REPORT AND RECOMMENDATION
RAY KENT, Magistrate Judge.
This matter is before the court on plaintiff's motion (ECF No. 21), amended motion (ECF No. 23), and second amended motion (ECF No. 27) for award of attorney's fees under 42 U.S.C. § 406(b).
In a letter dated November 28, 2011, the Social Security Administration (SSA) advised plaintiff that his claim for benefits was denied. See Letter (ECF No. 7-4, PageID.116). Plaintiff requested a hearing in front of an Administrative Law Judge (ALJ), who entered a partially favorable decision, finding that plaintiff was under a disability as defined by the Social Security Act for a closed period from November 11, 2009 through May 7, 2012. See ALJ's Decision (July 24, 2013) (ECF No. 7-2, PageID.33-45). On December 23, 2014, plaintiff filed this action to appeal that decision. In his initial brief, plaintiff asked for an award of benefits from his alleged disability onset date or a remand under sentence four of 42 U.S.C. § 405(g). See Plaintiff's Initial Brief (ECF No. 13, PageID.676, 694). Defendant did not file a response. Rather, in an agreed order, the Court reversed and remanded this matter to the Commissioner pursuant to sentence four to further develop the record. See Agreed Order (ECF No. 17); Judgment (ECF No.18). On remand, the Commissioner was required to, among other things, "properly address the issue of medical improvement and subsequent steps required to establish that the prior period of disability ended." See Agreed Order.
After remand, the Court approved the parties' joint stipulation to award plaintiff's counsel fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA") in the amount of $3,622.50. See Order (ECF No. 20).
While on remand, the SSA awarded plaintiff benefits. The Commissioner issued a Notice of Change in Benefits dated May 5, 2016, which stated that plaintiff's past due benefits (commencing in August 2010) were $52,579.00, of which the SSA withheld $12,744.75 "in case we need to pay your lawyer." See Notice (May 5, 2016) (ECF No. 27-1, PageID.815-819).
In his second amended motion, plaintiff's counsel stated that he spent 29.25 hours on this case in federal court, that plaintiff's past due benefits are $92,686.00, that plaintiff has three dependents, that the dependents received award notices, and that counsel is requesting a fee of $22,171.50. Second Amend. Motion at PageID.811. It is unclear how plaintiff reached the figure of $92,686.00. Based on this record, the amount of the past due benefits awarded to plaintiff was $52,579.00 and the amount of past due benefits awarded to the three dependants was $17,474.25, resulting in a total amount of past due benefits awarded to plaintiff and his dependents of $70,053.25. The total amount withheld of these past due benefits by the SSA to pay attorney fees for plaintiff and the three dependents was $22,771.50.
Plaintiff's amended motion seeks an award of attorney fees pursuant to 42 U.S.C. § 406(b) for work done before this Court. Attorney fee awards in social security cases brought in this Court are authorized under 42 U.S.C. § 406(b)(1)(A), which provides in pertinent part:
An attorney fee award is appropriate under § 406(b)(1)(A) when a court remands a case to the Commissioner for further proceedings and the Commissioner subsequently awards the claimant pastdue benefits. Bergen v. Commissioner of Social Security, 454 F.3d 1273 (11th Cir. 2006). The statutory limit on attorney fees arose, in part, as a response to the inordinately large fees charged by attorneys, which sometimes consisted of one-third to one-half of the claimant's past-due benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 804 (2002). While the SSA typically withholds 25% of the past-due benefits for payment of attorney fees, separate attorney fee awards are made under § 406 for work performed before the administrative agency and for work performed in the Federal Court. See Horenstein v. Secretary of Health and Human Services, 35 F.3d 261, 262 (6th Cir. 1994) (concluding that under 42 U.S.C. §§ 406(a) and 406(b), "each tribunal may award fees only for the work done before it").
Plaintiff's counsel submitted a contingent fee agreement in which plaintiff agreed to pay him a fee of 25% of the past due benefits resulting from his claim. See Employment Contract for Federal Court Work (docket no. 23-4, PageID.794). In evaluating fees under § 406(b), there is "a rebuttable presumption that an attorney would receive the full 25% contingency fee under contract unless 1) the attorney engaged in improper conduct or was ineffective, or 2) the attorney would enjoy an undeserved windfall due to the client's large back pay award or the attorney's relatively minimal effort." Hayes v. Secretary of Health and Human Services, 923 F.2d 418, 419 (6th Cir. 1990).
With respect to the first consideration, there is no suggestion that Attorney Robison engaged in improper conduct or was ineffective. On the contrary, he secured a favorable result for his client. With respect to the second consideration, the Court must consider whether the requested fee will result in an undeserved windfall to counsel.
Id. at 422 (footnotes omitted). "In other words, 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.
Here, plaintiff's counsel states that he worked 29.25 hours on this matter. Amended Motion at PageID.770. See Billing Statement to Brian J. Ballinger (ECF No. 23-3, PageID.792-793). Counsel does not identify whether the individuals billing Mr. Ballinger were attorneys, other than noting that "CAR" bills at a rate of $150.00 per hour and "JLS" bills at a rate of $60.00 per hour. Id. Based on these hourly rates, the Court previously awarded plaintiff's counsel EAJA fees of $3,622.50. As discussed, the SSA withheld $22,771.50 which results in a hypothetical hourly rate of $778.51. The Court has considered an hourly rate of $175.00 as reasonable in Social Security Appeals.
Finally, this fee award is subject to offset for the previously awarded EAJA fee. See Gisbrecht, 535 U.S. at 796 ("Congress harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant's past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant's attorney must `refun[d] to the claimant the amount of the smaller fee.'"). As discussed, the Court has awarded Attorney Robison fees under the EAJA in the amount of $3,622.50. Thus, counsel's fee of $13,162.50 should be reduced by the previous EAJA fee award of $3,622.50, resulting in a net fee award from this Court of $9,540.00.
Accordingly, I respectfully recommend that plaintiff's motion and amended motion for award of attorney's fees (ECF Nos. 21 and 23) be