Bennett v. Commissioner of Social Security Administration

Filing 28

REPORT AND RECOMMENDATION that 26 MOTION for Attorney Fees be granted as filed. Objections to R&R due by 5/10/2017. Signed by Magistrate Judge Terence P. Kemp on 4/26/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jason F. Bennett,

:

Plaintiff,

:Case No. 2:15-cv-090

v.

:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Commissioner of Social Security,
Defendant.

:

REPORT AND RECOMMENDATION
Plaintiff, Jason F. Bennett, filed an action in this Court
on January 15, 2015, seeking review of a final decision of the
Commissioner of Social Security denying his applications for
social security disability benefits and supplemental security
income.

In a Report and Recommendation filed on January 12, 2016

and adopted by the Court on February 3, 2106, the Court reversed
the decision of the Commissioner and remanded the case for
further proceedings.

See Docs. 21, 22.

The parties subsequently

stipulated to an award of attorneys’ fees under the Equal Access
to Justice Act.

See Docs. 24, 25.

On December 13, 2016, Plaintiff’s counsel moved for an award
of fees under 42 U.S.C. 406(b).

The Commissioner filed a

memorandum in opposition on January 3, 2017.
been filed.

No reply brief has

For the following reasons, the Court recommends that

the motion be granted.
The motion for fees represents that, after remand, Plaintiff
was awarded $65,146.00 in past due benefits.

The Commissioner

withheld 25% of that amount, or $16,285.25, for attorneys’ fees.
Plaintiff’s counsel asks the Court to approve a fee in the amount
of $10,000.00, subject to an offset for the EAJA award already
made, which was $2,793.50, for a total of 15.1 hours spent
litigating the matter in this Court.

The Commissioner does not

oppose the award of a fee in some amount, but argues, citing to

Lasley v. Comm’r of Social Security, 771 F.3d 308 (6th Cir. 2014)
that any fee in excess of $350-400 per hour could be viewed as
unreasonable.

Because the award requested by counsel would

represent compensation in the amount of approximately $662.00 per
hour, the Commissioner contends that a reduction would be
justified, although the Commissioner also candidly notes that
this Court has approved fees in that range in other cases.
The standards for reviewing a petition for attorneys’ fees
under 42 U.S.C. §406(b) are set forth in some detail in the Sixth
Circuit’s decisions of Rodriquez v. Bowen, 865 F.2d 739 (6th Cir.
1989) (en banc), and Hayes v. Secretary of HHS, 923 F.2d 418 (6th
Cir. 1991). Rodriquez stands for the proposition that an award
in the amount of twenty-five percent of the past due benefits is
presumptively appropriate so long as it is derived from a
contingent fee contract between counsel and the claimant
permitting that amount to be charged. Hayes concluded that "[a]
calculation of a hypothetical hourly rate that is twice the
standard rate is a starting point for conducting the Rodriquez
analysis," 923 F.2d at 422, noting that a fee in the amount of
twice the standard hourly rate is per se reasonable and
establishes a floor for awarding of attorneys’ fees below which
the District Court may not ordinarily drop on grounds that
counsel is receiving a windfall from an award in excess of his or
her usual hourly rate.
This is not to say that attorneys’ fees petitions can never
be scrutinized or discounted by the District Court. Both
Rodriquez and Hayes make clear that the District Court can reduce
a fee request, especially one which asks for more than twice the
normal hourly rate, if a disproportionate amount of the lawyer’s
time charged is for services ordinarily performed by clerical or
paralegal staff; if the case is not particularly difficult or
complex; if there was some improper or ineffective action taken
by counsel during the course of the case; or if the fee was not
truly contingent, as in the situation where no fee agreement is
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signed until after the benefits award has already been made.
See, e.g., Damron v. Commissioner of Social Security, 104 F.3d
853, 856 (6th Cir. 1997). Also, even in a case where the
government has filed no response to the fee petition, "[d]espite
the absence of an objection . . . a District Court must review
each case to determine the amount of a reasonable fee, and
clearly state the basis for its determination." Lanham v.
Secretary of HHS, 145 F.R.D. 409, 410 (E.D. Mich. 1992).
Finally, in a case where the District Court awards benefits, any
fee award must be limited to twenty-five percent of the benefits
which accrued up to the date three months after the case became
ripe for decision. Dearing v. Secretary of HHS, 815 F.2d 1082
(6th Cir. 1987).
Here, the motion for attorneys’ fees is deficient in one
respect: it does not contain any discussion of the normal hourly
rate for Plaintiff’s counsel, nor any discussion of such rates in
the Columbus or Central Ohio legal community generally.
Consequently, it is somewhat difficult to compare the hourly rate
which an award in the amount requested by counsel would result in
with the “base rate” for services, and to determine what would
represent double that rate.

That is a key inquiry.

The Court

can take notice that a number of decisions from the Dayton seat
of court, including the two cited in the Commissioner’s brief and
a more recent one, Spidell v. Comm’r of Social Security, Case No.
3:12-cv-39 (S.D. Ohio July 7, 2016), adopted and affirmed Case
No. 3:12-cv-39 (S.D. Ohio July 28, 2016), have used the rate of
$270.00 per hour as the starting point, and have approved fees
which are approximately twice that amount.

Those decisions also

declined to make a reduction in the fee request unless there were
some indication that counsel did not perform in an effective or
efficient manner or that the award is large in comparison to the
time spent on the case.

See Spidell, supra, at 4, citing

Gisbrecht v. Barnhart, 535 U.S. 789 (2002).
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Taking that approach, a fee in this case at the rate of
$540.00 per hour is presumptively reasonable.

The award is large

in comparison to the time spent in this Court, but, as counsel
points out, he performed efficiently and obtained a good result.
Assuming, as seems likely based on this Court’s experience, the
going rate in Columbus is slightly higher than in Dayton, the
hourly rate which counsel has asked for is not significantly more
than twice the customary rate.

Further, counsel has made a

significant reduction in the 25% fee already.

Under all of these

circumstances, the Court does not consider the $10,000.00 award
to be a windfall.

Consequently, the Court recommends granting

the motion as filed.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) 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).
A judge of this Court shall make a de novo determination of those
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
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947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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