Rafferty

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ALICE R.,1 : Case No. 2:22-cv-2218

:

Plaintiff, : Magistrate Judge Peter B. Silvain, Jr.

:

(by full consent of the parties)

vs. :

:

COMMISSIONER OF THE SOCIAL :

SECURITY ADMINISTRATION, :

:

Defendant. :

DECISION AND ENTRY

This case is before the Court upon Plaintiff’s Unopposed Motion for Attorney Fees

Pursuant to 42 U.S.C. § 406(b)(1) (Doc. #18).

Plaintiff’s Motion seeks an award of attorney fees under 42 U.S.C. § 406(b)(1) in the total

amount of “$22,264.00, less the EAJA fee previously awarded of $4,025.00, for a net § 406(b) fee

of $18,239.00.” (Doc. #18, PageID #1366). Plaintiff’s counsel indicates in his motion that he

emailed a copy of his motion to counsel for the Commissioner, and Commissioner’s counsel

responded that the Commissioner neither supports or opposes Plaintiff’s award of attorney fees or

Plaintiff’s requested amount. Id. at 1368. However, Commissioner’s counsel related that the

proposed fee would be “in accordance with agency policy” and allowed Plaintiff’s counsel to style

his motion as unopposed. Id.

In Social Security cases, the Court is authorized to award attorney’s fees following the

successful prosecution of a Social Security disability appeal. See U.S.C. §§ 406(b)(1), 1383(d)(2).

1 The Committee on Court Administration and Case Management of the Judicial Conference of the United States has

recommended that, due to significant privacy concerns in social security cases, federal courts should refer to plaintiffs

only by their first names and last initials. See also S.D. Ohio General Rule 22-01.

However, such fees may not exceed 25% of the past-due benefits which the [Plaintiff] receives as

a result of the appeal. Id. Furthermore, the attorney requesting a fee award must show, and the

Court must affirmatively find, that the contingency fee sought, even one within the 25% cap, is

reasonable for the services rendered. Gisbrecht v. Barnhard, 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.” Gisbrecht, 535 U.S., at 807. 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 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).

Here, Plaintiff’s counsel indicates that he spent a total of 32.5 hours representing Plaintiff

before this Court. (Doc. #18, PageID #1367). Plaintiff’s counsel requested a fee of $22,264.00.2

Id. at 1368. Plaintiff’s counsel indicates that once the fee is divided by the attorney hours, the

hypothetical hourly rate is $685.05, a rate the Commissioner has not opposed. Id.

Plaintiff’s counsel did not provide his standard hourly rate. 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. See Joseph F. v. Comm’r of Soc. Sec.,

No. 1:17-CV-57, 2024 WL 1477384, at *3 (S.D. Ohio Apr. 5, 2024) (Litkovitz, M.J.), report and

recommendation adopted, 2024 WL 1719595 (S.D. Ohio Apr. 22, 2024) (Barrett, D.J.); Lee v.

Comm’r of Soc. Sec., No. 3:14-CV-291, 2018 WL 2999909, at *4 (S.D. Ohio June 15, 2018) (Rice,

D.J.). Counsel’s hypothetical hourly rate of $685.05 fits comfortably within the range of fees that

judges in this district have found reasonable. See Goffe v. Comm’r of Soc. Sec., No. 3:18-CV-115,

2021 WL 4901503, at *2 n.1 (S.D. Ohio Oct. 21, 2021) (Ovington, M.J.) ($511.01, $660.70,

$681.82, or $763.36 hypothetical hourly rates were all reasonable); Benita R. v. Comm’r of Soc.

Sec., No. 1:20-CV-55, 2022 WL 2133746, at *2 (S.D. Ohio June 14, 2022) (Litkovitz, M.J.)

($753.62 hypothetical hourly rate). Moreover, the time devoted by Plaintiff’s counsel to this matter

is likewise reasonable. See, e.g., Spiller v. Comm’r of Soc. Sec., 940 F.Supp. 2d 647, 652 (S.D.

Ohio 2013) (Newman, M.J.), report and recommendation adopted, 940 F.Supp. 2d 647 (S.D. Ohio

2013) (Rice, D.J.). Counsel’s requested fee is therefore reasonable.

IT IS THEREFORE ORDERED THAT:

2 Plaintiff’s counsel used the fee of $22,264.00 to calculate his hypothetical hourly rate. (Doc. #18, PageID #1368).

However, Plaintiff’s counsel, acknowledging that he would need to return the EAJA award of $4,025.00 if paid that

full amount, proposes a net fee of $18,239.00 be paid to him. Id. at 1367.

1. The Motion for Attorney Fees filed by Plaintiff’s counsel (Doc. #18) is

GRANTED;

2. Plaintiff’s counsel shall be awarded attorney fees pursuant to 42 U.S.C. §

406(b)(1) in the amount of $22,264.00, reduced by the EAJA fee of

$4,025.00, for a net total fee of $18,239.00;

3. The remaining funds that the Commissioner has withheld from Plaintiff’s

past-due benefits in anticipation of a § 406(b) award should be released to

Plaintiff; and

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

May 4, 2026 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge