Denver v. Kijakazi, Acting Commissioner of the Social Security Administration

Background

Paul Denver applied for Social Security Disability Insurance on March 12, 2014, and the application was denied. In a prior related proceeding, a district court remanded the matter for additional administrative proceedings. After the remand, the Social Security Administration denied Denver’s application again.

Denver filed this case on June 17, 2022, seeking review of the second denial. After Denver moved for judgment on the pleadings, the parties agreed to send the matter back to the agency. Following that second remand, the Commissioner found Denver disabled and awarded him $355,766.70 in past-due benefits.

The Commissioner withheld 25% of the past-due benefits, or $88,941.68, for attorney fees. Counsel sought $28,100 for work performed in this federal case. Counsel separately sought $60,841.68 for work in the earlier related proceeding, but that separate request was not before this court. The Commissioner neither supported nor opposed the $28,100 request.

Fee standard

Under 42 U.S.C. § 406(b), a court may approve a reasonable attorney-fee award when a claimant represented by counsel obtains a favorable judgment. The award cannot exceed 25% of the claimant’s past-due benefits. Courts reviewing a contingency-fee request consider the quality and results of the representation, whether counsel caused unreasonable delay, and whether the benefits are unusually large compared with the time counsel spent—the so-called windfall factor.

Analysis

The court found that the first two factors supported the request. Counsel had filed a lengthy and detailed memorandum, obtained a remand, and ultimately helped secure an award of benefits. The opinion found no evidence that counsel delayed the proceedings to increase the potential fee.

The court also found that the fee was not an improper windfall. Counsel spent 28.1 hours on the federal proceedings, making the requested fee equivalent to an hourly rate of $1,000. The court concluded that the requested rate was reasonable in light of counsel’s skill, competence, efficiency, experience in Social Security cases, and the favorable result. It also noted that the case was not a sure winner and that contingency-fee arrangements encourage attorneys to accept Social Security cases.

Recommendation and additional fee

The report and recommendation states that counsel’s motion for a $28,100 award should be granted. It also states that counsel should return $6,500 to Denver. That amount was previously awarded under the Equal Access to Justice Act, a fee statute that can provide payment when a claimant prevails against the government. When a claimant’s attorney receives fees under both that statute and § 406(b), the attorney must refund the smaller fee to the claimant.

The parties had 14 days after service of the report and recommendation to file objections. The opinion states that any extension request must be directed to Judge Furman and that failure to object timely may prevent a party from raising objections on appeal.