Daniel v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATIONS re 19 Plaintiff's for Attorney Fees under Social Security Act. IT IS RECOMMENDED THAT Plaintiff's motion for an award of attorney's fees under 42 U.S.C. § 406(b) 19 should be GRANTED, with counsel to be awarded an additional attorney's fee in the amount of $3,258.95, representing a total contingency fee award of $11,448.95 less the offset of the previously paid EAJA fee of $8,190.00. Objections to R&R due by 2/26/2018. Signed by Magistrate Judge Stephanie K. Bowman on 2/12/2018. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

SANDRA DANIEL,

Case No: 1:14-cv-775
Plaintiff,

v.

Black, J.
Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background

On October 1, 2014, Plaintiff Sandra Daniel filed this Social Security appeal in
order to challenge the Defendant’s finding that she was not disabled. See 42 U.S.C.
§405(g). On September 21, 2015, the Court reversed the adverse disability decision,
remanding to the agency for further development of the administrative record. (Doc.
13). Plaintiff’s counsel subsequently was awarded payment of an attorney’s fee under
the Equal Access for Justice Act (“EAJA”), in the amount of $8,190.00. (Doc. 17).
Following remand, on December 21, 2016, the Social Security Administration
notified Plaintiff that it had determined she was disabled and entitled to an award of
past-due benefits for the period of August 2011 through December 2016. (Doc. 19 at
8). Plaintiff’s counsel promptly filed a motion seeking an additional attorney’s fee award
of 25% of the past due benefits, pursuant to a contingency fee agreement, and the
authority provided under 42 U.S.C. §406(b). The pending motion has been referred to
the undersigned for initial review and a Report and Recommendation.
recommend that the motion be granted in full.

I now

II.

Analysis

Plaintiff signed a contingency fee agreement, permitting payment up to the
statutory maximum of 25% of the past-due benefits award, a sum that in this case
equals $17,448.95. (Doc. 19 at 7). Unlike an Equal Access to Justice Act award that is
paid directly by the United States, a fee award under §406(b) impacts the social security
claimant, because it is paid directly out of her past benefits award. However, also in
contrast to the EAJA which permits payment of attorney’s fees upon judicial remand
alone, a §406(b) fee can be awarded only if the agency awards benefits after remand.
Counsel appropriately acknowledges that his previously received EAJA award
must be refunded or applied as an offset against any fee awarded under 42 U.S.C.
§406(b), in order to avoid a double-recovery for the same work. In addition to the prior
EAJA award of $8,190.00, counsel acknowledges receipt of an additional payment of
$6,000.00 for his work at the administrative level, pursuant to 42 U.S.C. § 406(a).
Therefore, while seeking a total fee award of $17,448.95, most of that sum has already
been paid to counsel and he seeks only the additional sum of $3,258.95 in the present
motion.
Although the Commissioner filed no response, this Court has an affirmative duty
under Gisbrecht v. Barnhart, 535 U.S. 789, 122 S. Ct. 1817 (2002) and related Sixth
Circuit authority to examine the “reasonableness” of the amount of fees sought under
§406(b). A contingency fee may be reduced if the fee requested would constitute a
windfall. Id., 535 U.S. at 808, citing Rodriguez v. Sec’y of HHS, 865 F.2d 739, 746-747
(6th Cir. 1989) (en banc).
The undersigned has closely examined the fee petition and concludes that
counsel’s motion should be granted in full, because it was timely filed and does not
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reflect a windfall. The motion was filed just days after counsel’s receipt of the Notice of
Award, well within the allotted 45-day period permitted under local rule. See Local Rule
54.2(b).
In addition, the requested fee is clearly reasonable.

Counsel has long

experience representing social security claimants, and obviously achieved an excellent
result for his client in this case. The requested fee for work performed in this Court,
when divided into the number of hours expended, amounts to an effective hourly rate of
$283.00 per hour. Counsel previously received an EAJA fee for the exact same work
that represented a rate of $185.00 per hour. Thus, counsel’s current request reflects a
contingency fee award that is less than two times the rate he was previously awarded.
As such, the award is “per se reasonable” under controlling Sixth Circuit law. See
Hayes v. Secretary of Health and Human Servs., 923 F.3d 418, 421-22 (6th Cir. 1990).
III.

Conclusion and Recommendation

For the reasons stated, it is RECOMMENDED THAT Plaintiff’s motion for an
award of attorney’s fees under 42 U.S.C. § 406(b) (Doc. 19) should be GRANTED, with
counsel to be awarded an additional attorney’s fee in the amount of $3,258.95,
representing a total contingency fee award of $11,448.95 less the offset of the
previously paid EAJA fee of $8,190.00.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
.
SANDRA DANIEL,

Case No: 1:14-cv-775
Plaintiff,

Black, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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