UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SHERRY A. BANKS, Case No. 1:18-cv-151

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. 29), the Commissioner’s opposing memorandum 

(Doc. 30), and plaintiff’s reply in support of the motion (Doc. 31). 

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 

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

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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 

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 $41,709.25 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 her counsel’s affirmation regarding the fee request (Doc. 29-2 at PAGEID #: 1144-

48); copies of the contingency fee agreements she entered into with counsel and under which she 

agreed to pay a contingency fee of 25% of past-due benefits (Doc. 29-3 at PAGEID #: 1151-53); 

an itemized billing sheet showing that three attorneys performed a total of 55.8 hours of work on 

her cases in this Court between August 2014 and November 2019 (id. at PAGEID #: 1155-56); 

and her Notice of Award from the Social Security Administration (id. at PAGEID #: 1158-63). 

Plaintiff’s counsel also affirms that, upon receipt of their fee award, they will remit the $9,741.16 

already awarded under the Equal Access to Justice Act (EAJA) directly to plaintiff. (See Doc. 

29-2 at PAGEID #: 1148). 

Dividing the $41,709.25 requested by counsel by the 55.8 hours counsel worked on the 

cases before this Court yields a hypothetical hourly fee of $747.48. 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 421-22 (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. 

. . . . 

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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. 

The Commissioner argues that awarding the full fee at an effective hourly rate of $750.00 

would constitute a windfall. (Doc. 30). First, the Commissioner argues that courts in the 

Southern District of Ohio frequently find that effective hourly rates of $350.00 to $400.00 are 

sufficient to compensate counsel under § 406(b) and that larger awards would constitute 

windfalls. The Commissioner relies primarily on the Sixth Circuit’s decision in Lasley1 for this 

argument. In Lasley, the Sixth Circuit affirmed the district court’s fee reduction to an effective 

rate of $360.00 per hour where the effective hourly rate requested would have been more than 

four times the top of the EAJA rate range. 771 F.3d at 310. Relatedly, the Commissioner argues 

that since Lasley, courts in the Southern District of Ohio regularly use the applicable EAJA 

hourly rate as the standard market rate for § 406(b) fee requests.

2

 The Commissioner reasons

that the fee plaintiff’s counsel seeks here is nearly four times the EAJA rate—approximately 

$192.00 per hour—and should therefore be deemed a windfall.

1 The Sixth Circuit affirmed the district court’s decision, No. 1:10-cv-394, 2013 WL 6147841 (S.D. Ohio Nov. 22, 

2013) (Dlott, J.), which in turn had adopted the report and recommendation of Magistrate Judge Bowman, 2013 WL 

3900096 (S.D. Ohio July 29, 2013).

2 The Commissioner cites six cases to support this assertion: Johnson v.Comm’r, No. 1:12-cv-590, 2014 WL 

7272201, at *2 (S.D. Ohio Dec. 18, 2014) (Spiegel, J.) (approving effective hourly rate of $382.00 as only slightly 

more than twice the EAJA rate of approximately $180.00); Santiago v. Comm’r, No. 1:12-cv-498, 2014 WL 

6687130, at *1 (S.D. Ohio Nov. 26, 2014) (Spiegel, J.) (approving effective hourly rate of $386.00 as only slightly 

more than twice the EAJA rate of approximately $180.00); Stonitsch v. Astrue, No. 1:09-cv-593, 2012 WL 

5378744, at *1 (S.D. Ohio Oct. 30, 2012) (Spiegel, J.) (reducing “unreasonable” hourly rate from $600.17 to 

$360.00); Vaughn v. Astrue, No. 3:08–cv–377, 2012 WL 3585928, at *1 (S.D. Ohio Aug. 20, 2012) (Merz, M.J.) 

(approving effective hourly rate of $302.86 as less than the doubling of a “conservative hourly fee of $180”); Jones 

v. Astrue, No. 3:09-cv-80, 2012 WL 3251865, at *3 (S.D. Ohio Aug. 8, 2012) (Merz, M.J.) (recommending the 

reduction of an effective hourly rate from $750.00 to $360.00), report and recommendation adopted, 2012 WL 

3763909 (S.D. Ohio Aug. 29, 2012) (Rice, J.); Edwards v. Comm’r of Soc. Sec., No. 1:08-cv-815, 2011 WL 

1002186, at *1 (S.D. Ohio Mar. 16, 2011) (Dlott, J.) (approving effective hourly rate of $312.26 as less than twice 

the EAJA rate of $165.00).

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The undersigned recently addressed the Commissioner’s similar argument in another 

case, Shaw v. Comm’r of Soc. Sec., No. 1:16-cv-1133, 2019 WL 5550575 (S. D. Ohio Oct. 28, 

2019), report and recommendation adopted, 2019 WL 6170822 (S.D. Ohio Nov. 20, 2019)

(Barrett, J.):

Four of the six cases the Commissioner cites were not decided subsequent to 

Lasley but instead pre-date the decision, which was issued in November 2014, by 

more than two years. The other two decisions were issued very shortly after 

Lasley in 2014, but the Court did not adopt a standard hourly rate for contingent 

fee awards in either case. See Santiago v. Comm[’]r. of Soc. Sec., No. 1:12-cv00498, 2014 WL 6687130, at *1 (S.D. Ohio Nov. 26, 2014); Johnson v. 

Comm[’]r. of Soc. Sec., No. 1:12-cv-00590, 2014 WL 7272201, at *2 (S.D. Ohio 

Dec. 18, 2014). The Court acknowledged in each case that the § 406(b) fee 

request amounted to more than twice the rate the Court had recently been 

awarding for EAJA petitions; however, the Court found this “does not necessarily 

render it unreasonable, and we are mindful of the role that contingent fee 

agreements play ‘to assure social security claimants of good representation.’” 

Santiago, 2014 WL 6687130, at *1 (quoting Hayes, 923 F.2d at 422); Johnson, 

2014 WL 7272201, at *2.

Id. at *3 n.3.

3

 Moreover, in two of the cases cited by the Commissioner, Edwards and Vaugh, 

counsel’s fee requests were uncontested and within the EAJA range. 2011 WL 1002186, at *1; 

2012 WL 3585928, at *1. These six cases therefore shed little light on whether Lasley has 

ushered in the widespread use of EAJA hourly rates as the standard market rate in the Southern 

District of Ohio. 

In addition, as the Commissioner acknowledges, courts in the Southern District of Ohio

have approved fees above EAJA rates that exceeded an effective $400.00 hourly rate. See

Pencil v. Astrue, No. 3:10-cv-394, 2012 WL 4364273, at *2 (S.D. Ohio Sept. 24, 2012) (Black, 

J.) (effective rate of $546.32 hourly approved for counsel with skill and experience akin to the 

75th percentile of Dayton-area attorneys charging in excess of $250.00 hourly); Hopper v. 

3 The Commissioner cited the same six cases in Shaw that are cited herein. See Case No. 1:16-cv-1133 (S.D. Ohio 

Apr. 4, 2019) (Doc. 16 at PAGEID #: 1041-42). 

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Comm’r of Soc. Sec., No. 3:05-cv-115 (S.D. Ohio Jun. 17, 2008) (Doc. 26 at PAGEID #: 179) 

(Rice, J.) (effective rate of $540.00 hourly approved for counsel with similar experience to area 

attorneys charging approximately $270.00 hourly ); Kitchen v. Comm’r of Soc. Sec. Admin., No. 

3:09-cv-193, 2013 WL 765641, at *2 (S.D. Ohio Feb. 28, 2013) (Ovington, M.J.) (citing Pencil, 

approving hourly rate of $548.60), report and recommendation adopted, 2013 WL 1149609 

(S.D. Ohio Mar. 19, 2013) (Rice, J.); and Madura v. Comm’r, Soc. Sec. Admin., No. 3:11-cv118, 2013 WL 1386330, at *2 (S.D. Ohio Apr. 4, 2013) (Black, J.) (citing Pencil and Kitchen, 

approving hourly rate of $473.84). In these cases, the plaintiffs demonstrated that their counsel’s

standard market rate fell on the higher end of the local spectrum. In light of this authority, the 

Court declines to find that the standard market rate under Hayes should be set at the EAJA 

hourly rate.

The Commissioner also contends that plaintiff has failed to show that counsel’s reported 

hourly rate of $375.00 is reasonable in light of the local market. The only discussion of the 

standard rate in plaintiff’s supporting memorandum is the statement that “[t]he standard rate for 

Plaintiff’s counsel in this case would be no less than $375.00 an hour.” (Doc. 29-4 at PAGEID 

#: 1167).4

 Plaintiff otherwise provides counsel’s affirmation of relevant and considerable Social 

Security law experience. (See Doc. 29-2). The Commissioner cites to the 2013 Ohio State Bar 

Association (OSBA) survey of attorney fees as some evidence of the local market rates, once 

adjusted for the passage of time.5 The Commissioner argues that this survey suggests a standard 

market rate of between $174.00 and $264.00 per hour depending on the particular attorney’s 

4 The Court assumes that this figure is to apply to all three attorneys, as no other rate is referenced. 

5 This resource is available at https://www.ohiobar.org/globalassets/home/member-benefits/personalfinance/osba_econoflawpracticeohio.pdf (last visited Oct. 1, 2020). The majority of work performed in this case 

postdates the survey data by several years. 

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experience and practice area, either of which is more in line with the EAJA figure ($192.00 per 

hour) than with plaintiff’s counsel’s standard market rate figure ($375.00 per hour). 

This Court has found the OSBA study cited by the Commissioner to be satisfactory 

evidence in determining whether counsel’s standard hourly rate is “in line with the rates 

prevailing in the community for similar services by lawyers of reasonably comparable skill, 

experience and reputation.” Robinson v. Comm’r of Soc. Sec., No. 2:13-cv-1055, 2015 WL 

401477, at *3 (S.D. Ohio Jan. 28, 2015) (King, M.J.), report and recommendation adopted, 2015 

WL 1291146 (S.D. Ohio Mar. 18, 2015) (Sargus, J.). See also Lee v. Comm’r, No. 3:14-cv-291, 

2018 WL 2999909, at *4 (S.D. Ohio June 15, 2018) (Rice, J.); Buttrey v. Astrue, No. 1:11-cv357, 2016 WL 212960, at *3 (S.D. Ohio Jan. 19, 2016) (Barrett, J.); Pencil, 2012 WL 4364273, 

at *2. But see Ringel v. Comm’r of Soc. Sec., 295 F. Supp. 3d 816, 830 (S.D. Ohio 2018) 

(Bowman, M.J.) (rejecting plaintiff’s proffer of 2004 survey of average rates in the downtown 

Cincinnati area and the OSBA survey as evidence of a “standard rate” of more than $200.00 per 

hour for social security attorneys in favor of an EAJA-based “standard rate,” in the absence of 

evidence of counsel’s normal billing rate for comparable, noncontingent work). The OSBA

survey reflects 2012 hourly billing rates ranging from $325 at the 75th percentile to $350 at the 

95th percentile with a median rate of $250 for social security attorneys. Given the several years 

of inflation that have elapsed between when the OSBA conducted the survey and when counsel 

performed their work (2014-2019), the Court determines that counsel’s stated hourly rate of $375 

falls within the range of fees in the local market and is an appropriate guide for the Hayes

analysis. The requested fee of $41,709.25 yields an effective hourly rate of $747.48. As the 

hypothetical hourly rate is less than twice counsel’s standard rate, it is per se reasonable under 

Hayes. 

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Even if it were not, the Court does not believe that the balance of the windfall analysis 

cuts in favor of the Commissioner. First, many courts in the Southern District of Ohio have 

approved effective hourly rates close to or exceeding $700.00 in comparable cases. See, e.g., 

Martin v. Comm’r of Soc. Sec., No. 3:13-cv-336, 2017 WL 443137, at *2 (S.D. Ohio Feb. 2, 

2017) (Newman, M.J.) ($13,250.00 fee and effective hourly rate of $690.10 for 19.2 hours of 

work approved based on evidence of counsel’s extensive experience in social security disability 

matters, the excellent result counsel achieved for the plaintiff, counsel’s efficient handling of the 

matter, and the fact that plaintiff agreed to the contingency fee), adopted sub nom. Martin v. 

Berryhill, 2017 WL 680646 (S.D. Ohio Feb. 21, 2017) (Rose. J); Meyer v. Comm’r, No. 1:15-cv207 (S.D. Ohio Oct. 31, 2016) (Doc. 26) (Barrett, J.) ($16,412.25 fee and effective hourly rate of 

$702.87 approved); Havens v. Comm’r of Soc. Sec., No. 2:12-cv-637, 2014 WL 5308595, at *2 

(S.D. Ohio Oct. 16, 2014) (Kemp, M.J.) ($20,422.00 fee and effective hourly rate of $825.13 for 

24.75 hours of work requested, and $18,562.50 and effective hourly rate of $750.00 approved, 

where counsel handled the matter with expertise and efficiency, and counsel voluntarily limited 

the fee request; effective rate of three times counsel’s standard rate ($250.00 per hour) held 

warranted under those circumstances), report and recommendation adopted, 2014 WL 6606342 

(S.D. Ohio Nov. 20, 2014) (Smith, J.); and Pickett v. Astrue, No. 3:10-cv-177, 2012 WL 

1806136, at *2 (S.D. Ohio May 17, 2012) (Black, J.) ($19,315.50 fee and effective hourly rate of 

$709.00 for 27.25 hours of work approved where hourly rate was over four times counsel’s 

standard rate, but work resulted in a significant award for client).6

 Thus, an award of fees with 

an effective hourly rate of $747.48 is not without precedent.

6 The undersigned has also approved similarly high effectively hourly rates. See, e.g., Shaw, 2019 WL 5550575, at 

*3-5 ($15,050.00 fee with effective hourly rate of $700.00 for 21.5 hours awarded where plaintiff’s counsel had 

submitted documentation of a standard rate of $350.00 per hour; that rate fell within the range of OSBA survey 

results; and plaintiff’s counsel had reduced his fee, not unduly delayed, and achieved an excellent result in a 

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Second, the other factors guiding the Court’s reasonableness inquiry show an award of 

the requested fees would not amount to a windfall. The Court considers whether an award would 

amount to a windfall “because of either an inordinately large benefit . . . or from minimal effort 

expended.” Rodriquez, 865 F.2d at 746. The Commissioner argues that several factors suggest a 

windfall in this case: the eight years of administrative and/or judicial delay, the straightforward 

nature of the case, and the fact that counsel did not discount plaintiff’s fee. Plaintiff argues that 

only attorneys (versus paralegals) worked on her case, the case involved significant difficulty 

and risk, and her counsel’s representation was beyond reproach, all of which suggest the 

reasonableness of the requested fee.

The Court finds the atypical nature of the case at bar militates against finding a windfall. 

While the number of hours counsel devoted to this case falls outside the normal range, this is 

attributable to the fact that plaintiff’s award required two appeals to this Court. (See Case Nos. 

complex (fibromyalgia) case), report and recommendation adopted, 2019 WL 6170822 (S.D. Ohio Nov. 20, 2019) 

(Barrett, J.); Miles v. Comm’r of Soc. Sec., No. 1:16-cv-440, 2019 WL 5485220, at *3 (S.D. Ohio Oct. 25, 2019) 

($9,285.87 award with effective rate of $714.29 per hour for 13 hours of work approved where plaintiff’s counsel 

did not delay and achieved an excellent result, even where plaintiff’s counsel did not provide a standard market rate 

and had moved for EAJA fees based on a rate of only $170.00 per hour), report and recommendation adopted, 2019 

WL 6131268 (S.D. Ohio Nov. 19, 2019) (Dlott, J.); Norris v. Comm’r of Soc. Sec., No. 1:17-cv-587, 2019 WL 

5456807, at *3-4 (S.D. Ohio Oct. 24, 2019) ($15,225.00 and effective hourly rate of $700.00 for 21.75 hours of 

work approved where asserted standard hourly rate of $350.00 was within range of OSBA survey results, and 

plaintiff’s counsel did not unduly delay the case and achieved an excellent result including a remand for an 

immediate award of benefits); Scott v. Comm’r of Soc. Sec., No. 1:16-cv-697, 2018 WL 4109412, at *3-4 (S.D. Ohio 

Aug. 29, 2018) ($14,953.00 fee with effective hourly rate of $640.39 for 23.35 hours of work approved where 

hourly rate fell within range of OSBA survey results, plaintiff affirmatively endorsed the fee, and plaintiff’s counsel 

did not delay and achieved an excellent result), report and recommendation adopted, 2018 WL 4690785 (S.D. Ohio 

Sept. 28, 2018) (Dlott, J.); Watkins v. Comm’r of Soc. Sec., No. 1:14-cv-514, 2016 WL 590471 (S.D. Ohio Feb. 11, 

2016) ($20,724.50 fee and effective rate of $552.65 for 37.5 hours of work approved where asserted standard hourly 

rate of $350.00 was not contested and fell within OSBA ranges, and plaintiff’s counsel did not delay the case in any 

way), report and recommendation adopted, 2016 WL 814633 (S.D. Ohio Mar. 2, 2016) (Barrett, J.); Jodrey v. 

Comm’r of Soc. Sec., No. 1:12-cv-725, 2015 WL 799770, at *3 (S.D. Ohio Feb. 25, 2015) ($14,350.00 fee with 

effective hourly rate of $700.00 for 20.5 hours of work approved where rate was nearly four times counsel’s normal 

hourly rate, but counsel requested less than full 25% of past-due benefits ), report and recommendation adopted, 

2015 WL 1285890 (S.D. Ohio Mar. 19, 2015) (Barrett, J.); Beck v. Comm’r of Soc. Sec., No. 1:10-cv-398, 2013 WL 

6410589 (S.D. Ohio Dec. 9, 2013) ($30,000.00 fee with an effective hourly rate of $1,276.60 for 23.5 hours of work 

appropriate where plaintiff’s counsel reduced the fee, plaintiff submitted a letter endorsing the fee, there was no 

impropriety or delay on the part of plaintiff’s counsel, and the case presented legal and factual challenges), report 

and recommendation adopted, No. C-1-10-398, 2014 WL 287268 (S.D. Ohio Jan. 24, 2014) (Weber, J.).

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14-cv-691 and 18-cv-151). See also Ringel, 295 F. Supp. 3d at 836-37 (noting that attorneys 

ordinarily bill between 10 and 40 hours on a social security case). In the first case, the 

undersigned recommended remand because “[t]he ALJ erred in weighing the opinion evidence 

from plaintiff’s treating physician” on plaintiff’s fibromyalgia. (Case No. 14-cv-691, Doc. 11 at 

PAGEID #: 441). In the second case (following remand), plaintiff argued that the ALJ had again 

failed to properly weigh her treating physician’s opinion. (See Case No. 18-cv-151, Doc. 8 at 

PAGEID #: 1045). The Commissioner sought two extensions to respond to plaintiff’s Statement 

of Errors before filing a “truncated” motion for voluntary remand. (See id., Docs. 10, 12, and 22 

at PAGEID #: 1095). Plaintiff contested the Commissioner’s motion and was granted leave to 

file a surreply after the Commissioner conceded in reply that the ALJ’s decision was, again,

fatally flawed. (See id. at Docs. 14-19). The Court denied the remand motion and ordered

further briefing on whether remand for an immediate award of benefits was warranted. (See id. 

at Docs. 22-24). The Court ultimately reversed for an immediate award of benefits because the 

ALJ had “declin[ed] to give [plaintiff’s long-time treating physician] controlling or even 

deferential weight . . . contrary to the controlling authority in [the Sixth Circuit]” and the fully 

developed record demonstrated strong proof of disability. (See id., Doc. 25 at PAGEID #: 1131, 

1134). The Commissioner’s actions at the administrative and judicial levels directly contributed 

to the unusually high number of hours recorded in this case. See Madura, 2013 WL 1386330, at 

*2 (finding Commissioner’s delay argument “disingenuous given the role of delay that the 

Commissioner played in this case” by repeatedly denying plaintiff’s claim and moving for 

extensions at the judicial level). But see Ringel, 295 F. Supp. 3d at 835 (finding that counsel, as 

opposed to the disabled claimant, should bear the risk of lengthy administrative and judicial 

delays—even those for which counsel was not responsible). 

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In sum, counsel achieved an excellent result in this case by obtaining a reversal for an 

immediate award of benefits, which included past due benefits in the amount of $142,534.35 to 

be paid for the period of January 2012 through May 2020. (See Doc. 29-3). The delay in 

plaintiff’s award was in no part attributable to counsel; rather, counsel’s performance avoided 

even further delay from a remand for rehearing. Plaintiff voluntarily entered into the 

contingency fee agreement with counsel and counsel assumed the risk of non-payment. Further, 

the Court does not find that this was a straightforward matter in terms of substance or procedure. 

First, this Court has recognized that “fibromyalgia and credibility . . . tend to be more complex 

than a number of issues frequently addressed in disability appeals.” Shaw, 2019 WL 5550575, at 

*5. Second, plaintiff was required to contest the Commissioner’s abbreviated, delayed request

for remand and file an additional brief regarding the appropriate administrative procedure given 

the ALJ’s persistent error in her case. On this record, the Court determines that the award 

sought, even if it were not per se reasonable, is not a windfall. To the extent that an EAJA fee of 

$9,741.16 has already been paid to counsel, counsel must remit this amount to plaintiff. 

The Court therefore GRANTS plaintiff’s § 406(b) motion for attorney fees and counsel 

is hereby AWARDED attorney fees in the amount of $41,709.25 under 42 U.S.C. § 

406(b)(1)(A). Plaintiff’s counsel is further ORDERED to remit $9,741.16 of this sum directly 

to plaintiff upon receipt. 

Date: _________________ _____________________________ 

Karen L. Litkovitz 

United States Magistrate Judge

10/9/2020

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