UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

KRISTINA A. BORLAND,

Plaintiff,

vs.

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

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Case No. 3:18-cv-94

Magistrate Judge Sharon L. Ovington

(by mutual consent of the parties)

DECISION & ORDER

This matter is before the Court on Plaintiff Kristina A. Borland’s Motion for 

Attorney Fees Under 42 U.S.C. § 406(b), filed on February 10, 2021. (Doc. # 15). 

Defendant Commissioner of Social Security’s response states that he “does not 

object to the amount sought” by Plaintiff. (Doc. #16). In the absence of any 

objection from Defendant, and for good cause shown, Plaintiff’s motion is 

GRANTED.

Factual & Procedural Background/The Parties’ Claims

On March 26, 2018, Plaintiff filed an appeal in this Court from the 

Commissioner’s denial of her applications for Disability Insurance Benefits and 

Supplemental Security Income. (Doc. #1). In accordance with the parties’ joint

stipulation that the matter should be remanded (see Doc. #10), on November 14, 
2018, this Court remanded the matter to the Commission for further proceedings

(Doc. #11), and judgment was entered in Plaintiff’s favor. (Doc. #12). Thereafter, 

this Court entered a Decision and Order accepting the parties’ Joint Stipulation for 

an Award of Attorney Fees under the Equal Access to Justice Act [“EAJA”] (see

Doc. #13), and ordered Defendant to pay Plaintiff’s counsel $6,000 in attorney 

fees, plus $400 in costs and expenses. (Doc. #14).

Following a successful resolution of her claims on remand, Plaintiff now 

seeks an attorney fee award under 42 U.S.C. § 406(b) in the amount $18,076.75, 

represented to be equal to 25 percent of the past due benefits Plaintiff was 

awarded. (See Doc. #15 and Exh. 3-C thereto). Plaintiff’s motion is accompanied 

by her attorney’s sworn statement attesting that his contingency fee agreement with 

Plaintiff provided for attorney fees of not more than 25 percent of any past due 

benefits awarded after remand. (Id., Exh. 2, Affirmation of Charles E. Binder). 

Copies of that fee agreement and of counsels' itemized hours expended on this 

matter also are attached in support of the motion. (Id., Exhs. 3-A and 3-B). 

Defendant has affirmed that he has no objection to the requested fee award. (Doc. 

#16).

Law &Analysis

Pursuant to 42 U.S.C. § 406(b)(1)(A), a Social Security claimant who 

receives a favorable judgment in federal court may be awarded reasonable 
attorney’s fees in an amount “not in excess of 25 percent of the total of the pastdue benefits to which the claimant is entitled by reason of such judgment.” That 

fee is payable “out of, and not in addition to, the amount of [the] past-due 

benefits.” Id. Successful claimants may be awarded fees under both Section 406 

and the EAJA, but the claimant's attorney must “refun[d] to the claimant the 

amount of the smaller fee.” Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S. Ct. 

1817, 152 L. Ed. 2d 996 (2002).

Section 406 “does not displace contingent-fee agreements as the primary 

means by which fees are set for successfully representing Social Security benefits 

claimants in court,” but rather, “calls for court review of such arrangements as an 

independent check, to assure that they yield reasonable results in particular cases.” 

Id. at 807. “Within the 25 percent boundary, * * * the attorney for the successful 

claimant must show that the fee sought is reasonable for the services rendered.” Id.

Fee awards that would amount to a “windfall” are not reasonable. Id. at 808, 

citing Rodriquez v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989) (en banc); Wells v.

Sullivan, 907 F.2d 367, 374 (2d Cir. 1990). However, the Sixth Circuit Court of 

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

citing Rodriquez, supra.

Having reviewed the materials offered in support of Plaintiff’s motion, the 

Court determines that the requested fee is reasonable for the services rendered in 

this case. The submitted copy of counsel’s written fee agreement with Plaintiff 

confirms that Plaintiff agreed to pay attorney’s fees of up to 25 percent of any pastdue benefits awarded. (See Doc. #15, Exh. 3-A). The itemized time records 

submitted show that three attorneys working on Plaintiff’s behalf expended a total 

of 32.1 hours on Plaintiff’s claims before this Court. (See id., Exh. 3-B). The 

attached copy of a statement from the Social Security Administration indicates that 

$18,076.75, representing 25 percent of the past-due benefits payable to Plaintiff, 

has been withheld for attorney fees. (Id., Exh. 3-C, p. 2). Dividing that amount by 

the 32.1 hours of attorney time reportedly devoted to Plaintiff’s case in this Court 

yields a hypothetical hourly rate of $563.14.

In the opinion of this Court, the fees requested would not amount to the type 

of attorney “windfall” with which the Supreme Court expressed concern. See 

Gisbrecht at 808, citing Rodriquez at 747; Wells at 374. Despite the initial denial of 

Plaintiff’s claims in their entirety, counsel’s efforts on appeal secured Plaintiff an 

award of past benefits exceeding $72,000, as well as future benefits of over $981 
per month. In light of that degree of success, $18,076.75 is a reasonable fee award 

in this case. Further, given counsel’s representation that his “standard rate” in this 

case “would be no less than $375.00 an hour” (Doc. #15, Exh. 4, p. 3), the 

hypothetical hourly rate here would be reasonable per se under Hayes, 923 F.2d at 

422 (i.e., $563.14/hour is “less than twice” counsel’s standard rate of $375/hour).

Nevertheless, Plaintiff’s counsel will be required to pay to Plaintiff the 

“smaller” $6,000 fee already awarded under the EAJA. See Gisbrecht at 796.

Conclusion

IT THEREFORE IS ORDERED THAT:

1. Plaintiff’s unopposed Motion for Attorney Fees Under 42 

U.S.C. § 406(b) (Doc. #15) is GRANTED;

2. Defendant shall pay to Plaintiff’s counsel attorney fees in the 

amount of $18,076.75;

3. Upon receipt of such payment, Plaintiff’s counsel immediately 

shall remit to Plaintiff the $6,000 in attorney fees previously 

received pursuant to the Equal Access to Justice Act (see Doc. 

#14); and

4. This matter is TERMINATED on the docket of this Court.

May 7, 2021 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge