Huffman

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (DAYTON)

WILLIAM H., : Case No. 3:21-cv-00219

:

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 Allowance of

Attorney Fees (Doc. No. 18), which seeks an award of fees in the amount of $30,000.00

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

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

I. BACKGROUND

Plaintiff’s fee application is based upon his firm’s work in two related cases filed

in this Court: (1) William H. v. Comm’r of Soc. Sec., S.D. Ohio Case No. 3:21-cv-00219-

CHG (the “2021 Case”), and (2) William H. v. Comm’r of Soc. Sec., S.D. Ohio Case No.

3:24-cv-00275-KLL (the “2024 Case”).

In this case (the 2021 Case), the undersigned Magistrate Judge 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. (2021 Case, Doc. No. 14, PageID# 1672.)

Upon the parties’ joint motion (Doc. No. 16), the Court 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 $4,800.00. (2021 Case, Doc. No. 17.)

On remand, the ALJ found that Plaintiff was not disabled. (2024 Case, Doc. No. 7-

11, PageID# 1611.) Plaintiff again sued the Commissioner in this Court and filed a

Statement of Errors that identified three issues for review. (2024 Case, Doc. No. 8.) The

parties then filed, and the Court granted, a joint motion to remand this matter for a second

time back to the Commissioner for further proceedings. (2024 Case, Doc. Nos. 10, 11.)

Upon the parties’ joint motion, the Court awarded attorneys’ fees to Plaintiff’s counsel

under EAJA in the amount of $5,200.00. (2024 Case, Doc. Nos. 13, 14.)

Upon remand, the Commissioner found that Plaintiff was disabled and awarded

him disability benefits. (2021 Case, Doc. No. 18, PageID# 1687.) The Commissioner

withheld 25 percent of Plaintiff’s past due benefits, or $63,280.22, for application toward

a contingent fee award. (Id. at PageID# 1691.) For his firm’s work in both cases,

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

amount of $30,000.00. Upon receipt of that amount, Plaintiff’s counsel will remit the

amount of his combined EAJA fees ($10,000.00) directly to Plaintiff. (Id.)

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 up to 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 ordinarily 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:

…. 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 $3000.00, whichever is greater and will be

sought by Fee Petition and will require approval by the Social Security

Administration.

(2021 Case, Doc. No. 18, PageID# 1686.) “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.

Next, the Court examines the hypothetical hourly rate requested for the work

performed in the 2021 and 2024 Cases. Documentation from Plaintiff’s counsel shows

that attorneys worked 44 hours, and paralegals worked 10.75 hours, for a total of 54.75

hours that counsel’s firm worked on both cases. (2021 Case, Doc. No. 18, PageID# 1722-

24.) Counsel applied a hypothetical hourly rate of $547.95 to the total number of hours

worked (54.75) to arrive at the requested amount of $30,000.00.1 (Id. at PageID# 1682.)

The Court does not agree that the hypothetical hourly rate is $547.95. Courts take

different approaches when the hypothetical hourly rate is based upon work performed by

both attorneys and 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 ignore or subtract all paralegal hours

based on a presumption that paralegals perform clerical work. Id. at *7. At the other end

of the spectrum—which is what Plaintiff’s counsel advocates here—some courts simply

combine the attorney and paralegal hours, giving equal value to their work. Id. at *6.

This Court declines to follow either approach, as it finds that paralegals perform

valuable and compensable work that is routinely billed at lower hourly rates than the rates

charged by attorneys. Rather than apply an arbitrary hourly rate, the Court will adopt

Magistrate Judge Litkovitz’s suggestion and “include appropriate paralegal hours at half

1 Alternatively, Plaintiff’s counsel argues that the Court should consider his effective hourly rate to be

$365.30 because he must remit Plaintiff’s EAJA award offset of $10,000.00 directly to Plaintiff. (Doc.

No. 18, PageID# 1682.) However, this Court has held that “the return of an EAJA fee … does not reduce

the effective hourly [rate] sought but only prevents double recovery for the same work.” See Ringel v.

Comm’r of Soc. Sec., 295 F. Supp. 3d 816, 840 (S.D. Ohio 2018) (Bowman, MJ), report and

recommendation adopted 295 F. Supp. 3d 816, 819 (S.D. Ohio 2018) (Barrett, DJ). Therefore, the Court

will not reduce the hypothetical hourly rate to account for counsel’s return of the EAJA awards.

the attorney hourly rate in calculating the effective hourly rate” when analyzing the

reasonableness of a Section 406(b)(1) fee request. Amanda G., 2024 U.S. Dist. LEXIS

141479, at *8. Thus, as she explains, the relevant mathematical calculation is (attorney

hours * 2x) + (paralegal hours * x) = $ requested fee, with x being half the amount of the

hourly attorney rate. Id. at n.3. Applying this calculation here, the hypothetical attorney

hourly rate is $607.60 and the hypothetical paralegal hourly rate is $303.80.2

Attorney Robert Walter also submitted an affidavit that details his background and

experience. He was admitted to the practice of law in the State of Ohio in 2008, and is a

partner of the law firm Horenstein, Nicholson & Blumenthal, LPA. Beginning in 2010,

Attorney Walter has devoted his practice to representing Social Security disability

claimants in administrative proceedings before the Commissioner and in federal district

courts. (2021 Case, Doc. No. 18, PageID# 1720-21.)

Plaintiff’s counsel also submitted slip opinions that show this Court has awarded

him similar hypothetical hourly rates in Social Security Disability cases. (2021 Case,

Doc. No. 18, PageID# 1734-57 (attaching Pencil v. Astrue, Case No. 3:10-cv-394, slip

op. (S.D. Ohio Sept. 24, 2012) (approving hypothetical hourly rate of $546.32); Kitchen

v. Comm’r of Soc. Sec. Admin., Case No. 3:09-cv-193, slip op. (S.D. Ohio Mar. 19, 2013)

(adopting R&R that approved a hypothetical hourly rate of $548.59); Madura v. Comm’r

of Soc. Sec. Admin., Case No. 3:11-cv-118, slip op. (S.D. Ohio April 4, 2013) (approving

hypothetical hourly rate of $473.84)).

2 After solving the equation [(44 attorney hours * 2x) + (10.75 paralegal hours * x) = $30,000.00], the

hypothetical paralegal hourly rate (x) is $303.80, and the hypothetical attorney hourly rate is $607.60.

Counsel also cited information from the Ohio State Bar Association that shows

that in 2010, the average hourly rate for Dayton attorneys (75th percentile) was $250.00.

(2021 Case, Doc. No. 18, PageID# 1683.) Counsel further asks the Court to apply a 9%

inflation rate based upon the Consumer Price Index. (Id.) The resulting standard hourly

rate is approximately $275.

Plaintiff’s counsel also submitted documentation that shows the Commissioner

withheld twenty-five percent of Plaintiff’s past-due benefits, or $63,280.22. (2021 Case,

Doc. No. 18, PageID# 1691.) The Court notes that although the contingency fee

agreement permits counsel to seek a fee equal to this entire amount, counsel is instead

seeking only $30,000, which is approximately 11.9% of the past-due benefit award.

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

hypothetical attorney hourly rate of $607.60 is reasonable for the work performed in this

case, and that the requested fee award of $30,000.00 is also reasonable.

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

agreement is reasonable. The Court finds that counsel’s request for less than half of that

percentage (11.9%) is reasonable and it does not amount to a windfall.

Second, the Court finds that the hypothetical attorney hourly rate is reasonable in

light of the skill and experience of Plaintiff’s counsel.

Third, Plaintiff’s counsel provided evidence from the Ohio State Bar Association’s

survey of 2010 billing rates, adjusted for inflation, which shows that an hourly rate of

$275 is standard for Dayton attorneys (75th percentile). The requested hypothetical rate

of $607.60 is slightly more than twice the standard hourly rate ($550). As noted above,

“[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. Here, the Commissioner did not argue

against or object to the requested fee award. Absent rebuttal, the Court may presume that

Plaintiff’s hypothetical hourly rate is reasonable. Id.

Fourth, counsel’s hypothetical hourly rate of $607.60 fits comfortably within the

range of hypothetical hourly rates that judges in this district have found reasonable. See,

e.g., 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.

Sixth, the Court has reviewed the proceedings in the 2021 and 2024 Cases to

assess their complexity and difficulty, the results achieved, and whether the cases were

remanded to the Commissioner because of a joint stipulation or a court order. Tucker, 136

F.4th at 644-45, 648. In the 2021 Case, Plaintiff’s counsel filed a thorough Statement of

Specific Errors that led to the Court’s decision to reverse and remand the Commissioner’s

unfavorable decision. In the 2024 Case, Plaintiff’s counsel similarly filed a thorough

Statement of Specific Errors and the Commissioner responded 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 amount of

attorney’s fees requested for the 2021 and 2024 Cases.

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

$30,000.00 in the 2021 and 2024 Cases is reasonable.

Finally, counsel represents that the EAJA fee amounts that were awarded in the

2021 and 2024 Cases will be refunded to Plaintiff to prevent a double recovery of fees.

V. 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 Allowance of Attorney Fees (Doc. No. 18) is GRANTED.

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

§ 406(b)(1) in the amount of $30,000.00. This award shall compensate Plaintiff’s counsel

for his firm’s work performed in this case (3:21-cv-219) and Plaintiff’s later case (3:24-

cv-275). 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

his receipt of this attorney’s fee award, the EAJA awards in both this case (3:21-cv-219)

and Plaintiff’s later case (3:24-cv-275), which together total $10,000.

4. The Commissioner shall RELEASE to Plaintiff the remaining funds that

were withheld from his award of past-due benefits to pay his attorney’s fees.

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

IT IS SO ORDERED.

Date: June 26, 2026 /s/ Caroline H. Gentry

Caroline H. Gentry

UNITED STATES MAGISTRATE JUDGE