United States District Court, W.D. Michigan, Southern Division
Paul L. Maloney Judge.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney Fees Pursuant to 42 U.S.C. § 406(b). (ECF No.
22). Plaintiff's counsel seeks $19, 398.87 in fees, as
detailed in his application. Defendant has not opposed
counsel's request. Pursuant to 28 U.S.C. §
636(b)(1)(B), the undersigned recommends that the motion be
March 24, 2015, this matter was remanded to the Commissioner
for further administrative proceedings. (ECF No. 16-17).
Plaintiff was subsequently awarded disability benefits,
including past-due benefits of more than one-hundred thousand
dollars, 25 percent of which, $34, 398.87, was withheld to
pay counsel. (ECF No. 22-3, PageID.504-09). Counsel submits
the present motion seeking an award pursuant to the
contingent fee arrangement into which he and Plaintiff
entered. (ECF No. 22-3, PageID.500). According to this
agreement, Plaintiff agreed to pay counsel a fee not greater
than 25 percent of any past-due benefits he ultimately
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
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 reasonableness of a request for attorney fees. See
Gisbrecht, 535 U.S. at 807 (“§ 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 to establish
that a fee request is reasonable rests with counsel.
is seeking $19, 398.87 for work performed in this Court.
Counsel asserts that he will also be seeking $15, 000.00 in
fees for work performed before the Commissioner. These two
amounts combined equal twenty-five percent of Plaintiffs
past-due benefits. While the requested award equates to a
significant hourly rate, counsel should not be punished for
obtaining exemplary results in an efficient manner. See,
e.g., Kazanjian v. Astrue, 2011 WL 2847439 at *2
(E.D.N.Y., July 15, 2011) (where counsel requested more than
$48, 000 in§ 406(b) fees for less than 20 hours work,
the court observed that counsel “should not, however,
be penalized for being efficient, which is exactly what I
would be doing if I cut his requested fee”). 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., Aug. 5, 2015) (one consideration in the windfall
analysis is whether counsel obtained a large award with
minimal risk). Considering all the relevant circumstances,
the Court finds counsel's request to be reasonable.
counsel is entitled to receive a portion of Plaintiff's
past-due benefits, any award pursuant to
§ 406(b) must account for any amounts
previously paid to counsel pursuant to the Equal Access to
Justice Act. See Gisbrecht, 535 U.S. at 795-96
(where counsel receives a fee award pursuant to both the EAJA
and 42 U.S.C. § 406(b), he must
"[r]efund to the claimant the amount of the smaller
fee"). The Court previously awarded $3, 100.00 in EAJA
fees, (ECF No. 20), which counsel acknowledges was ultimately
paid to him pursuant to his fee agreement with Plaintiff.
(ECF No. 22-2, 22-3, PageID.498, 500). Counsel acknowledges
that this amount must now be refunded to Plaintiff.
reasons articulated herein, the undersigned recommends that
Plaintiffs Motion for Attorney Fees Pursuant to 42 U.S.C.
§ 406(b), (ECF No. 22), be granted and counsel be
awarded nineteen thousand, three hundred ninety-eight dollars
and eighty-seven cents ($19, 398.87). The undersigned further
recommends that counsel be ordered to refund to Plaintiff
three thousand one hundred dollars ($3, 100.00) previously
awarded in EAJA fees.
The Court offers no opinion as
to any fee request counsel may advance in another forum, as
this Court can only resolve fee requests concerning work
performed in this Court. See 42 U.S.C. §
406(a)-(b); Van Horn v. Commissioner of Social
Security, 2014 WL 4063871 at *2 (W.D. Mich., Aug. 18,
2014) (“[t]his court cannot award plaintiffs attorney