United States District Court, D. Maryland
A. Raab, Esq. has filed a motion for attorney's fees
pursuant to the Social Security Act (“SSA”), 42
U.S.C. § 406(b), in conjunction with his representation
of Diane P. Lillard before this Court. (ECF No. 27). In
response, the Commissioner asked the Court to consider
whether enforcement of the contingent fee agreement in this
case would result in a windfall to Mr. Raab. (ECF No. 29). I
have considered those filings, and Mr. Raab's reply to
the Commissioner's response. (ECF No. 32). No hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the
reasons set forth below, Mr. Raab's motion for
attorney's fees is GRANTED.
case, Ms. Lillard was awarded $198, 709.00 in past due
benefits, twenty-five percent of which, $49, 677.25, was
withheld to pay attorney's fees in an amount approved by
this Court. (ECF No. 27). Because Mr. Raab has already
received $6, 100.00 in attorney's fees pursuant to the
Equal Access to Justice Act (“EAJA”), (ECF No.
26), he has agreed to reimburse to Ms. Lillard the
attorney's fees received under the EAJA should he receive
the full amount of attorney's fees he requests pursuant
to the SSA. (ECF No. 27); see Gisbrecht v. Barnhart,
535 U.S. 789, 796 (2002).; Stephens ex rel. R.E. v.
Astrue, 565 F.3d 131, 135 (4th Cir. 2009).
authorizes a reasonable fee for successful representation
before this Court, not to exceed twenty-five percent of a
claimant's total past-due benefits. 42 U.S.C. §
406(b). Although contingent fee agreements are the
“primary means for by which fees are set” in
Social Security cases, a court must nevertheless perform an
“independent check, to assure that they yield
reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807. In this case, Mr. Raab
and Ms. Lillard entered into a contingent fee agreement, by
which Ms. Lillard agreed to pay Mr. Raab twenty-five percent
of all retroactive benefits to which she might become
entitled. (ECF No. 32, Ex. 2). In a previous motion for
attorney's fees pursuant to the EAJA, Ms. Lillard
submitted an itemized report documenting the 45.40 hours Mr.
Raab expended before this Court in Ms. Lillard's case.
(ECF No. 21, Ex. 7). If Mr. Raab receives the full amount of
fees he requests, his fee for representation before this
Court will effectively total $1, 094.21 per hour. (ECF No.
32). Mr. Raab must therefore show that an effective rate of
$1, 094.21 per hour is reasonable for the services he
rendered. See Gisbrecht, 535 U.S. at 807.
determining whether a request for attorney's fees under
section 406(b) is reasonable, the Supreme Court has explained
that a reviewing court may properly consider the
“character of the representation and the results the
representative received.” Id. at 807. In this
case, Mr. Raab's requested fee results in slightly more
than twice the top hourly rate that is presumptively
reasonable for attorneys of his experience level pursuant to
the guidelines appended to the Local Rules of this
Court. Courts in the Fourth Circuit have approved
contingency fee agreements that produce similar hourly rates
in successful Social Security appeals. See,
e.g., Melvin v. Colvin, No. 5:10-CV-160-FL,
2013 WL 3340490, at *2 (E.D. N.C. July 2, 2013) (approving
contingency fee agreement with hourly rate of $1, 043.70);
Claypool v. Barnhart, 294 F.Supp.2d 829, 833 (S.D.
W.Va. 2003) (approving contingency fee agreement with hourly
rate of $1, 433.12); Lehman v. Colvin, Civil No.
SAG-12-2160, (D. Md. July 7, 2016) (unpublished) (approving
contingency fee agreement with hourly rate of $1, 028.14).
Although Mr. Raab's requested rate far exceeds the
typical rate awarded by this Court for attorney's fees in
Social Security appeals, this case presents a relatively
unique set of factual circumstances which allow me to
conclude that the rate is warranted.
respect to the results Mr. Raab's representation
obtained, I note not only that Ms. Lillard's case was
remanded to the Agency, but also that the Court found remand
appropriate based on a clearly articulated argument regarding
SSR 12-2p that was raised in Ms. Lillard's initial Motion
for Summary Judgment and was fully supported by references to
the objective record. Cf. Kotofski v. Astrue, No.
CIV. SKG-09-981, 2012 WL 6136361, at *2 (D. Md. Dec. 10,
2012) (reducing counsel's recovery under contingent fee
agreement because counsel's argument was “not
clearly articulated and not fully supported by record
references…and [was] mentioned only briefly in his
response, not in its initial memorandum.”). I also note
that, following a partially favorable decision by the ALJ on
remand, the Appeals Council remanded Ms. Lillard's case a
second time to address several deficiencies raised in Ms.
Lillard's exceptions to the ALJ's opinion. (ECF No.
32). Finally, following a third hearing before an ALJ, Ms.
Lillard received a fully favorable decision and was found
disabled as of January 1, 2002. Id.
to the character of Mr. Raab's representation, I note
that Mr. Raab's performance in this case was both highly
effective and highly efficient. Ms. Lillard obtained a
finding of disability as a result of Mr. Raab's dedicated
effort over four years. In addition, I note that Ms. Lillard
has submitted a letter to the Court expressing her
understanding of and her satisfaction with the fee agreement,
which indicates the value to Ms. Lillard of Mr. Raab's
representation. (ECF No. 32, Exs. 1, 2); see Bowser v.
Astrue, No. PWG-09-969, 2011 WL 673767, at *3 (D. Md.
Feb. 17, 2011) (according “some weight” to the
claimant's consent to the fee requested). Indeed,
“Social Security representation operates largely on a
contingency fee basis, ” Gisbrecht, 535 U.S.
at 804, which “provide[s] access to counsel for
individuals, ” like Ms. Lillard, “who would
otherwise have difficulty obtaining representation, ”
In re Abrams & Abrams, P.A., 605 F.3d
238, 245 (4th Cir. 2010). Moreover, I note that there was no
delay in this litigation attributable to Mr. Raab. Thus, the
award need not be reduced due to any delay in the litigation.
See Gisbrecht, 535 U.S. at 808; Bowser,
2011 WL 673767, at *2. Accordingly, given Mr. Raab's
extensive experience and the unique circumstances of this
case, the fee requested by Mr. Raab is reasonable.
reasons set forth herein, Mr. Raab's motion for
attorney's fees (ECF No. 27) will be GRANTED for $49,
677.25. Mr. Raab is directed to reimburse to Ms. Lillard the
$6, 100.00 in fees he received pursuant to the EAJA. The
clerk is directed to CLOSE this case.
the informal nature of this letter, it should be flagged as
an opinion. An implementing order follows.
Stephanie A. Gallagher United States Magistrate Judge
 Although they do not govern Social
Security cases, the Local Rules prescribe guidelines for
determining attorneys' fees in certain cases, which are
instructive in evaluating the reasonableness of the effective
hourly rate in this case. See Loc. R. App'x B
(D. Md. 2014). For attorneys admitted to the bar for twenty
years or more, the ...