Kleisinger v. Commissioner of SSA

Filing 24

ORDER granting 21 Motion for Attorney Fees. Signed by Judge Timothy S. Black on 6/1/2020. (rrs)

Case: 1:15-cv-00134-TSB Doc #: 24 Filed: 06/01/20 Page: 1 of 6 PAGEID #: 455

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TODD KLEISINGER,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 1:15-cv-134
Judge Timothy S. Black

ORDER GRANTING PLAINTIFF’S MOTION
FOR APPROVAL OF ATTORNEY FEES
UNDER 42 U.S.C. § 406(b) (Doc. 21)
This civil action is before the Court on Plaintiff’s Motion for Approval of
Attorney Fees Under 42 U.S.C. § 406(b) (Doc. 21) (the “Fee Motion” or the “Motion”),
as well as the parties’ responsive memoranda (Docs. 22, 23).
I. BACKGROUND
In 2015–2016, Mr. Acciani (“Counsel”) represented Plaintiff in a successful Social
Security disability benefits appeal. (See Docs. 1, 6, 9, 14, 15, 17). As a result of
Counsel’s representation, Plaintiff received a total of $69,713.00 in past-due benefits.
(See Doc. 21-2 at 3). Counsel represented Plaintiff pursuant to a contingent fee
agreement, which provides that Counsel is entitled to 25% of any past-due benefits
awarded to Plaintiff in this case. (See Doc. 21-1 at 1).
In line with the contingent fee agreement, the Social Security Administration
withheld 25% of Plaintiff’s past-due benefits ($17,428.25), in anticipation of an attorney

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fees award. (Doc. 21-2 at 3). Counsel has already received $6,000.00 in attorney fees for
the work he performed at the administrative level. (Doc. 21 at 2). And Counsel has
already received $2,465.00 in attorney fees under the Equal Access to Justice Act, 28
U.S.C. § 2412(d) (the “EAJA”). (Id.; Doc. 20 at 1).
Now, in the Fee Motion, Counsel moves the Court to award him the remaining
$8,963.25 in attorney fees under the Social Security Act, 42 U.S.C. § 406(b) (the “SSA”).
(Doc. 21 at 1). Counsel has submitted a time sheet providing that he worked a total of
14.5 hours on Plaintiff’s federal case. (Id. at 6). The Commissioner has submitted a
response in opposition to the Motion (Doc. 22), and Counsel has submitted a reply in
support of the same (Doc. 23).
The Fee Motion is now ripe for decision. (Doc. 21). In a nutshell, the Court must
determine whether the proposed award is appropriate under § 406(b).
II. STANDARD OF REVIEW
Pursuant to § 406(b), an attorney who successfully represents a Social Security
claimant may seek a reasonable fee for such representation, not in excess of 25% of the
total past-due benefits to which the claimant is entitled. 42 U.S.C. § 406(b)(1)(A).
The Court must determine the reasonableness of the fees sought subject to the
statutory 25% cap. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). The statutory 25%
cap should not be viewed as per se reasonable and, instead, should be used as a starting
point for the Court’s analysis. Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989).
Importantly, § 406(b) “does not displace contingent-fee agreements”; rather, it “calls for

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court review of such arrangements as an independent check, to assure that they yield
reasonable results in particular cases.” Gisbrecht, 535 U.S. at 807.
When “a fee agreement has been executed by the claimant and the claimant’s
attorney . . . due deference should be given to this expression of the intentions of the
parties.” Rodriquez, 865 F.2d at 746. However, the existence of a fee agreement does
not bind the Court. Id. (citations omitted). A reduction in attorney fees may be
warranted if: (1) counsel acted improperly or provided ineffective assistance; or
(2) “counsel would otherwise enjoy a windfall because of either an inordinately large
benefit award or from minimal effort expended.” Id.; Gisbrecht, 535 U.S. at 808.
III. ANALYSIS
Here, Counsel moves the Court to award him $8,963.25 in attorney fees pursuant
to a 25% contingent fee agreement.1 (Doc. 21 at 2). $8,963.25 represents 25% of
Plaintiff’s past-due benefits ($17,428.25), less the attorney fees Counsel has already
received at the administrative level ($6,000.00) and under the EAJA ($2,465.00). (Id.)

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It appears that Counsel failed to file the Fee Motion in accordance with S.D. Ohio Civ. R.
54.2(b)—i.e., within 45-days after Plaintiff’s notice of award was issued. (Doc. 21). The Court
notes that, notwithstanding this procedural mistake, Counsel has provided Plaintiff with excellent
representation, and the Commissioner has not complained of any prejudice. (Doc. 22). The
Court further notes that, at the time Plaintiff’s notice of award was issued, S.D. Ohio Civ. R.
54.2(b) had only recently become effective. Compare S.D. Ohio Civ. R. 54.2(b) (effective
January 1, 2016), with (Doc. 21-2 (dated May 19, 2016)). Under the facts of this case, the Court
concludes that it is proper to equitably toll the deadline set forth in S.D. Ohio Civ. R. 54.2(b)
such that the Fee Motion is timely. See Ferry v. Comm’r of Soc. Sec., No. 1:13-cv-482, 2016
WL 4471672, at *3 (S.D. Ohio Aug. 4, 2016) (equitably tolling the deadline set forth in S.D.
Ohio Civ. R. 54.2(b) in an analogous situation), report and recommendation adopted, No. 1:13cv-482, 2016 WL 4447819 (S.D. Ohio Aug. 24, 2016). However, the Court ADVISES Counsel
that, moving forward, the failure to timely file § 406(b) motions may result in the
reduction/denial of attorney fees. See id.

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The contingent fee agreement documents both Plaintiff’s intent to pay Counsel 25% of
any past-due benefits he received in this case and Counsel’s willingness to accept the risk
of receiving nothing if no past-due benefits were awarded. (See Doc. 21-1 at 1). Under
well-established precedent, this unequivocal statement of intent warrants “due
deference.” Rodriquez, 865 F.2d at 746.
Nonetheless, the Commissioner argues that the Court should reduce the proposed
award. (See Doc. 22 at 6). The Commissioner does not claim that Counsel has acted
improperly or ineffectively. (See id.). Instead, the Commissioner claims that the
proposed award will create a windfall. (See id.) The Commissioner notes that, when the
proposed award is considered together with Counsel’s hours worked, an effective rate of
$788.16/hour arises.2 (Id.) The Commissioner suggests that the Court should reduce the
proposed award such that it yields an effective rate of $350–$400/hour. (Id.)
The Court acknowledges that, here, the proposed award will result in a high
effective rate. Nevertheless, the Court concludes that, here, the proposed award will not
create a windfall, for at least three reasons.
First, Counsel devoted far more than “minimal effort” to Plaintiff’s case.
Rodriquez, 865 F.2d at 746. Counsel submitted persuasive and effective filings to the
Court, which secured a reverse and remand for the immediate award of benefits. (Doc.

The Commissioner arrives at the effective rate by: (1) summing Counsel’s proposed award
($8,963.25) and EAJA fees ($2,465.00); then (2) dividing the result by Counsel’s hours worked
(14.5). (See Doc. 22 at 1, 6). In short: ($8,963.25 + $2,465.00)/14.5 hours = $788.16/hour. This
is the appropriate way to calculate Counsel’s effective rate. See, e.g., Miles v. Comm’r of Soc.
Sec., No. 1:16-cv-440, 2019 WL 5485220, at *2 (S.D. Ohio Oct. 25, 2019), report and
recommendation adopted, No. 1:16-cv-440, 2019 WL 6131268 (S.D. Ohio Nov. 19, 2019).
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17 at 17). This is the best result Plaintiff could have achieved at the federal level. (Id.)
Certainly, Counsel’s hard work in bringing about this positive result warrants appropriate
compensation. Cf. Rymer v. Colvin, No. 1:12-cv-644, 2016 WL 946666, at *2
(W.D.N.Y. Mar. 14, 2016).
Second, this case does not involve “inordinate” benefits. Rodriquez, 865 F.2d at
746. To be sure, Plaintiff received a significant award as a result of Counsel’s competent
representation: past-due benefits totaling $69,713.00. (Doc. 21-2 at 3). However, while
this award is significant, it is not so inordinately large that it would result in a windfall to
Counsel, should Counsel receive the full 25% to which he is entitled under the contingent
fee agreement. Cf. Otten v. Comm’r, Soc. Sec. Admin., No. 1:14-cv-173, slip op. at 4
(S.D. Ohio Aug 11, 2015).
Finally, contrary to the Commissioner’s suggestion, analogous cases indicate that
the effective rate in this case, though high, is reasonable. On the Court’s review,
numerous decisions from this district have awarded Counsel attorney fees at effective
rates similar to—if not higher than—that present here. See, e.g., Miles, 2019 WL
5485220 (effective rate of $714.29/hour in a case involving the same Counsel); Comer v.
Comm’r of Soc. Sec., No. 1:13-cv-358, 2018 WL 1790826 (S.D. Ohio Apr. 16, 2018),
report and recommendation adopted, No. 1:13-cv-358, 2018 WL 2335759 (S.D. Ohio
May 23, 2018) (effective rate of $709.06/hour in a case involving the same Counsel);
Otten, No. 1:14-cv-173 (effective rate of $969.62/hour in a case involving the same
Counsel); see also Metz v. Comm’r, Soc. Sec. Admin., No. 3:11-cv-391, 2014 WL

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1908512 (S.D. Ohio May 12, 2014) (effective rate of $780.25/hour in a case involving a
different attorney).
All things considered, the Court concludes that the proposed award is reasonable
under the facts of this case. Bolstering this conclusion is the simple fact that, under
§ 406(b), a contingent fee award is not unreasonable merely because it involves a high
hourly rate. Royzer v. Sec’y of Health & Human Servs., 900 F.2d 981, 982 (6th Cir.
1990). As the Sixth Circuit explained in Royzer:
It is not at all unusual for contingent fees to translate into large
hourly rates if the rate is computed as the trial judge has
computed it here [dividing the requested fee by the number of
attorney hours worked]. In assessing the reasonableness of a
contingent fee award, we cannot ignore the fact that the
attorney will not prevail every time. The hourly rate in the next
contingent fee case will be zero, unless benefits are awarded.
Contingent fees generally overcompensate in some cases and
undercompensate in others. It is the nature of the beast.
Id.; accord Hayes v. Sec’y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1990)
IV. CONCLUSION
Based on the foregoing, the Fee Motion (Doc. 21) is GRANTED. Counsel is
entitled to an award of attorney fees in the amount of $8,963.25. Plaintiff is entitled to
any remaining funds withheld by the Commissioner.
IT IS SO ORDERED.
Date: 6/1/2020
Timothy S. Black
United States District Judge

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