
    Ryan LOWERY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
    Case No. 3:10-cv-427.
    United States District Court, S.D. Ohio, Western Division at Dayton.
    March 6, 2013.
    
      Stephanie D. Dobson, Horenstein, Nicholson & Blumenthal, Dayton, OH, for Plaintiff.
    John J. Stark, U.S. Attorney’s Office, Columbus, OH, Patrick Edsenga, Social Security Administration, Office of General Counsel, Chicago, IL, for Defendant.
   DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATION (DOC # 25) IN ITS ENTIRETY; GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES UNDER 42 U.S.C. § 406(B) (DOC. # 24)

WALTER HERBERT RICE, District Judge.

The Court has reviewed the February 8, 2013 Report and Recommendation of United States Magistrate Judge Michael J. Newman (Doc. #25), to whom this case was referred pursuant to 28 U.S.C. § 636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed. R.Civ.P. 72(b)(2) has expired, hereby ADOPTS said Report and Recommendation.

Accordingly, it is hereby ORDERED as follows:

1. Plaintiffs unopposed motion for attorney’s fees under 42 U.S.C. § 406(b) (Doc. # 24) is GRANTED, and Plaintiffs counsel is AWARDED the sum of $10,262.75 in attorney’s fees;
2. Plaintiffs counsel is ORDERED to pay the attorney’s fees previously awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (see Doc. # 23), to her client;
3. As no further matters remain pending for review, this case remains TERMINATED upon the Court’s docket.

REPORT AND RECOMMENDATION

MICHAEL J. NEWMAN, United States Magistrate Judge.

On March 23, 2012, 886 F.Supp.2d 700 (S.D.Ohio 2012), Judge Rice adopted the undersigned’s Report and Recommendation, reversing and remanding this case, under Sentence Four, for an award of Disability Insurance Benefits (“DIB”). Docs. 15, 18. As a result of the Court’s Order, Plaintiff was awarded $70,551.00 in past-due DIB. See doc. 24-1 at PagelD 1851. Upon Plaintiffs motion, on August 10, 2012, this Court awarded Plaintiff $4,000.00 in attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Docs. 22, 23. This matter is now back before the Court pursuant to a motion by Plaintiffs counsel for an attorney’s fee award under the Social Security Act, 42 U.S.C. § 406(b)(1). Doc. 24.

It is permissible to seek attorney’s fees under both EAJA and the Social Security Act. See Jankovich v. Bowen, 868 F.2d 867, 871 n. 1 (6th Cir.1989); Meyers v. Heckler, 625 F.Supp. 228, 231-32 (S.D.Ohio 1985). While an EAJA fee award “is authorized against the public fisc,” a fee award under the Social Security Act “comes out of the claimant’s disability monies.” Meyers, 625 F.Supp. at 231. Further, an application for EAJA fees is “deemed to be made on behalf of the claimant by counsel”; in contrast, a motion for fees under the Social Security Act is deemed to be made on counsel’s behalf against his or her client. Id. Accordingly, any funds awarded pursuant to EAJA serve as a reimbursement to the claimant for attorney’s fees paid out of his or her disability award. Id. Where awards are made under both EAJA and the Social Security Act, counsel must refund the lesser fee award to his or her client. Jankovich, 868 F.2d at 871 n. 1.

I.

Plaintiffs counsel requests the Court to authorize a fee award in the amount of $10,262.75. In support of her motion, counsel has attached the contingency fee agreement between Plaintiff and counsel (doc. 24-1 at PageID 1847); information concerning the professional backgrounds of the two attorneys who worked on this case (doc. 24 at PageID 1844-46); the attorneys’ joint time sheet (doc. 24-1 at PageID 1854-55); and a copy of the Award Notice to Plaintiff from the Social Security Administration (doc. 24-1 at Pa-gelD 1848-53). The Commissioner did not file a memorandum in opposition to Plaintiffs motion.

Title 42 U.S.C. § 406(b) authorizes the Court to award attorney’s fees following the successful prosecution of Social Security disability appeals. However, such fees may not exceed 25% of the past-due benefits which the claimant receives as a result of the appeal. 42 U.S.C. § 406(b). Furthermore, the attorney must show, and the Court must affirmatively find, that a contingency fee sought, even one within the 25% cap, is reasonable for the services rendered. Gisbrecht v. Barnhart, 535 U.S. 789, 807, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002). Section 406(b) “does not displace contingent-fee agreements,” but rather “calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.” Id. A 25% contingency fee agreement “should be given the weight ordinarily accorded a rebuttable presumption.” Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir.1989). A deduction of a contingency fee award may be appropriate when (1) counsel acted improperly or provided ineffective assistance, or (2) “counsel would ... enjoy a windfall because of either an inordinately large benefit award or from minimal effort expended.” Id. Such an award is not improper merely because it results in an above-average hourly rate. Royzer v. Sec’y of Health & Human Servs., 900 F.2d 981, 982 (6th Cir.1990). As the Sixth Circuit explained:

It is not at all unusual for contingent fees to translate into large hourly rates if the rate is computed as the trial judge has computed it here [dividing the hours worked into the amount of the requested fee]. In assessing the reasonableness of a contingent fee award, we cannot ignore the fact that the attorney will not prevail every time. The hourly rate in the next contingent fee case will be zero, unless benefits are awarded. Contingent fees generally overcompensate in some cases and undercompensate in others. It is the nature of the beast.

Id.

Here, counsel and Plaintiff have a contingency fee agreement which provides that counsel’s fees will be 25% of Plaintiffs past-due benefits. See doc. 24-1 at PageID 1847. However, counsel does not request the entire 25% contingency fee of $17,637.75. Rather, counsel’s requested fee of $10,262.75 is approximately 14.5% of Plaintiffs past-due benefits. The joint time sheet shows that both attorneys together spent 25.25 hours representing Plaintiff before this Court. See doc. 24-1 at PageID 1854. Although this calculates to be an hourly rate of $406.45, the Court does not find the contingency fee amounts to a windfall to Plaintiff’s counsel. Moreover, there have been no allegations of, nor has the Court found any instances of, improper attorney conduct or ineffectiveness of counsel which would cause the Court to reduce the amount of the requested fee. Quite to the contrary, Plaintiff was well represented by counsel in this case. Therefore, counsel’s motion for attorney’s fees pursuant to 42 U.S.C. § 406(b) (doc. 18) should be granted. Accord Wright v. Astrue, No. 3:09-cv-115, 2012 WL 2700393, at *2-3, 2012 U.S. Dist. LEXIS 93489, at *6-7, (S.D.Ohio July 6, 2012) (Merz, M.J.), adopted by 2012 WL 3023258, at *1, 2012 U.S. Dist. LEXIS 103014, at *1 (S.D.Ohio July 24, 2012) (Rice, J.) (approving a contingency fee award of $15,000.00 for 27.80 attorney hours (a hypothetical hourly rate of $539.57) under the Social Security Act).

II.

Based upon the foregoing analysis, IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiffs unopposed motion for attorney’s fees under 42 U.S.C. § 406(b) (doc. 18) be GRANTED, and Plaintiffs counsel be AWARDED the sum of $10,262.75 in attorney’s fees;
2. Pursuant to Jankovich, supra, 868 F.2d at 871 n. 1, Plaintiffs counsel be ORDERED to pay this lesser EAJA sum to her client; and
3. As no further matters remain pending for review, this case remain TERMINATED upon the Court’s docket. 
      
      . Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
     
      
      . Counsel acknowledges that the $4,000 EAJA fees/costs award must be refunded to her client upon receiving an award for attorney’s fees under the Social Security Act. See doc. 24 at PagelD 1846.
     
      
      .Before filing her motion, Plaintiff’s counsel consulted with counsel for the Commissioner, and was advised that the Commissioner did not oppose the motion. Doc. 24 at PageID 1841.
     
      
      . The Court is aware of the test-to determine the reasonableness of a contingency fee award, established in Hayes v. Secretary of Health & Human Services, 923 F.2d 418, 421-22 (6th Cir.1990)-under which, the hypothetical hourly rate of the attorney is calculated by dividing the requested contingency fee amount by the number of hours expended on the case. Id. at 422. Under Hayes, "[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.” Id. (emphasis added). Although the $406.45 hypothetical hourly rate here may not pass this per se reasonable test, as made clear in Hayes, that does not preclude a finding of reasonableness. Id.
      
     