Rabong v. Social Security

Filing 22

REPORT AND RECOMMENDATIONS re 20 Plaintiff's Motion for Attorney Fees. IT IS RECOMMENDED THAT: (1) Plaintiff's motion for an award of attorney's fees under 42 U.S.C. § 406(b) 20 should be GRANTED, with counsel to be awarded a n additional attorney's fee in the amount of $2585.50; (2) Plaintiff's counsel is forewarned that any future untimely filing of a § 406(b) motion, in violation of Local Rule 54.2(b), is likely to result in the significant reductio n and/or outright denial of any statutory fee; (3) Counsel should be required to explicitly address the issue of timeliness in any currently pending or future § 406(b) motions filed in this Court. Objections to R&R due by 1/18/2018. Signed by Magistrate Judge Stephanie K. Bowman on 1/4/2018. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DEBORAH A. RABONG,

Case No: 1:14-cv-811

Plaintiff,
v.

Dlott, J.
Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background

On October 16, 2014, Plaintiff Deborah Rabong 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).

The parties subsequently filed a joint motion to remand for further

development of the record, which was granted by this Court, as was a timely filed
motion for attorney’s fees filed under the Equal Access for Justice Act. (See Docs. 16,
18, 19, 19). Following remand, an Administrative Law Judge (“ALJ”) issued a favorable
decision, indicating that Plaintiff was entitled to past due benefits in the amount of
$29,098.00 for November 2011 through May 2016. (Doc. 20-1 at 2). Plaintiff’s counsel
has now filed a motion seeking a fee award of 25% of the past due benefits, the
maximum permitted under the Social Security Act, 42 U.S.C. §406(b).
The pending motion has been referred to the undersigned for initial review and a
Report and Recommendation. I now recommend that the motion be granted in full.
II.

Analysis

Counsel states that Plaintiff signed a contingency fee agreement, permitting

payment up to the statutory maximum, or $7,274.50. 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 the previously received EAJA award
must be 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, counsel acknowledges that he has received an additional payment of $1,909.00
from the Payment Center. Therefore, while seeking a total award of $7,274.50, most of
that sum has already been paid to counsel and he seeks only the additional sum of
$2585.50 in the present motion.
Although the Commissioner has filed a response indicating no opposition to the
motion, 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).

As Plaintiff

acknowledges, a contingency fee may be reduced if the fee requested would constitute
a windfall. Gisbrecht, 535 U.S. at 808, citing Rodriguez v. Sec’y of HHS, 865 F.2d 739,
746-747 (6th Cir. 1989) (en banc). The Court’s affirmative duty to examine the fee for
reasonableness includes an examination of the timeliness of the motion.
With respect to timeliness, Plaintiff’s motion indicates that she received a fully
favorable decision after remand on May 26, 2016. However, counsel did not file the
motion seeking a fee award until May 4, 2017. Since January 1, 2016, Local Rule
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54.2(b) has stated: “An attorney seeking fees awarded under § 206(b) of the Social
Security Act, 42 U.S.C. § 406(b), must file a motion for fees no later than forty-five days
after entry of judgment or the date shown on the face of the social security certificate
award (notice of award), whichever is later.” In this case, counsel has attached what
appears to be an amended Notice of “Change in Benefits” rather than the original Notice
of Award. The Notice attached to the motion indicates that it is intended to replace “the
attorney fee paragraphs on your award notice dated August 17, 2016 and the notice
dated January 14, 2017.” (Doc. 20-1 at 1, emphasis added)
Counsel has long experience representing social security claimants, and other
attorneys in his firm appear frequently in this Court to appeal adverse social security
decisions. See e.g. Ferry v. Com’r of Soc. Sec., 2016 WL 4471672 (S.D. Ohio August
4, 2016), adopted at 2016 WL 4447819 (S.D. Ohio Aug. 24, 2016) (expressly warning
attorney in same firm of enactment of local rule).
Despite the question of timeliness evident from the face of the motion and the
fact that Local Rule 54.2(b) was enacted more than two years ago, the undersigned will
recommend that the motion be conditionally granted in full on this one occasion. In
counsel’s favor, the issue of timeliness was not raised by the Commissioner, and it is
conceivable that counsel could present a colorable argument that the time should be
tolled based upon the Agency’s amendments to the original notice. Accord, e.g., Ferry
(applying equitable tolling “on this one occasion” to grant a motion for fees that was
untimely under Local Rule 54.2(b)); Hicks v. Com’r, Case No. 1:15-cv-110 (reducing fee
award under 406(b) where motion was filed 36 days late, and would constitute a
windfall); but see Iames v. Com’r, Case No. 1:12-cv-829 (denying untimely § 406(b)
motion in its entirety where counsel had been warned to comply with Local Rule
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54.2(b)). Moreover, counsel obviously achieved excellent results and – unlike other
counsel in his firm - does not appear to have been expressly warned on any prior
occasion that a failure to timely file his § 406(b) motion could result in a reduction or
denial of his fee. In addition, the Court calculates the hypothetical hourly rate to be
within the bounds of a “reasonable” range under the unique circumstances of this case
($519.60). But see Clark v. Com’r, Case No. 14-330 (reducing § 406(b) award from
hypothetical hourly rate of $554.50 to $360 per hour, based in part upon untimeliness of
motion in violation of Local Rule 54.2(b)); see also Hicks v. Com’r, Case No. 1:15-cv110 (reducing fee award under 406(b) where motion was filed 36 days late, and would
constitute a windfall);
III.

Conclusion and Recommendations

For the reasons stated, it is RECOMMENDED THAT:
1. Plaintiff’s motion for an award of attorney’s fees under 42 U.S.C. § 406(b)
(Doc. 20) should be GRANTED, with counsel to be awarded an additional
attorney’s fee in the amount of $2585.50;
2. Plaintiff’s counsel is forewarned that any future untimely filing of a § 406(b)
motion, in violation of Local Rule 54.2(b), is likely to result in the significant
reduction and/or outright denial of any statutory fee;
3. Counsel should be required to explicitly address the issue of timeliness in any
currently pending or future § 406(b) motions filed in this Court.

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
DEBORAH A. RABONG,

Case No: 1:14-cv-811

Plaintiff,

Dlott, 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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