1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0274p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

P ATRICK S. L ASLEY , Plaintiff-Appellant ,

v

.

C OMMISSIONER OF S OCIAL S ECURITY , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 14-3044

Appeal from the United St ates District Court for the Southern District of Ohio at Cincinnati. No. 1:10-cv-00394—Susan J. Dlo tt, Chief District Judge. Decided and Filed: November 4, 2014 *
Before: DAUGHTREY, CLAY, and COOK, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Mark R. Naegel, Cincinnati, Ohio, for Appellant. Kyle D. Kickhaefer, SOCIAL SECURITY ADMINISTRATION, Chi cago, Illinois, for Appellee.

_________________ OPINION

_________________ COOK, Circuit Judge. Mark Naegel, counsel for a prevailing social security disability benefits applicant, appeals the district court’ s order awarding significan tly reduced attorneys’ fees under 42 U.S.C. § 406(b). He argues that the court should have approved his request for $26,049.73—the 25-percent contingency fee accepted by his client and permitted by statute. The

* This opinion was filed on November 4, 2014 as an “unpublished decision.” The court has now designated the opinion as one recommended for “full-text publication.” 

### >No. 14-3044 Lasley v. Comm’r of Soc. Sec. Page 2

Commissioner of Social Security, representing the interests of th e claimant whose benefits pay for the fees, see Gisbrecht v. Barnhart , 535 U.S. 789, 798 n.6 (2002) (acknowledging the Commissioner’s trustee-like role), opposed this sum as a “windfall” in light of counsel’s 35.5 hours of work. The district court agreed. Adopting the ma gistrate judge’s report and recommendation, the court rejected the conti ngency fee as unreasona bly high and awarded $12,780—the amount proposed by the Commissioner. Sa tisfied that the cour t acted within its discretion, see Damron v. Comm’r of Soc. Sec. , 104 F.3d 853, 856 (6th Cir. 1997), we AFFIRM.

When a district court renders a favorable judgment to a soci al security claimant, § 406(b) permits a district court to awar d “a reasonable [attorneys’] fee . . . not in excess of 25 percent,” payable “out of . . . [the claimant’s] past-due benefits.” 42 U.S.C. § 406(b)(1)(A). In Gisbrecht v. Barnhart , the Supreme Court concluded that the st atute’s allowance of “a reasonable fee” permits contingency fees, but “ca lls for court review of such arrangements as an independent check, to assure that they yield reasonable results in pa rticular cases.” 535 U.S. at 807. “Within the 25 percent boundary,” prevailing counsel bears the burden of “show[ing] that the fee sought is reasonable for the services rendered.” Id.
Counsel correctly notes that our preced ent accords a rebuttable presumption of reasonableness to contingency-fee agreements that comply with § 406( b)’s 25-percent cap. E.g. , Hayes v. Sec’y of Health & Human Servs. , 923 F.2d 418, 421 (6th Cir. 1991); Rodriquez v.
Bowen , 865 F.2d 739, 746 (6th Cir. 1989) (en banc). Hayes modified this presumption by setting a “floor” for court review of contingency fees: “a hypothetical hourly rate th at 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 reason able.” 923 F.2d at 422. Counsel claims that the district court committed legal error by failing to recognize this presumption. Not so.

The court cited Hayes for “the presumed reasonableness ” of contingency fees, generally, and sub-floor fees, specifically. Still, counsel objects that the court betrayed Hayes ’s “floor” analysis by substituting Hayes ’s permissive language with mandatory language. Cf. 923 F.2d at 422 (“If the calculated hourly rate is above this [double-the-standa rd-rate] floor, then the court

may consider arguments designed to rebut the pres umed reasonableness of the attorney’s fee.” (emphasis added)). To the co ntrary, the court adhered to Hayes ’s teaching by acknowledgingNo. 14-3044 Lasley v. Comm’r of Soc. Sec. Page 3

that “a hypothetical hourly rate that is more than twice the standard rate will not automatically be held to constitute an unreasonable ‘windfall.’” Nothing in Hayes prevents a court from considering arguments rebutting the pres umption of reasonableness.
Nor, for that matter, does th e Supreme Court’s decision in Gisbrecht , which elides strict presumptions altogether. Compare Gisbrecht , 535 U.S. at 793 (reversing because the appellate court categorically “reject[ed] the primacy of lawful attorney-client fee agreements”), with id. at 807 n.17 (quoting the claimants’ concession that § 406(b) “does not create any presumption in favor of the agreed upon amount”). Instead, Gisbrecht instructs reviewing c ourts to “look[] first to the contingent-fee agreement, then test[] it for reasonableness.” Id. at 808. Importantly, the Court approved of reducing fees to avoid windfalls and expressly authorized district courts to consider the attorney’s hours and standard rates in review ing the reasonableness of contingency fees. The Court instructed as follows: If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order. See [ Rodriquez , 865 F.2d at 747] (reviewing court should disallo w “windfalls for lawyers”); [ Wells v. Sullivan , 907 F.2d 367, 372 (2d Cir. 1990)] (same). In this regard, the court may require the claimant’s attorney to submit, not as a basis for satellite litigation, but as an aid to the court’s assessment of th e reasonableness of the fee yielded by the fee agreement, a record of the hours sp ent representing the claimant and a statement of the lawyer’s normal hour ly billing charge for noncontingent-fee
cases. See Rodriquez , 865 F.2d at 741.

Gisbrecht , 535 U.S. at 808.

The district court followed that approach here. It began by acknowledging the contingency-fee agreement and § 406(b)’s 25-per cent ceiling. It then c onsidered the effective hourly rate “as one relevant factor in determini ng the reasonableness” of the contingency fee. Here, the effective hourly rate of $733.80 ($26,049.73 ÷ 35.5 hours) grossly exceeded—indeed, more than quadrupled—the standard rates applied to social security fee requests in the Southern District of Ohio. See, e.g. , Jones v. Astrue , No. 3:09–cv–80, 2012 WL 3251865, at *3 (S.D. Ohio Aug. 8, 2012) (Report & Recommendation) (using “conservative” hourly rate of $180), adopted , 2012 WL 3763909; Edwards v. Comm’r of Soc. Sec. , No. 1:08–cv–815, 2011 WL 1002186, at *1 (S.D. Ohio Mar. 16 , 2011) (relying on $165 hourly ra te approved in counsel’s application for fees under the Equal Access to Ju stice Act as standard rate for assessing theNo. 14-3044 Lasley v. Comm’r of Soc. Sec. Page 4

reasonableness of the contingenc y fee under § 406(b)). The dist rict court considered other factors, too, including counsel’s delay in filing the § 406(b) motion, the Commissioner’s opposition to the fee, and the “brevity” and “relative simplicity” of the representation.
Counsel neither presents eviden ce of a contrary standard ra te nor disputes the district court’s finding regarding the relative complexity of this litigation compared to other social security cases. The court thus acted within its discre tion in determining that counsel failed to carry the burden of demonstrating the contingency fee’s reasonableness. See Gisbrecht , 535 U.S. at 807. Because counsel advances no sepa rate argument challenging the degree of the fee reduction, we AFFIRM the district court’s fees award.