Smith v. Commissioner of Social Security

Filing 35

REPORT AND RECOMMENDATIONS that 25 MOTION for Attorney Fees be granted to the extent that counsel be awarded the sum of $15,000.00 as fees under 42 USC §406(b). The prior award of fees under the EAJA shall be refunded to the Plaintiff. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/18/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ashley Smith,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:10-cv-701
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:
REPORT AND RECOMMENDATION

On March 28, 2011, the Court entered judgment remanding this

case to the Commissioner for further proceedings pursuant to 42
U.S.C. §405(g), sentence four.

The Court subsequently awarded

plaintiff the sum of $3,367.00 as attorneys’ fees and costs under
the Equal Access to Justice Act, 28 U.S.C. §2412.

Plaintiff’s

counsel then moved for an award of fees in the amount of
$16,105.00 under 42 U.S.C. §406(b).
that motion.

The Commissioner opposed

In an order filed on July 25, 2013, the Court

identified some evidentiary deficiencies in the motion, and also
some legal issues.

Each party was granted the opportunity to

address those issues in a further filing.

Both of those were

made, and Plaintiff also recently submitted supplemental
authority.

For the following reasons, it will be recommended

that the motion be granted in substantial part.
I.

The record now supports the following facts.

The Social

Security Administration withheld $18,105.00 from the award of
benefits.

Counsel has requested only $16,105.00.

hourly rate for social security work is $350.00.

His customary

The 20 hours

spent on this case is about half of the average amount of time
(37.3 hours) spent by claimants’ attorneys on such cases.

For 20

hours of work, if counsel were to receive the entire fee, the

effective hourly rate would be slightly over $800.00 per hour, or
$100.00 more than double his normal hourly rate.

Also, there is

no evidence before the Court that counsel did anything to delay
the eventual award of benefits in this case.

Six years did

elapse, however, between Plaintiff’s initial application and the
award of benefits, including more that two years following the
Court-ordered remand, which occurred on March 28, 2011.

was previously awarded $3,000.00 in fees under the EAJA.

Counsel

II.

The evidentiary issues identified in the Court’s earlier

order, relating to the actual amount of past due benefits
awarded, the existence of a contingent fee contract, and

verification of the number of hours spent on the case, have all
been rectified.

There remains a question about the

reasonableness of the requested fee award, and, in particular,

whether counsel should be rewarded for the administrative delays
which occurred in this case.

See generally Thatch v.

Commissioner of Social Sec., 2012 WL 2885432 (N.D. Ohio July 13,
2012).

Counsel argues that this would not be appropriate and

that in light of other relevant factors, including the notion

that an award of twice the normal hourly rate is a “floor, not a
ceiling” for this type of fee award, the Court should grant him
the entire amount he is requesting.

The Commissioner continues

to urge the Court to reduce the fee to $7,200.

The supplemental authority supplied by counsel is Judge

Weber’s decision in Beck v. Commissioner of Social Security, Case

No. 1:10-cv-398 (Jan. 24, 2014).

In Beck, Judge Weber adopted a

Report and Recommendation of the Magistrate Judge which dealt
with a request for a $30,000.00 award.

After citing to the

relevant case law, including Rodriquez v. Bowen, 865 F.2d 739
(6th Cir. 1989) (en banc), and Hayes v. Secretary of HHS, 923
-2-

F.2d 418 (6th Cir. 1991), Magistrate Judge Litkovitz, in her
Report and Recommendation, held that under Rodriquez, the

requested fee, being less than 25% of the past due benefits, was
presumptively reasonable - especially because counsel was asking
only for 12.75% of those benefits - and also noted that the case
was an extraordinarily difficult one especially given that

counsel’s representation of the claimant did not begin until two
years after her last insured date.

Judge Litkovitz also

identified a number of other decisions in this District awarding
similar sums under §406(b).

Based on that analysis, and without

making any deduction for administrative delays, counsel was
granted the full award he asked for.

This case is somewhat different in that the issues which led

to the sentence four remand were not difficult or novel; they

involved garden-variety claims about the sufficiency of the ALJ’s
rationale for rejecting a treating source’s opinions and for
deciding that the Plaintiff was not fully credible.

The ALJ’s

decision was fatally flawed in these respects, and the

Commissioner appears to have recognized the weakness of his

litigating position by agreeing to an award of fees under the
EAJA.

Thus, this factor does not weigh in favor of an unusually

large fee.

Further, the Court still believes that the total

amount of administrative delay is a factor entitled to some

weight, although the Court does not give it significant weight
here.

Given all of the evidence before the Court, there is little

reason to go beyond an award which compensates counsel at twice
his usual hourly rate.

The Court is prepared to recognize that

rate as $350.00 per hour, and will make a slight upward

adjustment ($25.00 per hour) for the delay in awarding fees.

If

the 20 hours of work done in this case is paid for at the rate of
$750.00 per hour, that translates to an award of $15,000.00, and
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that is what the Court recommends.

III.

For the reasons set forth above, it is recommended that the

motion for fees (Doc. 25) be granted to the extent that counsel

be awarded the sum of $15,000.00 as fees under 42 U.S.C. §406(b).
The prior award of fees under the EAJA shall be refunded to the
Plaintiff.

IV.
PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

of this Court shall make a de novo determination of those

A judge

portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge
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