UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ROBERT B., 

 

Plaintiff, Case No. 3:17-cv-315 

 

vs. 

 

COMMISSIONER OF THE SOCIAL District Judge Michael J. Newman

SECURITY ADMINISTRATION, 

 

Defendant.

ORDER AND ENTRY: (1) GRANTING THE UNOPPOSED MOTION BY PLAINTIFF’S 

COUNSEL FOR AN ATTORNEY’S FEE AWARD UNDER 42 U.S.C. § 406(b) (DOC. NO. 

22); (2) AWARDING PLAINTIFF’S COUNSEL $5,950.00 IN FEES; AND (3) 

DIRECTING COUNSEL TO REFUND TO PLAINTIFF, WITHIN FOURTEEN DAYS, 

THE $3,255.13 EAJA FEE PREVIOUSLY AWARDED TO COUNSEL

On September 23, 2019, the Court reversed the ALJ’s non-disability finding and remanded 

this case to the Commissioner under 42 U.S.C. § 405(g) for an immediate award of benefits. Doc. 

No. 18. Thereafter, Plaintiff’s counsel sought, and was awarded in this Court, attorney’s fees in 

the amount of $3,255.13 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). 

Doc. Nos. 20, 21. Plaintiff’s counsel now moves for an award of attorney’s fees in the amount of 

$5,950.00 under 42 U.S.C. § 406(b). Doc. No. 22. The Commissioner filed a response, indicating 

that the Social Security Administration does not oppose Plaintiff’s motion. Doc. No. 23. 

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

successful prosecution of a Social Security disability appeal. See 42 U.S.C. §§ 406(b)(1),

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1383(d)(2). However, such fees may not exceed 25% of the past-due benefits the claimant receives 

as a result of the appeal. Id. Furthermore, the attorney must show, and the Court must 

affirmatively find, that a contingency fee sought, even one within the 25% cap, is reasonable for 

the services rendered. Gisbrecht v. Barnhart, 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.” Id. 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 fee 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). 

Plaintiff’s counsel worked a total of seventeen hours on this case. Doc. 22-4 at PageID 

1426. This results in a hypothetical hourly rate of $350.00 ($5,950.00 ÷ 17), which, in light of the 

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skills and experience of counsel, is less than twice the standard rate. See Finch v. Comm'r of Soc. 

Sec. Admin., No. 3:16-cv-241, 2019 WL 6167087, at *3 (S.D. Ohio Nov. 20, 2019) (finding “the 

standard hourly rate approaches $800.00 per hour” for counsel who has, like the counsel in this 

case, more than 20 years of experience representing Social Security clients). Accordingly, the 

Court finds -- without dispute and based upon the materials submitted in support of counsel’s 

motion -- the requested fee and resulting hypothetical hourly rate are reasonable and not a windfall. 

Based upon the foregoing: (1) counsel’s unopposed motion for a § 406(b) fee award (Doc. 

No. 22) is GRANTED; (2) Plaintiff’s counsel is AWARDED the requested sum of $5,950.00 in 

attorney’s fees; (3) Plaintiff’s counsel is ORDERED to reimburse to Plaintiff, within 

FOURTEEN (14) DAYS, the EAJA fee previously awarded to counsel; and (4) as no further 

matters remain pending for review, this case remains TERMINATED upon the docket.

IT IS SO ORDERED. 

January 13, 2022 /s Michael J. Newman 

 Hon. Michael J. Newman

 United States District Judge

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