyzing a Section 406(b)(1) fee request.

2024 U.S. Dist. LEXIS 141479, at *8. Thus, the applicable calculation is [(attorney hours

* 2x) + (paralegal hours * x) = $ requested fee], with x being the hypothetical paralegal

hourly rate and 2x the hypothetical attorney hourly rate. Id. at *8 n.3. Applying this

calculation here, the hypothetical attorney hourly rate is $741.88, and the hypothetical

paralegal hourly rate is $370.94.2

B. The Requested Contingency Fee Is Reasonable

For the reasons discussed below, the Court finds that a hypothetical attorney

hourly rate of $741.88 and a hypothetical paralegal hourly rate of $370.94 are both

reasonable for the work that was performed in this case.

First, as noted above, there is a rebuttable presumption that a 25% contingency fee

agreement is reasonable. Significantly, although the contingency fee agreement in this

case would permit Plaintiff’s counsel to seek an award of 25% of Plaintiff’s past-due

benefits—or $35,980.93—counsel is not seeking such a high amount. Instead, Plaintiff’s

counsel requests an award of only $12,000.00, which is approximately 8.3% of the past-

due benefits. Counsel’s voluntary reduction of the percentage of past-due benefits sought

substantially reduces the possibility of an unjustified windfall and weighs heavily in favor

of finding that the requested amount is reasonable.

Second, because Plaintiff’s counsel (who works on a contingency fee basis) did

not provide evidence of a standard hourly rate, the Court has instead reviewed fee awards

in other cases and finds that the hypothetical attorney hourly rate is reasonable. See Twyla

2 Specifically, after solving the equation [(12.75 attorney hours * 2x) + (6.85 paralegal hours * x) =

$ 12,000.00], the hypothetical paralegal hourly rate (x) is $370.94, and the hypothetical attorney hourly

rate (2x) is $741.88.

D. v. Comm’r of Soc. Sec., No. 3:19-cv-368, 2025 U.S. Dist. LEXIS 40825, at *3-4 (S.D.

Ohio Mar. 6, 2025) (Silvain, MJ) (“In the absence of counsel’s standard hourly rate,

judges within this district have assessed whether the hypothetical hourly rate falls within

a range of rates previously found reasonable.”) (citing cases). Counsel’s hypothetical

hourly rate of $839.28 fits comfortably within the range of fees that judges in this district

have found reasonable. See, e.g., id. at *4 (awarding hypothetical attorney hourly rate of

$728.60 to attorney Michael Rake, Plaintiff’s counsel in this case); Amanda G., 2024

U.S. Dist. LEXIS 141479, at *8 (awarding hypothetical attorney hourly rate of $878.81 to

attorney Michael Rake); Jay V.N.I. v. Comm’r of Soc. Sec., No. 3:20-cv-365, 2024 U.S.

Dist. LEXIS 98031, at *4 (S.D. Ohio June 3, 2024) (Silvain, MJ) (awarding hypothetical

attorney hourly rate of $814.74 to attorney Richard Brian); Martha G. v. Comm’r of Soc.

Sec., No. 1:19-cv-936, 2023 U.S. Dist. LEXIS 63838, at *6-7 (S.D. Ohio Apr. 11, 2023)

(Bowman, MJ) (awarding hypothetical attorney hourly rate of $869.56 to attorney

Edward Ahlers), report and recommendation adopted by 2023 U.S. Dist. LEXIS 77738

(S.D. Ohio, May 3, 2023) (Barrett, DJ).

Third, although few courts have addressed the reasonableness of a hypothetical

paralegal hourly rate, Magistrate Judge Litkovitz approved a paralegal hourly rate of

$439.40 in Amanda G., 2024 U.S. Dist. LEXIS 141479, at *8. The hypothetical paralegal

hourly rate in this case—$370.94—is less than the rate approved in Amanda G.

Moreover, as noted, hypothetical hourly rates in contingency fee cases are routinely

higher (sometimes much higher) than the standard hourly rates billed by attorneys and

paralegals who are paid regardless of the outcome. Therefore, although $370.94 is

substantially higher than standard paralegal hourly rates, the Court finds it reasonable.

Fourth, after reviewing the submitted billing record, the Court finds no indication

that the time expended by Plaintiff’s counsel and his paralegal (19.6 hours) was excessive

or improperly charged. See, e.g., Spiller v. Comm’r of Soc. Sec., 940 F. Supp. 2d 647, 652

(S.D. Ohio 2013) (Newman, MJ), report and recommendation adopted, 940 F. Supp. 2d

647 (S.D. Ohio 2013) (Rice, DJ) (“Without establishing a firm, bright line rule, the Court

surveyed a large number of EAJA fees/costs petitions recently filed in this District, and

found the general range of time expended on these cases is 15-25 hours.”)

Fifth, the Sixth Circuit has recognized that “a hypothetical hourly rate that is equal

to or greater than twice the standard rate may well be reasonable.” Hayes, 923 F.2d at

422. In such circumstances, the Court may consider “arguments designed to rebut the

presumed reasonableness of the attorney’s fee.” Id. However, the Commissioner has not

offered any such arguments or objected to the requested fee award. In the absence of any

rebuttal, the Court may presume that Plaintiff’s hypothetical hourly rate is reasonable. Id.

Sixth, the Court concludes that the hypothetical hourly rates are reasonable in light

of the skill and experience of Plaintiff’s counsel, who has represented successful

claimants many times in this Court. See, e.g., Samantha K. v. Comm’r of Soc. Sec., No.

3:23-cv-268, 2025 U.S. Dist. LEXIS 194333 (S.D. Ohio Sept. 25, 2025); Twyla D., 2025

U.S. Dist. LEXIS 40825; Nicola C.B. v. Comm’r of Soc. Sec., No. 3:21-cv-55 (S.D. Ohio

Feb. 4, 2025); Amanda G., 2024 U.S. Dist. LEXIS 141479; Andrea B.T. v. Comm’r of

Soc. Sec., No. 3:21-cv-307, 2024 U.S. Dist. LEXIS 98033 (S.D. Ohio June 3, 2024).

Seventh, the Court has reviewed the proceedings in this case to assess their

complexity and difficulty, the results achieved, and whether the case was remanded to the

Commissioner because of a joint stipulation or a court order. Tucker, 136 F.4th at 644-45,

648. The docket shows that Plaintiff’s counsel filed a thorough Statement of Specific

Errors that raised three issues (Doc. No. 12), and the Commissioner chose to respond by

agreeing to remand the case rather than await a judicial decision on the merits. Plaintiff’s

counsel achieved excellent results in an economical fashion and there is no basis to

reduce the attorney’s fees requested in this case.

Eighth, given the substantial risk undertaken by Plaintiff’s counsel in accepting

Social Security cases on a contingent fee basis, the undersigned finds that an award of

$12,000.00 in this case is reasonable.

IV. CONCLUSION

Upon review of Plaintiff’s Motion and the supporting evidence, as well as the

relevant legal authority, the Court finds that the requested attorney’s fee award is

reasonable. Accordingly, the Court ORDERS as follows:

1. Plaintiff’s Motion for Allowance of Attorney Fees (Doc. No. 21) is

GRANTED.

2. Plaintiff’s counsel is AWARDED attorney’s fees pursuant to 42 U.S.C.

§ 406(b)(1) in the amount of $12,000.00, which sum the Commissioner shall REMIT to

Plaintiff’s counsel from the withheld past-due benefits.

3. Plaintiff’s counsel shall REMIT to Plaintiff, within fourteen (14) days of

his receipt of this attorney’s fee award, the prior EAJA award of $2,900.00.

4. The Commissioner shall RELEASE to Plaintiff the remaining funds

withheld from the past-due benefits awarded to him in anticipation of a fee award under

42 U.S.C. § 406(b)(1).

5. This case remains terminated on the docket of this Court.

IT IS SO ORDERED.

Date: December 3, 2025 /s/ Caroline H. Gentry

Caroline H. Gentry

UNITED STATES MAGISTRATE JUDGE