Ranly v. Commissioner of Social Security

Filing 32

DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. The Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed by Plaintiffs counsel (Doc. # 26 ) is GRANTED, and the Commissioner is directed to pay Plaintiffs attorney fees pursuant to in the total amount of $30,408.00; and, 2. The case remains terminated on the docket of this Court. Signed by Magistrate Judge Sharon L. Ovington on 3/20/2020. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NEIL L. RANLY,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case No. 3:14cv00334
Magistrate Judge Sharon L. Ovington
(by full consent of the parties)

DECISION AND ENTRY
This case is before the Court upon a Motion for Authorization of Attorney Fees
Pursuant to 42 U.S.C. § 406(b) filed by Plaintiff’s counsel (Doc. #26), the Commissioner’s
Response (Doc. #30), Plaintiff’s counsel’s Reply (Doc. #31), and the record as a whole.
Plaintiff’s counsel seeks an award of $30,408.00 in attorney fees under 42 U.S.C. §
406(b)(1). “[T]he Commissioner requests that the Court determine an appropriate fee for
counsel’s services.” (Doc. #30, PageID #1916).
I.
Before this case began, Plaintiff and his counsel entered into a written contingencyfee agreement in which Plaintiff consented to paying attorney fees in the amount of 25% of
any lump-sum award he received for past-due Social Security benefits. The agreement also
documented Plaintiff’s counsel’s willingness to work on a contingency-fee basis. This
resulted in counsel’s acceptance of the risk he would recover zero attorney fees in the event

Plaintiff received no past-due benefits. See Doc. #26, PageID #1888.
As this case proceeded, the Court determined that a remand was warranted under
sentence six of 42 U.S.C. §405(g) for further proceedings. After additional administrative
proceedings, the Social Security Administration found Plaintiff not to be disabled and
denied his application for benefits. Plaintiff appealed to this Court. Further briefing
established that a remand was warranted for payment of benefits. (Doc. #24). On remand,
the Social Security Administration awarded past-due benefits to Plaintiff and withheld from
those benefits $30,408.00 for payment of attorney fees. Id. at 702.
II.
Section 406(b) authorizes this Court to award attorney’s fees when a plaintiff brings
a successful challenge to the Social Security Administration’s denial of his or her
application for benefits. See Damron v. Comm’r of Soc. Sec., 104 F.3d 853, 856 (6th Cir.
1997). The award may not exceed 25% of the past-due benefits that the plaintiff received as
a result of the successful challenge. See id.; see also 42 U.S.C. § 406(b)(1).
To succeed under § 406(b), the plaintiff’s counsel must show, and the court must
affirmatively find, that the contingency fee sought—even one within the 25% cap—is
reasonable for the services rendered. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002); see
Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 309 (6th Cir. 2014). Section 406(b) “does not
displace contingent-fee agreements” but instead “calls for court review of such
arrangements as an independent check, to assure that they yield reasonable results in
particular cases.” Gisbrecht, 535 U.S. at 807.
To determine whether an award under § 406(b) is reasonable, a floor/ceiling

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approach guides the way. The ceiling is § 406(b)’s 25% cap, which “accords a rebuttable
presumption of reasonableness to contingency agreements that comply with § 406(b)’s
25%-cap.” Lasley, 771 F.3d at 309. The floor is “[the] hypothetical rate that is twice the
standard rate for such work in the relevant market.” Hayes v. Sec’y of Health & Human
Servs., 923 F.2d 418, 422 (6th Cir. 1991). “‘[A] hypothetical hourly rate that is less than
twice the standard rate is per se reasonable ...’” Lasley, 771 F.3d at 309 (quoting Hayes,
923 F.2d at 421). Courts may consider arguments attacking the rebuttable presumption of
reasonableness that attaches to awards above the double-the-standard-rate floor and below
the 25% statutory ceiling. Id.
“Reasonableness” remains the heart of the matter. And care must be taken to
consider the presumption a rebuttable—not a strict—presumption of reasonableness.
Lasley, 771 F.2d at 309 (noting, “Gisbrecht ... elides strict presumptions altogether.”).
Reducing a sought-after award is warranted to avoid a windfall to counsel especially “‘[i]f
the benefits are large in comparison to the amount of time counsel spent on the case ....’”
Id. at 310 (quoting Gisbrecht, 535 U.S. at 808).
III.
Plaintiff’s counsel presently seeks approval of a $30,408.00 award of attorney fees
from the funds withheld from Plaintiff’s past-due benefits. This amount is 25% of the pastdue benefits ($121,632.00) Plaintiff received on remand.
Plaintiff’s counsel asserts that representation of Plaintiff involved a total of 58.75
hours of work in administrative and federal court proceedings. He thus calculates the
hypothetical hourly rate at $517.58 (30,408 ÷ 58.75=517.58).

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The Commissioner correctly points out that Plaintiff’s counsel can only recover fees
under 406(b) for work he performed in connection with the case in this Court. See
Horenstein v. Sec’y of Health and Human Svcs., 35 F.3d 261, 262 (6th Cir. 1994). This
impacts the calculation of the hypothetical hourly rate because a lower total amount of
attorney-work hours translates to a higher hypothetical hourly rate.
How many hours did Plaintiff’s counsel expend in working on the case in this Court?
The Commissioner counts a total of 51.25 hours of attorney work and 5.50 hours of nonattorney work before this Court—which would result in a hypothetical hourly rate of either
$593.32or $535.82, respectively. In contrast, Plaintiff’s counsel says in his affidavit, “A
total of 58.75 hours in time was incurred for representing Plaintiff in Federal Court.” (Doc.
#26, PageID #1886, ¶8).
Plaintiff’s total number of hours 58.75 is not fully supported because the attached
time records include (in the total of 58.75 hours) work that was done at the administrative
level both before this case began and after it was remanded in for further administrate
proceedings. Id. at 1189-90. But this has little significance because using the highest total
hypothetical hourly rate the Commissioner proposes—$593.32 per hour—results in a
standard fee of $296.67 per hour ($593.32 ÷ 2). This is within the range—$210 to $350—of
hourly billing rates for social-security attorneys in 2013, according to an Ohio State Bar
Associate survey conducted in 2013. See Lee, 3:14cv291, 2018 WL 2999909, at *4. This is
per se reasonable. See Lasley, 771 F.3d at 309 (“‘a hypothetical hourly rate that is less than
twice the standard rate is per se reasonable ...’”).
The total fee award Plaintiff’s counsel requests—$30,408.00—is not a windfall to

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him. Not only does it represent a reasonable hypothetical hourly rate of less than $600, it is
also below the hypothetical hourly rates permitted in a number of well-reasoned decisions in
this District. See, e.g., Jodrey v. Comm'r of Soc. Sec., No. 1:12-cv-725, 2015 WL 799770,
at *3-4 (S.D. Ohio 2015) Report and Recommendation (Litkovitz, M.J.), adopted, 2015 WL
1285890 (S.D. Ohio 2015) (Barrett, D. J.) (approving hypothetical hourly rate of
$700); Havens v. Comm’r of Soc. Sec., No. 2:12-cv-637, 2014 WL 5308595, at *2 (S.D.
Ohio Oct. 16, 2014) Report and Recommendation (Kemp, M.J.), adopted, 2014 WL
6606342 (S.D. Ohio 2014) (Smith, J.) (approving hypothetical hourly rate of $750.00); Metz
v. Comm'r, Soc. Sec. Admin., 2014 WL 1908512, at *1-2 (S.D. Ohio 2014) (Black, D.J.)
(approving hypothetical hourly rate of $780.25); Pickett v. Astrue, 2012 WL 1806136, at *2
(S.D. Ohio 2012) (Black, D. J.) (approving hypothetical hourly rate of approximately $709).
This case, moreover, involved more than a typical amount of attorney work. The original
administrative record contained about 1,200 pages. The first Statement of Errors established
that a remand was warranted under sentence six of 42 U.S.C. §405(g). After the
Administration again found Plaintiff not disabled, counsel reinstituted this case and filed
another Statement of Errors. In response to the Commissioner’s Memorandum in
Opposition, Plaintiff’s Counsel submitted a Reply. Counsel’s briefing was skillful and led
to a decision reversing an Administrative Law Judge’s non-disability decision and a remand
for payment of benefits. Given that this case involved two successful appeals from two
separate non-disability decisions made at the administrative level, Plaintiff’s counsel
reasonably performed about twice the amount of work that would be needed in a more
typical single-appeal social-security case litigated in this Court. As a result, Plaintiff’s

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counsel total hours were reasonable in this case. Spiller v. Comm’r of Soc. Sec., 940
F.Supp.2d 647, 652 (S.D. Ohio 2013) (“Without establishing a firm, bright line rule, the
Court surveyed a large number of EAJA fees/costs petitions recently filed in this District,
and found the general range of time expended on these cases is 15–25 hours.”).
Lastly, the Commissioner believes that some of counsel’s billing entries show
excessive billing amounts by using quarter-hour increments. Yet the Commissioner does
not point to a case that prohibits quarter-hour billing. This is likely because rather than
imposing a blanket prohibition against quarter-hour billing, courts review the specifically
challenged billing entries (typically in the EAJA setting) to determine whether they were
reasonable. See Newell v. Astrue, 3:07cv00412, 2012 WL 936672, at *3 (S.D. Ohio 2012)
(Ovington, M.J.), Report & Recommendations adopted, 2012 WL 1185991, at *1 (2012)
(Rice, D.J.); see also Spiller v. Comm’r of Soc. Sec., 940 F.Supp.2d 647, 651 (S.D. Ohio
2013) (Rice, D.J.; Newman, M.J.); Carlisle v. Barnhart, 2008 WL 420032 at *3 (S.D. Ohio
2008) (Rice, D.J.; Ovington, M.J.); Kyser v. Apfel, 81 F.Supp.2d 645, 647 (W.D. Va. 2000);
Sandoval v. Apfel, 86 F.Supp.2d 601, 615 (N.D. Tex. 2000). Review of the quarterly billing
in this case does not reveal excessive billing.
Accordingly, the amount of attorney fees Plaintiff’s counsel seeks will not result in a
windfall and, consequently, his Motion for Allowance of Attorney Fees is well taken.
IT IS THEREFORE ORDERED THAT:
1.

The Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. §
406(b) filed by Plaintiff’s counsel (Doc. #26) is GRANTED, and the
Commissioner is directed to pay Plaintiff’s attorney fees pursuant to in the
total amount of $30,408.00; and,

2.

The case remains terminated on the docket of this Court.
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March 20, 2020

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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