Wert v. Commissioner of Social Security

Filing 45

REPORT AND RECOMMENDATION that plaintiffs 40 MOTION for Attorney Fees be GRANTED and counsel be AWARDED attorney fees in the amount of $10,536.57. Objections to R&R due by 11/9/2020. Signed by Magistrate Judge Karen L. Litkovitz on 10/26/2020. (art)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
HEATHER WERT,
Plaintiff,

Case No. 1:17-cv-0477
Barrett, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

This matter is before the Court on plaintiff’s motion for attorney fees under the Social
Security Act, 42 U.S.C. § 406(b)(1) (Doc. 40), the Commissioner’s memorandum in response
(Doc. 41), and plaintiff’s reply in support of the motion (Doc. 44). In support of the fee request,
plaintiff has submitted an itemized billing sheet showing that her attorney, Henry D. Acciani,
Esq., performed a total of 14.25 hours of work on the case in this Court; a copy of the
contingency fee agreement she entered into with counsel under which she agreed to pay him a
contingency fee of 25% of past-due benefits; and a Notice of Award from the Social Security
Administration. (Doc. 40 at 6-21).
Pursuant to 42 U.S.C. § 406(b)(1)(A), a court may award a prevailing claimant’s attorney
a reasonable fee not to exceed 25 percent of past-due benefits recovered by the claimant for work
done in a judicial proceeding. See Horenstein v. Sec’y of H.H.S., 35 F.3d 261, 262 (6th Cir.
1994) (en banc) (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).

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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 banc). 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
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 of HHS, 923 F.2d 418,
422 (6th Cir. 1990); Rodriquez, 865 F.2d at 746. An award of 25 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 of HHS, 900 F.2d 981, 981-82 (6th Cir. 1990). As the Sixth
Circuit has 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

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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 less than twice the standard rate is per 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. See also Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 309
(6th Cir. 2014).
Here, the fee of $10,536.57 that plaintiff requests for the work counsel performed in this
Court falls within the 25% boundary. 1 Thus, the issue is whether the requested fee is reasonable.
Gisbrecht, 535 U.S. at 807. 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 421-22
(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. at 422. 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.
1

Plaintiff indicates in her motion that counsel requests “additional fees” under § 406(b) in the amount of $8,114.07,
which divided by 14.25 hours equals a hypothetical hourly rate of $726.66. (Doc. 40 at 4). Counsel calculated that
amount by deducting the Equal Access to Justice Act (EAJA) fee award of $2,422.50, which must be refunded to
plaintiff, from the 25% contingency fee. (Id.; Doc. 44 at 1). As the Commissioner correctly asserts, though, it is not
proper to include any amount to be refunded to the claimant under the EAJA when analyzing the propriety of the
requested § 406(b) fee. (Doc. 41 at 2, n. 1, citing Ringel v. Commissioner of Social Security, 295 F. Supp. 3d 816,
839-40 (S.D. Ohio 2018)) (explaining that in calculating the § 406(b) award, the analysis should not consider the
amount of any fee refunded to the claimant under the EAJA). See also Shaw v. Commr. of Soc. Sec., No. 1:16-cv1133, 2019 WL 5550575, at *2 (S.D. Ohio Oct. 28, 2019) (Litkovitz, M.J.), report and recommendation adopted,
2019 WL 6170822 (S.D. Ohio Nov. 20, 2019) (Barrett, J.) (“[T]he proper approach is to perform the Hayes
calculation using the contingency fee amount sought . . . without reducing that amount by the prior EAJA fee
award.”). Plaintiff acknowledges in her reply that counsel seeks a total fee award of $10,536.57 for work performed
before this Court. (Doc. 44 at 1). The Court must analyze the propriety of awarding that amount without
considering the EAJA fee award.

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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.
Dividing the $10,536.57 requested by counsel by the 14.25 hours counsel worked on the
case before this Court yields a hypothetical hourly fee of $739.40. 2 The Commissioner contends
that a § 406(b) award of over $700 per hour significantly exceeds the rates of $350 to $400 per
hour that this Court has allowed in several cases, and an award at the requested hourly rate would
create a windfall. (Doc. 41 at 3, citing Buttrey v. Comm’r of Soc. Sec., No. 1:11-cv-357, 2014
WL 1670034, at *3 (S.D. Ohio April 23, 2014) (reducing hypothetical hourly rate of $842.00 for
18.5 hours of work to $400.00); Stonitsch v. Astrue, No. 1:09-cv-00593, 2012 WL 5378744, at
*1 (S.D. Ohio Oct. 30, 2012) (reducing hourly rate for 16.75 hours of work from $600.17 to
$360.00); Jones v. Astrue, No. 3:09-cv-80, 2012 WL 3251865, at *1 (S.D. Ohio Aug. 8, 2012),
report and recommendation adopted, 2012 WL 3763909 (S.D. Ohio Aug. 29, 2012) (reducing
effective hourly rate for 21.75 hours of work from $750.00 to $360.00)). The Commissioner
further contends that in its decision in Lasley and other cases, this Court has adopted the
applicable hourly rate under EAJA as the standard hourly rate for a § 406(b) fee request. (Id. at
3; see Lasley v. Commr. of Soc. Sec., No. 1:10-cv-394, 2013 WL 3900096, at *1 (S.D. Ohio July
29, 2013) (Bowman, M.J.), report and recommendation adopted, 2013 WL 6147841 (S.D. Ohio

2

Plaintiff’s counsel calculated a hypothetical hourly rate of $726.66 in the motion, which is based on a contingency
fee of $8,114.07. For the reasons explained earlier, the hypothetical hourly rate must be based on a contingency fee
of $10,536.57, without any reduction for the EAJA fee award. Use of the full contingency fee in the analysis yields
a hypothetical hourly rate of $739.40.

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Nov. 22, 2013) (Dlott, J.), aff’d, 771 F.3d 308. Based on these prior decisions, the
Commissioner submits that counsel’s fee request in this case “should be reduced to some
extent.” (Id. at 4).
The Commissioner does not assert what a reasonable hourly rate should be for counsel in
this case. The Commissioner indicates that an award at an hourly rate between $540.00 to
$600.00 would be appropriate, noting that several judges in this district have found fees in that
range did not constitute a windfall to counsel. (Id. at 3-4, citing e.g. Pencil v. Astrue, No. 3:10394, 2012 WL 4364273, *2 (S.D. Ohio Sept. 24, 2012) (Black, J.) ($546.32 hypothetical hourly
rate); Kitchen v. Comm’r, No. 3:09-cv-00193, 2013 WL 765641, *2 (S.D. Ohio March 19, 2013)
(Rice, J.) ($548.60 hypothetical hourly rate); Madura v. Commr., Soc. Sec. Admin., No. 3:11-cv118, 2013 WL 1386330, *2 (S.D. Ohio Apr. 4, 2013) (Black, J.) (noting that the Court had
“repeatedly recognized that the amount of $540.00 per hour for representation by experienced
counsel on a contingent fee case is within the reasonable range” and approving hypothetical
hourly rate of $473.84); Ringel, 295 F. Supp. 3d at 838-39, 842 (concluding that an hourly rate of
$1,371.00 would result in a windfall to counsel and approving an effective hourly rate of
$600.00).
Plaintiff contends that the requested contingency fee is in line with fees awarded in other
§ 406(b) cases. 3 (Doc. 40 at 4). Plaintiff contends that this Court has previously awarded fees
under § 406(b) which resulted in hourly rates that exceeded the range suggested by the
Commissioner. (Doc. 44 at 2, citing Pickett v. Astrue, No. 3:10-cv-177, 2012 WL 1806136, at
*2 (S.D. Ohio May 17, 2012) (effective hourly rate of $709.00); Nessle v. Comm’r of Soc. Sec.,

3

Plaintiff cites two older cases from other districts, which are not helpful, to support the fee request. (Doc.
40 at 4, citing Claypool v. Comm’r, 294 F. Supp. 2d 829 (S.D. W. Va. 2003); Dodson v. Comm’r, No. 4:00cv00022,
2002 WL 31927589 (W.D. Va Oct. 22, 2002)).

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No. 1:14-cv-442, 2015 WL 2194777, *1 (S.D. Ohio May 11, 2015) (effective hourly rate of
$666.00); Leah Otten v. Comm’r of Soc. Sec., No. 1:14-cv-173, Doc. 26 (8/11/15 Order) (Black,
J.) (plaintiff’s current counsel, Mr. Acciani, was awarded a total of $14,544.31 in attorney fees
for 15 hours of work, resulting in an hourly rate of $969.62)). Plaintiff contends these awards
reflect her attorney’s level of experience in the area of disability law and his ability to
accomplish more in fewer hours than an attorney with less experience in this area could
accomplish. 4 (Id. at 3).
The undersigned finds that a fee award under § 406(b) in the amount of $10,536.57
would not constitute a windfall to counsel. The undersigned has previously addressed and
rejected the Commissioner’s suggestion that pursuant to Lasley, 771 F.3d 308, the applicable
hourly rate under EAJA is the appropriate standard hourly rate for a § 406(b) fee request. See
Banks v. Commr. of Soc. Sec., No. 1:18-cv-151, 2020 WL 5993640, at *3 (S.D. Ohio Oct. 9,
2020) (Litkovitz, M.J.); Shaw v. Commr. of Soc. Sec., No. 1:16-cv-1133, 2019 WL 5550575
(S.D. Ohio Oct. 28, 2019) (Litkovitz, M.J.), report and recommendation adopted, 2019 WL
6170822 (S.D. Ohio Nov. 20, 2019) (Barrett, J.).
Further, hypothetical hourly rates close to or exceeding $700.00 have consistently been
approved in comparable cases in this district. See Metz v. Commr., Soc. Sec. Admin., No. 3:11cv-391, 2014 WL 1908512, *1-2 (S.D. Ohio May 12, 2014) ($780.25 hourly rate for 20.25 hours
of work approved where “counsel’s work resulted in a significant award of past-due benefits,
plaintiff voluntarily entered into the contingency fee agreement, and there was no suggestion of

4
Judge Black in Otten, No. 1:14-cv-173, summarized Mr. Acciani’s credentials and experience as follows:
“Plaintiff’s counsel, Henry D. Acciani, Esq., has been a member of the bar of the State of Ohio for over 35 years and
‘has represented numerous claim[ant]s before the Court, both in oral argument and briefing before the Court, as well
as before the United States Court of Appeals for the Sixth Circuit.’ Mr. Acciani has extensive experience in
representing Social Security claimants.” Doc. 26 at 4, n. 5 (emphasis in the original).

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impropriety regarding the agreement”); Havens v. Comm’r of Soc. Sec., No. 2:12-cv-0637, 2014
WL 5308595, *2 (S.D. Ohio Oct. 16, 2014) (Kemp, M.J.), report and recommendation adopted,
2014 WL 6606342 (S.D. Ohio Nov. 20, 2014) (Smith, J.) (contingency fee of $18,562.50 and
effective hourly rate of $750.00 approved where counsel handled the matter with expertise and
efficiency, administrative delay was not a factor, and counsel voluntarily limited the requested
amount to 25% of back benefits accrued at the time of the ALJ’s decision); Meyer v. Comm’r,
No. 1:l5-cv-207, Doc. 26, 10/31/2016 Order (Barrett, J.) (fee award of $16,412.25 made at
effective hourly rate of $702.87); Miles v. Comm’r of Soc. Sec., No. 1:16-cv-440, 2019 WL
5485220, *3 (S.D. Ohio Oct. 25, 2019) (Litkovitz, M.J.), report and recommendation adopted,
2019 WL 6131268 (S.D. Ohio Nov. 19, 2019) (Dlott, J.) ($9,285.87 award with effective rate of
$714.29 per hour for 13 hours of work approved where plaintiff’s counsel did not delay and
achieved an excellent result, and the Commissioner did not oppose the plaintiff’s fee request);
Norris v. Comm’r of Soc. Sec., No. 1:17-cv-587, 2019 WL 5456807, *3-4 (S.D. Ohio Oct. 24,
2019) (Litkovitz, M.J.) ($15,225.00 contingency fee and effective hourly rate of $700.00 for
21.75 hours of work approved where asserted standard hourly rate of $350.00 was within range
of Ohio State Bar Association survey results, and plaintiff’s counsel did not unduly delay the
case and achieved an excellent result which included a remand for an immediate award of
benefits). See also Banks, 2020 WL 5993640, at *3 (contingency fee of $41,709.25 awarded and
hourly rate of $747.48 for 55.8 hours of work approved where counsel achieved an excellent
result by obtaining a reversal for an immediate award of benefits, the delay in plaintiff’s award
was not attributable to counsel, plaintiff voluntarily entered into the contingency fee agreement
with counsel and counsel assumed the risk of nonpayment, and the matter was not
straightforward). These decisions support a finding that the requested contingency fee in this

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case is reasonable and would not constitute a windfall to plaintiff’s counsel. Hayes, 923 F.2d at
422.
The remaining criteria set forth in Gisbrecht and Rodriquez likewise support the
reasonableness of the requested contingency fee. See Rodriguez, 865 F.2d at 746; Gisbrecht, 535
U.S. at 808. Plaintiff’s counsel is an experienced attorney who handles primarily personal injury
and Social Security claims and takes all Social Security cases on a contingent fee basis. (Doc. 40
at 3-4). The Court finds there is no suggestion that counsel acted improperly or provided
ineffective assistance, and counsel did not unduly delay this matter. Plaintiff’s counsel achieved
an excellent result in this case by obtaining a favorable disability determination on remand.
Plaintiff received past due benefits of $66,146.28 for a period of several years dating back to
2014. (Doc. 40 at 5, 6-18). Further, plaintiff voluntarily entered into the contingency fee
agreement with counsel and counsel assumed the risk of non-payment.
Having reviewed plaintiff’s § 406(b) fee request in light of these considerations, the
Court finds that a fee of $10,536.57 is reasonable for the work plaintiff’s counsel performed in
federal court. Counsel has acknowledged that any award of fees under § 406(b) must be offset
by the previous award of EAJA fees in the amount of $2,422.50 (see Doc. 31), 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 a 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). (Doc. 40 at
5). Thus, if paid to counsel, the $2,422.50 EAJA fee must be refunded to plaintiff.

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It is therefore RECOMMENDED that plaintiff’s § 406(b) motion for attorney fees
be GRANTED and counsel be AWARDED attorney fees in the amount of $10,536.57.

10/26/2020
Date: _________________

_____________________________
Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
HEATHER WERT,
Plaintiff,

Case No. 1:17-cv-0477
Barrett, J.
Litkovitz, M.J.

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 of law 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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