Marks v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION THAT: (1) PLAINTIFFS COUNSELS UNOPPOSED MOTION FOR APPROVAL OF ATTORNEYS FEES (DOC. 18) BE GRANTED; (2) FEES, PURSUANT TO 42 U.S.C. § 406(b), IN THE AMOUNT OF $14,000.00 BE AWARDED; AND (3) THIS CASE REMAIN TERMINATED ON THE COURTS DOCKET re 18 MOTION for Attorney Fees filed by Mary C. Marks. Objections to R&R due by 8/30/2017. Signed by Magistrate Judge Michael J. Newman on 8/16/17. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARY C. MARKS,
Plaintiff,

Case No. 3:15-cv-339

vs.
COMMISSIONER OF
SOCIAL SECURITY,

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

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFF’S COUNSEL’S
UNOPPOSED MOTION FOR APPROVAL OF ATTORNEY’S FEES (DOC. 18) BE
GRANTED; (2) FEES, PURSUANT TO 42 U.S.C. § 406(b), IN THE AMOUNT OF
$14,000.00 BE AWARDED; AND (3) THIS CASE REMAIN TERMINATED ON THE
COURT’S DOCKET

On August 19, 2016, Judge Rice reversed the Commissioner’s non-disability finding and
remanded this case to the Commissioner of Social Security for further proceedings. Doc. 14.
Subsequently, Plaintiff received an award of benefits under the Social Security Act. See doc. 18
at PageID 688-93. This case is back before the undersigned on a motion by Plaintiff’s counsel
for an award of attorney’s fees under 42 U.S.C. § 406(b)(1), in which counsel requests a fee
award in the amount of $14,000.00. Doc. 12. The Commissioner did not oppose Plaintiff’s
counsel’s motion, and the time for doing so has expired. Accordingly, counsel’s unopposed
motion for attorney’s fees is ripe for decision.
In Social Security 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),

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

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 requesting a fee award
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. 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.
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).

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Counsel represents that he and another attorney at his firm worked a total of 20.85 hours.
See doc. 18 at PageID 694-99. Counsel’s requested fee of $14,000.00 divided by the 20.85 hours
spent working on the case, results in a hypothetical hourly rate of $671.31, a rate the
Commissioner has not opposed.

Having considered counsel’s unopposed motion and all

attachments thereto, and further considering counsel’s experience and the result obtained in this
case, the undersigned agrees that, although the hourly rate is higher than the Court typically
approves, the $14,000.00 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. 18) be GRANTED; (2) Plaintiff’s counsel be AWARDED
the requested sum of $14,000.00 in attorney’s fees; and (3) this case remain TERMINATED on
the Court’s docket.

Date:

August 16, 2017

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. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed 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 noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
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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