Filed: Jul. 17, 2019
Latest Update: Jul. 17, 2019
Summary: REPORT AND RECOMMENDATION STEPHANIE K. BOWMAN , Magistrate Judge . Plaintiff Jennifer Gattermeyer filed this Social Security appeal to challenge the Defendant's non-disability finding. In January 2018, the Court granted a joint motion to remand this case for further review under sentence four of 42 U.S.C. 405(g). (Docs. 12, 13, 14). The Court thereafter granted the parties' joint motion to award Plaintiff attorney's fees under the Equal Access to Justice Act ("EAJA"). (Docs. 16, 17, 18).
Summary: REPORT AND RECOMMENDATION STEPHANIE K. BOWMAN , Magistrate Judge . Plaintiff Jennifer Gattermeyer filed this Social Security appeal to challenge the Defendant's non-disability finding. In January 2018, the Court granted a joint motion to remand this case for further review under sentence four of 42 U.S.C. 405(g). (Docs. 12, 13, 14). The Court thereafter granted the parties' joint motion to award Plaintiff attorney's fees under the Equal Access to Justice Act ("EAJA"). (Docs. 16, 17, 18). O..
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REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN, Magistrate Judge.
Plaintiff Jennifer Gattermeyer filed this Social Security appeal to challenge the Defendant's non-disability finding. In January 2018, the Court granted a joint motion to remand this case for further review under sentence four of 42 U.S.C. §405(g). (Docs. 12, 13, 14). The Court thereafter granted the parties' joint motion to award Plaintiff attorney's fees under the Equal Access to Justice Act ("EAJA"). (Docs. 16, 17, 18).
On March 13, 2019, Plaintiff's counsel filed a motion with this Court seeking an additional award of $7,365.00 in attorney's fees pursuant to 42 U.S.C. §406(b). Plaintiff's motion references and attaches two Notices of Award, dated January 13, 2019 for DIB benefits, and February 15, 2019 for SSI benefits.1 (Doc. 19). In order to avoid a duplicate recovery and under controlling case law, counsel states that if this Court awards a fee under § 406(b), she will return the previously awarded EAJA fee ($3,000.00) to Plaintiff. (Doc. 19 at 2-3). See Jankovich v. Sec'y, 868 F.2d 867, 871 n.1 (6th Cir. 1989).
On March 21, 2019, the Commissioner filed a response that acknowledged that the Commissioner has no financial interest in whether or not Plaintiff's motion for § 406(b) fees is granted, since such fees are paid out of Plaintiff's past-due benefits award — unlike EAJA fee awards which are paid by the Commissioner. As this Court recently reiterated in a published decision, courts have an "affirmative obligation ... to determine whether a fee award is `reasonable,' even when supported by an unopposed motion that relies on a standard contingency fee agreement within the 25% statutory cap." Ringel v. Com'r of Soc. Sec., 295 F.Supp.3d 816, 822 (S.D. Ohio 2018) (citing Lowery v. Com'r of Soc. Sec., 940 F.Supp.2d 689, 691 (S.D. Ohio 2013)). In Ringel, this Court meticulously set forth the "guideposts" most frequently used to determine whether a fee is "reasonable," including: (1) the Hayes test;2 (2) the amount of administrative and/or judicial delay; (3) the quality and quantity of attorney hours expended; (4) whether counsel has compromised his/her fee; (5) whether the Commissioner has filed any opposition; and (6) a small number of less "common" factors. The requested award easily satisfies the Hayes test, arguably eliminating any need to review other factors in the case presented.3
Having independently reviewed Plaintiff's motion, the undersigned concludes that the motion should be granted in full because the requested fee is within the 25% statutory cap on fee awards for work performed in federal court, and is otherwise reasonable. See generally Culbertson v. Berryhill, 139 S.Ct. 517, 523 (2019) (holding that 25% statutory cap "applies only to fees for court representation, and not to the aggregate fees awarded under §§ 406(a) and (b)."). However, for the convenience of the parties and of the Court, the duplicate EAJA fee previously awarded to counsel should be applied as an offset against the total award.4
Conclusion and Recommendations
Accordingly, IT IS RECOMMENDED THAT:
Plaintiff's motion for an award of attorney's fees under 42 U.S.C. § 406(b) (Doc. 23) should be GRANTED. Counsel should be awarded a gross fee of $7,365.00, under 42 U.S.C. §406(b). Applying the offset of $3,000, the amount of the EAJA award previously awarded yields a net fee award totaling $4,365.00, which should be paid to counsel out of Plaintiff's past-due benefits award.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS of the filing date of this R&R. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent's objections within FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
