Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JESSICA LEIGH HOOVER, )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 24-2486-JWL
)
FRANK BISIGNANO, )
Commissioner of Social Security, )
)
Defendant. )
_______________________________________ )
MEMORANDUM AND ORDER
This matter is before the court on a motion for approval of an attorney fee (Doc.
22) (Pl. Mot.) pursuant to the Social Security Act, 42 U.S.C. ' 406(b). Plaintiff=s
motion is GRANTED, approving a fee in the amount of $17,447.25 pursuant to the
Social Security Act.
I. Background
Plaintiff filed two Complaints in this court, seeking judicial review of a decision of
the Commissioner of the Social Security Administration. Hoover v. SSA, Civ. A. No.
23-2379-TC (D. Kan. Sept. 21, 2023) (Hoover I); Hoover v. SSA, Civ. A. No. 24-2486-
JWL (D. Kan. Oct. 22, 2024) (Hoover II). In both cases, after the Commissioner filed
the administrative record in this case and Plaintiff filed her Social Security Brief, the
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Commissioner confessed error and filed an unopposed motion to remand. Hoover I,
(Doc. 9); Hoover II, (Doc. 17). The court granted the Commissioner’s motion and
entered judgment remanding the case for further proceedings. Hoover I, (Docs. 13, 14);
Hoover II, (Docs. 18, 19). In each case, the court granted Plaintiff’s unopposed motion
for attorney fees pursuant to the Equal Access to Justice Act, granting fees in the amount
of $6,900.00, and $8.500.00, respectively. Hoover I, (Doc. 17); Hoover II, (Doc. 21).
On remand after Hoover II, the Commissioner issued a partially favorable decision on
January 26, 2026, and a “Notice of Award” on February 15, 2025. (Pl. Mot. 1, Attach.
2). The SSA withheld $17,447.25, 25% from Plaintiff’s past due benefits. Id. Attach.
2, p.4. Plaintiff now seeks award of attorney fees of $17,447.25—the full 25% of past
due benefits—pursuant to ' 206(b) of the Social Security Act. 42 U.S.C. § 406(b).
II. Legal Standard
The Social Security Act provides for the payment of an attorney fee out of the past
due benefits awarded to a beneficiary. 42 U.S.C. ' 406(b). The court has discretion to
approve such a fee. McGraw v. Barnhart, 450 F.3d 493, 497-98 (10th Cir. 2006).
However, the court has an affirmative duty to allow only so much of the fee as is
reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 807-808 (2002); McGraw, 450 F.3d at
498; 42 U.S.C. ' 406(b)(1)(A).
(1)(A) 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, and
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the Commissioner of Social Security may, . . . certify the amount of such
fee for payment to such attorney out of, and not in addition to, the amount
of such past-due benefits.
42 U.S.C. ' 406(b)(1)(A) (emphases added).
The Supreme Court, in Gisbrect determined that a contingency fee agreement
within the twenty-five percent ceiling is allowed by ' 406(b) of the Act, and that courts
may not use the “lodestar” method to establish a reasonable fee in such a case. Where
there is a contingency-fee agreement between plaintiff and his attorney, the court is to
look first to the agreement and then test the agreement for reasonableness. Gisbrecht,
535 U.S. at 807-08. In determining reasonableness, the Court suggested that courts
should consider such factors as the character of representation, the results achieved,
whether the attorney is responsible for any delay, and whether the benefits are large in
comparison to the amount of time counsel spent on the case. Id. 535 U.S. at 808. The
Court noted that the comparison of benefits to time spent might be aided by submission
of the plaintiff=s attorney=s billing record and normal hourly billing rate. Id.
The Tenth Circuit has explained the procedure used in applying Gisbrecht.
Gordon v. Astrue, 361 F. App’x 933, 935–36 (10th Cir. 2010). It noted that the court is
to look first to the fee agreement between the plaintiff and her counsel, and “the statute
does require courts to serve ‘as an independent check’ by ‘review[ing] for reasonableness
fees yielded by those agreements.’” Id. at 935 (quoting Gisbrecht, 535 U.S. at 807-09).
The court noted that the Court provided examples of proper reasons for reducing 406(b)
fee requests:
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(1) when “the character of the representation and the results the
representative achieved” were substandard; (2) when “the attorney is
responsible for delay” that causes disability benefits to accrue “during the
pendency of the case in court”; and (3) when “the benefits are large in
comparison to the amount of time counsel spent on the case.”
Id. (quoting Gisbrecht, 535 U.S. at 808). The court acknowledged six factors recognized
by the Seventh Circuit before Gisbrecht was decided as potentially useful when making a
406(b) reasonableness determination—although it merely “assum[ed], without granting,
that the district court had some obligation to” consider those factors. Id. (citing McGuire
v. Sullivan, 873 F.2d 974, 983 (7th Cir. 1989) (“time and labor required; skill required;
contingency of fee; amount involved and result attained; experience, reputation, and
ability of attorney; and awards in similar cases.”). The Tenth Circuit reviews “a district
court’s award of attorney’s fees under § 406(b) for an abuse of discretion, see McGraw
450 F.3d 493 at 505, and will reverse only if the district court’s decision is ‘based on a
clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear
error of judgment,’” Id., Gordon, 361 F. App’x at 935 (quoting United States v.
McComb, 519 F.3d 1049, 1054 (10th Cir. 2007)).
This court recently approved 406(b) contingent attorney fees at an hourly rate of
$736.07 resulting in an equivalent hourly rate for non-contingent work of almost
$263.00; Madrigal v. Kijakazi, Civ. A. No. 19-2429-JWL, 2021 WL 4860555 (D. Kan.
October 19, 2021); see also, Gardipee v. Saul, Civ. A. No. 20-1001-JWL, 2021 WL
826206, *3 (D. Kan. Mar. 4, 2021) (an hourly rate of $1,001.90 resulting in an equivalent
hourly rate for non-contingent work of $357.82); Morris v. Kijakazi, Civ. A. No. 19-
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1133-JWL, 2021 WL 5769365 (D. Kan. Dec. 6, 2021) (hourly rate of $410.57); Rogers v.
Saul, Civ. A. No. 19-1134-JWL, 2022 WL 17718655 (D. Kan. Dec. 15, 2022) (hourly
rate of $2,265.39 and an equivalent hourly rate $809.07); Schlein v. Kijakazi, Civ. A. No.
21-1180-JWL, 2023 WL 5952025 (D. Kan. Sept. 13, 2023) (at an hourly rate of $703.80
resulting in an equivalent hourly rate of $251.36); Firment v. O’Malley, Civ. A. No. 22-
1220-JWL, 2023 WL 8934765 (D. Kan. Dec. 27, 2023 (hourly rate of $1,157.81 and
equivalent hourly rate of $413.50); and, Walls v. O’Malley, Civ. A. No. 21-1011-JWL,
2024 WL 52609 (D. Kan. Jan. 3, 2024) (hourly rate of $1,407.34 and equivalent hourly
rate of $502.62).
III. Discussion
Here, Plaintiff=s attorney requests a fee award of the full 25 percent of Plaintiff’s
past due benefits, or $17,447.25. He included a copy of the contingent fee agreement
signed by Plaintiff, in which she agreed to a fee of 25 percent of past due benefits. (Pl.
Mot., Attach. 1). Counsel submitted a listing of the hours expended in prosecuting this
case before both court’s showing 84.2 hours expended. Id., Attach. 3. An award of 25
percent of past due benefits would result in an hourly rate of $321.90 and an effective
hourly rate in a noncontingent case of $114.96.
The Commissioner did not submit a response to Plaintiff’s Motion, but in his
Statement of Consultation pursuant to D. Kan. R. 54.2 counsel asserts the result of
consultation, that “[t]he Commissioner neither supports nor opposes Counsel’s request
for attorney fees under 42 U.S.C. §406(b). Because counsel for the Commissioner has
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reviewed this motion and because the Commissioner’s position is accurately reflected
herein, the Commissioner does not intend to file a response.” (Doc. 24, p.1).
The court has considered both the Gisbecht and the McGuire factors and the
arguments of counsel and makes the following findings. Plaintiff has met her burden to
prove that award of the full 25 percent of past due benefits is reasonable in the
circumstances present here. The court notes that counsel achieved a good result for
Plaintiff in this case especially considering the Commissioner chose to request remand
without challenging Plaintiff’s brief in both Hoover I and Hoover II. The court
recognizes that the contingent nature of the fee justifies a fee award in Social Security
cases when the claimant prevails which is higher than normal hourly rates charged by
attorneys in other matters in order to encourage practitioners to take such cases and to
provide for those cases taken which are not successfully concluded. This is particularly
true due to the deferential standard applicable in Social Security cases, Biestek v.
Berryhill, 139 S. Ct. 1148, at 1154, 1157 (2019), and this court’s strict adherence to that
standard.
Plaintiff’s counsel reminds the court that the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412, fees in these cases total $15,400.00 and must be refunded to Plaintiff
as the smaller fee.
The court finds that 25% of past due benefits, or $17,447.25, is a reasonable fee in
the circumstances of this case.
IT IS THEREFORE ORDERED that pursuant to 42 U.S.C. ' 406(b) the court
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approves an attorney fee of $17,447.25 which the Commissioner shall provide to
Plaintiff=s counsel subject to any remaining past due benefits withheld.
IT IS FURTHER ORDERED that counsel shall refund the EAJA fee award of
$15,400.00 to Plaintiff.
Dated April 7, 2026, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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