UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

NAOMI STURGILL, Case No: 1:18-cv-607 

 Plaintiff, Black, J. 

 v. Bowman, M.J. 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

 On September 26, 2019, this Court entered judgment reversing the 

Commissioner’s decision and remanding the matter to the agency for an immediate award 

of benefits (Docs. 19-20). After remand by this Court, the Commissioner found Plaintiff 

was entitled to widow’s insurance benefits and supplemental security income benefits 

beginning December 2014. (Doc. 24-1, Notice of Change in Benefits). 

 On March 8, 2021, Plaintiff’s attorney filed the instant motion for attorney fees 

seeking an award of $6,375.40, pursuant to 42 U.S.C. § 406(b), for 13.75 hours of work 

performed on Plaintiff’s behalf before this Court. (Doc. 24). Plaintiff’s attorney also 

indicated that he would credit Plaintiff the amount of $1,937.00 he received in attorney 

fees under the Equal Access to Justice Act (EAJA). (Id. at p. 1, 4). Plaintiff’s attorney 

further indicated that he has petitioned the Agency for $6,000.00 for work performed at 

the administrative level. (Doc. 24, p. 4). 

The Commissioner filed a response that acknowledged that the Commissioner has 

no financial interest in whether or not Plaintiff’s motion for § 406(b) fees is granted, since 

such fees are paid out of Plaintiff’s past-due benefits award - unlike EAJA fee awards 

Case: 1:18-cv-00607-TSB-SKB Doc #: 27 Filed: 04/26/21 Page: 1 of 4 PAGEID #: 1602
2 

which are paid by the Commissioner. (Doc. 26). The Commissioner does not oppose the 

total amount requested for $6,375.40. However, the Commissioner notes that Plaintiff’s 

attorney incorrectly indicated that he received only $1,937.00 in EAJA fees. (Doc. 24, p. 

1, 4). Notably, on December 22, 2019, this Court entered an order granting the parties’ 

Joint Motion for an Award of Attorney’s Fees Pursuant to the EAJA awarding Plaintiff 

$2,337.00 in attorney fees and expenses, and $400 in costs, for a total amount of 

$2,737.00 (Doc. 22). The Commissioner’s attorney contacted Plaintiff’s attorney 

regarding the discrepancy, and he agreed that the total amount he received in EAJA fees 

was $2,337.00, and that the total $2,337.00 will be refunded to Plaintiff. Thus, the 

Commissioner does not oppose Plaintiff’s attorney’s motion for 406(B) fees, subject to 

Plaintiff’s attorney refunding to Plaintiff the correct amount of EAJA fees for $2,337.00. 

As this Court recently reiterated in a published decision, courts have an “affirmative 

obligation... to determine whether a fee award is ‘reasonable,’ even when supported by 

an unopposed motion that relies on a standard contingency fee agreement within the 25% 

statutory cap.” Ringel v. Com’r of Soc. Sec., 295 F. Supp.3d 816, 822 (S.D. Ohio 2018) 

(citing Lowery v. Com’r of Soc. Sec., 940 F. Supp.2d 689, 691 (S.D. Ohio 2013)). In 

Ringel, this Court meticulously set forth the “guideposts” most frequently used to 

determine whether a fee is “reasonable,” including: (1) the Hayes test;1 (2) the amount of 

administrative and/or judicial delay; (3) the quality and quantity of attorney hours 

expended; (4) whether counsel has compromised his/her fee; (5) whether the 

Commissioner has filed any opposition; and (6) a small number of less “common” factors. 

The requested award easily satisfies the Hayes test, arguably eliminating any need to 

1See Hayes v. Sec’y of HHS, 923 F.2d 418, 422 (6th Cir. 1990). 

Case: 1:18-cv-00607-TSB-SKB Doc #: 27 Filed: 04/26/21 Page: 2 of 4 PAGEID #: 1603
3 

review other factors in the case presented.2 

Having independently reviewed Plaintiff’s motion, the undersigned concludes that 

the motion should be granted in full because the requested fee is within the 25% statutory 

cap on fee awards for work performed in federal court, and is otherwise reasonable. See 

generally Culbertson v. Berryhill, 139 S. Ct. 517, 523 (2019) (holding that 25% statutory 

cap “applies only to fees for court representation, and not to the aggregate fees awarded 

under §§ 406(a) and (b).”). However, for the convenience of the parties and of the Court, 

the duplicate EAJA fee previously awarded to counsel should be applied as an offset 

against the total award.3

Accordingly, IT IS RECOMMENDED THAT: Plaintiff’s motion for an award of 

attorney’s fees under 42 U.S.C. § 406(b) (Doc. 24) should be GRANTED. Counsel should 

be awarded a gross fee of $6,375.40, under 42 U.S.C. §406(b). Applying the offset of 

$2,337.00, the amount of the EAJA award previously awarded yields a net fee award 

totaling $4,038.00, which should be paid to counsel out of Plaintiff’s past-due benefits 

award. 

 s/ Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 

2See Ringel, 295 F. Supp.3d at 828-29 (“If the contingency fee agreement produces an award that is less 

than the sum of 2 times the ‘standard rate [under Hayes],’ then the windfall analysis is complete”). 

3 The prior EAJA award was paid by the Commissioner. However, all fees awarded under 42 U.S.C. 

§406(b) are paid directly by the plaintiff and reduce the total amount of benefits to the disabled individual. 

Applying an offset rather than requiring a refund serves the dual purpose of balancing the purpose of the 

EAJA and preserving benefits awarded under the Social Security Act.

Case: 1:18-cv-00607-TSB-SKB Doc #: 27 Filed: 04/26/21 Page: 3 of 4 PAGEID #: 1604
4 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

NAOMI STURGILL, Case No: 1:18-cv-607 

 Plaintiff, Black, J. 

 v. Bowman, M.J. 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

NOTICE 

 Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. 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). 

Case: 1:18-cv-00607-TSB-SKB Doc #: 27 Filed: 04/26/21 Page: 4 of 4 PAGEID #: 1605