UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WILLIAM ILLITCH, Case No. 1:17-cv-835

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

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. 27), as supplemented (Doc. 28), and the 

Commissioner’s response stating the Commissioner does not oppose plaintiff’s request for 

attorney fees (Doc. 29). 

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. Id. 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 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. 

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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 Section 406(b) is not improper merely because it results in an 

above-average hourly rate. Royzer v. Sec’y of HHS, 900 F.2d 981, 981-82 (6th Cir. 1990). As 

the Sixth Circuit 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 

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

(6th Cir. 2014). 

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Here, the fee of $7,358.50 requested by plaintiff falls within the 25 percent boundary.1

 

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

has submitted an itemized billing record demonstrating that his attorney performed a total of 16

hours of work on the case in the District Court between December 2017 and October 2020. 

(Doc. 27 at PAGEID 1319). Plaintiff has 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 percent 

of past-due benefits. (Doc. 28-1 at PAGEID 1330). 

Dividing the $7,358.50 requested by the 16 hours counsel worked on this case before the 

Court produces a hypothetical hourly fee of $459.90. 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 422 (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. 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. 

1 The fee requested represents the total amount withheld by the Social Security Administration ($13,358.50) reduced 

by the amount withheld for administrative-level work ($6,000.00). (Doc. 27 at PAGEID 1318). Plaintiff’s counsel 

was not awarded EAJA fees. (See Doc. 26). Plaintiff also notes that the amount withheld by the Social Security 

Administration ($13,358.50) is slightly less than 25% of the past-due benefit award ($14,104.40). (See Doc. 27 at 

PAGEID 1318). 

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Id. 

Plaintiff’s pending fee motion does not include his counsel’s standard hourly rate for 

non-contingent cases but generally refers to a 2013 Ohio State Bar Association (OSBA) survey 

of attorney fees2 and several comparable cases—all of which suggest that the hypothetical hourly 

rate requested ($459.90) is not more than twice the standard market rate. (See Doc. 27 at 

PAGEID 1317) (citing comparable Cincinnati market hourly rates between $300.00 and $455.00 

per hour and cases approving hypothetical hourly rates at $450.00, $694.00, and $1,433.00 per 

hour). Therefore, the requested fee of $7,358.50 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 past due benefits in the amount of $43,059.10. 

(See Doc. 28 at PAGEID 1323). 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 $7,358.50. (Doc. 29). Having reviewed plaintiff’s § 406(b) fee request in light of these 

considerations, the Court finds that a fee of $7,358.50 is reasonable for the work plaintiff’s 

counsel performed in federal court. 

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

is GRANTED and that counsel is AWARDED attorney fees in the amount of $7,358.50.

Date: _________________ _____________________________ 

 Karen L. Litkovitz 

 United States Magistrate Judge 

2 This resource is available at https://www.ohiobar.org/globalassets/home/member-benefits/personalfinance/osba_econoflawpracticeohio.pdf (last visited Nov. 29, 2020). The work performed in this case postdates the 

survey data by several years.

12/17/2020

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