Tackett v. Commissioner of Social Security

Filing 29

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that Plaintiffs Amended Motion 27 be GRANTED and that Plaintiffs Application to Charge and Collect a Fee 26 be DENIED AS MOOT. It is further RECOMMENDED that the Court AWARD Plaintiff attorney fees in the amount of $19,329.50 with a refund to Plaintiff of $5,750. Objections to R&R due by 10/18/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on October 4, 2017. (jlk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOANNA LYNN TACKETT,
Plaintiff,
Case No. 2:14-cv-2638
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Plaintiff’s Application to Charge and
Collect a Fee and Plaintiff’s Amended Motion to Charge and Collect a Fee. (ECF Nos. 26 and
27.) The Commissioner of Social Security has responded to Plaintiff’s Amended Motion. (ECF
No. 28.) For the reasons that follow, it is RECOMMENDED that Plaintiff’s Amended Motion
(ECF No. 27) be GRANTED and that Plaintiff’s Application to Charge and Collect a Fee (ECF
No. 26) be DENIED AS MOOT. It is further RECOMMENDED that the Court AWARD
Plaintiff attorney fees in the amount of $19,329.50.
I.
On December 16, 2014, Plaintiff filed this action under 42 U.S.C. § 405(b) for review of
a final decision of the Commissioner of Social Security denying Plaintiff’s application disability
insurance benefits. (ECF No. 3.) On March 21, 2016, the Court reversed the decision of the
Commissioner and remanded the action, pursuant to Sentence 4 of 42 U.S.C. § 405(g), for
further administrative proceedings. (ECF Nos. 21 and 22.) On April 20, 2016, the Court

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granted the parties’ stipulation for an award of attorney fees in the amount of $5,750.00, pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). (ECF No. 25.)
On remand pursuant to the Court’s judgment, the Administrative Law Judge issued a
favorable decision and the parties agree that twenty-five percent of the amount of past due
benefits owed to Plaintiff is $14,238.50. (ECF No. 26 at PAGEID ## 1063–64, 1066; ECF No.
28 at 2.) Twenty-five percent of the amount of past due benefits owed to Plaintiff’s two
qualifying dependents is $2,545.50 each. (ECF No. 27 at PAGEID ## 1079–90.)
On July 27, 2017, Plaintiff’s counsel filed an Application to Charge and Collect a Fee,
seeking $14,238.50 in fees. (ECF No. 26.) In support, counsel attached billing records and a
contingency fee agreement he reached with Plaintiff entitling him to twenty-five percent of past
due benefits. (ECF No. 26-1 at PAGEID # 1073.) On August 14, 2017, Plaintiff’s counsel filed
an Amended Motion to Charge and Collect a Fee, seeking $19,335.50 in fees, which represents
twenty-five percent of the total amount past due to Plaintiff and her two qualifying dependents.
(ECF No. 27.) Plaintiff’s counsel agrees that the $5,750.00 previously awarded pursuant to the
EAJA will serve as an offset against the amount sought. (Id.) The Commissioner calculates
twenty-five percent of the total amount past due to Plaintiff and her two qualifying dependents as
$19,329.50. (ECF No. 28 at 2.) The Commissioner submits that the Court has discretion to
either reduce the fee sought by counsel or award the full twenty-five percent fee. (ECF No. 28.)
II.
Counsel moves for fees pursuant to 42 U.S.C. § 406(b), which provides in relevant part:
Whenever a court renders a judgment favorable to a claimant under this
subchapter who was represented before the court by an attorney, the court may
determine and allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment . . . .

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42 U.S.C. § 406(b)(1)(A). Pursuant to this statute, the Court may only award fees for work done
at the district court level. Horenstein v. Sec’y of Health & Human Servs., 35 F.3d 261, 262 (6th
Cir. 1994) (“[I]n cases where the court remands the case back to the Secretary for further
proceedings, the court will set the fee—limited to 25 percent of past-due benefits—for the work
performed before it, and the Secretary will award whatever fee the Secretary deems reasonable
for the work performed on remand and prior administrative proceedings.”); see also Gisbrecht v.
Barnhart, 535 U.S. 789, 794 (2002) (“The statute deals with the administrative and judicial
review stages discretely: § 406(a) governs fees for representation in administrative proceedings;
§ 406(b) controls fees for representation in court.”).
In evaluating the reasonableness of requested fees, the Court “begin[s] by using twentyfive percent of the past due benefits as a benchmark.” Rodriquez v. Bowen, 865 F.2d 739, 746
(6th Cir. 1989) (“While we use that mark as a starting point for the court’s analysis, we
emphasize that it is not to be viewed as per se reasonable.”). When a claimant has entered into a
contingency fee agreement entitling counsel to twenty-five percent of past-due benefits awarded,
the Court presumes, subject to rebuttal, that the contract is reasonable. Id. at 746. The Court,
however, still stands as an “independent check” on the reasonableness of such arrangements.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
In assessing the reasonableness of a fee, the Court can consider a variety of factors
including the hours spent in representation and “the lawyer’s normal hourly billing charge for
noncontingent-fee cases.” Id. at 808. The Court should reduce fees in situations where counsel
“would otherwise enjoy a windfall because of either an inordinately large benefit award or from
minimal effort expended.” Rodriquez, 865 F.2d at 746. Even in contingency-agreement cases,
the Court may calculate hourly rates in considering whether an award results in a windfall.

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Hayes v. Sec’y of Health & Human Servs., 923 F.2d 418, 421–22 (6th Cir. 1990). The United
States Court of Appeals for the Sixth Circuit, however, has expressed dissatisfaction with the use
of an across-the-board, strict hourly rate limitation:
[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. We believe
that 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. Without a multiplier, a strict hourly rate limitation would insure that
social security attorneys would not, averaged over many cases, be compensated
adequately.
Id. at 422.
Finally, although a claimant may be awarded fees under the Social Security Act and the
EAJA, “any funds awarded pursuant to the EAJA serve as reimbursement to the claimant for fees
paid out of his or her disability award to his or her counsel” and counsel must return the smaller
fee to the claimant. Jankovich v. Bowen, 868 F.2d 867, 871 (6th Cir. 1989).
III.
In this case, in light of the information provided, the Court finds that counsel’s requested
fees are reasonable. First, to clarify the record, twenty-five percent of the amount of past due
benefits to Plaintiff and her two qualifying dependents is $19,329.50.1 Counsel represents that
he has expended 90.50 hours in this matter and that his hourly rate representing Plaintiff is
$150.12. (ECF No. 26 at 2; ECF No. 26-1 at PAGEID ## 1067–72; ECF No. 27 at 2.) However,
the 90.50 hours cited by counsel includes time expended at the administrative level. (ECF No.
26-1 at PAGEID ## 1067–72.) As set forth above, the Court may award fees only for work done
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The Court calculates this total by adding $14,238.50 (twenty-five percent of amount of past due
benefits to Plaintiff), $2,545.50 (twenty-five percent of amount of past due benefits to Plaintiff’s
first qualifying dependent), and $2,545.50 (twenty-five percent of amount of past due benefits to
Plaintiff’s second qualifying dependent).
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at the district court level. Horenstein, 35 F.3d at 262. Counsel expended approximately thirtyfive hours of work before this Court between December 2014 (when the case was filed in this
Court) and March 2016 (when the Court reversed and remanded the action), resulting in a
hypothetical hourly rate of approximately $552.00 ($19,329.50 divided by 35 hours). (ECF No.
26-1 at PAGEID ## 1069–72). Although this rate exceeds the “multiplier of 2” floor set in
Hayes, the Undersigned cannot say, given the contingent nature of Social Security Appeals, that
such a fee results in an unjust windfall. As previously discussed, counsel obtained a good result
for Plaintiff, which resulted in a favorable decision upon remand. In addition, counsel has
produced a contingency fee agreement indicating that Plaintiff agreed to pay him twenty-five
percent of any past-due benefits awarded. Counsel has also agreed to reduce the Section 406(b)
fee request by the $5,750.00 previously awarded under the EAJA. Moreover, this Court has
awarded comparable or higher hourly rates in similar cases. See, e.g., Bennett v. Comm’r of Soc.
Sec, No. 2:15-cv-090, 2017 WL 1487593, at *2 (S.D. Ohio Apr. 26, 2017) (finding that a
$540.00 hourly rate “is presumptively reasonable” and recommending that fee request be
granted), adopted, 2017 WL 2364378 (S.D. Ohio May 30, 2017) (Sargus, J.); Smith v. Comm’r
of Soc. Sec., No. 2:10-cv-701, 2014 WL 618996, at *2 (S.D. Ohio Feb. 18, 2014)
(recommending fee request of effective hourly rate of $750.00), adopted, 2014 WL 1046025
(S.D. Ohio Mar. 17, 2014) (Sargus, J.); Havens v. Comm’r of Soc. Sec., No. 2:12-cv-637, 2014
WL 5308595, at *2 (S.D. Ohio Oct. 16, 2014) (finding that an effective hourly rate of $750.00 is
reasonable), adopted, 2014 WL 6606342 (S.D. Ohio Nov. 20, 2014) (Smith, J.). Finally, the
Undersigned notes that the Commissioner submits that the Court has discretion to either reduce
the fee sought by counsel or award the full fee requested. (ECF No. 28.)

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IV.
For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Amended Motion
(ECF No. 27) be GRANTED and that Plaintiff’s Application to Charge and Collect a Fee (ECF
No. 26) be DENIED AS MOOT. It is further RECOMMENDED that the Court AWARD
Plaintiff attorney fees in the amount of $19,329.50, with a refund to be made to Plaintiff of the
$5750.00 previously awarded under the EAJA.
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
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
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 of pretrial motion by failing to timely object to
magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

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(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)).
IT IS SO ORDERED.

Date: October 4, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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