Sander v. Commissioner of Social Security

Filing 29

ORDER adopting in part Report and Recommendation re 27 Report and Recommendation granting 23 Motion for Attorney Fees. Signed by Judge Michael R. Barrett on 5/26/16. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Darren C. Sander,
Plaintiff,
v.

Case No. 1:11cv673

Commissioner of Social Security

Judge Michael R. Barrett

Defendant.

ORDER
This matter is before the Court upon the Magistrate Judge=s August 10, 2015
Report and Recommendation (AR&R@) on Plaintiff’s Motion for Attorney Fees. (Doc. 27).
Notice was given to the parties under 28 U.S.C. ' 636(b)(1)(c). Plaintiff filed
objections to the Magistrate Judge=s R&R. (Doc. 28).
In her R&R, the Magistrate Judge recommends that counsel for Plaintiff be
awarded $12,366 in attorney fees under 42 U.S.C. § 406(b). The Magistrate Judge
explained that in Plaintiff’s Motion for Attorney Fees, counsel for Plaintiff requested
$18,000 under a contingency free contract.

However, the Magistrate Judge

recommends a reduction in this request based on the factors outlined in Lasley v. Comm'r
of Soc. Sec., 771 F.3d 308 (6th Cir. 2014).
Plaintiff objects to the reduction in fees and explains that the circumstances in this
case can be distinguished from the Lasley case. Plaintiff points out that in Lasley,
counsel delayed in filing his Section 406(b) motion, but in this case, Plaintiff filed his
Motion for Attorney Fees approximately thirty days after the mailing of the Notice of

Award. Next, Plaintiff points out that in Lasley, there was no offer to negotiate or reduce
the fee, but in this case, counsel is seeking less than the full 25% provided for in the
contingency agreement.
Plaintiff also explains that counsel’s standard hourly rate is $250 per hour, which is
in line with a 2013 survey which showed that attorneys in downtown Cincinnati charge a
mean rate of $297 per hour. Plaintiff explains that the requested amount of $18,000
would equate to a hypothetical rate of $524.02 per hour. Plaintiff explains that this hourly
rate is less than the presumptively reasonable rate of twice the standard rate. See
Hayes v. Sec'y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1991) (“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.”).
Finally, counsel for Plaintiff points to the affidavit of Plaintiff which states that he
would have no objection to the full 25% amount being paid to counsel. (Doc. 23, Ex. G, ¶
19).
The Court finds that Plaintiff’s objections are well-taken. The Court also notes
that a hypothetical rate of $524.02 per hour is similar to hypothetical rates which have
been approved in other § 406(b) fee petitions in this district. See Tibbetts v. Comm'r of
Soc. Sec., No. 1:12-CV-894, 2015 WL 1637414, at *5 (S.D. Ohio Apr. 13, 2015)
(awarding hourly rate of $600); Kitchen v. Comm'r of Soc. Sec., No. 3:09–cv–193, 2013
WL 1149609, at *1 (S.D.Ohio Mar.19, 2013) (awarding hourly rate of $548.60); Pencil v.
Astrue, No. 3:10–cv–394, 2012 WL 4364273, at *2 (S.D.Ohio Sept. 24, 2012).
Accordingly,

the

Magistrate

Judge=s
2

August

10,

2015

Report

and

Recommendation (AR&R@) on Plaintiff’s Motion for Attorney Fees (Doc. 27) is ADOPTED
in PART. Plaintiff’s Motion for Attorney Fees is GRANTED. Counsel for Plaintiff is
awarded a total of $18,000 out of Plaintiff’s past-due benefits.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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