Marshall v. Commissioner of Social Security Administration
Filing
32
Memorandum Opinion and Order granting Plaintiff's motion for payment of attorney's fees pursuant to 42 U.S.C. § 406(b). re 29 . Judge Jeffrey J. Helmick on 4/16/2024. (M,SM)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Katharina Marshall,
Case No. 3:16-cv-2620
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
Commissioner of Social Security,
Defendant.
I.
INTRODUCTION
Plaintiff Katharina Marshall has filed a motion for payment of attorney’s fees pursuant to 42
U.S.C. § 406(b). (Doc. No. 29). The Commissioner filed a response to the motion. (Doc. No. 31).
Marshall did not file a reply.
II.
ANALYSIS
Under 42 U.S.C. § 406(b), when a claimant seeking social security disability benefits prevails
in court, the court may award the claimant’s attorney a reasonable fee for the successful
representation. 42 U.S.C. § 406(b)(1)(A). The fee may not exceed 25% of the past-due benefits
awarded through the judgment and is taken “out of, and not in addition to, the amount of such pastdue benefits.” Id.
The Sixth Circuit “accords a rebuttable presumption of reasonableness to contingency-fee
agreements that comply with § 406(b)’s 25-percent cap.” Lasley v. Comm’r of Soc. Sec., 771 F.3d 308,
309 (6th Cir. 2014). Marshall signed a contingency-fee agreement for 25% of her past-due benefits
on June 25, 2013. (See Doc. No. 29-2). Still, § 406(b) requires “review of such arrangements as an
independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002). Accordingly, the presumption of reasonableness may be
rebutted, and the attorney’s requested fee reduced, “based on the character of the representation and
the results the representation achieved.” Id. at 808. The Commissioner does not argue Marshall’s
counsel acted deficiently and does not oppose the fee award in this case. (See Doc. No. 31 at 1).
Absent improper or ineffective conduct by the requesting attorney, a reviewing court must
approve a fee request where “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. of Health and Human Servs.,
923 F.2d 418, 422 (6th Cir. 1990). Hayes thus sets a de facto hourly rate “floor,” and a fee at or below
that floor is per se reasonable under these circumstances. See id.
The Sixth Circuit has not provided definitive guidance on how district courts should
calculate the “standard rate.” Compare Ringel v. Comm’r of Soc. Sec., 295 F. Supp. 3d 816, 823-24 (S.D.
Ohio 2018) (using the EAJA rate as the primary benchmark in determining the standard rate) with
Sykes v. Comm’r of Soc. Sec., 144 F. Supp. 3d 919, 925-26 (E.D. Mich. 2015) (using the rate charged by
the 95th percentile of public benefits attorneys in Michigan as the standard rate). But “[w]here an
attorney has a ‘standard rate’ for comparable noncontingent fee cases, it is appropriate for [a] Court
to consider such evidence.” Ringel, 295 F. Supp. 3d at 829 (citing Gisbrecht, 535 U.S. at 808).
I have previously noted that $350 per hour is “a typical rate for non-contingent social
security work.” Buck v. Comm’r of Soc. Sec., 2022 WL 4104333 at *2 (N.D. Ohio Sept. 8, 2022).
Further, a 2020 decision of the United States District Court for the Northern District of Ohio,
which the Sixth Circuit affirmed in a published opinion, concluded that $336 per hour is the market
2
rate for social security benefits attorneys in Ohio.1 Steigerwald v. Saul, No. 1:17-cv-01516, 2020 WL
6485107 at *5 n.81 (N.D. Ohio, Nov. 4, 2020) (aff’d Steigerwald v. Comm’r of Soc. Sec., 48 F.4th 632
(6th Cir. 2022)); see also Hayes, 923 F.2d at 422 (explaining that its “multiplier” rule emerged from a
desire to ensure that social security benefits attorneys were adequately compensated when “averaged
over many cases”).
Marshall’s counsel, Marcia Margolius, attached several documents to her motion, including
Notice of Award documents for Marshall and her minor dependent, a timesheet, an affidavit, and
Margolius’s resume.2 (See Doc. No. 29-3; Doc. No. 29-4; Doc. No. 29-5). These documents show
that Margolius spent 19.2 hours on this case and that her non-contingent hourly rate is $350. (See
Doc. No. 29-3; Doc. No. 29-4). The Notice of Award documents indicate Marshall and her minor
dependent were awarded a total of $75,588.90 in past-due benefits. (See Doc. No. 29-1 at 4-5, 1314). Margolius requests a fee of $8,640.00. (Doc. No. 29 at 3). That number is 11.4% of the pastdue benefits award, and it yields a de facto hourly rate of $450.
If I use a $350 per hour standard rate, based on Margolius’s suggestion or based on my
previous survey of cases in this District, the Hayes floor would be $700. If I use a $336 per hour
standard rate based on Steigerwald’s identification of the market rate, the Hayes floor would be $672.
Either way, because the de facto hourly rate of Margolius’s fee, $450, is below the Hayes floor, her fee
request is per se reasonable. Therefore, I approve Margolius’s requested fee of $8,640.00.
1
The district court in Steigerwald relied on a 2019 report published by the Ohio State Bar
Association showing that the average hourly rate for social security benefits attorneys in Ohio is
$336. See The Ohio State Bar Ass’n, The Economics of Law Practice in Ohio in 2019 at 45. This is the
most recent edition of the report at the time of writing.
2
Because Margolius is the attorney who would benefit from the award, she is “the real part[y] in
interest” for purposes of this motion. Gisbrecht, 535 U.S. at 798 n.6. For clarity, I refer to Margolius
rather than Marshall in describing the arguments and evidence offered to support the fee award.
3
The Commissioner requests that this opinion and order “indicate the amount of any §
406(b) award it authorizes but decline to include language directing that the Commissioner ‘pay’ the
award.” (Doc. No. 31 at 2). Alternatively, “the Commissioner requests that the Court specifically
indicate that any amount it authorizes in § 406(b) fees is to be paid out of Plaintiff’s past-due
benefits in accordance with agency policy.” (Id.). I approve the award and authorize it to be paid
out of the past-due benefits of Marshall and her minor dependent in accordance with agency policy.3
III.
CONCLUSION
Accordingly, Marshall’s motion is granted, and her counsel is awarded a fee of $8,640.00
under 42 U.S.C. § 406(b). (Doc. No. 29). When counsel for the parties verify that Marshall owes no
pre-existing debts to the United States that are subject to offset, the Commissioner will direct that,
following payment of Marshall’s counsel, the remaining money withheld from Marshall’s past-due
benefits for the payment of her attorney fees be released to Marshall.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
3
The Notice of Award documents attached to the motion indicate the Commissioner has already
withheld $13,772.98 in past-due benefits from Marshall and $5,124.25 in past-due benefits from her
minor dependent to pay counsel in this case. (Doc. No. 29-1 at 5, 14).
4
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