concurring in part and dissenting in part:
I concur in the remarks set out by Judge Peck that “a court should not look kindly at ... [a] pattern of consistently pushing [the] time limitation,” and that a court should not “reward incompetence by allowing an award which has become inflated through any procedural missteps.” Not only should a lawyer not profit from taking an “improper route,” he or she also should notj benefit from spending an unreasonable amount of time in the course of preparing a claim for hearing or disposition, or from *748pursuing a part of a claim that is without merit. If, for example, he should pursue a claim that is partially but clearly barred by res judicata principles, he should not be rewarded for time devoted to that aspect of the case even if the attorney prevailed on another part of a petitioner’s claim.
I further agree that in many (and probably most) cases of the “boilerplate” type, routine controversies or claims where no unusual research is implicated or where the dispute is more an interpretation of fact than development of proof or of legal authority, “the benchmark 25% of awards fee would obviously be inappropriate.”
I would emphasize that Webb v. Richardson, 472 F.2d 529 (6th Cir.1972), and Dearing v. Secretary, 815 F.2d 1082 (6th Cir.1987), are still good law in this circuit and that an attorney fee should be calculated on the amount of past due benefits accrued three months after plaintiff’s motion for summary judgment and not thereafter based on some larger amount calculated by reason of passage of time.
I dissent, however, from treatment of a twenty-five percent fee as a “benchmark.” I believe that this amount has been determined by Congress and has been treated by the Secretary properly as a cap or maximum limitation on attorney fees in social security cases. If an exceptional, very satisfactory, or especially commendable job has been done by the attorney, then he or she should be awarded the maximum allowable twenty-five percent fee. While the majority points out, citing Lavender v. Califano, 683 F.2d 133 (6th Cir.1982), that award of twenty-five percent, even if considered a “benchmark,” is “not automatic,” I maintain that the “benchmark” amount should, rather, be fifteen or twenty percent with room for recognition of above average or superior performance. There would still be room for allowance of a lower fee in the case of subpar or less than acceptable competent performance. We noted recently, for example, in Bailey v. Heckler, 111 F.2d 1167, 1170 n. 3 (6th Cir.1985), that “this court has stressed that given the general lack of correlation between the amount of a social security award and the attorney’s performance, courts should hesitate to grant ‘routine approval’ of the statutory maximum contingency fee.”
We have held, correctly I believe, that a contingent fee contract in a social security case is not binding on this court but is merely a consideration or factor to take into account. Bailey v. Heckler, 777 F.2d 1167. I dissent from treating the usual twenty-five percent contingent fee contract as establishing a “rebuttable presumption” that the attorney is entitled to this maximum amount. It does not seem unduly difficult to me for district courts in a particular district to set out a standard or lodestar hourly fee for attorneys practicing in this area of the law and to permit these district courts to give some enhancement in appropriate cases for hours reasonably shown to be spent or required in pursuit of a particular claim where a contingent fee has been agreed upon. Use of these contingent fee agreements is standard operating procedure for many, if not most, attorneys practicing in this area. I do not believe contingent fee agreements require “close attention” by the court making a fee allowance, nor do I believe they should set out a presumed entitlement for fees regardless of hours spent on the case and the inherent difficulty of some cases in contrast to the routine nature of most.
It should be noted that in a number of cases, the claimant or applicant is claimed to be a minor, or incompetent to handle his own affairs, or mentally or emotionally incapable or disabled. These claimants presumably would have no capacity to enter into a binding or meaningful contingent fee agreement. In none of these cases should the existence of a minimum fee agreement be even a material consideration; rather, the court should consider the interests of the minor or the incompetent or mentally incapacitated claimant without any presumption of an attorney’s entitlement to a fee of twenty-five percent of an award. In my opinion, in those cases at least, we should adhere to the lodestar hourly amount of fee multiplied by the reasonable number of hours shown to have been devoted to the case, recognizing the incapacity of the claimant to agree in all cases on a fee.
*749I would rather follow the admonition as expressed in MacDonald v. Weinberger, 512 F.2d 144, 147 (9th Cir.1975):
While the district judge may consider the fact that a lawyer has taken a case on a contingent compensation basis, the judge may not unquestionably approve the award of the 25 percent maximum fee, or any other amount claimed on the basis of a contingent fee contract. Rather, in each case, the judge must assess the value of the lawyer’s services to the client, as the judge observes those services in the judicial proceedings.
There can be no “shortcut” means to deciding a reasonable attorney fee based on some magic formula, rebuttable presumption, or determination of some arbitrary amount above which the court will choose to view the award with more careful scrutiny. To the extent, then, that the majority may attempt an easy solution to lessen the responsibility of the courts in setting or approving fees with a required reasonable examination and explanation for the basis of the fee claimed involved, I respectfully dissent.