Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LUANN T. YANNI,
Plaintiff,
v. 	No. 1:23-cv0435 DHU/DLM
FRANK BISIGNANO,
Commissioner of the Social
Security Administration,1
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff Luann Yanni’s Unopposed Motion for
Order Authorizing Attorney Fees Pursuant to 42 U.S.C. § 406(b). (Doc. 47.) Yanni seeks
$43,560.00 in attorney’s fees based on 79.2 hours of work at a rate of $550.00 per hour. (See id.
at 1, 4, 7.) Yanni asserts that “[t]he Commissioner is not a party to 42 U.S.C. § 406(b), and
therefore neither supports nor opposes counsel’s request for attorney’s fees” and “does not intend
to file a response” to the motion. (Id. at 2.) Having considered the record, submissions of counsel,
and relevant law, I recommend that Yanni’s motion be GRANTED.2
I. 	Relevant Background
Yanni filed her application for disability insurance benefits (DIB) and supplemental security
income (SSI) with the Social Security Administration on January 4, 2012, alleging a disability
1 Frank Bisignano became the Commissioner of Social Security on May 6, 2025. Pursuant to Federal Rule of Civil
Procedure 25(d), he is automatically substituted as defendant in this lawsuit.
2 United States District Judge David H. Urias entered an Order of Reference Relating to Social Security Appeals on
February 10, 2025, referring this motion to the undersigned Magistrate Judge “to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate
disposition of the case.” (Doc. 57.)
Case 1:23-cv-00435-DHU-DLM Document 48 Filed 01/23/26 Page 1 of 5

2
onset date of September 30, 2005. (Administrative Record3 (AR) at 172, 193, 2984.) Disability
Determination Services (DDS) denied her application initially and on reconsideration, and
Administrative Law Judge (ALJ) Myriam C. Fernandez Rice issued an unfavorable decision
finding Yanni not disabled. (Id. at 26–36, 115.) Yanni filed suit in this Court on May 19, 2023.
(Doc. 1.) The Court found “that the Commissioner ‘failed to apply the correct legal standard in
evaluating the opinion of Plaintiff’s treating physician, Dr. Thomas Whalen’ and remanded the
matter for the Commissioner to conduct that analysis.” (Doc. 43 at 2 (quoting AR at 1201).) See
also Yanni v. Colvin, No. CV 15-935 SCY, 2017 WL 3397382, at *1 (D.N.M. Mar. 21, 2017).
“While litigation was pending, Yanni filed subsequent Title II and Title XVI claims on
September 2, 2015, which were consolidated” with the original claims and remanded by the
Appeals Council to the ALJ. (Doc. 43 at 2 (citing AR at 1213).) The ALJ determined that Yanni
was disabled as of January 15, 2016. (See id. (citing AR at 1048–96, 1018–35).) Yanni appealed
to this Court, and the Court remanded on the basis that the ALJ “failed to ‘adequately explain why
he only gave partial weight to Dr. Whalen’s opinions’ contrary to” the first remand order. (See id.
(quoting AR 2239–61, 2264).) See also Yanni v. Saul, No. CV 18-1195 CG, 2019 WL 5595182,
at *2 (D.N.M. Oct. 30, 2019).
The ALJ denied Yanni’s application on remand, and Yanni appealed for a third time. (See
Doc. 43 at 4 (citing AR at 2159–87).) This time, the Commissioner voluntarily remanded. (See id.
(citing AR at 2840–45).) The ALJ issued another unfavorable decision, and Yanni appealed once
more. (AR at 2747–77; Doc. 1.) The Court concluded that the ALJ did not adequately review the
treating physician’s opinion as instructed by the Appeals Council, violating the Mandate Rule.
3 Document 14 contains the sealed Administrative Record. (Docs. 14-2–14-9.) The Court cites the Administrative
Record’s internal pagination, rather than the CM/ECF document number and page.
Case 1:23-cv-00435-DHU-DLM Document 48 Filed 01/23/26 Page 2 of 5

3
(See Docs. 43 at 9–22; 44.) Given the case’s history, the Court remanded for an immediate award
of benefits. (See Docs. 43 at 35; 44.) Yanni received $251,143.00 in past due benefits and receives
$1,754.00 in continued monthly benefits. (See Doc. 47 at 5.)
The Court previously granted attorney’s fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412, in the amount of $1,037.80. (See 1:20-cv-0915 LF, Doc. 24.) Yanni
did not request EAJA fees in this case. (See Doc. 47 at 2.)
The Court also granted attorney’s fees under the EAJA in the amount of $7,140.00 in
Yanni’s second appeal, but the entire award was subject to an offset under the Treasury Offset
Program, 31 U.S.C. § 3716(c)(3)(B), and counsel did not receive the fees. (See id. (citing Doc. 47-
8).)
Yanni now asks the Court to award her attorney’s firm, Armstrong Johnson Law, LLC, a
fee of $43,560.00, which is approximately 17.3% of Yanni’s total past-due benefits. (Id. at 5.)
Armstrong Johnson Law has represented Yanni since 2014. (See id. at 1.) Two attorneys from the
firm have worked on Yanni’s case: Laura Johnson and Katherine O’Neal. (See id. at 6.)
II. 	Legal Standard
Attorneys who litigate on behalf of “Social Security claimants may receive fee awards
under both the EAJA and 42 U.S.C. § 406.” See Ortega v. Kijakazi, No. CV 20-1245 GBW, 2023
WL 372878, at *2 (D.N.M. Jan. 24, 2023). An attorney who receives a fee award under both the
EAJA and § 406(b) “must refund the smaller award to the claimant.” Id. at *2 n.2 (citing Weakley
v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986)). Fees may be awarded by the Court under § 406(b)
on receipt of past-due benefits. Id. at *2 (citing McGraw v. Barnhart, 450 F.3d 493, 497 (10th Cir.
2006)). In awarding fees, the Court is guided “by two conditions: a 25 percent cap and a
reasonableness standard.” Id. Section 406(b)(1)(A) provides that fees may not exceed 25 percent
Case 1:23-cv-00435-DHU-DLM Document 48 Filed 01/23/26 Page 3 of 5

4
of the total past-due benefits awarded to a plaintiff following a favorable judgment. See id. “This
cap applies ‘only to fees for court representation, and not to the aggregate fees awarded under
§§ 406(a) and (b).’” Id. (quoting Culbertson v. Berryhill, 139 S. Ct. 517, 523 (2019)). The Court
is further directed to award “reasonable” fees. See id. (citing 42 U.S.C. § 406(b)(1)(A)). It is the
burden of the claimant’s attorney to show the requested fee is reasonable. Id. (citing Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002)).
To determine whether a requested fee award is reasonable, the Court examines “the
character of the representation and the results the representative achieved.” Id. (quoting Gisbrecht,
535 U.S. at 808). The Court may “consider factors such as (1) whether the representation was
substandard, (2) whether the attorney was responsible for any delay that caused benefits to accrue,
and (3) whether the benefits are large in comparison to the amount of time counsel spent on the
case.” Id. (citing Gisbrecht, 535 U.S. at 808; Gordon v. Astrue, 361 F. App’x 933, 935 (10th Cir.
2010)). With respect to the third factor, the Court guards against a windfall award by comparing
the requested fee to other awards in this district. See id. (citing Gisbrecht, 535 U.S. at 808).
III. 	Analysis
Yanni requests a fee of $43,560.00, which is approximately 17.3% of her total past-due
benefits and lower than the 25% cap permitted under § 406(b).4 (See Doc. 47 at 5.) The Court finds
the representation was adequate, as Yanni received a fully favorable decision. (See Doc. 44.) There
is no evidence that counsel delayed the proceedings. Yanni’s attorneys, who are experienced in
this area, spent 79.2 hours on this matter, which is reasonable given the number of appeals and
remands. (See id. at 4.) See also Martinez v. Colvin, No. 1:15-CV-806 LF, 2016 WL 9774938, at
*2 (D.N.M. Nov. 30, 2016) (gathering cases). Lastly, the time spent and fee award are both
4 Yanni received benefits of $90,788.68. (Doc. 54 at 4 (citing Doc. 54-B).) A 25% fee award would be $22,697.17.
Case 1:23-cv-00435-DHU-DLM Document 48 Filed 01/23/26 Page 4 of 5

5
reasonable and on par with others in this district. See Ortega, 2023 WL 372878, at *3–4 (awarding
the same attorneys, Johnson and O’Neal, $599 per hour and gathering cases in support).
Considering the foregoing, I find the fee request is reasonable and appropriate.
IT 	IS 	HEREBY 	RECOMMENDED 	that 	Yanni’s 	Unopposed 	Motion 	for 	Order
Authorizing Attorney Fees Pursuant to 42 U.S.C. § 406(b) be GRANTED and that the Court
authorize $43,560.00 in attorney fees for legal services rendered in this Court, to be paid by the
Social Security Administration out of Yanni’s past-due benefits in accordance with agency policy.
IT IS FURTHER RECOMMENDED that the Court direct counsel to refund to Yanni
the EAJA fee of $1,037.80 previously awarded by this Court in accordance with Gisbrecht, 535
U.S. at 796.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the 14-day period if that party wants
to have appellate review of the proposed findings and recommended disposition. If no
objections are filed, no appellate review will be allowed.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
Case 1:23-cv-00435-DHU-DLM Document 48 Filed 01/23/26 Page 5 of 5