Whitt

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (DAYTON)

CAROLYN W., : Case No. 3:20-cv-00423

:

Plaintiff, : Magistrate Judge Caroline H. Gentry

: (upon full consent of the parties)

vs. :

:

COMMISSIONER OF THE SOCIAL :

SECURITY ADMINISTRATION, :

:

Defendant. :

DECISION AND ORDER

This matter comes before the Court upon Plaintiff’s Motion for Attorney’s Fees

(Doc. No. 24), which seeks an award of fees in the amount of $10,143.00 pursuant to 42

U.S.C. § 406(b)(1). The Commissioner’s attorneys do not oppose the requested fee,

explaining that “it is consistent with Section 406(b)’s requirements, is in accord with the

fee agreement, and is otherwise reasonable.” (Doc. No. 25, PageID# 1018.) For the

reasons set forth below, the Motion is GRANTED.

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. 19.) On remand, Plaintiff was

awarded benefits. (Doc. No. 24-3.)

Upon the Plaintiff’s unopposed motion (Doc. No. 21), 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 $5,425.27. (Doc. No. 23.) The

Commissioner subsequently withheld 25 percent of Plaintiff’s past due benefits, or

$10,143.00, for application toward a contingent fee award. (Doc. No. 24-3, PageID#

909.) Plaintiff’s counsel now seeks a contingency fee award under 42 U.S.C. § 406(b)(1)

in the amount of $10,143.00. (Doc. No. 24.)

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 understand that if my federal court attorney wins my case in federal court

… my federal court attorney will petition for an award of attorney fees for

work performed at the federal court(s) pursuant to the Equal Access to

Justice Act (“EAJA”)…. I hereby assign any court-awarded EAJA attorney

fees to my federal court attorney. I agree that any such payment belongs to

my federal court attorney….

I understand that my federal court attorney also has the right to ask the

court to award 25% of my past-due benefits (“406(b) fees”) for representing

me in federal court. The parties agree that if counsel becomes entitled to a

fee up to 25% of the past due benefits for work before the court … that

counsel will credit the amount of the EAJA fee in addition to the 406(b) fee

and will return any excess EAJA amounts not authorized, to the claimant.

(Doc. No. 24-2, PageID# 906.) “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 provided documentation of the hours spent working on the

federal case by Plaintiff’s attorneys and paralegals. (Doc. No. 24-5, PageID# 1006-1013).

Attorney Richard Brian states that Plaintiff’s attorneys worked 23.9 hours, and paralegals

worked 5.8 hours, for a total of 29.7 hours worked on Plaintiff’s case. (Doc. No. 24-1,

PageID# 902.) Counsel applied a paralegal hourly rate of $80.00 and a hypothetical

attorney hourly rate of $404.97 to arrive at the total amount sought of $10,143.00. (Id.)

Counsel also submitted information from the Ohio State Bar Association regarding

average 2023 hourly billing rates for attorneys. (Doc. No. 24-4, PageID# 911-1004.)

Counsel asserts that “the mean hourly rate for attorneys in Elder law/Public

benefits/ERISA cases was $316 in 2023.” (Doc. 24-1, PageID# 902.) Counsel further

argues that this Court “has approved hourly attorney rates over $700.” (Id. at PageID#

903.)

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

hypothetical hourly rate of $404.97 is reasonable for the work performed in this case, and

that the requested fee award of $10,143.00 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, the hypothetical hourly rate of $404.97 is less than twice the amount of the

$316 rate supported by the Ohio State Bar Association’s survey of 2023 hourly billing

rates for similar types of cases. In the Sixth Circuit, “[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. In such circumstances, the Court may consider “arguments designed to rebut the

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

offer any such arguments or object to the requested fee award. In the absence of any

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

Fourth, counsel’s hypothetical hourly rate of $404.97 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).

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

that the time expended by Plaintiff’s counsel 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.”)

Sixth, 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 two issues (Doc. No. 12) 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.

Seventh, 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

$10,143.00 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. 24-1,

PageID# 903.)

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 Attorney’s Fees (Doc. No. 24) is GRANTED.

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

§ 406(b)(1) in the amount of $10,143.00. The Commissioner shall REMIT this sum to

Plaintiff’s counsel from Plaintiff’s past-due benefits that were withheld.

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 $5,425.27.

4. The Commissioner shall RELEASE to Plaintiff the remaining funds, if

any, that were withheld from her award of past-due benefits to pay her attorney’s fees.

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

IT IS SO ORDERED.

Date: January 13, 2026 /s/ Caroline H. Gentry

Caroline H. Gentry

UNITED STATES MAGISTRATE JUDGE