Stonitsch v. Commissioner of Social Security

Filing 25

OPINION AND ORDER denying 23 Motion for Attorney Fees. The Court instead AWARDS an amount consistent with Defendant's view of this matter, that is $6,030.00 less $2,942.50 for an award amount of $3,087.50. Signed by Judge S Arthur Spiegel on 10/30/2012. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KENNETH STONITSCH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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No. 1:09-CV-00593

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion for
Attorney Fees Under Social Security Act, 42 U.S.C. § 406(B) (doc.
23), and the government’s Response in Opposition (doc. 24).

For

the reasons indicated herein, the Court DENIES Plaintiff’s Motion
to the extent that it declines to award the amount of fees
Plaintiff’s counsel seeks, but rather awards the amount consistent
with Defendant’s position.
By its Order adopting the Magistrate Judge’s Report and
Recommendation, the Court reversed the denial decision of the
Commissioner and remanded Plaintiff’s claim for further proceedings
(doc. 19). The Administrative Law Judge held a remand hearing, and
ultimately issued a fully favorable decision with an onset date of
June 13, 2006 (doc. 23).
In the instant motion, Plaintiff’s counsel seeks the
award of $10,052.92, which she indicates represents the balance of
25%

of

Plaintiff’s

past

due

benefits

after

discounting

the

$2,526.07 already received in EAJA fees (Id.). Plaintiff’s counsel
attached

copies

of

the

Notice

of

Award

and

continency

fee

agreement, and contends the character of representation was very
good, such that the requested amount is reasonable and does not
constitute a windfall (Id.).
Defendant

objects

to

Plaintiff’s

counsel’s

request,

contending the fee petition represents a windfall (doc. 24).
Defendant indicates that Plaintiff’s counsel has failed to provide
her non-contingent rate, but that she expended 16.75 attorney hours
litigating this case in district court (Id.).

As such, Defendant

indicates the requested amount of $10,052.92 represents an hourly
rate of $600.17, which is out-of-step with the relevant market
(Id.).

Instead, Defendant cites to the methodology of Magistrate

Judge Merz in Jones v. Astrue, 2012 WL 3251865 (S.D. Ohio August 8,
2012), in which the court adopted an hourly fee of $180, doubled
it, and then multiplied it by the number of hours claimed (Id.).
Here, indicates Defendant, such a calculation would lead to an
hourly rate of $360, producing for the 16.75 hours claimed, a fee
of $6030.00 (Id.).

Defendant further indicates that Plaintiff

acknowleges the award of Equal Access to Justice Act (“EAJA”) fees,
but makes no representation that a double recovery will not occur.
(Id. citing Gisbrecht v. Barnhart, 533 U.S. 789, 807 (2002)).
Having reviewed this matter, the Court finds Defendant’s
position correct that the amount Plaintiff’s counsel seeks pursuant

2

to

her

contingency

windfall.

agreement

would

represent

an

unreasonable

The Court therefore adopts Defendant’s suggestion that

an hourly rate of $360 is reasonable, such that a fee of $6030.00
is justified.

The Court further finds it appropriate to deduct

EAJA fees already awarded in the amount of $2,942.50, as there is
no indication that a double recovery will not occur.
Accordingly, the Court DENIES Plaintiff’s Motion for the
Approval

of

Attorney’s

fees,

and

instead

AWARDS

an

amount

consistent with Defendant’s view of this matter, that is $6030.00
less $2,942.50 for an award amount of $3,087.50.

SO ORDERED.
Date: October 30, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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