Debra Tucker v. Commissioner of Social Security

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0119p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBRA TUCKER,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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No. 24-5873
Appeal from the United States District Court for the Eastern District of Kentucky at London.
No. 6:22-cv-00212—Danny C. Reeves, District Judge.
Decided and Filed: May 7, 2025
Before: CLAY, READLER, and DAVIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Bryan Konoski, KONOSKI & PARTNERS, P.C., New York, New York, for
Appellant. Frank D. Tankard, SOCIAL SECURITY ADMINISTRATION, Baltimore,
Maryland, Charles P. Wisdom, Jr., Cheryl Morgan, UNITED STATES ATTORNEY’S OFFICE,
Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
DAVIS, Circuit Judge. Debra Tucker is a prevailing social security claimant whose
attorney appeals the district court’s order awarding reduced attorney’s fees under 42 U.S.C.
§ 406(b). Tucker’s counsel1 argues that the full requested amount of $31,205.43, which would
honor Counsel’s twenty-five percent contingency fee agreement with Tucker, was reasonable for
1While Tucker is the nominal appellant, her counsel is the true party in interest.
>

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the services provided. Because the district court acted within its discretion in decreasing the fee,
we AFFIRM.
I.
In 2018, Tucker applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401–434. After multiple denials at the administrative level, she
appealed in federal district court. In 2023, the district court reversed the final administrative
decision of the Commissioner of Social Security (“Commissioner”) denying Tucker disability
benefits and remanded Tucker’s claim for further administrative proceedings after granting the
Commissioner’s unopposed motion for remand. Following its decision to remand, the district
court awarded Tucker’s attorney $7,500 in attorney’s fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, along with $402 in costs. This award provided Counsel initial
compensation for her 34.8 hours of work on Tucker’s case in the district court, pending a final
decision or award. Counsel had a contingency-fee agreement with Tucker for twenty-five
percent of any past-due benefits awarded. In August 2024, an administrative law judge found
Tucker disabled in a fully favorable decision and granted her monthly disability benefits
retroactive to February 2018. Tucker’s past-due benefits totaled $124,821.70.
In September 2024, Counsel moved for the court to award her $31,205.43 in attorney’s
fees—twenty-five percent of $124,821.70—under 42 U.S.C. § 406(b), less the initial $7,500
EAJA fee award. A twenty-five-percent contingency fee is the maximum percentage allowed
under § 406(b). See 42 U.S.C. § 406(b)(1)(a). The Commissioner neither supported nor opposed
the motion but noted that courts in the Eastern District of Kentucky have generally found fees
reflecting an effective hourly rate of $500 to $700 to be reasonable. The district court granted
Counsel’s motion in part and denied it in part, awarding her a gross total payment of $17,400 in
attorney’s fees, less the EAJA award. The district court concluded that $31,205.43 was
excessive and would amount to a windfall to Counsel. The $17,400 awarded reflected an
imputed hourly rate of $500 per hour. In a motion for reconsideration, Counsel reduced her fee
request to $22,620, reflecting an imputed hourly rate of $650 per hour. The district court denied
the motion for reconsideration. Counsel timely appealed. On appeal, Counsel renews her
request for the full $31,205.43 in fees.

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II.
We review the denial of a motion for attorney’s fees under § 406(b) of the Social Security
Act for abuse of discretion. See Hayes v. Comm’r of Soc. Sec., 895 F.3d 449, 452 (6th Cir.
2018). A district court’s ruling on a § 406(b) motion qualifies for a “highly respectful review.”
Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). “A district court abuses its discretion when it
relies on clearly erroneous findings of fact, when it improperly applies the law, or uses an
erroneous legal standard.” Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 497 (6th Cir. 2014)
(citation omitted).
III.
Counsel argues that the district court misapplied the law by focusing too much on the
effective hourly rate under the lodestar approach, rather than giving the contingency-fee
agreement primacy. She also argues that the district court failed to properly set the standard rate,
a prerequisite to determining whether Counsel’s request was per se reasonable. And finally, she
says the district court provided insufficient reasoning for finding the requested award
unreasonable, especially considering her skill and expertise, the case’s complexity, and the
“excellent” result she achieved. (ECF 15, Appellant Br., 43). While the Commissioner takes no
position on the reasonableness of Counsel’s request, he discusses the relevant legal standards in a
trustee-like role for the claimant’s interests.
Section 406(b) provides that courts may award counsel who represent social security
claimants in court “a reasonable fee for such representation, not in excess of 25 percent of the
total of the [claimant’s] past-due benefits.” 42 U.S.C. § 406(b)(1)(A). The statute’s allowance
of “a reasonable fee” includes contingency fees but requires “court review of such arrangements
as an independent check, to assure that they yield reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807. As part of their review, courts must “look[] first to the contingent-
fee agreement, then test[] it for reasonableness.” Id. at 808.
Since the Supreme Court’s decision in Gisbrecht, we have had little occasion to consider
contingency-fee agreements for § 406(b) fee awards. In cases where the issue has been raised,
we have continued to adhere to our precedent, cited favorably in Gisbrecht, 535 U.S. at 808,

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holding that contingency-fee agreements within the twenty-five-percent cap are “not to be
viewed as per se reasonable.” Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989) (en banc);
see also Lasley v. Comm’r of Soc. Sec., 771 F.3d 308, 309 (6th Cir. 2014). Instead, we afford
contingency-fee agreements within the twenty-five-percent cap “the weight ordinarily accorded a
rebuttable presumption.” Rodriquez, 865 F.2d at 746; see also Lasley, 771 F.3d at 309
(upholding Rodriquez’s rebuttable presumption in a post-Gisbrecht decision). Under this
rebuttable presumption, the contingency-fee agreement is the “starting point for the court’s
analysis” and courts must “give [such agreements] close attention” and “due deference.”
Rodriquez, 865 F.2d at 746; see also Gisbrecht, 535 U.S. at 808. Nevertheless, “a court is not
bound to award recovery according to the stated agreement.” Rodriquez, 865 F.2d at 746. If
“the court chooses not to give effect to the terms of the agreement, it should state for the record
the deductions being made and the reasons” for those deductions. Id. And “[d]eductions
generally should fall into two categories: 1) those occasioned by improper conduct or
ineffectiveness of counsel; and 2) situations in which counsel would otherwise enjoy a windfall
because of either an inordinately large benefit award or from minimal effort expended.” Id.
The Supreme Court has “expressly authorized district courts to consider the attorney’s
hours and standard rates in reviewing the reasonableness of contingency fees.” Lasley, 771 F.3d
at 309 (citing Gisbrecht, 535 U.S. at 808). If a twenty-five-percent contingency fee yields a
disproportionately high effective hourly rate, then this hypothetical hourly rate can be one
consideration in reducing the fee award. See Royzer v. Sec’y of Health & Hum. Servs., 900 F.2d
981, 982 (6th Cir. 1990). But a high effective hourly rate cannot on its own justify reducing a fee
award—district courts must provide additional reasoning. See Hayes v. Sec’y of Health & Hum.
Servs., 923 F.2d 418, 421 (6th Cir. 1990). After all, attorneys who work on a contingent-fee
basis “will not prevail every time. . . . Contingent fees generally overcompensate in some cases
and undercompensate in others.” Royzer, 900 F.2d at 982. Thus, a district court should not limit
attorney’s fees to “whatever flat hourly rate [it] deems reasonable.” Hayes, 923 F.2d at 421.
That said, it is not “improper for a district judge to reduce a contingent fee to an hourly rate and
view the computed hourly rate as part of the calculus in arriving at an appropriate fee.” Royzer,
900 F.2d at 982. This approach recognizes that “Congress has put the responsibility on the

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federal judiciary to make sure that fees charged are reasonable and do not unduly erode the
claimant’s benefits.” Id.
Even though district courts may consider the effective hourly rate in weighing
reasonableness, we have set a “floor” for this analysis. Hayes, 923 F.2d at 422. If a “calculated
hourly rate” (i.e., effective rate) is “less than twice the standard rate for such work in the relevant
market,” then it is “per se reasonable” and “a district court has no basis for questioning” it. Id.;
see also Lasley, 771 F.3d at 309 (upholding the Hayes “floor” in a post-Gisbrecht decision). But
if a calculated hourly rate is equal to or more than “twice the standard rate,” “then the court may
consider arguments designed to rebut the presumed reasonableness of the attorney’s fee.”
Hayes, 923 F.2d at 422. Still, the higher fee “may well be reasonable.” Id.
IV.
A. Order of the Reasonableness Analysis
Counsel first argues that the district court’s “primary focus” was on the effective hourly
rate under the lodestar method, contravening Gisbrecht’s instruction to look first to the
contingency agreement, then test it for reasonableness. (ECF 15, Appellant Br., 31). We
disagree.
The district court started with the contingency fee agreement just as Gisbrecht requires.
The district court first noted that Counsel sought “25% of the past due award . . . pursuant to the
plaintiff’s fee contract with her attorney.” (R. 29, Order, PageID 1310–11). It also properly
recognized that “[s]ection 406(b) ‘does not displace contingent fee agreements,’” rather it allows
for “a reasonable fee of up to 25 percent of past due benefits,” subject to the court’s review for
reasonableness. (Id. at PageID 1311) (quoting Gisbrecht, 535 U.S. at 807). This type of
acknowledgment meets Gisbrecht’s command to look first to the claimant’s fee agreement with
counsel. See Lasley, 771 F.3d at 310. The district court then calculated that the $31,205.43
requested award, divided by the 34.8 hours Counsel worked, equated to an effective hourly rate
of $896.71, which it found excessive relative to the statutory rate in the EAJA as well as
Counsel’s ordinary rate. It then considered other factors, like the complexity of the case,
counsel-induced delay, and the fact that the remand stemmed from the Commissioner’s

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unopposed motion for remand, in finding that the requested fee award would constitute a
windfall.
Neither Gisbrecht nor our own decisions restrict district courts from treating the effective
hourly rate as a primary focus. Rather, they cannot solely rely on the difference between the
effective hourly rate and the standard rate to find that an award is unreasonable. Hayes, 923 F.2d
at 421. And the district court did not so restrict its analysis here. Instead, it looked first to the
contingency-fee agreement and then tested it for reasonableness, considering both the effective
hourly rate and other permissible factors.
B. Standard Rate Analysis under Hayes
Next, Counsel asserts that the district court’s assessment of her effective hourly rate was
faulty because the court failed to set a proper standard rate under Hayes, 923 F.2d 418. Instead,
says Counsel, the district court incorrectly relied on the 1997 EAJA rate2 and Counsel’s ordinary
personal rate. In Hayes we described the appropriate comparator rate as “the standard rate for
such work in the relevant market,” id. at 422, and “the standard rate of fees for attorneys within
[a] geographical area . . . for work in a case of this kind,” id. at 421 (quoting McGuire v. Bowen,
900 F.2d 984, 985 (6th Cir. 1990) (per curiam)).
Here, the district court made two points of comparison. It first compared the effective
rate to the statutory or EAJA rate of $125 per hour. Then it weighed the effective rate against
Counsel’s ordinary rate of $236.25 per hour, noting that Counsel’s requested fee was more than
seven times the former and nearly quadruple the latter. Counsel complains, however, that neither
comparator is the standard rate. And Hayes does not detail the meaning of “standard rate”
beyond the language quoted above. According to Counsel, this has led to various approaches:
most Eastern District of Kentucky (“EDKY”) courts use the 1997 EAJA rate as the standard
rate, while courts in some other districts look to the attorney’s ordinary rate, and still others look
to the prevailing market rate. Compare, e.g., Smith v. Comm’r of Soc. Sec., No. 19-cv-00458,
2The EAJA was amended in 1996 to increase the maximum statutory rate for attorney’s fees awarded under
the Act from $75 to $125 per hour, applicable to civil actions and adversary adjudications commenced on or
after enactment on March 29, 1996. See Contract with America Advancement Act of 1996, Pub. L. No. 104-121,
§§ 231–233, 110 Stat. 847, 862–63. Thus, 1997 was the first full year to which the amendment applied.

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2022 WL 313754, at *3 (E.D. Ky. Feb. 2, 2022) (collecting in-district cases relying on the 1997
EAJA rate and stating that: “Courts in this District regularly look to the EAJA $125/hour cap, as
routinely applied in this District, as the local standard for § 406 fees.”), and Barnett v. Saul, No.
19-cv-00035, 2021 WL 684117, at *4 (E.D. Ky. Feb. 22, 2021) (“[T]his Court regularly
calculates the standard rate for attorney’s fees by relying on the statutory rate provided in the
EAJA of $125.00 per hour.”), with Hunt v. Colvin, No. 11-236, 2016 WL 3574398, at *2 (E.D.
Ky. June 27, 2016) (relying on Counsel’s evidence that $200 is “the hourly rate for an attorney in
the Cincinnati area with comparable experience”).
Counsel implores us to specify that Hayes’s reference to the “standard rate” means the
then “prevailing market rate for private attorneys in the relevant market.” (ECF 15, Appellant
Br., 50). Counsel argues that, at the very least, the “standard rate” cannot mean the EAJA rate
set in 1997, because that rate fails to account for nearly thirty years of inflation and undermines
Congress’s intent to ensure good representation, among other policy concerns. But to be clear,
while we established a floor beneath which a fee is deemed per se reasonable in Hayes, we did
not restrict calculations of the standard rate to any single methodology.
The district court did not explicitly set a standard rate, but when it compared Counsel’s
effective hourly rate to the 1997 EAJA rate, it cited Hayes, “noting that a hypothetical hourly
rate greater than twice the standard rate is only accorded a rebuttable presumption of
reasonableness.” (R. 29, Order, PageID 1312). The common meaning of standard rate
according to the Merriam-Webster Dictionary is “a basic or minimum rate established for
similar work or occupation within a plant, industry, or community by collective agreement
or . . . by law.” Standard Rate, Merriam-Webster, https://www.merriam-
webster.com/dictionary/standard%20rate (last visited Apr. 29, 2025). While we need not adopt
the dictionary definition of standard rate, it provides useful context. From this perspective,
looking to the statutory fee as one consideration in a standard rate analysis is not completely
without reason. What’s more, the district court acknowledged that the EAJA rate “may be below
the prevailing market rate.” (R. 29, Order, PageID 1311). So it also considered that the effective
hourly rate “nearly quadruples [Counsel’s] ordinary rate of $236.25 per hour.” (Id. at PageID
1312) (citing R. 26-4, Time Sheet). Courts may look to an attorney’s ordinary rate as part of

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their analysis of the reasonableness of the fee yielded by a fee agreement. See Gisbrecht,
535 U.S. at 808. After considering both points of comparison and the additional factors
discussed, the district court concluded that an “imputed hourly rate of $500” adequately reflected
the work done without resulting in a windfall. (R. 29, Order, PageID 1312). We see no
misapplication of the law in this approach.
Counsel concedes that the district court’s approach—relying on the 1997 EAJA rate as an
implicit measure of the standard rate—is consistent with most EDKY courts. She counters that
this approach is wrong and points out that other district courts, and at least one recent EDKY
case, have interpreted the standard rate to mean the prevailing market rate. Yet even accepting
Counsel’s proposition that standard rate strictly means prevailing market rate, she offers no
evidence to establish what the prevailing market rate is. And she faults the district court for
relying on the hourly rate that she provided in her time sheet along with her motion. According
to Counsel, the district court mistakenly concluded that the rate she submitted on the time sheet
was her ordinary personal rate and then erroneously relied on it. On appeal, Counsel clarifies
that the $236.25 hourly rate is not her ordinary personal rate; it is her calculation of the 1997
EAJA rate adjusted for inflation, which she used to support her claim for EAJA fees. Counsel
contends that her ordinary personal rate is much closer to $650 to $750 per hour on the private
market, given her unique expertise and experience.
These arguments are unavailing. Counsel cited the time sheet in her motion below as
evidence that her contingency fee was reasonable. And the time sheet listed her hourly rate as
$235.00 to $236.25. Based on these facts, the district court reasonably concluded that the time
sheet was relevant evidence of Counsel’s ordinary rate for social security cases. See Gisbrecht,
535 U.S. at 808 (“[T]he court may require [Counsel] to submit . . . as an aid to the court’s
assessment of the reasonableness of the fee yielded by the fee agreement, a record of the hours
spent representing the claimant and a statement of the lawyer’s normal hourly billing charge for
noncontingent-fee cases.”) (citing Rodriquez, 865 F.2d at 741). As for Counsel’s ordinary rate
on the private market, that rate does not establish the standard rate in the EDKY for work in a
case of this kind, as she herself recognizes.

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Counsel posits that the standard rate in the EDKY should be $350 per hour or between
“$200 to $500 per hour” based on other EDKY caselaw. (ECF 15, Appellant Br., 60, 62). She
asserts that an effective hourly rate of “$650-$750 per hour” or up to $1,000 per hour is twice the
true standard rate and is “per se reasonable today in the [EDKY].” (Id. at 65). She cites one
EDKY case that applied a higher standard rate in a § 406(b) fee award. See Lockridge v. Astrue,
No. 04-499, 2009 WL 127668, at *2 (E.D. Ky. Jan. 16, 2009) (applying a standard rate of $350
per hour).
But Lockridge does not help her. In that case, the prevailing claimant’s counsel
“submitted documentation to the Court regarding hourly rates in the downtown Cincinnati, Ohio
area and nationwide for attorneys with similar experience” and provided evidence of his specific
experience to justify that rate. Id. Given this evidentiary basis, the district court concluded that
an effective hourly rate of “$702.13” under the contingency agreement, when compared to “a
standard hourly rate of about $350.00 per hour,” was “reasonable” under Hayes.3 Id. Unlike the
counsel in Lockridge, Counsel here provided no evidence on attorney-fee rates in the EDKY for
work in a case of this kind, beyond a general description of her experience. Thus, Counsel has
not “show[n] that the fee sought is reasonable for the services rendered.” Gisbrecht, 535 U.S. at
807.
Given that Counsel did not present evidence establishing what the standard rate for the
EDKY for work of this kind is, the district court reasonably considered both the $125 EAJA rate
and the $236.25 rate that Counsel provided when it analyzed the standard rate. It then
considered that, even taking the higher of those two numbers, Counsel’s effective hourly rate of
$896.71 was well above the per se reasonable threshold of double $236.25 (i.e., $472.50). In
fact, the effective hourly rate nearly quadrupled Counsel’s time-sheet rate of $236.25. The
district court’s analysis appropriately went beyond mere reliance on the 1997 EAJA rate. And it
3Counsel also cites an EAJA fee award case from the EDKY, which considered an adjustment to the $125
statutory cap. See Neace v. Kijakazi, No. 20-CV-116, 2024 WL 2045701, at *2 (E.D. Ky. May 8, 2024) (relying on
counsel’s evidence that the prevailing market rate for social security cases was “approximately $200 to $500 per
hour” (citation omitted)). But an EAJA fee adjustment applies a different analysis than the standard rate analysis
under Hayes and so it is not directly applicable here. Further, the counsel in Neace provided evidence of the
prevailing market rate—affidavits from three attorneys in the practice area—which is the kind of evidence Counsel
lacks here. See id.

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did not abuse its discretion in reducing Counsel’s fee request to an amount it deemed reasonable
under the circumstances.
C. Other Factors
Finally, Counsel argues that the district court did not meaningfully explain its reasoning,
outside the effective hourly rate, for finding that the full award would be a windfall. Counsel
asserts that the award she requested was reasonable based on her level of expertise, the
complexity of the case, the risk she undertook, and the excellent result she achieved.
Along with the effective hourly rate, the district court considered factors like “the
difficulty of the case, the results achieved, [and] whether the attorney was responsible for any
delay.” (R. 29, Order, PageID 1312) (citation omitted). It acknowledged “attorney Treyvus’
skill, her firm’s expertise in handling Social Security matters, and the degree of risk inherent in
taking such cases” but balanced those considerations with its assessment that the case “was not
particularly complex as the plaintiff’s brief was limited to two relatively straightforward issues.”
(Id.). The district court also noted that the Commissioner filed an unopposed motion to remand
and Counsel obtained a thirty-day extension to file the brief, because she was “unable to
complete [Tucker’s] brief in a timely manner.” (Id.) (alteration in original) (citation omitted). It
concluded that “[a]n imputed hourly rate of $500 adequately reflects the difficulty of the work
performed, the competency with which it was performed, and the level of success achieved, but
does not result in windfall to counsel.” (Id.).
Counsel’s disagreement with the district court’s assessment is not grounds for reversal.
Here, Counsel’s 34.8 hours fell within the range we have considered “average” in social security
cases. Rodriquez, 865 F.2d at 747 n.4. “[T]he district court considered the relevant factors that
the Supreme Court outlined in Gisbrecht: the difficulty of the case, the character of the
representation, [any] delay on counsel’s part, and the results that counsel achieved.” Steigerwald
v. Comm’r of Soc. Sec., 48 F.4th 632, 643 (6th Cir. 2022). It acknowledged Counsel’s skill and
expertise but reasonably concluded that the case did not reach a level of complexity or effort that
merited the maximum award. Extending the district court the “highly respectful review” it is
due, we find that it acted within its discretion. Gisbrecht, 535 U.S. at 808.

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V.
We AFFIRM.

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