United States District Court, E.D. Michigan, Southern Division
Honorable Terrance G. Berg Judge
REPORT AND RECOMMENDATION TO GRANT PETITIONER'S
APPLICATION FOR ATTORNEY FEES [ECF NO. 22]
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
& Associates, PLLC, counsel for Plaintiff Charlene Marie
Gamble, seeks an award of $8, 105.13, for attorney fees under
the Social Security Act, 42 U.S.C. § 406(b)(1). [ECF No.
22]. The requested amount represents the remainder of the 25%
of the accrued benefits-total amount sought ($17, 105.13),
less the amount sought for work done before the Social
Security Administration ($9, 000). [ECF No. 22,
PageID.599-600]. Counsel for Gamble expended 25.33 hours of
attorney work. [ECF No. 22, PageID.599]. The Commissioner did
not respond to the application for fees. The Court
RECOMMENDS that the application for
attorney's fees be GRANTED.
Section 406(b), attorneys may collect attorney fees of up to
25% of past due benefits pursuant to contingency-fee
agreements, but the amount must be tested for reasonableness.
Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002).
There is a rebuttable presumption that a contingency-fee
agreement with a cap of 25% is reasonable, and such an award
should be reduced only when there is evidence of
ineffectiveness or when an attorney would receive an
inordinate unwarranted windfall. Lasley v. Comm'r of
Soc. Sec., 771 F.3d 308, 309 (6th Cir. 2014); Hayes
v. Sec'y of Health & Human Servs., 923 F.2d 418,
421 (6th Cir. 1991). To avoid such windfalls, district courts
are expressly authorized to consider the attorney's hours
and standard rates in reviewing the reasonableness of
contingency fees. Gisbrecht, 535 U.S. at 808.
in the Sixth Circuit have found that there is no windfall
“when, in a case where a contingent fee contract
exists, the hypothetical hourly rate determined by dividing
the number of hours worked for the claimant into the amount
of the fee permitted under the contract is less than twice
the standard rate for such work in the relevant
market.” Parish v. Comm'r of, Soc.
Sec., 2017 WL 3084371, at *2 (E.D. Mich. July 20, 2017)
(quoting Hayes, 923 F.2d at 422).
[A] multiplier of 2 is appropriate as a floor in light of
indications that social security attorneys are successful in
approximately 50% of the cases they file in the courts.
Without a multiplier, a strict hourly rate limitation would
insure that social security attorneys would not, averaged
over many cases, be compensated adequately.... Such a result
would thwart Congress's intention to assure social
security claimants of good representation…. [This
multiplier] provides a floor, below which a district court
has no basis for questioning, under the…windfall rule
for “minimal effort expended, ” the
reasonableness of the fee. In other words, 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 (citing Rodriquez v.
Bowen, 865 F.2d 739, 744 (6th Cir. 1989)). If the
calculated hourly rate is above this floor, then the court
may consider arguments designed to rebut the presumed
reasonableness of the attorney's fee. Id.
the contingency fee contract permits petitioner to receive
25% of the total awarded to Gamble. [ECF No. 22-5,
PageID.625]. The petitioner's affidavit indicates that
she worked 25.33 for Gambles case. [ECF 22-6, PageID.627].
The total amount that petitioner requests ($17, 105.13)
divided by 25.33 hours equates to a fee of about $675.29 per
hour. “A review of recent cases from this district
reveals that an hourly rate of $250 to $500 is considered
standard and the doubling and tripling that rate has been
deemed appropriate for fees in disability benefits cases
under Hayes and its progeny.” See Szostek
v. Berryhill, 2017 WL 6943420, at *2 (E.D. Mich. Nov.
22, 2017), adopted, 2018 WL 398443 (E.D. Mich. Jan.
12, 2018) (collecting cases). Petitioner's requested
hourly fee is within the range of the standard hourly rate
with the multiplier of 2; it cannot be said that the amount
she requests amounts to a windfall. The Commissioner has not
contested the reasonableness of petitioner's request, and
the diligence she showed in prosecuting Gamble's claim.
Thus, petitioner's request for § 406(b) fees in the
amount of $8, 105.13 is reasonable.
406(b) attorney's fees are paid directly to the
attorney-petitioner, with no regard to pre-existing debts.
§ 406(b)(1)(A); see also Astrue v. Ratliff, 560
U.S. 586, 595 (2010). So the amount of $8, 105.13 should be
paid directly to the petitioner out of the past due benefits.