Miller v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATION: (1) GRANTING PLAINTIFFS COUNSELS UNOPPOSED MOTION FOR APPROVAL OF ATTORNEYS FEES (DOC. 21 ); AND (2) AWARDING FEES PURSUANT TO 42 U.S.C. § 406(b) IN THE AMOUNT OF $10,381.26 Objections to R&R due by 8/29/2016. Signed by Magistrate Judge Michael J. Newman on 8/11/2016. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WANDA S. MILLER,
Plaintiff,

Case No. 3:11-cv-133

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION:1 (1) GRANTING PLAINTIFF’S COUNSEL’S
UNOPPOSED MOTION FOR APPROVAL OF ATTORNEY’S FEES (DOC. 21); AND (2)
AWARDING FEES PURSUANT TO 42 U.S.C. § 406(b) IN THE AMOUNT OF $10,381.26

On September 28, 2012, Judge Rice approved the undersigned’s Report and
Recommendation, reversed the Commissioner’s non-disability finding, and remanded this case to
the Administrative Law Judge (“ALJ”) under Sentence Four of 42 U.S.C. § 405(g) for further
proceedings. Doc. 19. This case is back before the undersigned on a motion by Plaintiff’s
counsel for an award of attorney’s fees under the Social Security Act, 42 U.S.C. § 406(b)(1).
Doc. 21. Counsel requests a 25% contingency fee award in the amount of $10,381.26. Id. The
Commissioner responded to counsel’s motion and specifically asserted “no objection” to the
requested “fee being awarded to [c]ounsel.” Doc. 22. Accordingly, counsel’s unopposed motion
for attorney’s fees is ripe for decision.
In support of the motion, counsel attaches, among other documentation, a contingency
fee agreement executed by Plaintiff and a copy of the Commissioner’s award letter informing

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

Plaintiff that she will receive $51,073.50 in past-due benefits. Docs. 21-3, 21-4. Counsel also
submits a summary of all legal services provided to Plaintiff in this Court. Doc. 21-2.
I.
In Social Security SSI cases, the Court is authorized to award attorney’s fees following
the successful prosecution of a Social Security disability appeal. See 42 U.S.C. § 1383(d)(2).
However, such fees may not exceed 25% of the past-due benefits which the claimant receives as
a result of the appeal.

Id.

Furthermore, the attorney must show, and the Court must

affirmatively find, that a contingency fee sought, even one within the 25% cap, is reasonable for
the services rendered. Gisbrecht v. Barnhard, 535 U.S. 789, 807 (2002).
The Social Security Act “does not displace contingen[cy]-fee agreements,” but rather
“calls for court review of such arrangements as an independent check, to assure that they yield
reasonable results in particular cases.” Id. A 25% contingency fee agreement “should be given
the weight ordinarily accorded a rebuttable presumption.” Rodriquez v. Brown, 865 F.2d 739,
746 (6th Cir. 1989). A reduction of a contingency fee award may be appropriate when counsel
acts improperly or provides ineffective assistance, or when “counsel would otherwise enjoy a
windfall because of either an inordinately large benefit award or from minimal effort expended.”
Id. Such an award is not improper merely because it results in an above-average hourly rate.
Royzer v. Sec’y of Health & Human Servs., 900 F.2d 981, 981-82 (6th Cir. 1990).
As the Sixth Circuit explained:
It is not at all unusual for contingent fees to translate into large hourly
rates if the rate is computed as the trial judge has computed it here
[dividing the hours worked into the amount of the requested fee]. In
assessing the reasonableness of a contingent fee award, we cannot ignore
the fact that the attorney will not prevail every time. The hourly rate in the
next contingent fee case will be zero, unless benefits are awarded.
Contingent fees generally overcompensate in some cases and
undercompensate in others. It is the nature of the beast.
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Id. “A hypothetical hourly rate that is less than twice the standard rate is per se reasonable, and a
hypothetical hourly rate that is equal to or greater than twice the standard rate may well be
reasonable.” Hayes v. Sec’y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1990).
Counsel represents that she performed 74.50 hours representing Plaintiff in this case
before this Court. See doc. 21-2 at PageID 1032-35. Counsel’s requested fee of $10,381.26,
divided by the 74.50 hours spent working on the case, results in a hypothetical hourly rate of
$139.35, a rate the Commissioner agrees is reasonable, see doc. 22 at PageID 1089, based upon
previous cases in this Court finding that counsel’s reasonable hourly rate is at least $250.00.
Brandenburg v. Comm’r of Soc. Sec., No. 3:09-cv-349, slip op., doc. 13 at PageID 129-30 (S.D.
Ohio filed Mar. 31, 2011) (approving counsel’s request to approve a $250.00 hourly rate). The
undersigned -- based upon a review of all of the foregoing -- agrees that the fee sought is
reasonable and does not result in an undeserved windfall.
II.
Accordingly, it is RECOMMENDED THAT: (1) Plaintiff’s motion for attorney’s fees
under the Social Security Act (doc. 21) be GRANTED; (2) Plaintiff’s counsel be AWARDED
the requested sum of $10,381.26 in attorney’s fees; and (3) this case remain TERMINATED on
the Court’s docket.

Date:

August 11, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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