Wilson v. Kijakazi Case remanded to Social Security Administration .

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
A.J.W.,
Plaintiff,
v.
Kilolo 	Kijakazi, 	Commissioner 	of
Social Security Administration, 1
Defendant.
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Civil Action No. 4:21-cv-03964
MEMORANDUM AND RECOMMENDATION
On November 12, 2025, counsel for Plaintiff A.J.W. filed a motion
seeking contingent attorneys’ fees under 28 U.S.C. § 406(b) after Plaintiff
recovered disability benefits on remand. See Dkt. 24. As concluded below, that
motion should be granted.
Background
In this suit, Plaintiff challenged the denial of benefits under Title II of
the Social Security Act. On December 16, 2022, this Court reversed the denial
of benefits and remanded to the Social Security Administration because the
Administrative Law Judge had not properly considered the waxing and waning
1 Kijakazi was the Commissioner when this Court entered its final order remanding
the case. See Dkt. 18 (December 16, 2022 order).
United States District Court
Southern District of Texas
ENTERED
May 18, 2026
Nathan Ochsner, Clerk
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nature of Plaintiff’s mental impairments. 	See Dkt. 18 (adopting Dkt. 17).
Thereafter, the Court granted Plaintiff’s request to extend the deadline for
seeking 	contingent 	attorneys’ 	fees 	under 	Section 	406(b) 	until 	“after 	the
conclusion of the administrative proceedings, including the determination of
the administrative fee in this case ....” Dkt. 20 (granting Dkt. 19).
Separately, however, Plaintiff sought attorneys’ fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412, and various filing fees. 	See Dkt. 21.
On March 23, 2023, this Court awarded Plaintiff $7,409.10 in attorneys’ fees
and $402.00 in costs. Dkt. 23.
After remand, the Administration eventually issued a July 23, 2025
Notice of Award concluding that Plaintiff was entitled to monthly disability
benefits starting August 2019. 	See Dkt. 24-2 at 1. 	The Notice stated that
Plaintiff was owed $108,629.00 in past-due benefits from August 2019 through
April 2025, and that 25% of that amount ($27,157.25) was being withheld as
potential fees to pay Plaintiff’s representative. 	See id. at 5. 	A few months
later, 	Plaintiff’s 	counsel 	filed 	the 	pending 	motion, 	seeking 	$15,157.25 	in
contingency attorneys’ fees—14% of the awarded past-due benefits.
Legal Standard
The Social Security Act provides that “[w]henever a court renders a
judgment favorable to a claimant ... who was represented before the court by
an attorney,” the court may award counsel a reasonable fee “not in excess of 25
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percent 	of 	the 	total 	of 	the 	past-due 	benefits 	to 	which 	the 	claimant 	is
entitled ....” 42 U.S.C. § 406(b)(1)(A). 	This provision applies when, as here, a
claimant obtains recovery on remand to the Social Security Administration
after a federal court’s decision vacating the denial of benefits.
Even if the requested fee award falls below Section 406(b)’s statutory
cap, a court must “review the arrangement as an independent check, to assure
that [it] yields reasonable results.” Gisbrecht v. Barnhart, 5353 U.S. 789, 807
(2002). 	“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.” Jeter v. Astrue 622 F.3d 371, 379 (5th Cir. 2010). The district court
has broad discretion when determining the appropriate fee award. Id. at 376.
Analysis
Having 	reviewed 	the 	application, 	the 	undersigned 	concludes 	that
counsel’s requested contingency fee is reasonable. 	Under 28 U.S.C. § 406(b),
this Court should award $15,157.25 to counsel.
When evaluating requested contingency fees, courts consider many non-
exclusive and non-dispositive factors, like the attorney’s risk of loss, the
attorney’s experience and skill, whether the attorney caused any unnecessary
delay, and the hourly rate. See Tyson C. v. O’Malley, 2024 WL 1996125, at *2
(S.D. Tex. May 6, 2024). Based on those factors, the Court finds the requested
sum of $15,157.25 to be a reasonable and appropriate fee award.
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First, the contingency fee agreement specifies that Plaintiff agreed to
pay counsel up to 25% of any past-due benefits that were recovered. 	See Dkt.
24-4 	at 	3. 	That 	figure 	equals 	the 	statutory 	maximum. 	See 	42 	U.S.C.
§ 406(b)(1)(A).
Second, counsel undertook a significant risk when representing Plaintiff
on a contingency fee basis. 	And counsel obtained a highly favorable result,
obtaining not only a reversal of the administrative decision, see Dkt. 18, but a
decision on remand awarding benefits, see Dkt. 24-2. 	The risk to counsel,
particularly when coupled with the excellent results achieved, justifies a “fully
compensatory fee.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
Third, counsel’s total of 34.25 hours worked falls within the typical range
of 30 to 40 hours. 	See Tyson C., 2024 WL 1996125, at *4 (“typical number” of
attorney hours for a social security disability appeal is “between 30 and 40
hours”); Dkt. 24-3 (billing entries for both attorneys). The total attorney hours
are therefore reasonable.
Fourth, although effective hourly rate is much higher than the adjusted
EAJA hourly rate, that is not dispositive. Whereas the adjusted EAJA hourly
rate during the relevant period was less than $230.00, see Ferrel v. Kijakazi,
2023 WL 2477739, at *2 (S.D. Tex. Mar. 13, 2023) ($209.34 for 2021; $226.58
for 2022), the de facto hourly rate for counsel’s work, based on the contingency
fee sought, would be $442.55 ($15,157.25/34.25 hours). Regardless, this Court
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has approved much higher effectively hourly rates in contingency-fee contexts,
recognizing that “an excessively high hourly rate alone does not render an
otherwise reasonable fee unreasonable.” 	Tyson Co., 2024 WL 1996125, at *4
(quotation omitted) (finding an effective hourly rate of $912.24 was reasonable;
citing 	authorities 	that 	permitted 	rates 	of 	$937.50 	to 	$1,245.55/hour).
Moreover, counsel is Board Certified in this niche area and has represented
more than 100 claimants is similar appeals. Dkt. 24-6 at 2. Counsel’s expertise
reinforces that the requested fee is reasonable.
Counsel’s successful recovery of benefits on Plaintiff’s behalf, plus the
reasonableness of the attorney hours expended and the reasonable hourly rate
given the risk attendant to this appeal, together support awarding $15,157.25
as attorneys’ fees under Section 406(b).
Recommendation
For the foregoing reasons, it is RECOMMENDED that counsel’s motion
for attorneys’ fees under 42 U.S.C. § 406(b) (Dkt. 24) be GRANTED, that
Defendant be ordered to pay Plaintiff’s counsel $15,157.25 of the sum that has
been withheld from Plaintiff’s past-due benefits, and that Plaintiff’s counsel be
ordered to refund the entire EAJA fee award ($7,409.10, see Dkt. 23) directly
to Plaintiff.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
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R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on May 18, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
______________________________________
Yvooon	nn	n	ne Y. Ho
United States Magistrate Judge
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