Johnson v. Commissioner of Social Security et al
Filing
21
OPINION AND ORDER granting 20 Plaintiff's Motion for Attorney Fees Under 42 USC Section 406(b)(1)(A). The Court AWARDS $23,315.75 to John Woliver, Esq., provided that, upon receipt of this award, Mr. Woliver shall immediately remit to Plaintiff the $9,361.00 in fees previously awarded under the Equal Access to Justice Act. Signed by Judge S Arthur Spiegel on 12/18/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BETTY JOHNSON,
:
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
This
matter
is
before
No. 1:12-cv-00590
OPINION AND ORDER
AWARDING ATTORNEY FEES
UNDER SECTION 406(b)
the
Court
on
the
motion
of
John
Woliver, counsel for Plaintiff, for an award ordering payment of
his attorney fees under the Social Security Act, 42 U.S.C. §
406(b)(1)(A) (doc. 20).
Counsel seeks $23,315.75, representing
twenty-five percent of the past-due disability benefits awarded
to Plaintiff.
an
itemized
In support of such an award, Mr. Woliver submits
statement
of
time
spent
on
this
matter
in
its
entirety, including at the district court level (id. (Affidavit
of John Woliver ¶ 4 & Attachment 2 (PAGEID ##: 203, 206-08))), a
copy
of
the
contingent
fee
agreement
into
which
Plaintiff
entered (id. (Woliver aff. ¶ 3 & Attachment 1 (PAGEID ##: 203,
205))), and the October 27, 2014 Notice of Award from the Social
Security Administration that, among other things, documents the
amount withheld from Plaintiff’s past-due benefits out of which
an attorney’s fee may be awarded (id. (Woliver aff. Attachment 3
(PAGEID ##: 209-14))).
Counsel also attaches an affidavit from
1
Plaintiff approving the requested fee award (id. (Woliver aff.
Attachment 4 (PAGEID ##: 215-16))) as well as one from attorney
Lawrence Fisse who testifies as to the reasonableness of the
time
spent
on
administrative
this
matter,
hearings,
two
which
separate
includes
three
appeals
to
separate
the
federal
district court requiring multiple briefs addressing a variety of
issues
and
a
request
on
Plaintiff’s
behalf
for
an
award
of
attorney’s fees and costs under the Equal Access to Justice Act,
28 U.S.C. § 2412(a)(1), (d) (id. (Woliver aff. Attachment 5
(PAGEID ##: 217-18))).
Mr. Woliver has represented Plaintiff for the past nine
years,
devoting
disability
108
benefits
hours
for
toward
her.
Those
achieving
an
108
break
hours
award
out
of
as
follows:
(1)
First administrative hearing through an appeal to the
Appeals Council (10.8 hours);
(2)
First appeal to this Court (Case No. 1:09-CV-00936),
resulting in a remand to the Commissioner (12.3
hours);
(3)
Two additional administrative hearings before an ALJ
and another appeal to the Appeals Council (22.3
hours);
(4)
Second appeal to this Court (the instant action),
including Plaintiff’s claim for fees and costs under
the EAJA (61 hours);
(5)
Post-award correspondence with Plaintiff (1.6 hours).
2
Counsel
avers
that,
in
the
event
he
is
awarded
the
entire
twenty-five percent, he will not seek an additional order from
the Social Security Administration pursuant to Section 406(a) to
compensate him for work done at the administrative level (see
doc. 20 at 3 & Woliver aff. ¶ 5 (PAGEID #: 204)).
Fee awards in actions for disability benefits are governed
by Section 406(b), which limits them to a reasonable amount not
in excess of twenty-five percent of the past-due benefits owed.
Contingent fee arrangements under this section must be reviewed
by
courts
to
ensure
that
circumstances of the case.
807 (2002).
they
are
reasonable
under
the
Gisbrecht v. Barnhart, 535 U.S. 789,
A court may, for example, look to the character of
the representation, the results achieved and whether the fee
would represent a “windfall” for the attorney.
Id. at 808.
Most recently, the Sixth Circuit affirmed the decision of our
colleague, Chief Judge Dlott, who rejected a fee award that
would have resulted in an effective hourly rate of $733.80, in
large part because said rate “grossly exceeded—indeed more than
quadrupled—the
standard
rates
applied
to
requests in the Southern District of Ohio.”
social
security
fee
Lasley v. Comm’r of
Soc. Sec., 771 F.3d 308, 310 (6th Cir. 2014).
Having
reviewed
Plaintiff’s
counsel’s
motion
and
its
attachments, and noting the lack of any memorandum in opposition
by
Defendant
Commissioner,
the
3
Court
is
persuaded
that
the
requested award is reasonable and satisfies the requirements of
42 U.S.C. § 406(b).
First and foremost, the character of the
representation in this matter was impeccable.
obtained
for
disability
Plaintiff
benefits.
the
ultimate
Finally,
the
Second, counsel
result—an
total
award
amount
of
withheld,
$23,315.75, divided by the 61 hours of work devoted to just the
second federal (and instant) appeal, amounts to an effective
hourly rate of $382.
under
the
EAJA,
this
In evaluating petitions for fee awards
Court
has
awarded
hourly
rates
in
the
$180s1, and, in fact, did so previously in this very matter (see
doc. 19 ($185)).
slightly
more
Counsel’s request here obviously amounts to
than
twice
the
rate
we
have
been
recently
awarding, but that does not necessarily render it unreasonable
and we are mindful of the role that contingent fee agreements
play
“to
assure
representation.”
social
security
claimants
of
good
See Hayes v. Sec’y of Health & Human Servs.,
923 F.2d 418, 422 (6th Cir. 1991).
Accordingly, the Court GRANTS
the
fees
instant
motion
for
attorney
(doc.
20),
and
AWARDS
$23,315.75 to John Woliver, Esq., provided that, upon receipt of
1
See, e.g., McKinney v. Comm’r of Soc. Sec., No. 1:13-CV-00527
(S.D. Ohio Apr. 11, 2014) ($180.00); Schott v. Comm’r of Soc.
Sec., No. 1:12-cv-918 (S.D. Ohio Mar. 18, 2014) (greater than
$180.00); Santiago v. Comm’r of Soc. Sec., No. 1:12-CV-0498
(S.D. Ohio Mar. 12, 2013) ($180.85). Additionally, we note that
the Sixth Circuit has pronounced rates in the low $170s to be
“modest”, see Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 497
n.3 (6th Cir. 2014).
4
this award, Mr. Woliver shall immediately remit to Plaintiff the
$9,361.00 in fees previously awarded under the Equal Access to
Justice Act.
SO ORDERED.
Dated: December 18, 2014
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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