Bailey v. Commissioner of Social Security

Filing 28

REPORT AND RECOMMENDATIONS re 27 MOTION for Attorney Fees Pursuant to 42 U.S.C. Section 406(b): The Magistrate Judge RECOMMENDS that the Motion for Attorney Fees pursuant to 42 U.S.C. Section 406(b)(1) be GRANTED and that plaintiffs counsel be AWARDED a net attorney's fee of $2,840.00. Objections to R&R due by 10/4/2018. Signed by Magistrate Judge Norah McCann King on 9/20/2018. (er)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES E. BAILEY,
Plaintiff,
vs.

Civil Action 2:13-cv-060
JUDGE JAMES L. GRAHAM
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Charles E. Bailey appealed the Commissioner’s denial
of

his

motion

application
of

the

for

parties,

disability
Joint

insurance

Motion

for

benefits.

Remand,

ECF

Upon
No.

joint

20,

the

decision of the Commissioner was reversed and the matter was remanded
pursuant

to

Sentence

4

of

42

U.S.C.

§

405(g)

for

further

administrative proceedings. Order, ECF No. 22. This Court previously
awarded plaintiff an attorney’s fee pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (“EAJA”), in the amount of $7,300.00.
Order, ECF No. 26. This matter is now before the Court on the motion
for an additional award of attorney's fees pursuant to 42 U.S.C. §
406(b),

Motion

for

Attorney

Fees

pursuant

to

42

U.S.C.

Section

406(b)(1), ECF No. 27. Plaintiff specifically asks that his attorney
be awarded $ 10,140.00 in past due benefits, reduced by the EAJA award
of attorney’s fee, for a total of $ 2,840.00.1 The Commissioner has not
responded

to

the

motion.

For

the

1

reasons

that

follow,

it

is

Plaintiff’s counsel confirms that “the EAJA fees must be [credited] to
Plaintiff.” Motion for Award of Attorney’s Fees under 42 U.S.C. § 406(b), ECF
No. 27, PageID# 743 (citing Gisbrecht v. Barnhart,535 U.S. 789, 796 (2002)).

1

RECOMMENDED that plaintiff’s motion be granted.
Following
issued

a

this

fully

Court’s

favorable

judgment

decision

of

remand,

awarding

the

benefits

Commissioner
to

plaintiff.

Notice of Award, ECF No. 27-2; Notice of Decision – Fully Favorable,
ECF No. 27-3. Plaintiff and his counsel agreed to an attorney fee of
25% of the past due benefits. Social Security Fee Agreement, ECF No.
27-1.

Attorney’s

fees

under

42

U.S.C.

§

406(b)

have

already

been

awarded by the Social Security Administration in connection for work
performed before that agency. Attorney Jones Fee Award, ECF No. 27-4;
Attorney

Garris

Fee

Award,

ECF

No.

27-5;

Plaintiff’s

Attorney’s

Affidavit and Time Record in Support of Motion for Award of Attorney’s
Fees

pursuant

Plaintiff’s

to

42

attorney

U.S.C.

now

§

406(b),

itemizes

50.7

ECF

hours

No.
of

27-7,

work

¶¶12-14.

before

this

Court. Itemized Detail of Legal Services Performed in Federal District
Court, ECF No. 27-8; Plaintiff’s Attorney’s Affidavit and Time Record
in Support of Motion for Award of Attorney’s Fees pursuant to 42
U.S.C. § 406(b), ECF No. 27-7, ¶19. Plaintiff’s counsel also avers
that

his

customary

hourly

rate

is

$200

per

hour.

Plaintiff’s

Attorney’s Affidavit and Time Record in Support of Motion for Award of
Attorney’s Fees pursuant to 42 U.S.C. § 406(b), ECF No. 27-7, ¶18.
The fee requested reflects compensation at the rate of $200.00 per
itemized hour of work before this Court, totaling $10,124.00. Itemized
Detail of Legal Services Performed in Federal District Court, ECF No.
27-8; Plaintiff’s Attorney’s Affidavit and Time Record in Support of
Motion for Award of Attorney’s Fees pursuant to 42 U.S.C. § 406(b),

2

ECF No. 27-7, ¶22. Plaintiff reduces that figure by the amount already
awarded under the EAJA, for a net award of $ 2,840.00. Plaintiff’s
Attorney’s Affidavit and Time Record in Support of Motion for Award of
Attorney’s Fees pursuant to 42 U.S.C. § 406(b), ECF No. 27-7, ¶22.
By statute, a court must award "a reasonable fee . . . not in
excess of 25 per cent of the total past-due benefits."
406(b).

42 U.S.C. §

A fee award should reflect the purpose of the social security

program to provide a measure of economic security to the recipient,
the extent and type of legal services provided, the complexity of the
case, the level of skill and competence required of the attorney, the
amount of time spent on the case, the results achieved, and the level
at which the favorable decision was made.
416.1525(b).
“should

A fee agreement between a recipient and his counsel

be

given

presumption.”
Deductions

20 C.F.R. §§ 404.925(b);

the

weight

ordinarily

accorded

a

rebuttable

Rodriguez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989).

are

permissible

when

there

is

improper

conduct

or

ineffectiveness of counsel or when counsel would otherwise enjoy a
windfall because of either an inordinately large benefit award or
minimal effort expended in the matter.

Hayes v. Sec’y of Health &

Human Servs., 923 F.2d 418, 421 (6th Cir. 1990). “[A] hypothetical
hourly rate that
reasonable.”

is less than

Id. at 422.

twice the standard rate is

per

se

In the final analysis, an award must be

“reasonable for the services rendered.”

Gisbrecht, 535 U.S. at 807.

Upon consideration of all the appropriate factors, and in light
of the Commissioner’s determination not to oppose the motion, the

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Court concludes that the requested fee is reasonable.

It does not

exceed 25% of the past due benefits, plaintiff signed a fee agreement
consistent with the requested fee, the requested fee does not reflect
a rate of compensation more than twice the standard rate, and it
cannot be said that plaintiff’s counsel was ineffective or expended
minimal effort in the case. The Court therefore determines that a net
award of $ 2,840.00 is a reasonable fee.
It is therefore RECOMMENDED that the Motion for Attorney Fees
pursuant to 42 U.S.C. Section 406(b)(1), ECF No. 27, be GRANTED and
that

plaintiff’s

counsel

be

AWARDED

a

net

attorney's

fee

of

$

2,840.00.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

object

to

the

magistrate

4

judge’s

recommendations

constituted

a

waiver

of

[the

defendant’s]

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

to

preserve an issue for appeal . . . .”) (citation omitted)). Filing
only

“vague,

general,

or

conclusory

objections

does

not

meet

the

requirement of specific objections and is tantamount to a complete
failure to object.” Drew v. Tessmer, 36 F. App’x 561, 561 (6th Cir.
2002) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
September 20, 2018

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