Perez v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHRISTIE M. PEREZ, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 23-cv-013-DES
)
FRANK BISIGNANO, 1 	)
Commissioner of Social Security, 	)
)
Defendant. 	)
Defendant. 	)
OPINION AND ORDER AWARDING ATTORNEY FEES
PURSUANT TO 42 U.S.C. § 406(b)
Before the Court is the Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed by
Lisa J. McNair Palmer, counsel for Plaintiff (“Counsel”). (Docket No. 25). The Commissioner
neither supports nor objects to Counsel’s motion. (Docket No. 26). For the reasons set forth below,
Counsel’s Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Docket No. 25) is
GRANTED, and $31,548.25 is awarded to Counsel pursuant to 42 U.S.C. § 406(b).
I. 	Background
Plaintiff appealed the Commissioner’s adverse decision denying her request for benefits.
(Docket No. 2). The Court reversed the Commissioner’s decision and remanded the case for further
proceedings on February 15, 2024. (Docket Nos. 20, 21). As the prevailing party in such action,
Plaintiff was awarded $8,483.50 in attorney fees pursuant to the Equal Access to Justice Act
(“EAJA”). (Docket No. 24). On remand, the Commissioner found Plaintiff had been disabled from
January 18, 2012, and Plaintiff was awarded past-due benefits in the amount of $126,193.00. Id.
1 Effective May 7, 2025, Frank Bisignano, Commissioner of Social Security, is substituted as the defendant
in this action pursuant to Fed. R. Civ. P. 25(d). No further action is necessary to continue this suit by reason
of 42 U.S.C. § 405(g).
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at 2, 4. The Commissioner withheld a total of $31,548.25 from Plaintiff’s award, which represents
25% of the total past-due benefits awarded, to pay attorney and/or representative fees. Id. at 3.
Counsel requests a fee award of $31,548.20, or 25% of the total past-due benefits pursuant
to both 42 U.S.C. § 406(b) and the terms of the contingency fee contract between Plaintiff and
Counsel. 2 Plaintiff retained Counsel to appeal the Commissioner’s adverse decision denying
benefits. As part of this engagement, Counsel entered into a contract for compensation with
Plaintiff, providing for the payment of a fee equal to 25% of any past-due benefits ultimately
awarded to Plaintiff. (Docket No. 25-3). Such contracts are recognized as valid under prevailing
case authority. See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
As an initial matter, the Court finds that Counsel’s fee motion was timely filed. A request
for fees pursuant to 42 U.S.C. § 406(b) must employ the relief provisions of Fed. R. Civ. P.
60(b)(6) to ensure timeliness. McGraw v. Barnhart, 450 F. 3d 493, 505 (10th Cir. 2006). Since
Rule 60(b)(6) motions “must be made within a reasonable time,” Fed. R. Civ. P. 60(c)(1), a motion
for attorney fees made pursuant to 42 U.S.C. § 406(b) must be filed “within a reasonable time of
the Commissioner’s decision awarding benefits.” McGraw, 450 F.3d at 505. In this District, “a
reasonable time” means within thirty days of issuance of the notice of award unless there is good
reason for a lengthier delay. See, e.g., Harbert v. Astrue, No. CIV-06-90-SPS, 2010 WL 3238958,
at *1 n. 4 (E.D. Okla. Aug. 16, 2010) (“The Court notes here that while no explanation is needed
for a Section 406(b)(1) motion filed within thirty days of issuance of the notice of a[ward],
lengthier 	delays 	will 	henceforth 	be 	closely 	scrutinized 	for 	reasonableness, 	including 	the
2 Counsel’s request for $31,548.20 appears to be a scrivener’s error. The award letter indicates $31,548.25
was withheld and $31,548.25 represents twenty-five percent of $126,193.00, the amount of Plaintiff’s past-
due benefits. The Court will use the correctly withheld amount of $31,548.25.
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reasonableness of efforts made by appellate attorneys to obtain a copy of any notice of award
issued to separate agency counsel.”). Here, the Commissioner issued the Notice of Award on
October 15, 2025 (Docket No. 25-1 at 1), and Counsel filed her motion for § 406(b) fees 26 days
later, on November 10, 2025. (Docket No. 25). The Court thus concludes Counsel was diligent
and timely in filing the request for § 406(b) fees.
Regarding the amount of fees requested, “Congress prescribed specific limitations on the
amount of fees which may be awarded for representation of Social Security claims.” Wrenn ex rel.
Wrenn v. Astrue, 525 F.3d 931, 932 (10th Cir. 2008). The amount awarded to an attorney for
successfully prosecuting an appeal of a denial of Social Security benefits and obtaining benefits
for a claimant may not exceed 25% of the claimant’s past-due benefits. Id. (citing 42 U.S.C.
§ 406(b)(1)(A)). Although § 406(b) does not displace contingency-fee arrangements for fees up to
25% of the past-due benefits, § 406(b) nonetheless calls for the Court to function as “an
independent check” and review contingency-fee arrangements “to assure that they yield reasonable
results in particular cases.” Gisbrecht, 535 U.S. at 807. Factors relevant to the reasonableness of
the fee request include: (1) the character of the representation and the results achieved; (2) whether
the attorney engaged in any dilatory conduct or provided substandard representation; and
(3) whether the contingency fee is disproportionately large in comparison to the amount of time
spent on the case that a “windfall” to the attorney would result. Id. at 808. The attorney has the
burden of showing that the requested fee is reasonable, and the Court may require the attorney to
submit a record of the hours spent representing the claimant and a statement of the attorney’s
normal hourly billing rate for non-contingency fee cases. Id. at 807-08.
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Counsel’s requested fee does not exceed either the contractual agreement for 25% of
Plaintiff’s past-due benefits or the limits of § 406(b). Applying the Gisbrecht factors, the Court
concludes that the requested fee is reasonable. Counsel secured a fully favorable result for Plaintiff
in the form of a substantial past-due benefits award. Plaintiff’s success on appeal also enabled her
to obtain $8,483.50 in attorney fees pursuant to the EAJA, which will essentially reduce any
amount awarded from her past-due benefits. Moreover, there is no indication that Counsel caused
any undue delay in these proceedings or represented Plaintiff in a substandard manner. Finally, the
Court has reviewed the contemporaneous time and expense records and finds the time expended
to be reasonable and necessary considering the results obtained. These records indicate Counsel
spent 64 hours of attorney time on this matter, which yields an hourly rate of approximately
$492.94. The requested fee is not a “windfall” that should be reduced by the Court under Gisbrecht,
especially considering the fee was contingent and lies within the range of Social Security
contingency fee awards in this District. See, e.g., Wilson v. Kijakazi, No. CIV-20-202-SPS, 2023
WL 2813623, at *2 (E.D. Okla. Apr. 4, 2023) (unpublished) ($434.22 per hour); 	Hovey v.
O’Malley, 	No. 	CIV-20-444-JFH-GLJ, 	2024 	WL 	647649, 	at 	*2 	(E.D. 	Okla. 	Jan. 	29,
2024) (unpublished), report and recommendation adopted by, 2024 WL 643220 (E.D. Okla. Feb.
15, 2024) ($1,641.96 per hour).
If for any reason the Commissioner may not have sufficient funds on hand to satisfy the
recommended $31,548.25 award herein, Plaintiff’s attorney will have to recover the difference
from the Plaintiff herself, not from her past-due benefits. See Wrenn, 525 F.3d at 933 (“If the
amount withheld by the Commissioner is insufficient to satisfy the amount of fees determined
reasonable by the court, the attorney must look to the claimant, not the past-due benefits, to recover
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the difference.” Moreover, because the recommended award herein pursuant to § 406(b) exceeds
the previously awarded EAJA fees, Plaintiff is entitled to a full refund of the smaller EAJA fee
award. See Gisbrecht, 535 U.S. at 796 (noting fee awards may be made under both the EAJA and
§ 406(b), “but the claimant’s attorney must refund to the claimant the amount of the smaller fee
. . . .”) (quotation omitted); Wrenn, 525 F.3d at 934 (“If both [EAJA and § 406(b) fees] are
awarded, attorneys are required to refund the lesser of the EAJA or § 406(b) fees to the client, they
cannot keep both.”); Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986) (“To prevent double
payment of fees for the same work under both [the EAJA and § 406(b)], however, congress
directed that the smaller amount be given to the client.”).
IT IS THEREFORE ORDERED that Counsel’s Motion for Attorney Fees Pursuant to 42
U.S.C. § 406(b) (Docket No. 25) is GRANTED, Counsel is awarded $31,548.25 as a reasonable
attorney fee pursuant to 42 U.S.C. § 406(b) for Counsel’s representation of Plaintiff before this
Court, and the Commissioner is authorized to release to Counsel directly the balance of any of
Plaintiff’s past-due benefits in his possession up to said amount.
IT IS FURTHER ORDERED that upon receipt of the balance of Plaintiff’s past-due
benefits in the Commissioner’s possession, Counsel shall refund to Plaintiff the smaller amount
between the EAJA fees previously awarded and any § 406(b) fees awarded. See Weakley, 803 F.2d
at 580.
DATED this 14th day of April, 2026.
_____________________________
D. EDWARD SNOW
UNITED STATES MAGISTRATE JUDGE
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