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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JADRANKA SAMONA, 

 Plaintiff, Case No. 15-cv-11713 

vs. HON. MARK A. GOLDSMITH 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

____________________ / 

ORDER 

(1) ADOPTING THE RECOMMENDATION CONTAINED IN THE MAGISTRATE 

JUDGE’S REPORT AND RECOMMENDATION DATED SEPTEMBER 19, 2017 (Dkt. 

34), (2) DENYING PLAINTIFF’S PETITION FOR ATTORNEY FEES UNDER THE 

EQUAL ACCESS TO JUSTICE ACT (Dkt. 30), AND (3) GRANTING PLAINTIFF’S 

PETITION FOR ATTORNEY FEES PURSUANT TO THE SOCIAL SECURITY ACT 

(Dkt. 35) 

 This matter is presently before the Court on the Report and Recommendation (R&R) of 

Magistrate Judge Anthony Patti, issued on September 19, 2017 (Dkt. 34). In the R&R, the 

Magistrate Judge recommends that the Court deny Plaintiff Jadranka Samona’s petition for 

attorney fees under the Equal Access to Justice Act (“EAJA”) (Dkt. 30). 

The parties have not filed objections to the R&R, and the time to do so has expired. See 

Fed. R. Civ. P. 72(b)(2). The failure to file a timely objection to an R&R constitutes a waiver of 

the right to further judicial review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not 

appear that Congress intended to require district court review of a magistrate’s factual or legal 

conclusions, under a de novo or any other standard, when neither party objects to those findings.”); 

Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373-4 (6th Cir. 1987) (failure to file objection 

to R&R “waived subsequent review of the matter”); Cephas v. Nash, 328 F.3d 98, 1078 (2d Cir. 
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2003) (“As a rule, a party’s failure to object to any purported error or omission in a magistrate 

judge’s report waives further judicial review of the point.”); Lardie v. Birkett, 221 F. Supp. 2d 

806, 807 (E.D. Mich. 2002) (“As to the parts of the report and recommendation to which no party 

has objected, the Court need not conduct a review by any standard.”). There is some authority that 

a district court is required to review the R&R for clear error, see Fed. R. Civ. P. 72 Advisory 

Committee Note Subdivision (b) (“When no timely objection is filed, the court need only satisfy 

itself that there is no clear error on the face of the record in order to accept the recommendation.”). 

Therefore, the Court has reviewed the R&R for clear error. On the face of the record, the Court 

finds no clear error and adopts the recommendation. Accordingly, the Court denies Plaintiff’s 

motion for attorney fees under the EAJA (Dkt. 30). 

In addition to seeking fees under the EAJA, Plaintiff has filed a petition for attorney fees 

pursuant to the Social Security Act (“SSA”), 42 U.S.C. § 406(b)(1) (Dkt. 35). “It is permissible 

to seek attorney’s fees under both EAJA and the Social Security Act.” Lowery v. Comm’r of Soc. 

Sec., 940 F. Supp. 2d 689, 691 (S.D. Ohio 2013). An award under the EAJA is assessed against 

the Government, while fees under SSA come out of the claimant’s disability benefits. Id. “Where 

awards are made under both EAJA and the Social Security Act, counsel must refund the lesser fee 

award to his or her client.” Id. Because the Court has denied fees under the EAJA, the Court need 

only determine whether the amount of attorney fees sought under the SSA is reasonable. 

After this Court remanded to the ALJ, Plaintiff was issued a favorable decision and 

awarded $51,584 in past-due benefits. Plaintiff’s counsel now seeks 25% of that award, or 

$12,896. The SSA provides for attorney fee awards up to 25% where the attorney has successfully 

prosecuted a Social Security disability appeal. 42 U.S.C. § 406(b). “[T]he attorney must show, 

and the Court must affirmatively find, that a contingency fee sought, even one within the 25% cap, 
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is reasonable for the services rendered.” Lowery, 940 F. Supp. 2d at 691. A 25% contingency fee 

agreement is presumptively reasonable, but can be rebutted by a showing that (i) the attorney acted 

improperly or was ineffective; (ii) awarding 25% would provide the attorney with a windfall due 

to an extraordinarily large disability benefit, or because the attorney expended minimal effort in 

obtaining the client’s award. Id. at 692. A windfall cannot occur where the hourly rate resulting 

from the contingency fee is less than twice the standard rate for work in the relevant market. See 

Hayes v. Sec’y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1990). 

The Commissioner does not object to the requested 25% fee, and the Court finds that it is 

reasonable. The hourly rate under the proposed fees comes out to $331.52 an hour, an amount that 

cannot be considered a windfall. See Lowery, 940 F. Supp. 2d at 692 (finding hourly rate of 

$406.45 reasonable, even though it may have been more than twice the standard rate). Further, 

there is no evidence that the attorney acted improperly or ineffective, or expended minimal effort 

in securing Plaintiff’s award. To the contrary, the time log provided to the Court demonstrates 

that substantial effort was expended on Plaintiff’s behalf. See Time Log, Ex. D to Pl. Pet. (Dkt. 

35-4). As a result, the petition for attorney fees under the SSA is granted. 

SO ORDERED. 

Dated: May 10, 2018 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any 

unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail 

addresses disclosed on the Notice of Electronic Filing on May 10, 2018. 

 s/Karri Sandusky 

 Case Manager