Holand

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD W. HOLAND : Case No. 2-22-cv-02478

:

Plaintiff, : Judge Algenon L. Marbley

:

v. : Magistrate Judge Chelsey M. Vascura

:

COMMISSIONER OF SOCIAL :

SECURITY :

:

Defendant. :

OPINION & ORDER

This matter is before the Court on Plaintiff’s Motion for Attorney Fees pursuant to 42

U.S.C. § 406(b) of the Social Security Act. (ECF No. 20). For the reasons set forth below,

Plaintiff’s Motion for Attorney Fees (ECF No. 20) is GRANTED.

I. BACKGROUND

On June 16, 2022, Plaintiff filed suit against the Commissioner of Social Security

(“Commissioner”) seeking a reversal of the Commissioner’s determination that he was not entitled

to disability benefits and an award of annual and past due benefits. (ECF No. 4) On April 26, 2023,

this Court adopted the Magistrate Judge’s Report and Recommendation to reverse the

Commissioner’s determination and remanded the matter to the Commissioner and Administrative

Law Judge (“ALJ”) pursuant to Sentence Four of § 406(g). (ECF No. 16). On remand, Plaintiff

was awarded with $117,618.00 in past-due benefits. (ECF No. 20). Plaintiff’s counsel now comes

before this Court seeking attorney fees in the amount of $14,000.00 for the 27.95 hours of work

representing Plaintiff in this Court. Plaintiff’s counsel seeks to refund the EAJA fee amount of

$5,675.00 to Plaintiff directly, upon payment of the § 406(b) fees. (ECF No. 20).

II. STANDARD OF REVIEW

In cases in which a Plaintiff is represented in federal court and receives a favorable

judgement, the court may award a reasonable fee for an attorney’s representation. 42 U.S.C. §

406(b). If awarded, the attorney fees are to be paid out of a plaintiff’s past-due benefits. 42 U.S.C.

§ 406(b). Federal courts review such requests for attorney fees under § 406(b) for reasonableness,

acting as an independent check and seeking to ensure reasonable results. Gisbrecht v. Barnhart,

535 U.S. 789, 796 (2002). This review should evaluate the character of the representation and the

results the representative achieved. Id. at 808. Although § 406(b) does not displace contingent-fee

agreements as the primary means by which fees are set for successfully representing Social

Security benefits claimants in court, Congress has rendered unenforceable agreements which

provide for fees in excess of 25 percent of the past-due benefits. Id. at 807.

In the Sixth Circuit, an attorney who represents the claimant before the Commissioner and

in court may separately receive fees for both representations, meaning the attorney may receive

total fees exceeding twenty-five percent of the claimaint’s benefits award. Booth v. Commissioner

of Social Sec., 645 Fed.Appx 455, 457 (6th Cir. 2016) (citing Horenstein v. Sec’y of Health &

Human Servs., 35 F.3d 261, 262-63 (6th Cir. 1994)). The Sixth Circuit has additionally limited

instances in which courts may reduce fees to only two circumstances: “(1) those occasioned by

improper conduct or ineffectiveness of counsel; and (2) situations in which counsel would

otherwise enjoy a windfall because of either an inordinately large benefit award or from minimal

effort expended.” Rodriquez v. Brown, 865 F.2d 739, 746 (6th Cir. 1989). As such, 25%

contingency fee contracts “should be given the weight ordinarily accorded a rebuttable

presumption.” Id. at 746.

III. LAW AND ANALYSIS

Section 406(b) of the Social Security Act requires federal courts to determine and award a

reasonable fee, not to exceed 25 percentage of the total past-due benefits to which a claimant is

entitled. 42 U.S.C. § 406(b)(1)(A). Courts have an “affirmative obligation” to determine whether

a fee award is reasonable, even if fees are unopposed and based on a standard contingency fee

agreement within the statutory cap. Ringel v. Comm’r of Soc. Sec’y, 295 F. Supp. 3d 816, 822 (S.D.

Ohio 2018). Fees under § 406(b), unlike EAJA awards, are paid “directly out of, and therefore

directly reduces, the amount of past-due benefits paid to the disabled claimant.” Id. The Sixth

Circuit has instructed that the federal judiciary must ensure that the “fees charged are reasonable

and do not unduly erode the claimant’s benefits.” Royzer v. Sec’y of Health & Human Servs., 900

F.3d 981, 982 (6th Cir. 1990).

In Hayes v. Secretary of Health & Human Services, 923 F.2d 418 (6th Cir. 1991), the Sixth

Circuit held 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.” 923 F.2d at 422. The calculation of this rate is often referred to as the

Hayes floor. Courts may then consider a variety of factors to determine whether a fee exceeding

the Hayes floor is still reasonable, including:

(1) the number of years that past benefits have accrued and whether extraordinary

delay has resulted in an inordinately large past-due benefits award (without regard

to any fault of counsel); (2) the quality and quantity of hours, including the

typicality of claims, the efficiency of the attorney performing those hours, and any

non-compensable work; (3) the extent to which counsel has compromised the fee;

and (4) whether the motion is opposed by the Commissioner, and/or any other

factors that provide a reasoned basis for the exercise of discretion.

Ringel, 295 F. Supp. 3d at 842. The Ringel decision advocated the use of the EAJA fee rate of

$125.00 as the standard rate where counsel does not submit evidence of their normal billing rate

for comparable, non-contingent work. Id. at 829–31. Other courts have rejected this approach as it

does not account for the skill and experience of the attorney, such that it would “likely discourage

experienced attorneys from representing social security claimants.” See Lee v. Comm’r of Soc.

Sec’y Admin, 2018 WL 2999909, at *4 (S.D. Ohio June 15, 2018). The Lee court considered hourly

billing rates for attorneys in social security cases and the experience of counsel in finding a fee

award of $675.00 per hour to be appropriate. Id. A court should reduce fees in situations where

counsel “would otherwise enjoy a windfall because of either an inordinately large benefit award

or from minimal effort expanded.” Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989).

The Ohio State Bar Association’s 2024 attorney hourly billing rates report demonstrates

that the median hourly rate for attorneys specializing in Administrative Law is $350.00. 2024

Economics of Law Practice Study, The Ohio State Bar Association (2025). In the Columbus region,

the median hourly rate for private practitioners is $300.00. Id. As such, the floor in the present

case, determined by doubling the standard rate of the hourly average, would be $600.00 for a

private practitioner located in the Columbus region, and $700.00 per hour for an Administrative

Law case adjudicated in Ohio.

This Court must consider whether the award of $14,000.00 in attorney fees is reasonable

and ensure that it does not constitute a windfall. In April 2023, Plaintiff received an award of past

due benefits in the amount of $117,618.00 for benefits dating back to October 2018. (ECF No. 20-

1 at 5; ECF No. 20-2). Counsel is moving for an award based on benefits awarded through the

month before the ALJ’s decision, or $99,824.00. (ECF No. 20 at 2). Plaintiff entered into a

contingency fee arrangement with her counsel to pay counsel 25 percent of past due benefits if he

received a favorable outcome. (ECF No. 20 at 2; ECF No. 20-3). Counsel now seeks approximately

14 percent1 of the benefits awarded, while the fee agreement and statutory cap would allow counsel

to seek up to 25 percent of this amount, provided the Court were to find amount reasonable.

Plaintiff’s counsel contends that this award is reasonable when taking into account his

qualifications, prior experience, the considerable risk taken in representing Plaintiff, and the

challenging nature of the case. (ECF No. 20).

Plaintiff’s counsel achieved a successful outcome for Plaintiff, in the form of an ALJ

determination in his favor and award of approximately 5 years in back due benefits. Under Hayes,

an hourly rate that is less than twice the standard rate is per se reasonable. Plaintiff’s counsel

performed 27.95 hours of work for which he is seeking $14,000.00 in fees, which results in an

hourly rate of $500.00. He represents that his typical hourly rate in similar, non-contingent matters

is $400.00. (ECF No. 20). Under Hayes, an hourly rate below $700.00 would be per se reasonable.

Counsel is thus seeking an award of attorney fees below the Hayes floor, which is presumptively

reasonable under Sixth Circuit law.

The hourly rate requested by Plaintiff’s counsel is reasonable in light of Plaintiff counsel’s

favorable results, the skill and experience of counsel, and his effort in the present case. See, e.g.,

Lery v. Commissioner of Social Security, 2019 WL 1856278, at *1 (S.D. Ohio Apr. 25, 2019)

(approving the hypothetical hourly rate of $530.22); Bush v. Commissioner of Social Security 2019

WL 1300311, at *2 (S.D. Ohio Mar. 21, 2019) (approving hourly rate of $599.00); Barrett v.

Commissioner of Social Security, 2018 WL 4846263, at *2 (S.D. Ohio Oct. 5, 2018) (approving

hourly rate of $656.20). Additionally, this Motion is not contested by the Commissioner (ECF No.

21). Therefore, this Court is persuaded that the requested award for attorney fees totaling

1 This calculation is performed by the Court as Plaintiff’s Counsel states, “is less than 25%,” but provides no

specific percentage. (ECF No. 20 at 8).

$14,000.00 for 27.95 hours at $500 per hour satisfies the requirements of 42 U.S.C. § 406(b) and

is a reasonable reward in the present case.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Attorney Fees (ECF No. 20) is

GRANTED. Plaintiff’s attorney will receive $14,000.00 for past-due benefits as compensation for

his services related to the proceedings in this Court and will refund the EAJA fee amount of

$5,675.00 to Plaintiff.

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

DATED: April 27, 2026