United States District Court, W.D. Michigan, Southern Division
Gordon J. Quist
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.
24). Plaintiff's counsel seeks $5, 235.00 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
September 18, 2018, this matter was remanded to the
Commissioner for further administrative proceedings. (ECF No.
20). Plaintiff was subsequently awarded disability benefits,
including past-due benefits of $20, 940.00. (ECF No. 24,
PageID.608-83). Counsel submits the present motion seeking an
award pursuant to the contingent fee arrangement into which
he and Plaintiff entered. (ECF No. 24-5, PageID.688).
According to this agreement, Plaintiff agreed to pay counsel
a fee not greater than 25% of any past-due benefits she
ultimately received. (Id.).
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.
secured for his client a favorable outcome and there is
neither evidence nor suggestion that counsel's work in
this matter was sub-standard 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., 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
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 Plaintiff $3, 237.50
in EAJA fees, but this amount was not paid to counsel. (ECF
No. 24- 1, PageID.604). Thus, an offset or refund of EAJA
fees is not applicable in this circumstance.
reasons articulated herein, the undersigned recommends that
Plaintiffs Motion for Attorney Fees, (ECF No. 24), be granted
and counsel be awarded five thousand, two hundred thirty-five
dollars ($5, 235.00).
OBJECTIONS to this Report and Recommendation must be filed
and served within fourteen days of service of this notice on
you. 28 U.S.C.  636(b)(1)(C); Fed.R.Civ.P. 72(b). All
objections and responses to objections are governed by W.D.
Mich. LCivR 72.3(b). Failure to file timely and specific
objections may constitute a forfeiture of any further right
of appeal. See Thomas v. Arn,474 U.S. 140 (1985);
Berksire v. Beauvais,928 F.3d 520, 530-31 (6th Cir.
2019); Keeling v. Warden, Lebanon Corr. Inst, 673
F.3d 452, 458 (6th Cir. 2012). General objections do not