Simmons v. O'Malley

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WILLIAM S.,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:24-CV-00116
MARTIN J O'MALLEY,
Defendant.
MEMORANDUM & RECOMMENDATION
Attorney David B. Goetz seeks a fee under 42 U.S.C. § 406(b) for successfully
representing Social Security claimant William S. (D.E. 39). The Commissioner of
Social Security (“Commissioner”) responded to Goetz’ motion, but did not assert a
position on the reasonableness of the request. (D.E. 40).
In August 2025, the District Court reversed the Commissioner’s denial of
Disability Insurance benefits (“disability benefits”) and remanded for further
proceedings. (D.E. 31). In September 2025, the Court awarded Goetz attorney’s fees
under the Equal Access to Justice Act (“EAJA”) in the amount of $10,000. (D.E. 35).
On remand, the Administrative Law Judge concluded that William S. had been under a
disability since June 24, 2022, and the Commissioner notified William S. that he was due
back disability benefits. (D.E. 39-2 at 2). The Commissioner withheld $21,414.48 as a
possible representative’s fee. (Id. at 3-4).
United States District Court
Southern District of Texas
ENTERED
June 29, 2026
Nathan Ochsner, Clerk
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In the present motion, Goetz seeks an award of $21,414.48, which is equal to 25%
of William S.’s total award of past-due disability benefits. (D.E. 39 at 2). For the reasons
discussed below, it is recommended that Goetz’ motion (D.E. 39) be GRANTED.
I. RELEVANT LAW
When a court renders a judgment in favor of a Social Security claimant who was
represented by an attorney, the court may allow a reasonable attorney’s fee, not to exceed
25 percent of the total of past-due benefits to which the claimant is entitled. 42 U.S.C. §
406(b)(1).
Section 406(b) does not displace contingency-fee arrangements as the primary
means for determining the appropriate attorney’s fees for a successful Social Security
claimant. Gisbrecht v. Barnhart, 535 U.S. 789, 791 (2002). However, a court must
independently review each contingent-fee arrangement to ensure that it is reasonable in a
particular case. Id. at 807. The 25 percent limit defined in the statute is a ceiling for fees
and is not always reasonable. Id. A court may lower the fee award depending on the time
and effort that the attorney expended. Id. at 808. The attorney bears the burden of
showing that a fee is reasonable. Id. at 807 n.7. Here, Goetz and his client had a
contingency-fee agreement entitling Honig to 25% of past-due benefits. (D.E. 39-1).
In determining whether a fee award should be lowered, the question is whether the
fee award would be so large relative to the time that counsel spent on the case that
counsel would receive a windfall. Jeter v. Astrue, 622 F.3d 371, 379 (5th Cir. 2010).
Accordingly, although the lodestar method does not control the analysis of a proper fee
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award under § 406(b), it is appropriate to consider an effective hourly fee rate “so long as
this mathematical calculation is accompanied by consideration of whether an attorney's
success is attributable to his own work or instead to some unearned advantage for which
it would not be reasonable to compensate him.” Id. at 380. This is not merely a question
of time spent working on the case, but rather whether the success of the case can be
attributed to the attorney’s work. Id. at 380-81. The Fifth Circuit has not provided an
exhaustive list of factors to consider, but has noted that some factors include “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.” Id. at 381-82.
If an attorney receives fee awards under both the EAJA and § 406(b), he must
refund the lesser award to the client. McGraw v. Barnhart, 450 F.3d 493, 497 n.2 (10th
Cir. 2006).
II. ANALYSIS
Here, an award of $21,414.48 is reasonable under the circumstances of this case.
That sum equals 25% of William S.’s past-due disability benefits. (D.E. 39-2 at 4).
Accordingly, while not determinative of reasonableness, the fee request does not exceed
the maximum allowable under § 406(b). See Gisbrecht, 535 U.S. at 807.
Under the relevant factors identified by the Fifth Circuit, first, courts have
recognized that there is a substantial risk of loss in social security appeals. See, e.g.,
Charlton v. Astrue, No. 3:10–CV–0056–O–BH, 2011 WL 6325905, at *4 (N.D. Tex.Nov
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22, 2011), rec. adopted, 2011 WL 6288029 (N.D. Tex. Dec.14, 2011). Counsel faced a
significant risk of loss as William S.’s initially lost at the administrative level and the
Commissioner continued to oppose an award of benefits in this case. (See D.E. 26).
Second, because counsel seeks fees for working 39.3 hours on the case and the fee
award sought is $24,414.48, the resulting hourly rate is $544.90. (D.E. 39-3). Both in
absolute terms and as a percentage of his normal rate, this falls below fee awards other
courts have found to be reasonable. See Baker v. Colvin, No. 3:11-CV-3497-M-BH, 2014
WL 6769080 at *3 (N.D. Tex. Dec. 1, 2014) (collecting cases). Given counsel’s
extensive experience in social security law and the lack of success at the administrative
level before he was hired, the success on appeal is reasonably attributable to his work.
(See D.E. 39 at 4-6). The fee also reflects the favorable result obtained. Further, while the
fee represents the maximum of 25% of the past-due benefits, William S. agreed to the
contingent-fee agreement, which is an indication that he consented to payment of this fee.
See Jeter, 622 F.3d at 381-82; (D.E. 39-1).
Accordingly, after consideration of the relevant factors, the undersigned believes
that the requested fee of $21,414.48 is reasonable.
III. RECOMMENDATION
Accordingly, it is recommended that Goetz’ motion (D.E. 39) be GRANTED and
that the Court find that he is entitled to a fee award of $21,414.48. Further, Goetz must
refund to his client the $10,000.00 award he previously received under the EAJA because
it is the lesser of the two awards.
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Respectfully submitted on June 29, 2026.
____________________________
Julie K. Hampton
United States Magistrate Judge
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996)(en banc).
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