DAY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN D.,
Plaintiff,
v.
FRANK J. BISIGNANO,
Commissioner of Social Security,
Defendant.
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1:24-cv-00396-SDN
MEMORANDUM OF DECISION AND ORDER ON MOTION FOR AWARD OF
ATTORNEY FEES
On February 11, 2026, Attorney Bryan Konoski filed a motion for an award of
attorney fees in the amount of $28,696.75, pursuant to 42 U.S.C. § 406(b)(1) for work
performed on behalf of 	Plaintiff 	John D. 	ECF No. 18. 	On 	March 3, 	2026, 	the
Commissioner responded. ECF No. 20. On March 10, 2026, Attorney Konoski filed a reply
clarifying the amount of the award he is seeking. ECF No. 21; see also ECF No. 23
(explaining reasons for requested award in response to Court’s show cause order). For the
reasons detailed below, I grant Attorney Konoski’s motion.
BACKGROUND
In this matter, Plaintiff agreed to pay Attorney Konoski a contingent fee for
representation in the amount of 25 percent of the total of any past-due Social Security
Disability Benefits awarded to him. See ECF No. 18-4 at 2. Attorney Konoski represented
Plaintiff in this Court for judicial review of an unfavorable decision by an Administrative
Law Judge denying Plaintiff’s claim for Disability Benefits from the Social Security
Administration (“SSA”). See ECF No. 18-1 at 1–2. On March 10, 2025, the Social Security
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Commissioner submitted an unopposed motion to remand the case to the Social Security
Administration for further proceedings. ECF No. 13. The Court granted the motion to
remand. ECF No. 14. The Social Security Appeals Council remanded the case for a hearing
that resulted in a fully 	favorable judgment in favor of Plaintiff 	for an estimated
$140,787.001 in past-due Disability Benefits and $1,949.00 in regular monthly payments.
See ECF No. 18-3 at 3. The Social Security Administration explained it withheld 25
percent of Plaintiff’s award for the work performed by Attorney Konoski, amounting to
$35,196.75. Id. at 5. Attorney Konoski requests an award of $28,696.75, which is less than
the amount withheld by the SSA. ECF No. 18-1 at 2.
This Court previously entered an order approving payment to Attorney Konoski
under the Equal Access to Justice Act (“EAJA”) in the amount of $8,500.00. See ECF No.
17. In his motion for attorney fees pursuant to section 406(b), Attorney Konoski requests
the Court issue him a net award of $20,196.75, which would be the requested amount of
attorney fees ($28,696.75) reduced by the EAJA award ($8,500.00). ECF No. 18 at 1. In
response, the Commissioner notes the statutory language, see ECF No. 20 at 2, which
requires the attorney to “refund[] to the claimant the amount of the smaller fee,” Act of
Aug. 5, 1985, Pub. L. 99-80, 99 Stat. 183; see Gisbrecht v. Barnhart, 535 U.S. 789, 796
(2002) (“[T]he claimant’s attorney must refund to the claimant the amount of the smaller
fee.” (quotation modified)). In his reply, Attorney Konoski admits an EAJA payment was
ordered in this case and that he has an obligation to refund the amount to Plaintiff after
1 The Notice of Award does not specify the total amount of past-due benefits. See ECF No. 18-3. The Notice
indicates $35,196.75 was withheld from retroactive benefits for attorney fees. Id. at 5. The Court has
calculated that this would amount to a retroactive benefits total of $140,787.00 if the withheld amount
equates to 25% of the past-due benefits. See ECF No. 18-1 at 1–2 (“[T]he Social Security Administration
issued a Notice of Award informing the Plaintiff that $35,196.75 was being withheld from his Title II back
benefits to pay legal fees. According to the letter issued by the Social Security Administration, this sum
represents 25% of the total back benefits to which the Plaintiff is entitled.”).
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receiving attorney fees, rather than requesting a reduced net figure at the outset. ECF No.
21 at 1.
DISCUSSION
Section 406(b) of the Social Security Act provides that when a court renders a
judgment favorable to a represented claimant, “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.” 42 U.S.C. § 406(b)(1)(A). The Supreme Court holds that contingent fee
agreements are permissible in matters involving Social Security benefits claimants. See
Gisbrecht, 535 U.S. at 807. However, the Court must be satisfied “that the fee sought is
reasonable for the services rendered.” Id. This Court has previously recognized that:
Reduction in the amount that otherwise would be payable pursuant to a
contingent fee agreement between a claimant and attorney is appropriate to
the 	extent that 	(i) 	counsel’s conduct 	is 	improper 	or 	representation
substandard; for example, an attorney is responsible for a delay that has
caused an accumulation of past-due benefits, or (ii) the benefits are
[sufficiently] disproportionate in relation to the amount of time counsel
spent on the case to “implicate windfall concerns.”
Michelle B. v. O’Malley, No. 21-CV-00337, 2024 WL 657000, at *1 (D. Me. Feb. 16, 2024),
report and recommendation aff’d, 2024 WL 3718347 (Aug. 8, 2024) (quoting Beaulieu
v. Colvin, No. 10-CV-454, 2016 WL 675646, at *2 (D. Me. Jan. 28, 2016), report and
recommendation aff’d, 2016 WL 675646 (Feb. 18, 2016)) (alteration in Michelle B.).
Lastly, 	if 	the 	claimant’s representative received fees pursuant to 	the 	EAJA, 	the
representative must refund the smaller fee amount to claimant. See Gisbrecht, 535 U.S.
at 796.
Based on the submitted billing statements, the above fee equates to an hourly rate
of $613.18 for 46.8 hours and is thereby reasonable under the law. See ECF 18-5. The
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Commissioner neither supports nor opposes counsel’s fee amount in this matter. ECF No.
20 at 1. I agree with Attorney Konoski that the fee is permissible by law.
First, “the fee request conforms with the Plaintiff’s contingent fee agreement and
does not exceed the 25 [percent] statutory limit.” Christopher H. v. Kijakazi, No. 18-CV-
00355, 2022 WL 17668469, at *1 (D. Me. Dec. 14, 2022). Second, Plaintiff’s counsel’s
“work in this Court prompted a motion for remand, and the Commissioner has provided
nothing to suggest that the Plaintiff’s subsequent success was not due to the efforts of his
attorney.” Id. Third, there is no “suggestion of inadequate representation, delay, or an
inordinately easy case.” Id. Finally, the effective hourly rate is in harmony with amounts
this Court has previously deemed reasonable. See Order (ECF No. 23), Alan S. v. Kijakazi,
No. 18-CV-00199 (D. Me. Jan. 9, 2023) (approving a Section 406(b) fee with an effective
hourly rate of $2,158.20); Christopher H., 2022 WL 17668469, at *1 (approving a Section
406(b) fee with an effectively hourly rate of $1,190.48); Weed v. Colvin, No. 14-CV-271,
2016 WL 3919849, at *2–3 (D. Me. July 15, 2016) (approving a Section 406(b) fee with
an effective hourly rate of $1,279.56).
CONCLUSION
Accordingly, the Motion for Award of Attorney Fees is GRANTED, ECF No. 18,
and the Court ORDERS that a fee award in the amount of $28,696.75 or 25 percent of
Plaintiff’s past-due benefits, whichever is less, be paid to Attorney Konoski from Plaintiff’s
past-due benefits in accordance with Social Security Administration policy, subject to the
requirement that Attorney Konoski pay directly to Plaintiff the amount of $8,500.00, the
sum earlier awarded to Attorney Konoski pursuant to the Equal Access to Justice Act.
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S O ORDERED.
Dated this 17th day of March, 2026.
/s/ Stacey D. Neumann
UNITED STATES DISTRICT J UDGE
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