Boyle v. Commissioner of Social Security

Filing 25

REPORT AND RECOMMENDATION that plaintiff's 23 MOTION for Attorney Fees be Granted and that counsel be Awarded $3,802.00 in additional fees. Objections to R&R due by 2/28/2017. Signed by Magistrate Judge Karen L. Litkovitz on 2/14/2017. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WANDA LYNN BOYLE,
Plaintiff,

Case No. 1: 15-cv-616
Black, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

This matter is before the Court on plaintiffs motion for attorney fees under the Social
Security Act, 42 U.S.C. § 406(b)(l) (Doc. 23). The Commissioner has not filed any opposition
to plaintiffs motion.
On May 2, 2016, the Court granted the parties' joint motion to remand and remanded this
matter for further administrative proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).
(Doc. 18). On remand, the Commissioner determined that plaintiff was disabled. (See Notice of
Award, Doc. 23-1 at 2). The Court previously awarded plaintiff $2,320.00 under the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), which represented $1,920.00 in attorney
fees and $350.00 in costs. (Doc. 21). Plaintiff represents that $6,000.00 in attorney fees have
also been awarded for work performed at the administrative level. (See Doc. 23 at 4). Plaintiff
represents that acting pursuant to§ 406(b)(l)(A), the Commissioner withheld 25 percent of pastdue benefits-or $11,722.00-as a potential contingency fee to be awarded to plaintiffs counsel.
(See Doc. 23 at 2). From that amount, plaintiff now seeks an award of$3,802.00 in attorney fees

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available under § 406(b) for 12.25 hours of work performed before the Court. (See Doc. 23 at 4,
6). The $3,802.00 requested represents 25 percent of plaintiffs past-due benefits ($11,722.00),
less the amount awarded by the Commissioner for work performed at the administrative level
($6,000), and less the amount ofEAJA fees previously received ($1,920.00). (See Doc. 23 at 4).
Pursuant to 42 U.S.C. § 406(b)(l)(A), a court may award a prevailing claimant's attorney
a reasonable fee not in excess of25 percent of past-due benefits recovered by the claimant for
work done in a judicial proceeding. 42 U.S.C. § 406(b)(l)(A). See Horenstein v. Sec'y of

H.H.S., 35 F.3d 261 , 262 (6th Cir. 1994) (en bane) (court may award fees only for work
performed before the court, and not before the Social Security Administration). Fees are
awarded from past-due benefits withheld from the claimant by the Commissioner and may not
exceed 25 percent of the total past-due benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 792
(2002).
In determining the reasonableness of fees under § 406(b ), the starting point is the
contingency fee agreement between the claimant and counsel. Gisbrecht, 535 U.S. at 807.
When a claimant has entered into a contingency fee agreement entitling counsel to 25 percent of
past-due benefits awarded, the Court presumes, subject to rebuttal, that the contract is
reasonable. Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989) (en bane). Within the 25
percent boundary, the attorney for the claimant must show that the fee sought is reasonable for
the services rendered. Gisbrecht, 535 U.S. at 807. The Court should consider factors such as the
character of the representation, the results achieved, the amount of time spent on the case,
whether the attorney was responsible for any delay, and the attorney' s normal hourly billing rate

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Plaintiff has submitted an itemized billing sheet claiming 12 hours and 30 minutes of attorney time expended
before the federal court. However, the sum of the hours billed for the individual line items is only 12 hours and 15
minutes. Thus, the Court will use a total time of 12.25 hours throughout this Report and Recommendation. (See
Doc. 23 at 6).

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for noncontingent fee cases. Id. at 808. See also Rodriquez, 865 F.2d at 746. Additionally, the
Court should consider instances of improper conduct or ineffectiveness of counsel; whether
counsel would enjoy a windfall because of either an inordinately large award or from minimal
effort expended; and the degree of difficulty of the case. Hayes v. Sec '.Y ofHHS, 923 F.2d 418,
422 (6th Cir. 1990); Rodriquez, 865 F.2d at 746. An award of25 percent of past-due benefits
may be appropriate where counsel has overcome legal and factual obstacles to enhance the
benefits awarded to the client; in contrast, such an award may not be warranted in a case
submitted on boilerplate pleadings with no apparent legal research. Rodriquez, 865 F.2d at 747.
An award of fees under § 406(b) is not improper merely because it results in an aboveaverage hourly rate. Royzer v. Sec '.Y ofHHS, 900 F.2d 981, 981-82 (6th Cir. 1990). As the Sixth
Circuit determined:
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 [by dividing the hours
worked into the amount of the requested fee] . 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. "[A] hypothetical hourly rate that is Jess than twice the standard rate is p er se reasonable, and
a hypothetical hourly rate that is equal to or greater than twice the standard rate may well be
reasonable." Hayes, 923 F.2d at 422.
Here, the fee of $3,802.00 that plaintiff requests falls below the 25 percent boundary.
Thus, the issue is whether the requested fee is reasonable. Gisbrecht, 535 U.S. at 807. Plaintiff
asserts the requested attorney fee is reasonable given that attorney Henry Acciani represented her
on a contingency basis and achieved excellent results. (See Doc. 23 at 3). Plaintiff also notes
that her counsel has been practicing since 1979 and has represented clients in Social Security

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cases before this Court since 1985. (See id.). Plaintiff has submitted an itemized billing sheet
demonstrating that her attorney performed a total of 12.25 hours of work on the case in this
Court. (See id. at 6). Plaintiff has also submitted a copy of the contingency fee agreement she
entered into with counsel under which she agreed to pay counsel a contingency fee of 25 percent
of past-due benefits. (Doc. 23-2).
Dividing the $ 11 , 722.00 withheld by the Social Security Administration less the $6,000
awarded for work at the administrative level- $5,722.00-by the 12.25 hours counsel worked on
this case before the Court produces a hypothetical hourly rate of $467 .10. In determining
whether counsel "would enjoy a windfall because of either an inordinately large benefit or from
minimal effort expended," Hayes, 923 F.2d at 422 (quoting Rodriquez, 865 F.2d at 746), the
Court notes that "a windfall can never occur when, in a case where a contingent fee contract
exists, the hypothetical hourly rate determined by dividing the number of hours worked for the
claimant into the amount of the fee permitted under the contract is less than twice the standard
rate for such work in the relevant market." Id. As the Sixth Circuit explained in Hayes:
[A] multiplier of 2 is appropriate as a floor in light of indications that social
security attorneys are successful in approximately 50% of the cases they file in
the courts. Without a multiplier, a strict hourly rate limitation would insure that
social security attorneys would not, averaged over many cases, be compensated
adequately.

A calculation of a hypothetical hourly rate that is twice the standard rate is a
starting point for conducting the Rodriquez analysis. It provides a floor, below
which a district court has no basis for questioning, under the second part of
Rodriquez' s windfall rule for "minimal effort expended," the reasonableness of
the fee.
Id.

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The Hayes "floor" in this case is $3,840.00, which represents 12.25 hours times an hourly
rate of approximately $156.73 multiplied by 2.2 Plaintiffs requested hourly rate of $467. l 0 is
nearly three times her counsel 's typical houri y rate of $156. 73. Plaintiff contends that the
requested fee is nonetheless reasonable. She asserts that the "twice-the-hourly-rate formula
(approved in Hayes] was only a floor, and the fee awarded could be higher than this rate. " (Doc.
23 at 3). She also cites to cases from other courts where comparable or larger hourly rates have
been awarded in Social Security disability benefits cases. (Id. at 3-4, citing Claypool v.
Barnhart, 294 F. Supp.2d 829 (S.D. W. Va. 2003); Dodson v. Comm 'r ofSoc. Sec., No. 4:00-cv-

22, 2002 WL 31927589 (W.D. Va. Oct. 22, 2002); Hearn v. Barnhart, 262 F. Supp.2d 1033
(N.D. Cal. 2003)). As stated above, the Commissioner has not filed any opposition to the fee
request.
The undersigned finds the Court' s reasoning in Pickett v. Astrue, No. 3:10-cv-177, 2012
WL 1806136 (S.D. Ohio May 17, 2012), to be persuasive. The Court in Pickett stated:
Such a high hypothetical hourly rate arguably falls within the range of what may
be perceived as a "windfall." However, the Court notes that Plaintiffs counsel's
work on behalf of Plaintiff resulted in a significant, though not inordinate, award
of past-due benefits. Further, Plaintiff voluntarily entered into the contingency
fee agreement with counsel and counsel undertook and assumed the risk of nonpayment, which is the nature of contingency fee agreements. In addition, there is
no suggestion nor even a hint of impropriety regarding the agreement between
Plaintiff and Plaintiffs counsel, and, as already noted, Plaintiffs attorney's work
proved greatly successful.
Id. at *2.

The same analysis applies here and supports awarding the requested fee. Counsel did not
unduly delay the resolution of this matter and achieved an excellent result. The case was
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Counsel for plaintiff does not provide his specific hourly rate for non-contingency fee cases. In such
circumstances, the Court will ordinarily adopt the hourly rate approved by the Court in connection with a fee
petition under the Equal Access to Justice Act ("EAJA"). See, e.g., Edwards v. Comm 'r ofSoc. Sec., No. I :08-cv815, 2011WL1002186, at *l (S.D. Ohio Mar. 16, 2011). In this case, the Court awarded $ 1,920.00 in EAJA fees,
which yields a Hayes floor of $3,840.00 when doubled. (See Doc. 21).

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reversed and plaintiff received a fully favorable decision on remand. Counsel 's work resulted in
a significant award of benefits to plaintiff. Further, plaintiff voluntarily entered into the
contingency fee agreement with counsel and counsel undertook and assumed the risk of nonpayment. Plaintiff has reduced her § 406(b) fee request by the $1,920.00 EAJA fee the Court
previously awarded to plaintiff as required under Jankovich v. Bowen, 868 F.2d 867, 871 and n.1
(6th Cir. 1989) (recognizing that while a claimant may be awarded fees under both the EAJA and
the Social Security Act, "any funds awarded pursuant to the EAJA serve as reimbursement to the
claimant for fees paid out of his or her disability award to his or her counsel" and should be
awarded to the client). Finally, much higher rates have been awarded in similar cases in this
Court. See, e.g., Jodrey v. Comm 'r ofSoc. Sec. , No. I :12-cv-725, 2015 WL 799770, at *3-*4
(S.D. Ohio Feb. 25, 2015) (Report and Recommendation) (Litkovitz, M.J.), adopted, 2015 WL
1285890 (S.D. Ohio Mar. 19, 2015) (Barrett, J.) (approving effective hourly rate of$700.00);
Havens v. Comm 'r ofSoc. Sec., No. 2 :12-cv-637, 2014 WL 5308595, at *2 (S.D. Ohio Oct. 16,
2014) (Report and Recommendation) (Kemp, M.J.), adopted, 2014 WL 6606342 (S.D. Ohio
Nov. 20, 2014) (Smith, J.) (approving effective hourly rate of$750.00); Metz v. Comm 'r, Soc.
Sec. Admin., No. 3:1l-cv-391,2014 WL 1908512, at *1 -*2 (S.D. Ohio May 12, 2014)
(approving effective hourly rate of $780.25); Smith v. Comm 'r ofSoc. Sec. , No. 2 :10-cv-701,
2014 WL 618996, at *2 (S.D. Ohio Feb. 18, 2014) (Report and Recommendation) (Kemp, M.J.),
adopted, 2014 WL 1046025 (S.D. Ohio Mar. 17, 2014) (Sargus, J.) (approving effective hourly
rate of$750.00); Pickett, 2012 WL 1806136, at *2 (approving effective hourly rate of$709.00).
In view of these considerations, and having reviewed the fee request in light of the remaining
criteria set forth in Gisbrecht and Rodriquez, the undersigned finds that plaintiff's requested fee
award is reasonable for the work plaintiff's counsel performed in this Court.

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It is therefore RECOMMENDED that plaintiff's§ 406(b) motion for attorney fees (Doc.
23) be GRANTED and that counsel be AWARDED $3,802.00 in additional fees. 3

IT IS SO RECOMMENDED.

~~

Karen L. Litkovitz
United States Magistrate Judge

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This amount represents 25% of plaintiff's past benefits ($11 ,722.00), less the amount paid by the Commissioner
for work performed at the administrative level ($6,000.00), and less the amount of EAJA fees previously received
($1,920.00).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1: 15-cv-616
Black, J.
Litkovitz, M.J.

WANDA LYNN BOYLE,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. 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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