United States District Court, D. Maryland
Commissioner, Social Security Administration;
Osterhout, Esq. has filed a motion for attorney's fees
pursuant to the Social Security Act (“Act”), 42
U.S.C. § 406(b), in conjunction with his representation
of Plaintiff before this Court. ECF 23. In response, the
Social Security Administration (“SSA”) asked this
Court to consider whether Mr. Osterhout's requested
amount constitutes a reasonable fee. ECF 24. No. hearing is
necessary. See Loc. R. 105.6 (D. Md. 2018). For the
reasons set forth below, Mr. Osterhout's motion for
attorney's fees is GRANTED.
November 14, 2018, this Court awarded Mr. Osterhout $5,
200.00 for 34.10 hours worked on Plaintiff's case in
federal court, pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. ECF 17, 22.
Plaintiff subsequently received an Award Notice, in which she
was awarded $41, 230.00 in past due benefits. ECF 23-1. On
January 23, 2019, Mr. Osterhout filed a Motion in this Court,
seeking $10, 307.50 in attorney's fees. ECF 23. Mr.
Osterhout has agreed to reimburse Plaintiff in the amount of
fees previously received. ECF 23; 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 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 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
achieved.” Id. at 808. Importantly, the
Supreme Court acknowledged that a contingent fee agreement
would not result in a reasonable fee if the fee constituted a
“windfall” to the attorney. Id. (quoting
Rodriquez v. Bowen, 865 F.2d 739, 746-47 (6th Cir.
1989). Courts may require the attorney to provide a record of
hours spent working on the case and the attorney's
typical hourly billing charge. Id.
Mr. Osterhout and Plaintiff entered into a contingent fee
agreement, by which Plaintiff agreed to pay Mr. Osterhout
twenty-five percent of all retroactive benefits to which she
might become entitled. ECF 23-3. In his previous motion for
attorney's fees pursuant to the EAJA, Mr. Osterhout
submitted an itemized report documenting the 34.10 hours he
expended before this Court in Plaintiff's case. ECF 17-1.
If Mr. Osterhout receives the full amount of fees he
requests, his fee for representation before this Court will
effectively total $302.27 per hour. Mr. Osterhout must
therefore show that an effective rate of $302.27 per hour is
reasonable for the services he rendered. See
Gisbrecht, 535 U.S. at 807.
Mr. Osterhout's requested fee is less than his typical
hourly billing rate of $350, ECF 23-2, and within the range
of hourly rates that are presumptively reasonable for
attorneys of his experience level pursuant to the fee
guidelines appended to the Local Rules of this
Court.Courts in the Fourth Circuit have approved
contingency fee agreements that produce much higher hourly
rates in successful Social Security appeals. See,
e.g., Melvin v. Colvin, No. 5:10-CV-160-FL,
2013 WL 3340490 (E.D. N.C. July 2, 2013) (approving
contingency fee agreement with hourly rate of $1, 043.92);
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. Comm'r, Soc. Sec.
Admin., Civil No. SAG-10-2160 (D. Md. July 7, 2016)
(unpublished) (approving contingency fee agreement with
hourly rate of $1, 028.14). Thus, the requested fee in this
case is reasonable and should be approved.
reasons set forth herein, this Court GRANTS Mr.
Osterhout's Motion seeking attorney's fees, ECF 23.
This Court will award Mr. Osterhout attorney's fees
totaling $10, 307.50. Mr. Osterhout is directed to reimburse
to Plaintiff the fees he received pursuant to the EAJA.
the informal nature of this letter, it should be flagged as
an opinion. An implementing order follows.
Stephanie A. Gallagher United States Magistrate Judge.
 Currently, the position of
Commissioner of the Social Security Administration is vacant,
and most duties are fulfilled by Nancy A. Berryhill, Deputy
Commissioner for Operations, performing the duties and
functions not reserved to the Commissioner of Social
 Although they do not govern Social
Security cases, the Local Rules prescribe guidelines for
determining attorney's fees in certain cases, which are
instructive in evaluating the reasonableness of the effective
hourly rate in this case. See Loc. R. App. B (D. Md.
2018). Currently, Mr. Osterhout has more than twenty years of
experience and the presumptively reasonable hourly rate for