Johnson v. Commissioner of Social Security et al, No. 1:2012cv00590 - Document 21 (S.D. Ohio 2014)
Court Description: OPINION AND ORDER granting 20 Plaintiff's Motion for Attorney Fees Under 42 USC Section 406(b)(1)(A). The Court AWARDS $23,315.75 to John Woliver, Esq., provided that, upon receipt of this award, Mr. Woliver shall immediately remit to Plaintiff the $9,361.00 in fees previously awarded under the Equal Access to Justice Act. Signed by Judge S Arthur Spiegel on 12/18/2014. (km1)
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Johnson v. Commissioner of Social Security et al Doc. 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION BETTY JOHNSON, : : : : : : : : : : Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. This matter is before No. 1:12-cv-00590 OPINION AND ORDER AWARDING ATTORNEY FEES UNDER SECTION 406(b) the Court on the motion of John Woliver, counsel for Plaintiff, for an award ordering payment of his attorney fees under the Social Security Act, 42 U.S.C. § 406(b)(1)(A) (doc. 20). Counsel seeks $23,315.75, representing twenty-five percent of the past-due disability benefits awarded to Plaintiff. an itemized In support of such an award, Mr. Woliver submits statement of time spent on this matter in its entirety, including at the district court level (id. (Affidavit of John Woliver ¶ 4 & Attachment 2 (PAGEID ##: 203, 206-08))), a copy of the contingent fee agreement into which Plaintiff entered (id. (Woliver aff. ¶ 3 & Attachment 1 (PAGEID ##: 203, 205))), and the October 27, 2014 Notice of Award from the Social Security Administration that, among other things, documents the amount withheld from Plaintiff’s past-due benefits out of which an attorney’s fee may be awarded (id. (Woliver aff. Attachment 3 (PAGEID ##: 209-14))). Counsel also attaches an affidavit from 1 Dockets.Justia.com Plaintiff approving the requested fee award (id. (Woliver aff. Attachment 4 (PAGEID ##: 215-16))) as well as one from attorney Lawrence Fisse who testifies as to the reasonableness of the time spent on administrative this matter, hearings, two which separate includes three appeals to separate the federal district court requiring multiple briefs addressing a variety of issues and a request on Plaintiff’s behalf for an award of attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412(a)(1), (d) (id. (Woliver aff. Attachment 5 (PAGEID ##: 217-18))). Mr. Woliver has represented Plaintiff for the past nine years, devoting disability 108 benefits hours for toward her. Those achieving an 108 break hours award out of as follows: (1) First administrative hearing through an appeal to the Appeals Council (10.8 hours); (2) First appeal to this Court (Case No. 1:09-CV-00936), resulting in a remand to the Commissioner (12.3 hours); (3) Two additional administrative hearings before an ALJ and another appeal to the Appeals Council (22.3 hours); (4) Second appeal to this Court (the instant action), including Plaintiff’s claim for fees and costs under the EAJA (61 hours); (5) Post-award correspondence with Plaintiff (1.6 hours). 2 Counsel avers that, in the event he is awarded the entire twenty-five percent, he will not seek an additional order from the Social Security Administration pursuant to Section 406(a) to compensate him for work done at the administrative level (see doc. 20 at 3 & Woliver aff. ¶ 5 (PAGEID #: 204)). Fee awards in actions for disability benefits are governed by Section 406(b), which limits them to a reasonable amount not in excess of twenty-five percent of the past-due benefits owed. Contingent fee arrangements under this section must be reviewed by courts to ensure that circumstances of the case. 807 (2002). they are reasonable under the Gisbrecht v. Barnhart, 535 U.S. 789, A court may, for example, look to the character of the representation, the results achieved and whether the fee would represent a “windfall” for the attorney. Id. at 808. Most recently, the Sixth Circuit affirmed the decision of our colleague, Chief Judge Dlott, who rejected a fee award that would have resulted in an effective hourly rate of $733.80, in large part because said rate “grossly exceeded—indeed more than quadrupled—the standard rates applied to requests in the Southern District of Ohio.” social security fee Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 310 (6th Cir. 2014). Having reviewed Plaintiff’s counsel’s motion and its attachments, and noting the lack of any memorandum in opposition by Defendant Commissioner, the 3 Court is persuaded that the requested award is reasonable and satisfies the requirements of 42 U.S.C. § 406(b). First and foremost, the character of the representation in this matter was impeccable. obtained for disability Plaintiff ultimate Finally, benefits. the the Second, counsel result—an total award amount of withheld, $23,315.75, divided by the 61 hours of work devoted to just the second federal (and instant) appeal, amounts to an effective hourly rate of $382. under the EAJA, this In evaluating petitions for fee awards Court has awarded hourly rates in the $180s1, and, in fact, did so previously in this very matter (see doc. 19 ($185)). slightly more Counsel’s request here obviously amounts to than twice the rate we have been recently awarding, but that does not necessarily render it unreasonable and we are mindful of the role that contingent fee agreements play “to assure representation.” social security claimants of good See Hayes v. Sec’y of Health & Human Servs., 923 F.2d 418, 422 (6th Cir. 1991). Accordingly, the Court GRANTS the fees instant motion for attorney (doc. 20), and AWARDS $23,315.75 to John Woliver, Esq., provided that, upon receipt of 1 See, e.g., McKinney v. Comm’r of Soc. Sec., No. 1:13-CV-00527 (S.D. Ohio Apr. 11, 2014) ($180.00); Schott v. Comm’r of Soc. Sec., No. 1:12-cv-918 (S.D. Ohio Mar. 18, 2014) (greater than $180.00); Santiago v. Comm’r of Soc. Sec., No. 1:12-CV-0498 (S.D. Ohio Mar. 12, 2013) ($180.85). Additionally, we note that the Sixth Circuit has pronounced rates in the low $170s to be “modest”, see Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 497 n.3 (6th Cir. 2014). 4 this award, Mr. Woliver shall immediately remit to Plaintiff the $9,361.00 in fees previously awarded under the Equal Access to Justice Act. SO ORDERED. Dated: December 18, 2014 s/S. Arthur Spiegel S. Arthur Spiegel United States Senior District Judge 5
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