Luke-Reed v. Commissioner of Social Security
Filing
42
Opinion and Order signed by Judge James S. Gwin on 9/9/15. The Court grants plaintiff's motion for attorney fees in the reduced amount of $6012.54. (Related Docs. 39 , 41 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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SHELLIE LUKE-REED,
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:
Plaintiff,
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vs.
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CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
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Defendant.
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:
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CASE NO. 1:11-CV-01346
OPINION & ORDER
[Resolving Doc. No. 39]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Shellie Luke-Reed seeks an award of attorney fees under 42 U.S.C. § 406(b) in the
amount of $10,685.1/ This amount represents the attorney’s contingency fee of 25% of past-due
benefits awarded to Plaintiff, less the $7255.60 already awarded to counsel pursuant to 42 U.S.C.
406(a).2/ The Commissioner states that she has a role “resembling that of a trustee” for the
Claimant.3/ As a result, she does not assent or object to the fee request. Rather, the Commissioner
submitted a brief to make the Court “aware” that, in some circumstances, other courts have lowered
the fees awarded based on a high hypothetical attorney hourly rate at the requested fee amount.
Under Sixth Circuit law, there is a presumption that an attorney should receive the full 25%
1/
Doc. 39.
Id.
3/
Doc. 41.
2/
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Case No. 1:11-CV-1346
Gwin, J.
contingency fee. However, a Court can find that the presumption has been rebutted in two
circumstances: “1) those occasioned by improper conduct or ineffectiveness of counsel; and 2)
situations in which counsel would otherwise enjoy a windfall because of either an inordinately large
benefit award or from minimal effort expended.”4/ There are no allegations of improper conduct of
ineffective assistance of counsel in this case. Rather, the question at hand is whether awarding the
full fees requested would produce an undue windfall for the attorneys.
To assess the financial benefit to the attorneys, courts have looked to the hypothetical hourly
rate resulting from the contingency fee award. The Sixth Circuit has held that a windfall has per se
not occurred when the hypothetical hourly rate is less than twice the standard rate of work in the
relevant market.5/ In Cortes v. Colvin6/ a sister court in this District recently assessed a 406(b)
attorney fee request from the same law firm. After a thorough review of reasonable attorney hourly
rates in the Northern District of Ohio, the Cortes court determined that $176.95 was the prevailing
market rate for the attorney’s work.7/ After being doubled under Hayes, the Cortes court awarded
an attorney hourly rate of $353.90. The Cortes court found that the proposed rate for the paralegal’s
work—$89.79 doubled to $179.58— was reasonable.8/
The Court agrees with the calculations made in Cortes. The Court finds that an attorney
hourly rate of $176.95 is reasonable for the market. The requested paralegal rate of $89.79 per hour
is reasonable. Under the Hayes standard, Plaintiff’s counsel should be given contingency fees that
4/
Rodriquez v. Brown, 865 F.2d 739, 746 (6th Cir. 1989).
Hayes v. Sec’y of Health and Human Servs., 923 F.2d 418, 422 (6th Cir. 1990) (“[A] windfall can never occur
when . . . 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.”)
6/
2014 WL 4472613 at *3-4 (N.D. Ohio Sept. 10, 2014).
7/
Id.
8/
Id.
5/
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Case No. 1:11-CV-1346
Gwin, J.
represents at least double these hypothetical hourly rates. With 14.3 hours of attorney work and 5.3
hours of paralegal work, the Hayes floor is $6012.54.9/
In the case at hand, anything beyond $6012.54 would be a windfall.10/ As a result, the Court
GRANTS Plaintiff’s motion for attorney fees in the amount of $6012.54.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: September 9, 2015
9/
$6012.54 is 14.3 hours worked by attorneys Petit and Balin at a rate of $353.90 hour, plus 5.3 hours worked
by paralegal Sunderman at 179.58 per hour.
10/
Counsel has already received $7255.60 in fees that counts towards the full $25% contingency fees. With
the award given in this order, counsel will receive $13,268.14 in total for 14.3 hours of attorney time. After accounting
for the 5.3 hours of paralegal time, that is still a generous $861.28 per hour of attorney time. While the reductions
outlined above would be within the Court’s discretion even if the extra $7255.60 had not already been paid, fee reduction
in this case is particularly appropriate given the large benefit awarded for “minimal effort expended.”
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