Borck v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 17 Plaintiff's Motion for Attorney Fees pursuant to 42 USC 406(B). IS RECOMMENDED THAT: (1) Plaintiff's motion for an award of attorneys fees under 42 U.S.C. § 406(b) 17 should be GRANTED in full; (2 ) Counsel should be paid a total of $2,970.00 for the 9 hours of work performed in this Court, subject to an offset of the EAJA fee previously paid to her for the same work. Therefore, counsel should be awarded an additional fee under 42 U.S.C. §406(b) of $1,485.00, reflecting the total award of $2,970.00 less the offset of $1,485.00. Objections to R&R due by 4/20/2018. Signed by Magistrate Judge Stephanie K. Bowman on 4/6/2018. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ANKE BORCK,

Case No: 1:16-cv-326
Plaintiff,

v.

Dlott, J.
Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background

Plaintiff Anke Borck filed this Social Security appeal to challenge the Defendant’s
non-disability finding. See 42 U.S.C. §405(g). In September, 2016, the Court granted
the parties’ joint motion to remand under sentence four of 42 U.S.C. §405(g). (Doc. 12).
In December 2016, the Court awarded Plaintiff attorney’s fees under the Equal Access
to Justice Act (“EAJA”). (Docs. 15, 16).
On December 28, 2017, Plaintiff received a Notice of Award from the Social
Security Administration. On February 9, 2018, Plaintiff’s counsel filed a motion with this
Court seeking an additional award of attorney’s fees pursuant to 42 U.S.C. §406(b).
The Commissioner has filed a response, stating no objection to the additional award of
fees.
Based upon the timely submission of the motion within forty-five days of the
Notice of Award as required by Local Rule 54.2(b), and after independent analysis of
whether the requested additional fee award is “reasonable,” the undersigned now
recommends granting Plaintiff’s motion in full.

II.

Analysis

The December 28, 2010 Notice of Award reflects an award of past-due benefits
totaling $40,192.00. Plaintiff executed a contingency fee contract in which she agreed to
pay her attorney a contingent fee equivalent to the 25% statutory maximum fee
permitted under 42 U.S.C. § 406(b).

Although 25% of Plaintiff’s past-due benefits

award would equal $10,048.00, counsel seeks only $2,970.00 for the nine hours of work
spent prosecuting Plaintiff’s case in this Court.
As this Court recently reiterated in a published decision, courts have an
“affirmative obligation… to determine whether a fee award is ‘reasonable,’ even when
supported by an unopposed motion that relies on a standard contingency fee
agreement within the 25% statutory cap.” Ringel v. Com’r of Soc. Sec., Case No. 1:12cv-521, ___ F. Supp.3d ___, 2016 WL 718612 at *3 (citing Lowery v. Com’r of Soc.
Sec., 940 F. Supp.2d 689, 691 (S.D. Ohio 2013)). In Ringel, this Court meticulously set
forth the “guideposts” most frequently used to determine whether a fee is “reasonable,”
including: (1) the Hayes test;1 (2) the amount of administrative and/or judicial delay; (3)
the quality and quantity of attorney hours expended; (4) whether counsel has
compromised his/her fee; (5) whether the Commissioner has filed any opposition; and
(6) a small number of less “common” factors. Because the requested award easily
satisfies the Hayes test, there is no need to review other factors in the case presented.2
Counsel appropriately acknowledges case law that mandates that the prior EAJA
award for the same work be refunded to her client, see Jankovich v. Sec’y, 868 F.2d
867, 871 n.1 (6th Cir. 1989), and indicates that she will therefore refund the amount of
1

See Hayes v. Sec’y of HHS, 923 F.2d 418, 422 (6th Cir. 1990).
See Ringel, 2018 WL 718612 at *8 (“If the contingency fee agreement produces an award that is less
than the sum of 2 times the ‘standard rate [under Hayes],’ then the windfall analysis is complete”).
2

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$1,485.00 upon receipt of the additional § 406(b) award.

However, this Court has

previously found it to be appropriate (and more expeditious) to simply apply the offset
against the additional fee awarded, negating the necessity of counsel remitting the prior
payment.
III.

Conclusions and Recommendation

Accordingly, IT IS RECOMMENDED THAT:
1. Plaintiff’s motion for an award of attorney’s fees under 42 U.S.C. § 406(b)
(Doc. 17) should be GRANTED in full;
2. Counsel should be paid a total of $2,970.00 for the 9 hours of work performed
in this Court, subject to an offset of the EAJA fee previously paid to her for the
same work. Therefore, counsel should be awarded an additional fee under
42 U.S.C. §406(b) of $1,485.00, reflecting the total award of $2,970.00 less
the offset of $1,485.00.

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

ANKE BORCK,

Case No: 1:16-cv-326
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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