UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SHERRY SNELL,

Plaintiff, Case No. 3:18-cv-173

vs. District Judge Michael J. Newman

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

ORDER: (1) GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR AN ATTORNEY

FEE AWARD UNDER 42 U.S.C. § 406(b) (Doc. No. 23); (2) AWARDING PLAINTIFF’S 

COUNSEL $10,255.50 IN FEES; AND (3) DIRECTING PLAINTIFF’S COUNSEL TO 

REFUND TO PLAINTIFF, WITHIN FOURTEEN DAYS, THE EAJA FEE 

PREVIOUSLY AWARDED TO COUNSEL

On July 29, 2019, the Court reversed the ALJ’s non-disability finding and remanded this 

case to the Commissioner under Sentence Four of 42 U.S.C. § 405(g) for further proceedings. 

Doc. No. 20. On remand, Plaintiff was awarded benefits. Doc. No. 24. Upon the parties’ joint 

motion, the Court previously awarded to Plaintiff’s counsel attorney’s fees under the Equal Access 

to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Doc. No. 23. Plaintiff’s counsel now moves for 

an award of attorney’s fees in the amount of $10,255.50 under 42 U.S.C. § 406(b). Doc. No. 24. 

Counsel’s motion is unopposed. Doc. No. 25.

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), 

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

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

In this case, Plaintiff’s counsel represents working a total of 17.85 hours before this Court. 

Doc. No. 24, PageID 2171. Counsel’s requested fee of $10,255.50, divided by the 17.85 hours 

spent working on the case, results in a hypothetical hourly rate of $574.54, an hourly rate that is -

- without dispute and based upon the materials submitted in support of Plaintiff’s motion -- more 
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than reasonable in light of the skill and experience of counsel.

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

No. 24) is GRANTED; (2) Plaintiff’s counsel is AWARDED the requested sum of $10,255.50 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 Court’s docket.

IT IS SO ORDERED.

June 7, 2021 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge