Garrod v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMILY GARROD,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________/
Hon. Jane M. Beckering
Case No. 1:25-cv-00057
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff Counsel’s Motion for Attorney’s
Fees. (ECF No. 21). On May 5, 2025, pursuant to the parties’ stipulation, the Court
remanded this matter to the Commissioner for further administrative proceedings.
(ECF Nos. 16 and 17). Plaintiff was subsequently awarded disability benefits, and
counsel now moves for $7,487.42 in fees pursuant to 42 U.S.C. § 406(b). Defendant
did not respond to the motion. Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned
recommends that counsel’s motion for attorney fees be granted.
The Social Security Act provides that “whenever a court renders a judgment
favorable to a claimant . . . who was represented before the court by an attorney, the
court may determine and allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment.” 42 U.S.C. § 406(b)(1)(A).
There exists “a rebuttable presumption of reasonableness to contingency-fee
Case 1:25-cv-00057-JMB-PJG ECF No. 22, PageID.<pageID> Filed 06/01/26 Page 1
of 4

2
arrangements that comply with § 406(b)’s 25-percent cap.” Lasley v. Commissioner
of Social Security, 771 F.3d 308, 309 (6th Cir. 2014). Nevertheless, counsel is not
automatically entitled to 25 percent of his client’s past-due benefits. Instead, the
Court has an independent obligation to assess the reasonable of a request for attorney
fees. See Gisbrecht, 535 U.S. at 807 (Ҥ 406(b) calls for court review of [contingent-fee
agreements] as an independent check, to assure that they yield reasonable results in
particular cases”). The burden of establishing that a fee request is reasonable rests
with counsel. Id.
As part of her award of disability benefits, Plaintiff was awarded past-due
benefits in the amount of $54,895. (ECF No. 21-2, PageID.737). Twenty-five percent
of Plaintiff’s past-due benefits equals $13,723.75. (Id.). Counsel was previously
awarded fees pursuant to the Equal Access to Justice Act (EAJA) in the amount of
$6,236.33. (ECF Nos. 19 and 20). Counsel now requests an additional $7,487.42 to
be paid out of Plaintiff’s back benefit award. (ECF No. 21, PageID.723). Counsel’s
request is consistent with his fee agreement with Plaintiff as well as Section 406(b).
(ECF No. 21-3, PageID.741).
Counsel secured for his client a favorable outcome and there is neither evidence
nor suggestion that counsel’s work in securing benefits for Plaintiff was substandard
or otherwise deficient. The requested award does not equate to an unreasonable
hourly rate or otherwise result in an unfair windfall to counsel. The Court must also
take into consideration the general risk associated with contingent fee cases. See,
e.g., Ballatore v. Commissioner of Social Security, 2015 WL 5830836 at *5 (E.D. Mich.,
Case 1:25-cv-00057-JMB-PJG ECF No. 22, PageID.<pageID> Filed 06/01/26 Page 2
of 4

3
Aug. 5, 2015) (one consideration in the windfall analysis is whether counsel obtained
a large award with minimal risk). Considering the relevant circumstances, the Court
finds counsel’s request to be reasonable.
Any award pursuant to Section 406(b) must account for any amounts
previously paid to counsel pursuant to the EAJA. See Gisbrecht, 535 U.S. at 795-96
(where counsel receives a fee award pursuant to both the EAJA and Section 406(b),
he must “[r]efund to the claimant the amount of the smaller fee”). As stated above,
the Court previously awarded $6,236.33 in EAJA fees, which counsel acknowledges.
(ECF No. 21, PageID.724). Rather than award counsel the entire amount to which
he is entitled and order him to refund to Plaintiff the amount previously paid in EAJA
fees, the Court will instead simply reduce the amount awarded to counsel under
Section 406(b) by the amount previously awarded under the EAJA. See, e.g., Gonzales
v. Saul, 2020 WL 7050033 at *3 (E.D. Tenn., Nov. 6, 2020) (reducing the amount
awarded under Section 406(b) by the amount awarded under the EAJA satisfies the
refund requirement identified in Gisbrecht).
The Court will also briefly address the issue of the timeliness of counsel’s
motion. Pursuant to Local Rule of Civil Procedure 54.2(b), motions for attorney’s fees
under Section 406(b) must be filed within 35 days after “the date shown on the face
of the Notice of Award issued by the Social Security Administration.” W.D. MICH.
LCIVR 54.2(b). Counsel’s motion is untimely if measured against this date; however,
counsel asserts that he did not learn that Plaintiff was awarded benefits until May
11, 2026. (ECF No. 21, PageID.724). The Court has no reason to doubt the veracity
Case 1:25-cv-00057-JMB-PJG ECF No. 22, PageID.<pageID> Filed 06/01/26 Page 3
of 4

4
of counsel’s assertions. The undersigned, therefore, concludes that counsel’s motion,
filed less than 35 days after he learned that Plaintiff was awarded benefits, is timely.
See, e.g., Eppinga v. Commissioner, 2019 WL 1242706 at *1 (W.D. Mich., Jan. 4, 2019)
(a motion for fees pursuant to Section 406(b) is timely if submitted “within a
reasonable period of time . . . after receiving notice that the claimant has been
awarded disability benefits”).
CONCLUSION
Accordingly, for the reasons articulated herein, the undersigned recommends
that Plaintiff Counsel’s Motion for Attorney’s Fees (ECF No. 21) be granted.
Specifically, the undersigned recommends that counsel be awarded $7,487.42
pursuant to Section 406(b).
OBJECTIONS to this report and recommendation must be filed with the Clerk
of Court within fourteen days of the date of service of this notice. 28 U.S.C.
§ 636(b)(1)(C). Failure to file objections within such time waives the right to appeal
the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,
Date: June 1, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
Case 1:25-cv-00057-JMB-PJG ECF No. 22, PageID.<pageID> Filed 06/01/26 Page 4
of 4