Garza v. Kijakazi

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAYMOND G., 1
Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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CIVIL ACTION NO.: 4:23-CV-989
JUDGE PALERMO’S
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff’s Motion for Attorney Fees Pursuant to
42 U.S.C. § 406(b), 2 seeking payment of $15,972.00. ECF No. 15. 3 Defendant, the
Acting Commissioner of the Social Security Administration, neither supports nor
opposes the motion. ECF No. 20. Based on a review of the law and the evidence, the
Court finds the requested fee is reasonable and therefore Plaintiff’s motion for
attorney fees, ECF No. 15, should be granted.
1 The Court uses only Plaintiff’s first name and last initial. See “Memorandum Re: Privacy Concern
Regarding Social Security and Immigration Opinions,” Committee on Court Administration and
Case Management of the Judicial Conference of the United States (May 1, 2018).
2 The district judge to whom this case is assigned referred the post-judgment motions to this Court.
3 The Court permitted Plaintiff to file an amended fees motion after entry of final judgment. ECF
No. 16. Plaintiff’s counsel represents that she stands on her originally filed fees motion. ECF No.
21.
United States District Court
Southern District of Texas
ENTERED
February 23, 2026
Nathan Ochsner, Clerk
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I. 	BACKGROUND
Plaintiff 	appealed 	the 	Commissioner’s 	denial 	of 	Plaintiff’s 	claims 	for
disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act to this Court. ECF No. 1. Before any answer or record
was filed, Commissioner filed an unopposed motion for remand for further
administrative proceedings, asserting that “the recording of the administrative
hearing of April 2, 2022 cannot be opened and therefore cannot be transcribed.”
ECF No. 11 at 1. The Court granted Commissioner’s motion and remanded the case.
ECF No. 12. On November 20, 2025, Commissioner filed an unopposed motion to
reopen this case, affirm the Commissioner’s August 28, 2024 fully favorable
decision, and enter final judgment in favor of Plaintiff. ECF No. 14. The Court
granted the motion to reopen, ECF No. 16, and entered a final judgment in favor of
Plaintiff, ECF No. 18.
On remand, the Social Security Administration found Plaintiff to be disabled.
ECF No. 14-1. Pursuant to 42 U.S.C. § 406(b), Plaintiff’s counsel now seeks a court
order awarding the full amount of attorney’s fees of $15,927, which Plaintiff’s
counsel represents equals 25% of Plaintiff’s awarded past due benefits. ECF No. 15.
II. 	LEGAL STANDARD
Sections 406(a) and (b) “provide for the discretionary award of attorney fees
out of the past-due benefits recovered by a successful claimant in a Social Security
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action.” Murkeldove v. Astrue, 635 F.3d 784, 787 (5th Cir. 2011) (citing 42 U.S.C.
§ 406(a)-(b)). Section 406(a) governs fees for representation at the administration
level. See 42 U.S.C. § 406(a); Jeter v. Astrue, 622 F.3d 371, 374 n.2 (5th Cir. 2010).
Section 406(a) “includes two ways to determine fees for representation before the
agency, depending on whether a prior fee agreement exists.” Culbertson v. Berryhill,
586 U.S. 53, 56 (2019). If, like here, the claimant has a fee agreement, subsection
(a)(2) caps fees at the lesser of 25% of past-due benefits or a set dollar amount—
currently $7,200. 42 U.S.C. § 406(a)(2)(A); Maximum Dollar Limit in the Fee
Agreement Process, 87 Fed. Reg. 39157, 2022 WL 2341512 (June 30, 2022).
Section 406(b) governs the award of attorney fees for representing claimants
in court and limits the attorney fee award to not more than 25% of the total past due
benefits to which the claimant is entitled, exclusive of any fees awarded for
representation at the administrative level under § 406(a). Culbertson, 586 U.S. at 60;
Calaforra v. Berryhill, No. 4:15-CV-02298, 2017 WL 4551350, at *2 (S.D. Tex.
Oct. 12, 2017). In other words, the 25% cap on fees under § 406(b)(1)(A) is not
cumulative, so any award for court representation under § 406(b) is not reduced by
an award for representation before the agency under § 406(a). Culbertson, 586 U.S.
at 60. Furthermore, the statute allows for withholding of the past-due benefits to pay
these fees directly to the attorney. Id. at 56.
Section 406(b) applies when, as here, the claimant obtains a favorable
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decision on remand after the court had vacated the Commissioner’s previous
decision denying benefits. Even when the requested fee is within the 25% statutory
ceiling, as here due to the agreement between Plaintiff and her counsel, ECF No. 15-
4, “§ 406(b) requires the court to review the ‘arrangement as an independent check,
to assure that [it] yields reasonable results’ in the case.” Calaforra, 2017 WL
4551350, at *3 (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002)). The court
performs an independent check to ensure that the fee is not a windfall to the attorney.
Jeter, 622 F.3d at 380-82. “If the benefits are large in comparison to the amount of
time counsel spent on the case, a downward adjustment is in order to disallow
windfalls for lawyers.” Id. at 379. The court has wide discretion in approving or
discounting the amount of attorney fees. Id. at 376.
Sections 406(a) and 406(b) are not the only sources of compensation available
to an attorney. “Under the EAJA, a party who prevails against the United States,
including a successful Social Security benefits claimant, may be awarded fees if the
government’s position in the litigation was not ‘substantially justified.’” Calaforra,
2017 WL 4551350, at *2 (quoting 28 U.S.C. § 2412(d)(1)(A)). “Attorneys who
successfully represent social-security-benefits claimants in court may receive fees
under both the EAJA and § 406(b), but must refund to the claimant the amount of
the smaller fee.” Jackson, 705 F.3d at 529 n.2 (cleaned up). Plaintiff’s counsel
represents that no EAJA fees have been awarded or paid in this case. ECF No. 15
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at 1. 4
III. 	COUNSEL’S MOTION FOR ATTORNEY FEES IS REASONABLE
AND TIMELY.
As noted above, the Court must decide whether counsel’s request for a fee
award under § 406(b) is reasonable and timely.
A. 	The Motion for Attorney Fees Is Reasonable.
The burden is on the attorney to show that the fee is reasonable. See Calaforra,
2017 WL 4551350, at *3-4. The Court may use a variety of non-exhaustive factors
in performing the reasonableness check, including the existence of a contingency fee
agreement, the risk of loss the attorney takes on, the experience and quality of the
attorney, whether the attorney caused any unnecessary delay, and the resulting
hourly rate. Id. at *4; accord Jeter, 622 F.3d at 382. No one factor is dispositive, and
the court may not exclusively rely on the resulting hourly rate in determining the
reasonableness of the fee. Jeter, 622 F.3d at 377 (approving use of lodestar method
in conjunction with additional factors to determine whether award is a windfall).
Analyzing these factors, the Court finds that a fee of $ $15,972.00 is
reasonable in this case as follows:
1. 	The contingency fee is reasonable.
On 	September 	5, 	2024, 	Plaintiff 	signed 	an 	amended 	contingency 	fee
4 Insofar as she did receive EAJA fees, counsel will return the EAJA fees to the Plaintiff.
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agreement setting counsel’s compensation at up to 25% of any recovery of past-due
benefits. 	ECF 	No. 15-4. 	This 	fee 	is 	within 	the 	statutory 	range. 	42 	U.S.C.
§ 406(b)(1)(A). In this case, Plaintiff’s counsel asks the Court for the net sum of
$15,972.00, which she represents totals 25% of Plaintiff’s past-due benefits. ECF
Nos. 15 at 4; 15-1.
Courts have recognized that in contingency representation, attorneys should
receive “full compensatory fees” when the client receives “excellent results.”
Hensely v. Eckerhart, 461 U.S. 424, 435 (1983) (recognizing that lawyers who take
on contingency cases should receive more when successful because of the intrinsic
risk). In social security appeals for disability benefits, “courts have recognized that
there is a substantial risk of loss.” Dickerson v. Saul, No. 4:18-CV-04578, 2021 WL
2156762, at *3 (S.D. Tex. May 27, 2021) (citations omitted). On average only thirty-
five percent of claimants who appealed their case to federal court received benefits
Id. (citation omitted).
In this case, counsel undertook a risk because she represented Plaintiff without
any guaranteed payment. At the administrative level on remand, Plaintiff was
awarded social security benefits, including past-due benefits. Since only thirty-five
percent of cases appealed to federal courts receive benefits, this result is excellent.
Id. There is also no evidence that Plaintiff’s counsel caused any unnecessary delay
in the proceedings at the district court level. Calaforra, 2017 WL 4551350, at *4
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(citing absence of delay in approving fee).
2. 	The number of hours is reasonable.
Plaintiff’s counsel spent a total of 56.4 hours on Plaintiff’s case. ECF No. 15-
2. The typical number of hours spent on a social security disability claim is between
30 and 40 hours. 5 Dickerson, 2021 WL 2156762, at *3 (citing Mesecher v. Berryhill,
No. 4:15-CV-0859, 2017 WL 4417682, at * 1 (N.D. Tex. Oct. 3, 2017) (noting that
a typical attorney in a social security case claims “between thirty and forty hours for
attorney work.”)). Under § 406(b), a plaintiff’s attorney may receive fees for work
performed in court, but not for work performed in administrative proceedings.
Gisbrecht, 535 U.S. at 794. Counsel arguably accrued 31.3 hours sought at the court
level. ECF No. 15-2.
3. 	The effective hourly rate is reasonable.
In his response, the Commissioner recognized that he “has no direct financial
stake in the outcome of this case,” and during fee determination only plays the role
of “trustee for the claimants.” ECF No. 20.
Here, the requested rate is more than the non-contingency hourly rate. If
awarded the requested amount, the de facto hourly rate for counsel’s work is $510.29
per hour ($15,972.00/31.3 hours). The statutory baseline EAJA hourly rates is $125
5 As noted above, on July 18, 2023, the Court remanded the matter to the Social Security
Administration for further proceedings. ECF No. 12.
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per hour. See 28 U.S.C. § 2412(d)(2)(A)(ii).
Nonetheless, because of the inherent risk in social security cases, the Fifth
Circuit has recognized that in § 406(b) cases, “an excessively high hourly rate alone
does not render an otherwise reasonable fee unreasonable.” Dickerson v. Saul, No.
4:18-CV-04578, 2021 WL 2156762, at *4 (S.D. Tex. May 27, 2021) (quoting Jeter,
622 F.3d at 3820); see also Kirkpatrick v. Berryhill, No. 3:16-CV-00337, 2019 WL
2931661, at *3 (S.D. Tex. June 20, 2019), adopted sub nom. Kirkpatrick v. Saul,
No. 3:16-CV-00337, 2019 WL 2913837 (S.D. Tex. July 8, 2019) (approving
$937.50 hourly rate); Wilson v. Berryhill, No. 3:13-CV-1304, 2017 WL 1968809, at
*2 (N.D. Tex. Apr. 7, 2017), adopted, 2017 WL 1956242 (N.D. Tex. May 11, 2017)
(finding reasonable $937.50 hourly rate); Sabourin v. Colvin, No. 3:11-CV-2109,
2014 WL 3949506 (N.D. Tex. Aug. 12, 2013) (“$1,245.55 per hour” was not an
unreasonable request).
The Court finds that, based on counsel’s success at the district court levels and
similar awards in other cases, the de facto hourly rate is reasonable.
B. 	The Fees Application Is Timely.
Any request for fees under § 406(b) must be timely. Calaforra, 2017 WL
4551350, at *4 (citing Pierce v. Barnhart, 440 F.3d 657, 663-64 (5th Cir. 2006)). In
Pierce, the Fifth Circuit reasoned that Federal Rule of Civil Procedure 54(d) sets the
default deadline for attorney fees motions at no later than 14 days after entry of
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judgment. Id. But recognizing it was unlikely a claimant would resolve a social
security claim in that time, the court held that the deadline could be extended. Id.
Other courts have concluded that the motion should be filed within a reasonable time
after receiving notice of the award. See id. (collecting cases).
Here, Plaintiff’s notice of award is dated September 28, 2025, and counsel
filed the instant motion on December 18, 2025, only a few months after the notice.
See ECF Nos. 15, 15-1. Thus, the Court finds that the motion is timely.
In sum, considering these factors, the Court finds that an award of $15,972.00
is reasonable, as it is a direct result of counsel’s advocacy, which returned a highly
favorable result for Plaintiff. The motion is timely, and it should be granted.
IV. 	CONCLUSION
Therefore, the Court RECOMMENDS that Plaintiff’s motion for attorney
fees, ECF No. 15, be GRANTED and Defendant be ORDERED to award Plaintiff’s
counsel, Delphine, $15,972.00 in attorney fees withheld from Plaintiff’s past-due
benefits; and insofar as any EAJA were awarded, Plaintiff’s counsel be ORDERED
to refund the EAJA awards directly to Plaintiff.
IT IS SO ORDERED.
Signed on February 23, 2026, at Houston, Texas.
______________________________
Dena Hanovice Palermo
United States Magistrate Judge
on, Texas.
______________________________
Dena Hanovice Palermo
United States Magistrate Judge
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