Wycoff v. Commissioner of Social Security

Filing 32

ORDER adopting Report and Recommendation re 30 Report and Recommendation granting 27 Motion for Attorney Fees. Signed by Judge Michael R. Barrett on 12/4/17. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
John Harold Wycoff,
Plaintiff,
vs.

Commissioner of Social Security,
Defendant.

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Case Number: 1:13-cv-641
Judge Michael R. Barrett

ORDER
This matter is before the Court on the Magistrate Judge’s October 18, 2017
Report and Recommendation (“R&R”) that Plaintiff’s Motion for Attorney Fees under
Social Security Act, 42 U.S.C. § 406(b)(1) be granted. (Doc. 30). The parties were
given proper notice under Rule 72(b) of the Federal Rules of Civil Procedure, including
notice that the parties would waive further appeal if they failed to file objections to the
R&R in a timely manner. See United States v. Walters, 638 F.2d 947, 949-950 (6th Cir.
1981). The Commissioner filed a Response to the R&R. (Doc. 31).
Pursuant to 42 U.S.C. § 406(b), a court may allow a “reasonable fee” for courtrelated services not exceeding twenty-five percent of a claimant's past-due benefits. 42
U.S.C. § 406(b)(1)(A). When seeking fees under § 406(b), “the attorney must show,
and the Court must affirmatively find, that a contingency fee sought, even one within the
25% cap, is reasonable for the services rendered.” Lowery v. Com'r of Soc. Sec., 940
F.Supp.2d 689, 691-92 (S.D.Ohio 2013) (citing Gisbrecht v. Barnhart, 535 U.S. 789,
807, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002)).

Here, counsel seeks $15,000.00, which equates to less than twenty-five percent
of Plaintiff’s past due benefits ($26,916.00), and produces a hypothetical hourly rate of
$252.10.

The Commissioner explains that is a reasonably hourly fee and has no

objection to this fee being awarded to counsel.

The Court agrees that the fee is

reasonable for the work counsel performed on behalf of Plaintiff in this Court. See
Tibbetts v. Comm'r of Soc. Sec., No. 1:12-CV-894, 2015 WL 1637414, at *4 (S.D. Ohio
Apr. 13, 2015) (explaining that this Court has indicated that $350 to $360 per hour
represents a “per se reasonable” fee under § 406(b)).
Having reviewed the motion and supporting documentation, the Court finds the
contingency agreement to be fair and reasonable under the circumstances presented in
this case. The Court hereby ADOPTS the Magistrate Judge’s October 18, 2017 R&R
(Doc. 30). Accordingly, Plaintiff’s Motion for Attorney Fees under Social Security Act,
42 U.S.C. § 406(b)(1) is GRANTED. (Doc. 27). The Court approves counsel’s request
for attorney fees in the amount of $15,000.00. This matter remains TERMINATED from
the docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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