Hall

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (DAYTON)

CONNIE H., : Case No. 3:23-cv-00046

:

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 Award of Attorney

Fees (Doc. No. 17), which seeks an award of fees in the amount of $11,697.00 pursuant

to 42 U.S.C. § 406(b)(1). The Commissioner neither supports nor opposes the Motion.

I. BACKGROUND

Previously in this Social Security appeal, 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. 13, PageID# 1105.) On remand,

Plaintiff was awarded benefits. (Doc. No. 17-3, PageID# 1125-29.)

Upon the parties’ joint motion (Doc. No. 15), the Court previously 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 $5,365.00. (Doc. No. 16.) The Commissioner

subsequently withheld 25 percent of Plaintiff’s past due benefits, or $11,697.00, for

application toward a contingent fee award. (Doc. No. 17-3, PageID# 1127.) Plaintiff’s

counsel now seeks a contingency fee award under 42 U.S.C. § 406(b)(1) in the amount of

$11,697.00. (Doc. No. 17.)

II. APPLICABLE LAW

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

then her 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 her 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).

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:

I hereby employ Lisa S. Hollifield, Esq., as my attorney to represent me on

my appeal of my claim(s) for Social Security Disability insurance benefits

and/or Supplemental Security Income benefits to Federal Court and on

remand of this if the Federal Court remands the case. In turn, I agree to pay

her a contingent fee of 25% of the past-due benefits awarded to me and my

family if this attorney obtains any benefits on the appeal to the Federal

Court or on remand of the case to the Administrative Law Judge by the

Federal Court.

The Federal Court may award fees to this attorney under the Equal Access

to the Justice Act, 28 U.S.C. Section 2412(d). These fees serve as a credit

towards any attorney fee which I must pay this attorney for the work she

does on my case before the Federal Court and thus m[a]y reduce the

attorney fee which I must pay to this attorney for the work she does on my

case in the Federal Court only. In return for this, I give this attorney the full

power of attorney to execute any check for attorney fees under the Equal

Access to Justice Act, 28 U.S.C. Section 2412(d), which is made out in my

name for her attorney fee under the Act.

(Doc. No. 17-2, PageID# 1124.) “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 that shows she worked 29 hours on

the case filed in federal court. (Doc. No. 17-4.) The $11,697.00 fee that Plaintiff’s

counsel now seeks, divided by the number of hours spent working on the case, results in a

hypothetical hourly rate of $403.34. Counsel also submitted an affidavit that details her

background and experience. (Doc. No. 17-1, PageID# 1122-23.)

After reviewing the materials submitted by counsel, the Court concludes that the

hypothetical hourly rate of $403.34 is reasonable for the work performed in this case, and

that the requested fee award of $11,697.00 is also reasonable.

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

agreement is reasonable. Plaintiff’s counsel is seeking that percentage and the Court is

unaware of any evidence that rebuts the presumption.

Second, the hypothetical attorney hourly rate is more than reasonable in light of

the skill and experience of Plaintiff’s counsel.

Third, counsel’s hypothetical hourly rate of $403.34 is below the range of fees that

judges in this district have found reasonable. See Twyla D. v. Comm’r of Soc. Sec., No.

3:19-cv-368, 2025 U.S. Dist. LEXIS 40825, at *4 (S.D. Ohio Mar. 6, 2025) (Silvain, MJ)

(awarding hypothetical attorney hourly rate of $728.60 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).

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

that the time expended by Plaintiff’s counsel was excessive or improperly charged,

particularly given that the Statement of Specific Errors raised four separate issues. 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 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 four issues (Doc. No. 10, PageID# 1026) and led to the Court’s decision

to reverse and remand the Commissioner’s unfavorable decision. 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.

Sixth, 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

$11,697.00 in this case is reasonable.

Finally, counsel represents that the EAJA fee amount that was previously awarded

will be refunded to Plaintiff to prevent a double recovery of fees. (Doc. No. 17.)

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 fee award is reasonable.

Accordingly, the Court ORDERS as follows:

1. The Motion for Award of Attorney Fees (Doc. No. 17) is GRANTED.

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

§ 406(b)(1) in the amount of $11,697.00. The Commissioner shall REMIT this sum to

Plaintiff’s counsel from the percentage of Plaintiff’s past-due benefits that was withheld.

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

her receipt of this attorney’s fee award, the prior EAJA award of $5,365.00.

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

IT IS SO ORDERED.

Date: January 12, 2026 /s/ Caroline H. Gentry

Caroline H. Gentry

UNITED STATES MAGISTRATE JUDGE