Counce v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
SHANNON COUNCE 	PLAINTIFF
v. 	Civil No. 3:21-cv-03005-TLB-MEF
FRANK BISIGNANO, Commissioner1
Social Security Administration 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Pending now before this Court is Plaintiff’s Amended Motion for Attorney’s Fees Pursuant
to 42 U.S.C. § 406(b). 	(ECF Nos. 28, 32). 	Despite the passage of more than 30 days, the
Commissioner has not filed a response.
I. 	Background
Plaintiff, Shannon Counce, appealed the Commissioner’s denial of benefits to this Court.
(ECF No. 2). On January 24, 2022, U.S. District Judge Timothy Brooks adopted the undersigned’s
Report and Recommendation and issued a judgment reversing and remanding Plaintiff’s case
pursuant to sentence four, 42 U.S.C. § 405(g). (ECF No. 22).
On February 28, 2022, this Court awarded Plaintiff $4,401.40 for attorney fees pursuant to
the Equal Access to Justice Act (“EAJA”), representing a total of 21.20 attorney hours and $23.70
in service fees. (ECF No. 26). In February 2025, the Commissioner found the Plaintiff disabled
1 Frank Bisignano was sworn in as the Commissioner of the Social Security Administration on
May 7, 2025, and in his official capacity is substituted as defendant. See Fed. R. Civ. P. 25(d).
Case 3:21-cv-03005-TLB Document 33 Filed 05/14/25 Page 1 of 4 PageID #:
<pageID>

2
and awarded the sum of $64,281.00 in past due benefits.2 (ECF No. 32). Records indicate that a
total of $16,070.25 was withheld by the Commissioner for the payment of attorney fees pursuant
to the fee agreement signed by counsel and the Plaintiff on April 15, 2019. (ECF No. 14-4, p. 4).
II. 	Applicable Law
Federal law regulates the fees attorneys may charge Social Security claimants for
representation. See 42 U.S.C. §§ 406(a)-(b). Section 406(a) governs fees for representation at the
administrative level3 , while Section 406(b) controls fees for representation before the court.
Culbertson v. Berryhill, 586 U.S. 53, 55 (2019) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 794
(2002).
Successful claimants may seek fees from the court under both 28 U.S.C. § 2412, the Equal
Access to Justice Act (EAJA), and 42 U.S.C. § 406(b). 	Pursuant to 42 U.S.C. § 406(b)(1)(A),
whenever a court renders a judgment favorable to a claimant, the court is permitted to determine
and to allow as part of its judgment, a reasonable attorney fee for the representation of the claimant
before the court. 	This fee must not exceed twenty-five percent of the total past-due benefits to
which the claimant is entitled by reason of such judgment, and this fee may be taken out of the
amount of the claimant’s past-due disability insurance benefits. Id.; see also Iames v. Saul, 2021
WL 2364455 (W.D. Ark. June 9, 2021). While fee awards may be made under both § 406(b) and
EAJA, the claimant’s attorney must refund the amount of the smaller fee to the claimant.
Gisbrecht, 535 U.S. at 796 (quoting Act of Aug. 5, 1985, Pub. L. 99-80, § 3, 99 Stat 186).
2 Because the award letters from the Commissioner do not indicate the total amount of Plaintiff’s
award, this number was calculated using the total of the back pay (25%) withheld for attorney’s
fees. (ECF No. 32-4).
3 The claimant’s attorney must petition the agency for an award of these fees. 	See 42 U.S.C. §
406(a); Pittman v. Sullivan, 911 F.2d 42, 46 (8th Cir. 1990) (holding that “the matter of attorney’s
fees for services performed at the administrative level is committed by § 406(b)(1) to the
responsibility of the Secretary exclusively and such fees may not be awarded by the courts.”).
Case 3:21-cv-03005-TLB Document 33 Filed 05/14/25 Page 2 of 4 PageID #:
<pageID>

3
Section 406(b) requires courts to use attorney-client contingency fee agreements when
determining the fees to be awarded. 	See Gisbrecht, 535 U.S. at 793. 	Where the contingency
agreement is within the boundary set by statute – capped at 25% of the past-due benefits awarded
– the Court must determine the reasonableness of the fee sought. Id. Factors such as the character
of the representation, the result achieved, delays caused by the representation, time spent achieving
success, and counsel’s normal hourly rate are considered. Id. at 808-809. However, counsel has
the ultimate burden of “show[ing] that the fee sought is reasonable for the services rendered.” Id.
at 807.
III. 	Discussion
After receiving $7,080.00 ($7,200 - SSA fees) for work performed at the agency level,
Plaintiff now seeks a fee award of $8,870.25 for a total of 21.70 attorney hours for work performed
before this Court. (ECF No. 32-4). After deducting the smaller EAJA award, this equates to an
hourly rate of $205.94.
The evidence shows Plaintiff contracted to pay her attorney 25% of any past due benefits
owing to her, and the case resulted in a remand by this Court with an ultimate award of benefits.
(ECF No. 14-4, p. 4). Nothing in the record suggests that there was any overreaching by Plaintiff’s
counsel in making the fee agreement or any impropriety in representing her. The Court notes that
Plaintiff’s attorney has a history of representing social security claimants and has a good reputation
in the legal community. 	The benefits to Plaintiff are also quite substantial, not in just past due
benefits, but also benefits she will continue to receive in the future. Therefore, under the totality
of the circumstances, comparison of the benefits secured, and the time Plaintiff’s counsel spent on
the case suggest that the fee sought is reasonable.
Case 3:21-cv-03005-TLB Document 33 Filed 05/14/25 Page 3 of 4 PageID #:
<pageID>

4
IV. 	Conclusion
Accordingly, it is RECOMMENDED that Plaintiff’s application for attorney’s fees
pursuant to 42 U.S.C. § 406(b) be GRANTED in the amount of $8,870.25. Counsel should also
be directed to remit to Plaintiff $4,401.40, the smaller fee awarded pursuant to the EAJA.
The parties have fourteen (14) days from receipt of our report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. We remind the parties
that objections must be both timely and specific to trigger de novo review by the district
court.
IT IS SO ORDERED this 14th day of May 2025.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
Case 3:21-cv-03005-TLB Document 33 Filed 05/14/25 Page 4 of 4 PageID #:
<pageID>