Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KAELIN CRISS
vs.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
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§ 	CASE NO. 6:22-cv-317-JCB-KNM
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REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff filed the above-styled lawsuit seeking judicial review of the Commissioner’s
decision denying her application for Social Security benefits. 	Before the Court is a Motion for
Award of Attorney Fees Under 406(b) of the Social Security Act (ECF 29). The Commissioner
filed a response stating that he neither supports nor opposes the motion. ECF 32. The motion is
referred for a recommended disposition. For the reasons below, the motion should be GRANTED.
Background
The Court reversed the Commissioner’s final decision and remanded this case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) of the Social Security Act. ECF
20. Plaintiff subsequently filed an Application for Attorney Fees Pursuant to the Equal Access to
Justice Act (“EAJA”). The Court granted the motion and awarded $8,274.61 in fees. ECF 28.
On remand, the Social Security Administration issued a favorable ruling finding him
disabled beginning in 2020 and awarding past-due benefits totaling $96,775.00. 	ECF 29-2
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(Exhibit A). 	Movant, counsel for Plaintiff, filed the present motion seeking to recover fees for
representation in this Court in the amount of $24,193.75. The Notice of Award letter dated October
19, 2025, notifies Plaintiff that the amount of $24,193.75—representing 25 percent of the awarded
past-due benefits—was withheld for the payment of attorney’s fees.
Discussion
In this case, Movant seeks an award of attorney’s fees pursuant to 42 U.S.C. § 406(b)(1).
When a court renders a judgment favorable to a claimant who was represented by an attorney in a
Social Security disability matter, 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 for past-due benefits
to which the claimant is entitled. 42 U.S.C. § 406(b)(1). The district court can only award fees
for work performed before the district court, and not for any work performed at the administrative
level. Mudd v. Barnhart, 418 F.3d 424, 427 (4 th Cir. 2005); Brown v. Sullivan, 917 F.2d 189, 191
(5th Cir. 1990), abrogated on other grounds, Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817
(2002).
The ultimate issue is whether the award is reasonable. 	See Gisbrecht, 535 U.S. at 793;
Jeter v. Astrue, 622 F.3d 371, 374 (5 th Cir. 2010). This decision lies within the discretion of the
court. 	Gisbrecht, 535 U.S. at 793; Jeter, 622 F.3d at 376. 	In making such determinations, the
Supreme Court concluded that Ҥ 406(b) does not displace contingent-fee arrangements as the
primary means by which fees are set for successfully representing Social Security benefits
claimants in court.” Gisbrecht, 535 U.S. at 807. Courts, however, should consider certain factors
in determining the reasonableness of a § 406(b) fee, including but not limited to: (1) the quality of
the representation; (2) whether counsel was responsible for delay in the litigation while benefits
accumulated during the case; or (3) whether the award is a “windfall” for counsel. Gisbrecht, 535
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U.S. at 808; Jeter, 622 F.3d at 377. With regard to whether the award is a “windfall” for counsel,
a district court may consider “lodestar” factors, but the court may not rely on them alone. Jeter,
622 F.3d at 380 (“[W]e conclude that courts may consider the lodestar in their analyses so long as
the court can articulate additional factors demonstrating that the excessively high fee would result
in an unearned advantage”).
Movant asserts that he has a contingent fee agreement with Plaintiff for 25 percent of all
past-due benefits awarded. 	The agreement is attached to the motion. 	ECF 29-4 (Exhibit C).
Twenty-five percent of the amount awarded for past-due benefits in this case is $24,193.75.
Movant seeks to recover the full 25 percent pursuant to § 406(b). Movant asserts that a total of
34.35 hours of attorney time were expended on the representation of Plaintiff in federal court. ECF
29- 6 (Exhibit E). Movant submitted documentation of the fee agreement, the notice of award and
the time spent working on Plaintiff’s federal lawsuit.
There is no showing that the requested amount is unreasonable, that there was an
unreasonable delay in the litigation caused by Movant or that the requested award would be a
“windfall” to Movant. In this case, Movant bore the risk of representing Plaintiff on a contingent
fee basis and was ultimately successful in obtaining a substantial past-due payment for Plaintiff.
The issues were fully briefed in this Court and resulted in an opinion on the merits reversing the
Commissioner’s decision and remanding the matter for further consideration. In the absence of
any specific facts demonstrating that the requested fee amount is unearned, the average hourly rate
does not provide a basis for finding that the requested fee is unreasonable.
For these reasons, the requested fee is reasonable. 	Movant must remit the previously
awarded EAJA fees of $8,274.61 to Plaintiff upon receipt of the § 406(b) award.1
1 “The court should award the entire § 406(b) amount, and the attorney must refund the lesser fee to the claimant.”
McGraw v. Barnhart, 450 F.3d 493, 497 n. 2 (10 th Cir. 2006).
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RECOMMENDATION
It is hereby RECOMMENDED that the Motion for Award of Attorney Fees Under 406(b)
of the Social Security Act (ECF 29) be GRANTED. 	Movant should be awarded the sum of
$24,193.75 to be paid out of Plaintiff Kaelin Criss’s past-due benefits for representation before the
Court in this matter. It is further
ORDERED that upon receipt of the $24,193.75 awarded above, Movant shall remit to
Plaintiff the previously awarded EAJA fees in the amount of $8,274.61.
Within fourteen days after receipt of the magistrate judge’s report, any party may serve and
file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. §
636(b).
A 	party’s 	failure 	to 	file 	written 	objections 	to 	the 	findings, 	conclusions 	and
recommendations contained in this Report within fourteen days after service shall bar that party
from de novo review by the district judge of those findings, conclusions and recommendations
and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed
factual findings and legal conclusions accepted and adopted by the district court. 	Douglass v.
United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir.1996) (en banc), superseded by statute on
other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen
days).
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