Barrett v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION1 THAT: (1) THE UNOPPOSED MOTION BY PLAINTIFFS COUNSEL FOR AN ATTORNEYS FEE AWARD (DOC. 16) BE GRANTED; (2) FEES, PURSUANT TO 42 U.S.C. § 406(b), IN THE AMOUNT OF $16,405.00 BE AWARDED; (3) DIRECTING PLAINTIFFS C OUNSEL TO REFUND TO PLAINTIFF, WITHIN FOURTEEN DAYS, THE EAJA FEE PREVIOUSLY AWARDED TO COUNSEL; AND (4) THIS CASE REMAIN TERMINATED ON THE COURTS DOCKET. Objections to R&R due by 10/19/2018. Signed by Magistrate Judge Michael J. Newman on 10/5/18. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JASON BARRETT,
Plaintiff,

Case No. 3:16-cv-119

vs.
COMMISSIONER OF
SOCIAL SECURITY,

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

Defendant.

REPORT AND RECOMMENDATION 1 THAT: (1) THE UNOPPOSED MOTION BY
PLAINTIFF’S COUNSEL FOR AN ATTORNEY’S FEE AWARD (DOC. 16) BE
GRANTED; (2) FEES, PURSUANT TO 42 U.S.C. § 406(b), IN THE AMOUNT OF
$16,405.00 BE AWARDED; (3) DIRECTING PLAINTIFF’S COUNSEL TO REFUND TO
PLAINTIFF, WITHIN FOURTEEN DAYS, THE EAJA FEE PREVIOUSLY AWARDED
TO COUNSEL; AND (4) THIS CASE REMAIN TERMINATED ON THE COURT’S
DOCKET

On July 14, 2017, Judge Rice reversed the Commissioner’s non-disability finding and
remanded this case to the Commissioner of Social Security for further proceedings. Doc. 11.
Subsequently, Plaintiff received an award of benefits under the Social Security Act. See doc. 162 at PageID 804-10. Thereafter, counsel sought, and was awarded in this Court, attorney’s fees in
the amount of $4,400.00 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).
Docs. 13, 14. Plaintiff’s counsel now moves for an award of attorney’s fees in the amount of
$16,405.00 under 42 U.S.C. § 406(b). 2 Doc. 16. The Commissioner responded to counsel’s motion

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
42 U.S.C. § 406(b) permits an award of attorney’s fees for successful Disability Insurance Benefits
(“DIB”) claims under Title II of the Social Security Act. Supplemental Security Income (“SSI”) benefits
are awardable pursuant to Title XVI of the Social Security Act, which incorporates 42 U.S.C. § 406(b) by
reference, and likewise permits the award of attorney’s fees for successful SSI claims. See 42 U.S.C.

noting that an award of fees sought “would be within this Court’s discretion.” Doc. 17 at PageID
854. Accordingly, from the Court’s perspective, Plaintiff’s counsel’s motion is unopposed and is
now ripe for decision. Id.
I.
In Supplemental Security Income (“SSI”) and/or Disability Insurance Benefit (“DIB”)
cases, the Court is authorized to award attorney’s fees following a successful Social Security
disability appeal. See 42 U.S.C. §§ 402(b)(1), 1383(d)(2). However, such contingency fees (1)
may not exceed 25% of the past-due benefits which the claimant receives as a result of an appeal,
and (2) must additionally be 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
§ 1383(d)(2); Napier v. Comm’r of Soc. Sec., 190 F. App’x 458, 459-60 (6th Cir. 2006). The same analysis
applies in deciding motions for attorney’s fees under both statutes. See id.
2

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).
Here, counsel’s requested fee of $16,405.00, divided by the 25 hours spent working on the
case, results, as noted, in a hypothetical hourly rate of $656.20, an hourly rate that is -- without
dispute and based upon the materials submitted in support of Plaintiff’s motion -- reasonable in
light of the skill and experience of counsel. Doc. 17 at PageID 854.
II.
Accordingly, it is RECOMMENDED THAT: (1) Plaintiff’s motion for attorney’s fees
under the Social Security Act (doc. 16) be GRANTED; (2) Plaintiff’s counsel be AWARDED
the requested sum of $16,405.00 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) this case remain TERMINATED on the Court’s docket.

Date:

October 5, 2018

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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