Sturgill v. Commissioner of Social Security

Filing 27

REPORT AND RECOMMENDATIONS re 24 MOTION for Attorney Fees filed by Naomi Sturgill. IT IS RECOMMENDED THAT Plaintiff's motion for an award of attorney's fees under 42 U.S.C. § 406(b) 24 should be GRANTED. Counsel should be award ed a gross fee of $6,375.40, under 42 U.S.C. §406(b). Applying the offset of $2,337.00, the amount of the EAJA award previously awarded yields a net fee award totaling $4,038.00, which should be paid to counsel out of Plaintiff's past-due benefits award. Objections to R&R due by 5/10/2021. Signed by Magistrate Judge Stephanie K. Bowman on 4/26/2021. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NAOMI STURGILL,

Case No: 1:18-cv-607
Plaintiff,

v.

Black, J.
Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
On September 26, 2019, this Court entered judgment reversing the
Commissioner’s decision and remanding the matter to the agency for an immediate award
of benefits (Docs. 19-20). After remand by this Court, the Commissioner found Plaintiff
was entitled to widow’s insurance benefits and supplemental security income benefits
beginning December 2014. (Doc. 24-1, Notice of Change in Benefits).
On March 8, 2021, Plaintiff’s attorney filed the instant motion for attorney fees
seeking an award of $6,375.40, pursuant to 42 U.S.C. § 406(b), for 13.75 hours of work
performed on Plaintiff’s behalf before this Court. (Doc. 24). Plaintiff’s attorney also
indicated that he would credit Plaintiff the amount of $1,937.00 he received in attorney
fees under the Equal Access to Justice Act (EAJA). (Id. at p. 1, 4). Plaintiff’s attorney
further indicated that he has petitioned the Agency for $6,000.00 for work performed at
the administrative level. (Doc. 24, p. 4).
The Commissioner filed a response that acknowledged that the Commissioner has
no financial interest in whether or not Plaintiff’s motion for § 406(b) fees is granted, since
such fees are paid out of Plaintiff’s past-due benefits award - unlike EAJA fee awards

which are paid by the Commissioner. (Doc. 26). The Commissioner does not oppose the
total amount requested for $6,375.40. However, the Commissioner notes that Plaintiff’s
attorney incorrectly indicated that he received only $1,937.00 in EAJA fees. (Doc. 24, p.
1, 4). Notably, on December 22, 2019, this Court entered an order granting the parties’
Joint Motion for an Award of Attorney’s Fees Pursuant to the EAJA awarding Plaintiff
$2,337.00 in attorney fees and expenses, and $400 in costs, for a total amount of
$2,737.00 (Doc. 22). The Commissioner’s attorney contacted Plaintiff’s attorney
regarding the discrepancy, and he agreed that the total amount he received in EAJA fees
was $2,337.00, and that the total $2,337.00 will be refunded to Plaintiff. Thus, the
Commissioner does not oppose Plaintiff’s attorney’s motion for 406(B) fees, subject to
Plaintiff’s attorney refunding to Plaintiff the correct amount of EAJA fees for $2,337.00.
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., 295 F. Supp.3d 816, 822 (S.D. Ohio 2018)
(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.
The requested award easily satisfies the Hayes test, arguably eliminating any need to

1

See Hayes v. Sec’y of HHS, 923 F.2d 418, 422 (6th Cir. 1990).

2

review other factors in the case presented.2
Having independently reviewed Plaintiff’s motion, the undersigned concludes that
the motion should be granted in full because the requested fee is within the 25% statutory
cap on fee awards for work performed in federal court, and is otherwise reasonable. See
generally Culbertson v. Berryhill, 139 S. Ct. 517, 523 (2019) (holding that 25% statutory
cap “applies only to fees for court representation, and not to the aggregate fees awarded
under §§ 406(a) and (b).”). However, for the convenience of the parties and of the Court,
the duplicate EAJA fee previously awarded to counsel should be applied as an offset
against the total award.3
Accordingly, IT IS RECOMMENDED THAT: Plaintiff’s motion for an award of
attorney’s fees under 42 U.S.C. § 406(b) (Doc. 24) should be GRANTED. Counsel should
be awarded a gross fee of $6,375.40, under 42 U.S.C. §406(b). Applying the offset of
$2,337.00, the amount of the EAJA award previously awarded yields a net fee award
totaling $4,038.00, which should be paid to counsel out of Plaintiff’s past-due benefits
award.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

2

See Ringel, 295 F. Supp.3d at 828-29 (“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”).
3

The prior EAJA award was paid by the Commissioner. However, all fees awarded under 42 U.S.C.
§406(b) are paid directly by the plaintiff and reduce the total amount of benefits to the disabled individual.
Applying an offset rather than requiring a refund serves the dual purpose of balancing the purpose of the
EAJA and preserving benefits awarded under the Social Security Act.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NAOMI STURGILL,

Case No: 1:18-cv-607
Plaintiff,

Black, 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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