Case Name in Social Security Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
E.W.,1
Plaintiff,
v. 	Case No. 24-2082-JWB
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s motion for an award of attorney fees in the
amount of $18,698.50 under 42 U.S.C. § 406(b), and memorandum in support. (Docs. 19, 20.)
The Commissioner of Social Security (“the Commissioner”) takes no position on the request, but
only asks that the fees Roger Driskill received under the Equal Access to Justice Act (the “EAJA”)
be returned to E.W. (Doc. 21.) The motion is GRANTED for the reasons stated herein.
I. 	Procedural History
On March 8, 2024, Plaintiff filed this action appealing the decision of the administrative
law judge. 	(Doc. 1.) 	On July 10, 2024, this court reversed and remanded the Commissioner’s
decision in response to an unopposed motion filed by the Commissioner. 	(Doc. 12.) 	Plaintiff
moved for attorney’s fees under the EAJA, 28 U.S.C. § 2412(d). (Doc. 14.) The court granted the
motion and awarded fees in the amount of $7,200.00. (Doc. 16.)
After remand, the ALJ issued a partially favorable decision on November 10, 2025. (Doc.
19-2.) 	Plaintiff was thereafter awarded $74,794.00 in back due benefits. 	(Id.) 	Upon retaining
1 Plaintiff’s initials are used to protect privacy interests.
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counsel for this matter, Plaintiff signed a contingency fee contract in which he agreed that the
attorney fees would be one-fourth (25%) of all back due benefits. (Doc. 19-1.) In response to the
present motion, the Commissioner does not take a position, but he does note that this court
previously granted Roger Driskill’s motion for attorney fees under the EAJA and asks that these
be returned to E.W. if the present motion is granted. (Doc. 21.)
II. 	Analysis
Pursuant to 42 U.S.C. § 406(b), “[w]henever 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 . . .” In social security cases, EAJA fees are separate from fees awarded under §
406(b). 	Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 934 (10th Cir. 2008). 	Attorneys cannot
keep both fee awards, but instead must refund the lesser of the EAJA or § 406(b) fees to Plaintiff.
Id. 	As a result, the EAJA fees “effectively increase [ ] the portion of past-due benefits the
successful Social Security claimant may pocket.” Id. (citation omitted). “Thus, an EAJA award
offsets an award under Section 406(b), so that the [amount of the total past-due benefits the
claimant actually receives] will be increased by the . . . EAJA award up to the point the claimant
receives 100 percent of the past-due benefits.” Id.
Although an attorney may contract for 25% of past due benefits, the court must ensure that
it yields a reasonable result. Bryant v. Colvin, No. 12-4059-SAC, 2014 WL 7359023, at *1 (D.
Kan. Dec. 23, 2014) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002)). Plaintiff’s counsel
seeks attorney’s fees of $18,698.50. 	(Doc. 19 at 3.) 	Counsel indicates that 36.1 hours were
expended on this matter, which yields a de facto hourly rate of $517.96. (Doc. 19-3.) Counsel has
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itemized the hours spent on court representation. (Id.) The Commissioner does not object to the
fee request. (Doc. 21.) The court finds that the fee request in this matter is reasonable. See J.M.V.
v. Saul, No. 18-1202-JWB, 2020 WL 7230233, at *2 (D. Kan. Dec. 8, 2020) (citing Bryant, 2014
WL 7359023 at *1 ($418.28 per hour is a reasonable fee); Robbins v. Barnhart, Case No. 04–
1174–MLB, 2007 WL 675654 at *2 (D. Kan. Feb. 28, 2007)) (courts have found reasonable fee
amounts ranging from $338.29 to $606.79 per hour).
III. 	Conclusion
Plaintiff’s motion for attorney’s fees (Doc. 19) is GRANTED. Plaintiff’s attorney, Roger
Driskill, is entitled to $18,698.50 in fees under § 406(b). 	After receiving these attorney’s fees,
Roger Driskill shall refund to Plaintiff $7,200.00, which was the amount he received as fees under
the EAJA.
IT IS SO ORDERED. Dated this 11th day of December, 2025.
_s/ John W. Broomes_________________
JOHN W. BROOMES
UNITED STATES CHIEF DISTRICT JUDGE
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