Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
MONICA T.,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Case No. 1:22-cv-00277
Magistrate Judge Caroline H. Gentry
(upon full consent of the parties)
DECISION AND ENTRY
This matter comes before the Court upon the Motion by Plaintiff’s Attorney for
Fees (Doc. No. 15), which requests attorney’s fees in the amount of $17,000.00 pursuant
to 42 U.S.C. § 406(b)(1). The Commissioner neither supports nor opposes the Motion.
(Doc. No. 16, PageID# 1042.) For the reasons set forth below, the Motion is GRANTED.
I. 	BACKGROUND
Previously in this Social Security appeal, Plaintiff filed a Statement of Specific
Errors that raised two issues. (Doc. No. 9, PageID# 899). The Commissioner chose not to
file a response but instead stipulated to a remand for further proceedings under Sentence
Four of 42 U.S.C. § 405(g). (Doc. No. 10.) Upon the parties’ joint motion (Doc. No. 13),
the Court awarded attorneys’ fees ($4,290.00) and costs ($402.00) to Plaintiff’s counsel
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2142(d), for a total award
of $4.692.00. (Doc. No. 14.)
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On remand, the Commissioner awarded benefits to Plaintiff and notified her that
she would receive a check in the amount of $70,332.28 for past-due benefits. (Doc. No.
15, PageID# 1032-33.) Although the Commissioner usually withholds 25 percent of past-
due benefits for application toward an attorney’s fees award under Section 406(b)(1), it is
unclear whether that happened in this case. The Notice of Award states:
Information About Representative Fees
We cannot approve the fee agreement between you and your representative
because both you and your representative did not sign the agreement.
*****
If your representative wants us to pay the fee from your withheld benefits,
he or she must ask us to approve the fee within 60 days of the date of this
letter.
(Id. at PageID# 1034-35.) Plaintiff’s counsel requests attorney’s fees in the amount of
$17,000.00 (id. at PageID# 1026), which is approximately 24% of the past-due benefits.1
Because counsel worked 22 hours on this case (id. at PageID# 1030), his hypothetical
hourly rate is $772.73.
II. 	APPLICABLE LAW
If a Social Security claimant obtains benefits after filing an appeal in this Court,
then her counsel may ask the Court to award the amount of attorney’s fees owed under a
contingency fee agreement. 42 U.S.C. § 406(b)(1). The fee award may not exceed 25% of
the past-due benefits, id., and it must only compensate counsel for work performed in the
1 Plaintiff’s counsel asserts that the $70,332.00 figure is only “3/4 of the past due benefits,” and that
“[t]he remaining 1/4 of the past-due benefits are about $23,200.00.” (Doc. No. 15, PageID# 1027.)
However, neither the Notice of Award attached to the Motion (id. at PageID 1033-35) nor any other
evidence in the record supports this assertion.
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federal court proceeding. Horenstein v. Secretary of HHS, 35 F.3d 261, 262 (6th Cir.
1994) (en banc). The Commissioner routinely withholds 25% of a claimant’s past-due
benefits to pay for such a fee award. See 42 U.S.C. § 406(b)(1)(A) (“[T]he Commissioner
… may … certify the amount of such fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits.”).
However, even if a claimant agrees to pay her counsel a contingency fee award in
the amount of 25% of past-due benefits, that amount is not automatically awarded.
Instead, Plaintiff’s counsel must show, and the Court must find, that the requested fee
award is reasonable for the services rendered. Gisbrecht v. Barnhart, 535 U.S. 789, 807
(2002) (noting the Social Security Act “does not displace contingen[cy]-fee agreements”
but “calls for court review of such arrangements as an independent check, to assure that
they yield reasonable results in particular cases.”). Therefore, a request for a contingency
fee award in the amount of 25% of past-due benefits “is not to be viewed as per se
reasonable,” but instead shall be given “the weight ordinarily accorded a rebuttable
presumption.” Rodriquez v. Brown, 865 F.2d 739, 746 (6th Cir. 1989).
To assist the Court with assessing the reasonableness of a request for attorney’s
fees, counsel should submit a record of hours worked and a statement of his normal
hourly billing rate for noncontingent-fee cases (if any). Gisbrecht, 535 U.S. at 808. The
Court may also consider evidence of the standard hourly rate for similar work performed
in the relevant market. Hayes v. Secretary of HHS, 923 F.2d 418, 422 (6th Cir. 1990).
But even fee awards that reflect above-average hourly rates may be reasonable:
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It is not at all unusual for contingent fees to translate into large hourly rates
…. 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.
Royzer v. Secretary of HHS, 900 F.2d 981, 981-82 (6th Cir. 1990). Thus, the rule in the
Sixth Circuit is that “[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, 923 F.2d at 422.
Notably, “a high effective hourly rate cannot on its own justify reducing a fee
award—district courts must provide additional reasoning.” Tucker v. Comm’r of Soc.
Sec., 136 F.4th 639, 644 (6th Cir. 2025) (emphasis in original). Therefore, in addition to
“consider[ing] the effective hourly rate in weighing reasonableness,” id., the Court will
consider whether the requested fee should be reduced for other reasons. For example,
there may be evidence that counsel acted improperly or would receive a windfall due to
the discrepancy between relatively few hours worked and a sizeable award of past-due
benefits. Gisbrecht, 535 U.S. at 808; Rodriquez, 865 F.2d at 746. The Court will consider
the complexity and difficulty of the case, the results achieved, and whether any remand to
the Commissioner was the result of a joint stipulation or a court order. Tucker, 136 F.4th
at 644-45, 648. Finally, the Court will consider this guidance from the Sixth Circuit:
Although we recognize that there are cases where the lawyer’s unusual skill
or diligence wins the case, typically the number of hours that are required
to prosecute an appeal from the Secretary’s determination will not vary
greatly and will bear little if any relationship to the results achieved. Where
a case has been submitted on boilerplate pleadings, in which no issues of
material fact are present and where no legal research is apparent, the
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benchmark twenty-five percent of awards fee would obviously be
inappropriate. The reviewing courts should not hesitate to make reductions
in such situations, and at the other end of the spectrum should only allow
maximum fees for extensive effort on the part of counsel who have
overcome legal and factual obstacles to the enhancement of the benefits
awarded to his client.
Rodriquez, 865 F.2d at 747.
After determining the amount of a reasonable contingency fee award under the
Social Security Act, 42 U.S.C. § 406(b)(1), the Court will order counsel to refund to
Plaintiff all fees previously awarded under the EAJA. See Jankovich v. Bowen, 868 F.2d
867, 871 n.1 (6th Cir. 1989).
III. 	ANALYSIS OF PLAINTIFF’S MOTION
As instructed by Gisbrecht and Rodriquez, the Court begins its analysis with the
text of the contingency fee agreement. It provides, in relevant part:
I employ James Roy Williams, Attorney at Law, to represent me on the
appeal of my Social Security/SSI claim to the federal court …. In turn, I
agree to pay this attorney a contingent fee of 25% of the past-due benefits
payable to me and my family. I will pay no fee to this attorney unless I am
awarded benefits.
The federal court may award attorney fees to this attorney under the Equal
Access to Justice Act, 28 U.S.C. Section 2412. These fees serve as a credit
to any attorney fee which I must pay this attorney for the work he does on
my claim in the federal court and may reduce the attorney fee which I must
pay to this attorney for the work he does in the federal court only. In return
for this, I assign any fee awarded under the Equal Access to Justice Act, 28
U.S.C. Section 2412, to this attorney.
(Doc. No. 15, PageID# 1031.) “Contingent-fee contracts … [at] the 25 percent ceiling …
are the most common fee arrangement between attorneys and Social Security claimants.”
Gisbrecht, 535 U.S. at 800. Although this Court “is not bound to award recovery
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according to the stated [25% fee] agreement,” the Court “should give close attention” to
the agreement and treat it as a rebuttable presumption. Rodriquez, 865 F.2d at 746.
Plaintiff’s counsel submitted documentation that shows he worked 22 hours on the
case filed in federal court. (Doc. No. 15, PageID# 1030.) Counsel also submitted an
affidavit that details his background and experience. (Id. at PageID# 1038-39.) Finally,
counsel submitted information from the Ohio State Bar Association regarding average
2019 hourly billing rates for attorneys, listed by geographic location and practice area.
(Id. at PageID# 1049-41.)
After reviewing the materials submitted by counsel, the Court concludes that the
hypothetical hourly rate of $772.73 is reasonable for the work performed in this case, and
that the requested fee award of $17,000.00 is also reasonable.
First, as noted above, there is a rebuttable presumption that a 25% contingency fee
agreement is reasonable. Plaintiff’s counsel is seeking slightly less than that percentage
(namely, 24%) and the Court is unaware of any evidence that rebuts the presumption.
Second, Plaintiff’s counsel provided a sworn statement that his standard rate for
Social Security/SSI cases is $350.00 per hour. (Doc. No. 15, PageID# 1039.) This rate is
supported by the Ohio State Bar Association’s survey of 2019 hourly billing rates, which
shows that an hourly rate of $350 is within the 75th percentile for attorneys in downtown
Cincinnati, which is where Plaintiff’s counsel is located. (Id. at PageID# 1040.)
In this case, the hypothetical hourly rate of $772.73 is slightly more than twice the
amount of counsel’s standard rate. In the Sixth Circuit, “[a] hypothetical hourly rate that
is less than twice the standard rate is per se reasonable, and a hypothetical hourly rate that
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is equal to or greater than twice the standard rate may well be reasonable.” Hayes, 923
F.2d at 422. In such circumstances, the Court may consider “arguments designed to rebut
the presumed reasonableness of the attorney’s fee.” Id. However, the Commissioner did
not offer any such arguments or object to the requested fee award. In the absence of any
rebuttal, the Court may presume that Plaintiff’s hypothetical hourly rate is reasonable. Id.
Third, counsel’s hypothetical hourly rate of $772.73 fits comfortably within the
range of fees that judges in this district have found reasonable. See Twyla D. v. Comm’r
of Soc. Sec., No. 3:19-cv-368, 2025 U.S. Dist. LEXIS 40825, at *4 (S.D. Ohio Mar. 6,
2025) (Silvain, MJ) (awarding hypothetical attorney hourly rate of $728.60 to attorney
Michael Rake); Jay V.N.I. v. Comm’r of Soc. Sec., No. 3:20-cv-365, 2024 U.S. Dist.
LEXIS 98031, at *4 (S.D. Ohio June 3, 2024) (Silvain, MJ) (awarding hypothetical
attorney hourly rate of $814.74 to attorney Richard Brian); Martha G. v. Comm’r of Soc.
Sec., No. 1:19-cv-936, 2023 U.S. Dist. LEXIS 63838, at *6-7 (S.D. Ohio Apr. 11, 2023)
(Bowman, MJ) (awarding hypothetical attorney hourly rate of $869.56 to attorney
Edward Ahlers), report and recommendation adopted by 2023 U.S. Dist. LEXIS 77738
(S.D. Ohio, May 3, 2023) (Barrett, DJ).
Fourth, after reviewing the submitted billing record, the Court finds no indication
that the time expended by Plaintiff’s counsel was excessive or improperly charged. See,
e.g., Spiller v. Comm’r of Soc. Sec., 940 F. Supp. 2d 647, 652 (S.D. Ohio 2013)
(Newman, MJ), report and recommendation adopted, 940 F. Supp. 2d 647 (S.D. Ohio
2013) (Rice, DJ) (“Without establishing a firm, bright line rule, the Court surveyed a
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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.”)
Fifth, the Court has reviewed the proceedings in this case to assess their
complexity and difficulty, the results achieved, and whether the case was remanded to the
Commissioner because of a joint stipulation or a court order. Tucker, 136 F.4th at 644-45,
648. The docket shows that Plaintiff’s counsel filed a thorough Statement of Specific
Errors that raised two issues (Doc. No. 9), and the Commissioner chose to respond by
agreeing to remand the case rather than await a judicial decision on the merits. Plaintiff’s
counsel achieved excellent results in an economical fashion and there is no basis to
reduce the attorney’s fees requested in this case.
Sixth, given the substantial risk undertaken by Plaintiff’s counsel in accepting
Social Security cases on a contingent fee basis, the undersigned finds that an award of
$17,000.00 in this case is reasonable.
IV. 	CONCLUSION
Upon review of Plaintiff’s Motion and the supporting evidence, as well as the
relevant legal authority, the Court finds that the requested attorney’s fee award is
reasonable. Accordingly, the Court ORDERS as follows:
1. 	The Motion by Plaintiff’s Attorney for Fees (Doc. No. 15) is GRANTED.
Plaintiff’s Motion to Expedite (Doc. No. 18) is OVERRULED as moot.
2. 	Plaintiff’s counsel is AWARDED attorney’s fees pursuant to 42 U.S.C.
§ 406(b)(1) in the amount of $17,000.00. The Commissioner shall either REMIT this
sum to Plaintiff’s counsel if a percentage of Plaintiff’s past-due benefits was withheld, or
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EMPLOY the procedural remedy provided by agency policy (see Doc. No. 16, PageID#
1044 n.2) to assist Plaintiff’s counsel with obtaining this amount of attorney’s fees.
3. 	Plaintiff’s counsel shall REMIT to Plaintiff, within fourteen (14) days of
his receipt of this attorney’s fee award, the prior EAJA award of $4,290.00.
4. 	The Commissioner shall RELEASE to Plaintiff the remaining funds, if
any, that were withheld from her award of past-due benefits to pay her attorney’s fees.
5. 	This case remains terminated on the docket of this Court.
IT IS SO ORDERED.
Date: 	November 25, 2025 	/s/ Caroline H. Gentry
Caroline H. Gentry
UNITED STATES MAGISTRATE JUDGE
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