Frierson-Simiyu v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHARON F-S., 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:21-CV-91-E-BW
§
COMMISSIONER OF THE SOCIAL 	§
SECURITY ADMINISTRATION, 	§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is a “Petition to Obtain Approval of a Fee for Representing a
Social Security Claimant” filed on September 22, 2025, by Plaintiff's counsel Ronald
D. Honig. (Dkt. No. 35.) Through his petition, Plaintiff’s counsel seeks an award of
attorney fees in the amount of $42,171.75, under 42 U.S.C. § 406(b). (See id.)
Counsel’s motion includes a Certificate of Conference representing that the
Commissioner neither supports nor opposes counsel’s request for attorney fees. (See
id. at 20.)
The case referral under 28 U.S.C. § 636(b) was reassigned to the undersigned
United States magistrate judge on September 23, 2025. (See Dkt. No. 37.) Having
considered the petition, the Commissioner’s non-opposition, and the applicable law,
the undersigned RECOMMENDS that the petition (Dkt. No. 35) be GRANTED.
I. BACKGROUND
This case has a long history. Plaintiff filed applications for a period of
disability, disability insurance benefits and Supplemental Security Income on April
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23, 2013. ((Transcript ("Tr.") 122-124, 133, 142-144, 154, 268-278), asserting that she
has been disabled since November 28, 2012. (Tr. 268.) After her claims were denied
by an Administrative Law Judge (“ALJ”) on April 17, 2015 (Tr. 58-77), this Court
issued judgment in favor of Plaintiff, reversed the Commissioner’s decision, and
remanded Plaintiff’s case for further administrative proceedings. (See Case No. 3:16-
cv-02847-D-BN; see also Tr. 1015-1016.)
Following remand by the Appeals Council (Tr. 1017-20), an ALJ issued an
unfavorable decision on October 2, 2018 (Tr. 1083-1108), after which the Appeals
Council remanded this matter for further proceedings on March 7, 2019 (Tr. 1109-
15.) 	A second unfavorable decision was issued on December 4, 2019 (Tr. 855-86),
and after the Appeals Council denied Plaintiff’s request for review on December 7,
2020 (Tr. 847-54), Plaintiff filed the instant action in this Court.
On June 15, 2022, the Court granted the Commissioner’s unopposed motion
to reverse and remand. (See Dkt. Nos. 27, 28.) On July 20, 2022, the Court granted
counsel’s request for attorney’s fees under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412,1 and ordered the Commissioner to pay an attorney fee in the
amount of $6,440.10. (Dkt. No. 34.) In addition, the Court had approved an EAJA
1 The purpose of the Equal Access to Justice Act is to help reimburse Plaintiffs for the
cost of pursuing appeals to the Federal Courts, when the position of the government was not
substantially justified at all levels of adjudication. Consequently, under EAJA, the lesser of
the attorney fee awarded under 42 U.S.C. § 406 (b) or the amount awarded under EAJA is
refunded to the Plaintiff.
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attorney fee of $5,630.75 in connection with Plaintiff’s prior case in this Court. (See
Case No. 3:16-cv-02847-D, Dkt. No. 27.) The total of the two awards is $12,070.85.
On September 11, 2023, an ALJ issued a fully favorable decision (“Decision”),
finding Plaintiff disabled since November 28, 2012. (Dkt. No. 35-1.) 	Thereafter,
Plaintiff received a Social Security Administration Notice of Award (“Notice”),
dated August 31, 2025. (Dkt. No. 35-2.) The Notice advised Plaintiff that she was
entitled to past-due benefits for the period from May 2013 through December 2023,
in the amount of $168,687.00. (See Dkt. No. 35-2 at ECF p. 2.) The Notice further
advised that $42,171.75 was withheld from Plaintiff’s past-due benefits to pay for
authorized attorney fees. (See id.)
In addition to copies of the Decision (Dkt. No. 35-1) and the Notice (Dkt. No.
35-2), counsel provided an itemization of services rendered in both the current case
and the previous case (Dkt. No. 35 at 12-17); an affidavit attesting to counsel’s
experience and qualifications (id. at 18-20); a copy of the contingency fee agreement
between counsel and Plaintiff (Dkt. No. 35-3); a copy of an October 1, 2012, article
from the Texas Lawyer entitled “The State of Rates” (Dkt. No. 35-4); and Bureau of
Labor Statistics, Consumer Price Index, October 2012 vs. August 2025 (Dkt. No. 35-
5).
II. LEGAL STANDARDS AND ANALYSIS
“Sections 406(a) and 406(b) of the Social Security Act provide for the
discretionary award of attorney’s fees out of the past-due benefits recovered by a
successful claimant in a Social Security action. Section 406(a) allows an attorney to
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receive fees ‘[f]or representation of a benefits claimant at the administrative level.’”
Murkledove v. Astrue, 635 F.3d 784, 787 (5th Cir. 2011) (quoting Gisbrecht v. Barnhart,
535 U.S. 789, 794 (2002)). Section 406(b), on the other hand, “governs the award
and collection of fees by attorneys for the representation of claimants in court.” Id.
at 788. Section 406(b)(1)(A) provides in pertinent part:
Whenever a court renders a judgment favorable to a claimant under this
subchapter who was represented before the court by an attorney, 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 of the past-due benefits
to which the claimant is entitled by reason of such judgment[.]
42 U.S.C. § 406(b)(1)(A). Section 406(b) authorizes an award of fees after the
attorney has obtained “a favorable decision on remand.” Jackson v. Astrue, 705 F.3d
527, 531 (5th Cir. 2013) (citations omitted).
Contingent-fee agreements are common in Social Security cases. See
Gisbrecht, 535 U.S. at 800 (observing that contingent-fee arrangements “are the most
common fee arrangement between attorneys and Social Security claimants”). But
judicial review acts as an “independent check” on any award of attorney’s fees under
§ 406(b), including contingent-fee agreements, to ensure that the award is reasonable
and in compliance with § 406. Id. at 807. The attorney seeking fees has the ultimate
burden to show that, “[w]ithin the 25 percent boundary . . . the fee sought is
reasonable for the services rendered.” Id. Although the Fifth Circuit has declined to
limit “consideration of what constitutes a windfall to some exhaustive list,” it has
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stated that such consideration “is not a simple reiteration of the lodestar method,”2
and has recognized several factors that courts have considered, including “risk of loss
in the representation, experience of the attorney, percentage of the past-due benefits
the fee constitutes, value of the case to a claimant, degree of difficulty, and whether
the client consents to the requested fee.” Jeter v. Astrue, 622 F.3d 371, 382 (5th Cir.
2010) (citation omitted).
Counsel seeks court approval for a fee payment of $42,171.75, which is the
amount being withheld from Plaintiff’s disability-insurance benefits. As reflected in
the itemization of services rendered, counsel expended 29.40 hours on the current
case and 28.70 hours in the previous case, for a total of 58.10 hours on this case in
this Court. (See Dkt. No. 35 at 12-17.) Counsel attests that while he does not
normally charge fees on an hourly basis, the standard hourly rate which would be
charged in such circumstances is $375.00 per hour. (See Dkt. No. 35 at 6.) Counsel
represents that this rate is consistent with the median hourly rate of $388.00 per hour
charged by law firms in the Texas region in the year 2012. (See Dkt. No. 35-4 at 4.)
Applying the consumer price index (“CPI”), counsel represents that $375.00 in
October 2012 is equivalent to $525.21, in August 2025. (See Dkt. No. 35 at 7; Dkt.
No. 35-4.) 	Counsel acknowledges that the de facto hourly rate for the requested fee
would be approximately $725.85, which is 1.93 times the CPI-adjusted rate. (See id.
2 “The lodestar is the product of the hours reasonably spent on the matter and an
appropriate hourly rate for such work.” Colhouer v. Nationwide Mut. Ins. Co., No. 3:24-CV-
2869-K, 2025 WL 1838935, at *2 (N.D. Tex. July 3, 2025) (internal quotation marks and
citation omitted).
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at 9.) But counsel contends that this de facto rate and requested fee amount is not
unreasonable, given counsel’s 49 years of experience in the practice of social security
law and the inherent risks associated with contingency agreements. (See id.) Counsel
also contends that the award requested is reasonable and consistent with awards
granted in this and other courts.
The undersigned finds that the relevant factors articulated in Jeter favor
approving counsel’s petition. See Jeter, 622 F.3d at 382. 	First, courts have
consistently recognized that there is a substantial risk of loss in civil actions for Social
Security benefits. See Cullar v. Saul, No. 7:19-CV-27-O-BP, 2021 WL 295842, at *2
(N.D. Tex. Jan. 8, 2021) (“[T]he Fifth Circuit and district courts in this circuit have
acknowledged the high risk of loss inherent in Social Security appeals and the fact
that a particular claimant’s attorney often is not compensated at all for Social
Security work in federal court.”) (quoting Hartz v. Astrue, No. 08-4566, 2012 WL
4471846, at *6 (E.D. La. Sept. 12, 2012)), adopted, 2021 WL 289270 (N.D. Tex. Jan.
28, 2021). Counsel in this case faced such a risk because Plaintiff had lost at all
levels of the administrative proceedings and pursued two appeals in this Court before
being awarded benefits.
Additionally, counsel’s fee agreement with Plaintiff provides that counsel
receive 25 percent of any past-due benefits awarded to Plaintiff. (See Dkt. No. 35-4
at 1.) There is no suggestion that any fraud or overreaching occurred in this matter,
as Plaintiff signed the fee agreement and counsel acted promptly in litigating the case
and achieving a significant victory for his client. See Gisbrecht, 535 U.S. at 807-08
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(noting that the reviewing court should consider whether the attorney was
responsible for any delay and the size of the award achieved in relation to the time
invested); Jeter, 622 F.3d at 382 (stating that courts may consider the fact that the
client consented to the fee arrangement in assessing whether the fee is reasonable).
Further, counsel brought to bear extensive experience in Social Security
disability law. (See Dkt. No. 35 at 18-20.) See Jeter, 622 F.3d at 382 (noting that
courts will consider attorney experience and skill in determining the reasonableness
of the fee). Counsel provided effective and efficient representation in this case,
preparing a 21-page brief in the present case (Dkt. No. 20), and in the previous case
(see 3:16-cv-02847-D-BN) preparing a 19-page motion for summary judgment (Dkt.
No. 14), as well as a reply brief (Dkt. No. 17). See Jeter, 622 F.3d at 382 (noting that
courts may consider the degree of difficulty of the case in assessing the fee’s
reasonableness).
Finally, counsel's de facto hourly rate is well within the range of that
previously approved in other Social Security cases. See, e.g., Eric B. v. Comm’r of Soc.
Sec., No. 3:17-CV-83-G-BK, 2019 WL 7546622, at *2 (N.D. Tex. Dec. 18, 2019)
(finding effective hourly rate of $937.50 reasonable), adopted, 2020 WL 109856 (N.D.
Tex. Jan. 8, 2020); Richardson v. Colvin, No. 4:15-CV-879-BL, 2018 WL 1324951, *2
(N.D. Tex. Mar. 13, 2018) (same); Sabourin v. Colvin, No. 3:11-CV-2109-M, 2014
WL 3949506, at *1-2 (N.D. Tex. Aug. 12, 2014) (approving de facto hourly rate of
$1,245.55). Moreover, the risk involved in litigating a contingency case of this
nature should not be overlooked. See Jeter, 622 F.3d at 379-80 (holding that courts
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can consider the lodestar calculation as one measure in determining whether the
contingency fee is reasonable and not a windfall).
Upon consideration of all the relevant factors, the Court concludes that
counsel’s hours expended and effective hourly rate of $725.85 are reasonable.
III. RECOMMENDATION
For the foregoing reasons, the District Judge should GRANT counsel’s
“Petition to Obtain Approval of a Fee for Representing a Social Security Claimant”
(Dkt. No. 35) and award Ronald D. Honig $42,171.75, in attorney's fees to be
certified for payment out of Plaintiff's past-due benefits under 42 U.S.C. § 406(b).
The District Judge should further order counsel to promptly return to Plaintiff
the two EAJA awards totaling $12,070.85 ($6,440.10 in the present case and
$6,356.20 in the previous case).
SO RECOMMENDED on December 4, 2025.
__________________________
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
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NOTICE OF RIGHT TO OBJECT
A copy of these findings, conclusions, and recommendation will be served on
all parties in the manner provided by law. Any party who objects to any part of this
report and recommendation must file specific written objections within 14 days of
being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be
specific, an objection must identify the finding or recommendation to which
objection is made, state the basis for the objection, and indicate the place in the
magistrate judge’s report and recommendation where the disputed determination is
found. An objection that merely incorporates by reference or refers to the briefing
before the magistrate judge is not specific. Failure to file specific written objections
will bar the aggrieved party from appealing the factual findings and legal conclusions
of the magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
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