Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JENNY GARCIA GONZALEZ, )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 24-2096-JWL
)
FRANK BISIGNANO, )
Commissioner of Social Security, )
)
Defendant. )
_______________________________________ )
MEMORANDUM AND ORDER
This matter is before the court on a motion for approval of an attorney fee (Doc.
19) (Pl. Mot. and Brief) pursuant to the Social Security Act, 42 U.S.C. ' 406(b).
Plaintiff=s motion is GRANTED IN PART, approving a fee in the amount of $14,489.00
pursuant to the Social Security Act.
I. Background
Plaintiff filed a Complaint in this court on March 16, 2024, seeking judicial review
of a decision of the Commissioner of the Social Security Administration. (Doc 1).
After briefing, the court found error in the Commissioner’s decision below and entered
judgment remanding the case for further proceedings. (Docs. 15, 16). The court
granted Plaintiff’s unopposed motion for attorney fees pursuant to the Equal Access to
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Justice Act (EAJA) on March 3, 2025, granting fees in the amount of $5,500.00. (Doc.
18). On remand, the Commissioner apparently issued a fully favorable decision and on
December 9, 2025, issued a “Notice of Award.” (Pl. Mot., Attach. 1). The SSA noted
that it usually withholds “25 percent of past due benefits” and that it withheld $14,489.00
from Plaintiff’s past due benefits. Id. Attach. 1, p.2. Plaintiff now seeks award of
attorney fees of $15,044.22 pursuant to ' 206(b) of the Social Security Act. Id. p. 2; 42
U.S.C. § 406(b).
II. Legal Standard
The Social Security Act provides for the payment of an attorney fee out of the past
due benefits awarded to a beneficiary. 42 U.S.C. ' 406(b). The court has discretion to
approve such a fee. McGraw v. Barnhart, 450 F.3d 493, 497-98 (10th Cir. 2006).
However, the court has an affirmative duty to allow only so much of the fee as is
reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 807-808 (2002); McGraw, 450 F.3d at
498; 42 U.S.C. ' 406(b)(1)(A).
(1)(A) Whenever a court renders a judgment favorable to a claimant under
this subchapter who was represented before the court by an attorney, the
court may determine and allow as part of its judgment a reasonable fee for
such representation, not in excess of 25 percent of the total of the past-due
benefits to which the claimant is entitled by reason of such judgment, and
the Commissioner of Social Security may, . . . certify the amount of such
fee for payment to such attorney out of, and not in addition to, the amount
of such past-due benefits.
42 U.S.C. ' 406(b)(1)(A) (emphases added).
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The Supreme Court, in Gisbrect determined that a contingency fee agreement
within the twenty-five percent ceiling is allowed by ' 406(b) of the Act, and that courts
may not use the “lodestar” method to establish a reasonable fee in such a case. Where
there is a contingency-fee agreement between Plaintiff and her attorney, the court is to
look first to the agreement and then test the agreement for reasonableness. Gisbrecht,
535 U.S. at 807-08. In determining reasonableness, the Court suggested that courts
should consider such factors as the character of representation, the results achieved,
whether the attorney is responsible for any delay, and whether the benefits are large in
comparison to the amount of time counsel spent on the case. Id. 535 U.S. at 808. The
Court noted that the comparison of benefits to time spent might be aided by submission
of the plaintiff=s attorney=s billing record and normal hourly billing rate. Id.
The Tenth Circuit has explained the procedure used in applying Gisbrecht.
Gordon v. Astrue, 361 F. App’x 933, 935–36 (10th Cir. 2010). It noted that the court is
to look first to the fee agreement between the plaintiff and her counsel, and “the statute
does require courts to serve ‘as an independent check’ by ‘review[ing] for reasonableness
fees yielded by those agreements.’” Id. at 935 (quoting Gisbrecht, 535 U.S. at 807-09).
The court noted that the Court provided examples of proper reasons for reducing § 406(b)
fee requests:
(1) when “the character of the representation and the results the
representative achieved” were substandard; (2) when “the attorney is
responsible for delay” that causes disability benefits to accrue “during the
pendency of the case in court”; and (3) when “the benefits are large in
comparison to the amount of time counsel spent on the case.”
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Gordon, 361 F. App’x 935 (quoting Gisbrecht, 535 U.S. at 808). The court
acknowledged six factors recognized by the Seventh Circuit before Gisbrecht was
decided as potentially useful when making a 406(b) reasonableness determination—
although it merely “assum[ed], without granting, that the district court had some
obligation to” consider those factors. Id. (citing McGuire v. Sullivan, 873 F.2d 974, 983
(7th Cir. 1989) (“time and labor required; skill required; contingency of fee; amount
involved and result attained; experience, reputation, and ability of attorney; and awards in
similar cases.”). The Tenth Circuit reviews “a district court’s award of attorney’s fees
under § 406(b) for an abuse of discretion, see McGraw 450 F.3d 493 at 505, and will
reverse only if the district court’s decision is ‘based on a clearly erroneous finding of fact
or an erroneous conclusion of law or manifests a clear error of judgment,’” Id., 361 F.
App’x at 935 (quoting United States v. McComb, 519 F.3d 1049, 1054 (10th Cir. 2007)).
This court recently approved 406(b) contingent attorney fees at an hourly rate of
$736.07 resulting in an equivalent hourly rate for non-contingent work of almost
$263.00; Madrigal v. Kijakazi, Civ. A. No. 19-2429-JWL, 2021 WL 4860555 (D. Kan.
October 19, 2021); see also, Gardipee v. Saul, Civ. A. No. 20-1001-JWL, 2021 WL
826206, *3 (D. Kan. Mar. 4, 2021) (an hourly rate of $1,001.90 resulting in an equivalent
hourly rate for non-contingent work of $357.82); Morris v. Kijakazi, Civ. A. No. 19-
1133-JWL, 2021 WL 5769365 (D. Kan. Dec. 6, 2021) (hourly rate of $410.57); Rogers v.
Saul, Civ. A. No. 19-1134-JWL, 2022 WL 17718655 (D. Kan. Dec. 15, 2022) (hourly
rate of $2,265.39 and an equivalent hourly rate $809.07); Schlein v. Kijakazi, Civ. A. No.
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21-1180-JWL, 2023 WL 5952025 (D. Kan. Sept. 13, 2023) (at an hourly rate of $703.80
resulting in an equivalent hourly rate of $251.36); Firment v. O’Malley, Civ. A. No. 22-
1220-JWL, 2023 WL 8934765 (D. Kan. Dec. 27, 2023 (hourly rate of $1,157.81 and
equivalent hourly rate of $413.50); and, Walls v. O’Malley, Civ. A. No. 21-1011-JWL,
2024 WL 52609 (D. Kan. Jan. 3, 2024) (hourly rate of $1,407.34 and equivalent hourly
rate of $502.62).
III. Discussion
Here, Plaintiff=s attorney requests a fee award of the full 25 percent of Plaintiff’s
past due benefits. He included a copy of the contingent fee agreement signed by
Plaintiff, in which she agreed to a fee of 25 percent of past due benefits. (Pl. Mot.,
Attach. 2). Counsel submitted a listing of the hours expended in prosecuting this case
before this court showing 25.533 hours expended. Id., Attach. 3. An award of 25
percent of past due benefits ($14,489.00) would result in an hourly rate of $555.71 and an
effective hourly rate in a noncontingent case of $198.47. Counsel argues that the skill,
competence, expertise, and experience of him and his firm produced a excellent result in
this case and support awarding the full 25% of past due benefits. Id., passim.
The Commissioner submitted a response to Plaintiff’s Motion asserting that he
“neither supports nor opposes counsel’s request for attorney’s fees in the amount of
$15,044.22.” (Doc. 20, p.1).
The court has considered both the Gisbecht and the McGuire factors and the
arguments of counsel and makes the following findings. Plaintiff has met her burden to
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prove that award of the full 25 percent of past due benefits is reasonable in the
circumstances present here. The court notes that counsel achieved a good result for
Plaintiff in this case. The court recognizes that the contingent nature of the fee justifies a
fee award in Social Security cases when the claimant prevails which is higher than
normal hourly rates charged by attorneys in other matters in order to encourage
practitioners to take such cases and to provide for those cases taken which are not
successfully concluded. This is particularly true due to the deferential standard
applicable in Social Security cases, Biestek v. Berryhill, 139 S. Ct. 1148, at 1154, 1157
(2019), and this court’s strict adherence to that standard.
Both the Commissioner and Plaintiff’s counsel remind the court that the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412, fee in this case was $5,500.00 and must
be refunded to Plaintiff as the smaller fee.
The court addresses some issues of concern to the court in this matter. In his
Notice of Award the Commissioner noted he usually withholds 25 percent of the
claimant’s past due benefits, and stated that he withheld $14,489.00 from Plaintiff’s past
due benefits to pay her lawyer. Plaintiff acknowledges the Commissioner withheld
$14,489.00 but claims past due benefits amounted to $60,176.90 and seeks a fee award of
25 percent of that amount—$15,044.22.
With exceedingly rare exception, the court’s experience has been that the Social
Security Administration has withheld 25 percent of a claimant’s past due benefits to pay
attorney fees. Plaintiff cited the Notice of Award for the proposition that past due
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benefits in this case totals $60,176.90, but the Notice of Award does not state Plaintiff’s
total past due benefits. Moreover, counsel does not show his computation of past due
benefits and does not support it with the date of the ALJ’s decision or the Social Security
Regulations for making payments from which information respecting computation of
benefits might be accurately determined. The court is also concerned that counsel for
the Commissioner stated neither support nor opposition for a total fee in the amount of
$15,044.22 without identifying the discrepancy and explaining the basis for assuming the
Commissioner did not withhold 25 percent of past due benefits. Lacking the necessary
information from either counsel, the court determines that the Commissioner’s
withholding ($14,489.00) must be accepted as 25 percent of past due benefits. The court
finds that 25% of past due benefits, or $14,489.00, is a reasonable fee in the
circumstances of this case.
Finally, without any objection from the Commissioner, the court finds that the fee
award of $14,489.00 might be reduced by the $5,500.00 attorney fee previously awarded
and the Commissioner shall pay counsel $8,989.00 from past due benefits withheld and
return $5,500.00 to Plaintiff in lieu of the refund of the EAJA fee.
IT IS THEREFORE ORDERED that pursuant to 42 U.S.C. ' 406(b) the court
approves an attorney fee of $14,489.00 of which the Commissioner shall provide
$8,989.00 to Plaintiff=s counsel from the past due benefits withheld and return the
remaining $5,500.00 of past due benefits withheld to the Plaintiff in lieu of the refund of
EAJA fees received.
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IT IS SO ORDERED.
Dated February 4, 2026, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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