Coldwell v. Social Security Administration

Filing 24

ORDER AND ENTRY: (1) GRANTING PLAINTIFFS UNOPPOSED MOTION FOR AN ATTORNEYS FEE AWARD UNDER 42 U.S.C. § 406(b) (DOC. 23); (2) AWARDING PLAINTIFFS COUNSEL $7,552.75 IN FEES; AND (3) DIRECTING PLAINTIFFS COUNSEL TO REFUND TO PLAINTIFF, WITHIN FOURTEEN DAYS, THE EAJA FEE PREVIOUSLY AWARDED TO COUNSEL. Signed by Magistrate Judge Michael J. Newman on 5/24/2017. (dm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOHN COLDWELL,
Plaintiff,

Case No. 3:15-cv-41

vs.
COMMISSIONER OF
SOCIAL SECURITY,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.

ORDER AND ENTRY: (1) GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR AN
ATTORNEY’S FEE AWARD UNDER 42 U.S.C. § 406(b) (DOC. 23); (2) AWARDING
PLAINTIFF’S COUNSEL $7,552.75 IN FEES; AND (3) DIRECTING PLAINTIFF’S
COUNSEL TO REFUND TO PLAINTIFF, WITHIN FOURTEEN DAYS, THE EAJA
FEE PREVIOUSLY AWARDED TO COUNSEL

On March 28, 2016, the Court reversed the ALJ’s non-disability finding and remanded
this case to the Commissioner under Sentence Six of 42 U.S.C. § 405(g) for consideration of new
and material evidence.

Doc. 12.

On remand, Plaintiff was awarded benefits.

Doc. 19.

Thereafter, Plaintiff’s counsel sought, and was awarded in this Court, attorney’s fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Doc. 22. Plaintiff’s counsel now
moves for an award of attorney’s fees in the amount of $7,552.75 under 42 U.S.C. § 406(b).
Doc. 23. Counsel’s motion is unopposed. Id.
In Disability Insurance Benefit (“DIB”) 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. § 406(b)(1). 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. Barnhart, 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.
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).
In this case, Plaintiff was awarded $79,686.00 in past due benefits. Doc. 23 at PageID
746. Plaintiff’s counsel represents working a total of 20.6 hours before this Court. Id. at PageID
754. Counsel’s requested fee of $7,552.75, divided by the 20.6 hours spent working on the case,
results in a hypothetical hourly rate of $366.64, an hourly rate that is -- without dispute and
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based upon the materials submitted in support of Plaintiff’s motion -- more than reasonable in
light of the skill and experience of counsel.
Based upon the foregoing: (1) Plaintiff’s unopposed motion for a § 406(b) fee award
(doc. 23) is GRANTED; (2) Plaintiff’s counsel is AWARDED the requested sum of $7,552.75
in attorney’s fees; (3) Plaintiff’s counsel is ORDERED to reimburse to Plaintiff, within
FOURTEEN (14) DAYS, the EAJA fee previously awarded to counsel; and (4) as no further
matters remain pending for review, this case remains TERMINATED upon the Court’s docket.
IT IS SO ORDERED.

Date:

May 24, 2017

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

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