Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JORDAN M. DOOMS )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 23-1059-JWL
)
FRANK BISIGNANO,1 )
Commissioner of Social Security, )
)
Defendant. )
_______________________________________ )
MEMORANDUM AND ORDER
This matter is before the court on a motion for approval of an attorney fee (Doc.
19, & Attach. 1) (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 $10,766.25 pursuant to
the Social Security Act.
I. Background
Plaintiff filed a Complaint in this court on April 18, 2023, seeking judicial review
of a decision of the Commissioner of the Social Security Administration. (Doc 1).
1 On May 7, 2025, Mr. Bisignano was sworn in as Commissioner of Social Security. In
accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Mr. Bisignano is
substituted for Acting Commissioner Lee Dudek as the defendant. Pursuant to the last
sentence of 42 U.S.C. § 405(g), no further action is necessary.
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After the Commissioner filed the administrative record in this case, Plaintiff filed his
Social Security Brief on July 6, 2023. (Doc. 8). The Commissioner confessed error
and filed an unopposed motion to remand. (Doc. 14). The court granted the
Commissioner’s motion and entered judgment remanding the case for further proceedings
on September 29, 2023. (Docs. 15, 16). The court granted Plaintiff’s unopposed
motion for attorney fees in the amount of $4,273.50 pursuant to the Equal Access to
Justice Act on August 24, 2023. (Doc. 18). On remand, the Commissioner issued a
decision on November 19, 2024, finding Plaintiff disabled beginning February 22, 2019,
and issued a Notice of Award on October 7, 2025. (Pl. Mot., Attachs. 3, 4). The SSA
found Plaintiff had past-due benefits of $71,865.00 and stated,
Based on the law, we must withhold part of past-due benefits to pay an
appointed representative. We cannot withhold more than 25 percent of
past-due benefits to pay an authorized fee. We withheld $7,200.00 from
your past-due benefits to pay the representative.
We will still withhold the remaining, ($$$$.CC) [sic] in case your lawyer(s)
ask the Federal Court to approve a fee for work that was done before the
court.AAA031 [sic]; Section 206(B) of the Social Security Act, as
amended, governs fees for services before the court. If your lawyer(s)
wishes to receive a fee for those services, they must send the petition for
that fee to the U.S. District Court …
Id. Attach. 4, pp.4,5. Plaintiff now seeks award of attorney fees of $10,766.25 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
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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
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 ' 206(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 a 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.
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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:
(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 (the Seventh Circuit found the
lodestar method was inappropriate for assessing $406(b) fees before Gisbrecht) 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 v. Barnhart, 450 F.3d 493, 505 (10th
Cir.2006), and will reverse only if the district court’s decision is ‘based on a clearly
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erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of
judgment,’” Id. at 935 (quoting United States v. McComb, 519 F.3d 1049, 1054 (10th
Cir. 2007)).
This court has 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-
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 less than 25 percent of Plaintiff’s
past due benefits, or $10,766.25. She included a copy of the contingent fee agreement
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signed by Plaintiff, in which he agreed to a fee of 25 percent of past due benefits. (Pl.
Mot., Attach. 5). Counsel submitted a listing of the hours expended in prosecuting this
case before this court showing 18.50 hours expended. Id., Attach. 6. An award of the
fee requested would result in an hourly rate of $581.96 and an equivalent hourly rate in a
noncontingent case of $207.84. Counsel argues that the skill, competence, expertise, and
experience of her and her firm produced a good result in this case and support awarding
the fee requested. Id., Attach. 1, p.9-12.
The Commissioner submitted a response to Plaintiff’s Motion asserting that he
“neither supports nor opposes counsel’s request for attorney’s fees in the amount of
$10,766.25.” (Doc. 21, 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 a fee of $10,766.25 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. 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,
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Biestek v. Berryhill, 139 S. Ct. 1148, at 1154, 1157 (2019), and this court’s strict
adherence to that standard.
Both the Commissioner and Plaintiff’s counsel remind the court that the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412, fee in this case (which was $4,273.50)
must be refunded to Plaintiff as the smaller fee.
The court finds that a fee of $10,766.50, 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
approves an attorney fee of $10,766.50 which the Commissioner shall provide to
Plaintiff=s counsel out of the past due benefits withheld.
IT IS FURTHER ORDERED that counsel shall refund the EAJA fee award of
$4,273.50 to Plaintiff.
Dated December 2, 2025, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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