UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERRY MICHAEL PAYTON, Case No. 1:17-cv-714

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

COMMISSIONER OF REPORT AND

SOCIAL SECURITY, RECOMMENDATION

Defendant.

This matter is before the Court on plaintiff’s motion for attorney fees under the Social 

Security Act, 42 U.S.C. § 406(b)(1) (Doc. 26) and the Commissioner’s response stating the 

Commissioner does not oppose plaintiff’s request based on the thirty (30) hours of work 

performed before this Court (Doc. 27). 

Pursuant to 42 U.S.C. § 406(b)(1)(A), a court may award a prevailing claimant’s attorney 

a reasonable fee not in excess of 25 percent of past-due benefits recovered by the claimant for 

work done in a judicial proceeding. 42 U.S.C. § 406(b)(1)(A). See Horenstein v. Sec’y of 

H.H.S., 35 F.3d 261, 262 (6th Cir. 1994) (en banc) (court may award fees only for work 

performed before the court, and not before the Social Security Administration). Fees are 

awarded from past-due benefits withheld from the claimant by the Commissioner and may not 

exceed 25 percent of the total past-due benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 792 

(2002). 

In determining the reasonableness of fees under § 406(b), the starting point is the 

contingency fee agreement between the claimant and counsel. Gisbrecht, 535 U.S. at 807. 

When a claimant has entered into a contingency fee agreement entitling counsel to 25 percent of 

past-due benefits awarded, the Court presumes, subject to rebuttal, that the contract is 

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reasonable. Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989) (en banc). Within the 25 

percent boundary, the attorney for the claimant must show that the fee sought is reasonable for 

the services rendered. Gisbrecht, 535 U.S. at 807. The Court should consider factors such as the 

character of the representation, the results achieved, the amount of time spent on the case, 

whether the attorney was responsible for any delay, and the attorney’s normal hourly billing rate 

for noncontingent fee cases. Id. at 808. See also Rodriquez, 865 F.2d at 746. Additionally, the 

Court should consider instances of improper conduct or ineffectiveness of counsel; whether 

counsel would enjoy a windfall because of either an inordinately large award or from minimal 

effort expended; and the degree of difficulty of the case. Hayes v. Sec’y of HHS, 923 F.2d 418, 

422 (6th Cir. 1990); Rodriquez, 865 F.2d at 746. An award of 25 percent of past-due benefits 

may be appropriate where counsel has overcome legal and factual obstacles to enhance the 

benefits awarded to the client; in contrast, such an award may not be warranted in a case 

submitted on boilerplate pleadings with no apparent legal research. Rodriquez, 865 F.2d at 747. 

An award of fees under § 406(b) is not improper merely because it results in an aboveaverage hourly rate. Royzer v. Sec’y of HHS, 900 F.2d 981, 981-82 (6th Cir. 1990). As the Sixth 

Circuit has determined:

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 [by 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 

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reasonable.” Hayes, 923 F.2d at 422. See also Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 309 

(6th Cir. 2014). 

Here, the fee of $13,084.75 that plaintiff requests falls within the 25% boundary. Thus, 

the issue is whether the requested fee is reasonable. Gisbrecht, 535 U.S. at 807. Plaintiff has 

submitted an itemized billing sheet showing that his attorney performed a total of 30.00 hours of 

work on the case in this Court. (Doc. 26-1 at 3-6). Plaintiff has also submitted a copy of the 

contingency fee agreement he entered into with counsel under which he agreed to pay counsel a 

contingency fee of 25% of past-due benefits. (Id. at 7). 

Dividing the $13,084.75 requested by counsel by the 30.00 hours counsel worked on the

case before this Court yields a hypothetical hourly fee of $436.15. In determining whether 

counsel “would enjoy a windfall because of either an inordinately large benefit or from minimal 

effort expended,” Hayes, 923 F.2d at 420-21 (quoting Rodriquez, 865 F.2d at 746), the Court 

notes that “a windfall can never occur when, in a case where a contingent fee contract exists, the 

hypothetical hourly rate determined by dividing the number of hours worked for the claimant 

into the amount of the fee permitted under the contract is less than twice the standard rate for 

such work in the relevant market.” Id. at 422. As the Sixth Circuit explained in Hayes:

[A] multiplier of 2 is appropriate as a floor in light of indications that social security 

attorneys are successful in approximately 50% of the cases they file in the courts. 

Without a multiplier, a strict hourly rate limitation would insure that social security 

attorneys would not, averaged over many cases, be compensated adequately. 

. . . . 

A calculation of a hypothetical hourly rate that is twice the standard rate is a starting 

point for conducting the Rodriquez analysis. It provides a floor, below which a 

district court has no basis for questioning, under the second part of Rodriquez’s 

windfall rule for “minimal effort expended,” the reasonableness of the fee. 

Id. 

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Plaintiff’s counsel standard hourly rate is $370.00. (Doc. 26-1 at 6). The $436.15 

hypothetical hourly rate is less than twice counsel’s standard rate for such work in the relevant 

market. Therefore, the requested fee of $13,084.75 does not constitute a windfall to plaintiff’s 

counsel. Hayes, 923 F.2d at 422. The Court notes that plaintiff’s counsel did not unduly delay 

the resolution of this matter, and he achieved an excellent result in this case by obtaining a 

favorable disability determination on remand with back pay benefits in the amount of $52,339.00 

and an auxiliary benefit to plaintiff’s child in the amount of $24,199.00. (See Doc. 26-1 at 9-18). 

Further, plaintiff voluntarily entered into the contingency fee agreement with counsel and 

counsel assumed the risk of non-payment. The Commissioner has submitted a response to 

plaintiff’s motion and does not oppose the motion to charge and collect a fee of $13,084.75. 

(Doc. 27). Having reviewed plaintiff’s § 406(b) fee request in light of these considerations, the 

Court finds that a fee of $13,084.75 is reasonable for the work plaintiff’s counsel performed in 

federal court. 

Counsel has acknowledged that any award of fees under § 406(b) must be offset by the 

previous award of EAJA fees in the amount of $5,450.00 (see Doc. 21), as required under 

Jankovich v. Bowen, 868 F.2d 867, 871 and n.1 (6th Cir. 1989) (recognizing that while a 

claimant may be awarded fees under both the EAJA and the Social Security Act, “any funds 

awarded pursuant to the EAJA serve as reimbursement to the claimant for fees paid out of his or 

her disability award to his or her counsel” and should be awarded to the client). (Doc. 26 at 1-2). 

In view of these considerations and having reviewed the fee request in light of the remaining 

criteria set forth in Gisbrecht and Rodriquez, the Court finds that a fee of $13,084.75 is 

reasonable for the work plaintiff’s counsel performed in this Court. 

The Court therefore RECOMMENDS that plaintiff’s § 406(b) motion for attorney fees 

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be GRANTED and that counsel be AWARDED attorney fees in the amount of $13,084.75.

 

Date: _________________ _____________________________ 

 Karen L. Litkovitz 

 United States Magistrate Judge

6/4/2020

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERRY MICHAEL PAYTON, Case No. 1:17-cv-714

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

NOTICE 

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party’s objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

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