UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


BRENT Z.,                       Case No. 22-CV-511 (JWB/JFD)             

               Plaintiff,                                                

v.                                     ORDER GRANTING                    
                                       ATTORNEY’S FEES                   
Carolyn Colvin,                           AND COSTS                      
Acting Commissioner of Social Security,                                  

               Defendant.                                                


    This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees under 

(b) (Dkt. No. 31), which is unopposed by Defendant (Dkt. No. 33). Because 
the Court finds that the requested amount is reasonable under the law, the motion is granted. 
See Gisbrecht v. Barnhart, 

, 807–08 (2002) (holding that § 406(b) requires 
independent judicial review of fee arrangements to ensure reasonableness of attorney fee 
awards in individual cases).                                              
    I. BACKGROUND                                                        
    People with disabilities can qualify for financial support from the Social Security 
Administration (“SSA”) through one or both of its assistance programs: the Disability 
Insurance (“DIB”) Program under Title II of the Social Security Act and the Supplemental 
Security Income (“SSI”) Program under Title XVI of the Act. Smith v. Berryhill, 587 U.S. 
—, 

 (2019) (citing Bowen v. Galbreath, 

 (1988)). 
Plaintiff filed for assistance under both programs.                       
    Plaintiff was denied benefits and filed a complaint against the Social Security 
Administration (“SSA”) challenging its decision in March 2022. (Compl., Dkt. No. 1.) 

Plaintiff hired attorneys Wes Kappelman and Gregg B. Nelson to represent him on a 
contingency basis. (Ex. 1, Dkt. No. 32-1.) The fee agreement between them provided that 
if he was successful in his appeal of the SSA’s decision, he would pay the attorneys 25% 
of the benefits that accrued before the SSA made a decision in his favor, which are called 
“past due benefits.” (Id.) 

. In exchange, the attorneys would represent 
Plaintiff through his appeal of the SSA’s decision. (Id.)                 

    After the administrative record was filed, the parties each moved for Summary 
Judgment. (Dkt. No. 14; Dkt. No. 16.) This Court found that the SSA made an error of law 
in determining that Mr. Zelinske was not eligible for benefits and recommended that the 
District Court remand the matter to the SSA on January 29, 2023. (Dkt. No. 22.) After 
neither  party  objected,  District  Judge  Jerry  W.  Blackwell  accepted  the  Report  and 

Recommendation of this Court and remanded the matter to the SSA on March 8, 2023. 
(Dkt. No. 24.) Plaintiff sought attorney’s fees under the Equal Access to Justice Act, 

, and this Court granted $4,420.59 in attorney’s fees and $100 in costs. (Order 
Granting Attorney’s Fees and Costs 2, Dkt. No. 30.)                       
    On remand, the SSA found Plaintiff qualified for benefits. (See Ex. 2, Dkt. No. 32-

2.) In an August 14, 2024 letter, the SSA told Plaintiff that he was eligible for benefits 
starting in May 2019 and set out the schedule for the maximum he could receive in monthly 
benefits. (Ex. 2.) Counsel represents that 25% of these past due benefits equals $25,786.50 
through December of 2023 and that the SSA’s calculation of 25% of past due benefits 
equals $25,959.43. (Pl.’s Mot. for Att’ys Fees 2, Dkt. No. 31.) Counsel assumes that this 
discrepancy is attributable to the SSA recalculating “2024 benefits at a slightly higher rate 

than [Mr. Zelinske] had previously been paid,” but nonetheless uses the lesser amount in 
its calculations of attorneys’ fees to be collected. (Id.)                
    Counsel now seeks $18,586.50 in attorney’s fees for the 18.75 hours they worked 
on the case in federal court. (Id. at 3.) This amount, counsel states, is equal to 25% of the 
past due benefits ($25,786.50) minus the $7,200 counsel is seeking before the SSA under 
42 U.S.C § 406(a), pursuant to the fee agreement between Mr. Zelinske and his counsel. 

(Id.)                                                                     
    II. LEGAL STANDARD                                                   
    

(b) provides that when a court enters a judgment favorable to a SSA 
claimant who is represented by an attorney in court, the court can “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.” 

(b)(1)(A). Gisbrecht, 

. Congress passed this 
law to discourage (1) fee arrangements which were “yielding exorbitant fees,” and (2) 
attorneys from elongating legal proceedings to increase the amount of past-due benefits, 
and as a result, their fee. 

 at 804–05. The Supreme Court has explained that the statute 

caps what attorneys can recover for practicing before the U.S. District Court—25% of the 
claimant’s past due benefits—and required that courts review fee “arrangements as an 
independent check, to assure that they yield reasonable results in particular cases.” 

 at 
807–08; Culbertson v. Berryhill, 

 (2019). Counsel have the burden of 
showing the Court that they seek no more than 25% of their client’s past-due benefits and 
that the amount they seek is reasonable. Gisbrecht, 535 U.S. at 807–08.1  

    A Social Security claimant who wins in court is also entitled to attorney’s fees under 
the Equal Access to Justice Act (“EAJA”) if the SSA took a legal position in the case that 
was  not  “substantially  justified.”  Gisbrecht,  

  (citing  

(1)(A)).2 But attorneys cannot recover both EAJA and § 406(b) fees; if a court 
awards both, the attorneys must give the smaller of the two fee awards to the claimant. (Id.) 
While the EAJA and § 406(b) appear alike, they come from different sources; EAJA fees 

come from the Social Security Administration (as a penalty for taking the position it did) 
while § 406(b) awards come from the claimant’s past due benefits (as a deduction to pay 
their  lawyers).  Theodoros  K.  v.  Kijakazi,  No.  20-CV-2228  (KMM-ECW),  

, at *3 (D. Minn. July 19, 2023).                                  
    III. ANALYSIS                                                        

    In assessing whether an attorney’s fee request under § 406(b) is reasonable, courts 
look to the fee agreement in the case and consider the “character of the representation and 
the  results  the  representative  achieved.”  Williamson  v.  Kijakazi,  No.  21-CV-2034 
(SRN/LIB), 

, at *2 (D. Minn. Dec. 1, 2023) (quoting Gisbrecht, 535 


1 

(b) applies not only to DIB claimants like Plaintiff, but also to SSI 
claimants under Title XVI. Pajdee T. v. Kijakazi, No. 22-CV-1260 (ECW), 

, at *2 (D. Minn. Dec. 5, 2023) (citing 

(d)).      

2 EAJA fees can be reduced (or “offset”) if the claimant already owes money to the 
government Astrue v. Ratliff, 

 (2010). There were no offsets in this case. 
(Pl.’s Mot. Att’ys Fees at 2.)                                            
U.S. at 807). Courts can decrease the fee awarded if counsel performed poorly, if counsel 
caused unnecessary delay, or if counsel’s fee is too large considering how much time they 

spent on the case. Id.; Sue V. v. Kijakazi, No. 20-CV-462 (LIB), 

, at *2 
(D. Minn. Nov. 1, 2023)                                                   
    Counsel has not articulated what the full past due benefits are in this case, but they 
have averred that 25% of the past due benefits is either $25,786.50 or $25,959.43, meaning 
the total past due benefits are at least $103,146 by counsel’s reckoning. (Pl.’s Mot. for 
Att’ys Fees 2, Dkt. No. 31 ($25,786.50 multiplied by 4 equals $103,146.).) This Court has 

already awarded $4,420 in EAJA fees, and counsel seek a § 406(b) award of $18,586.50 
for 18.75 hours of work. (Ex. 2.) That fee averages out to $991.28. On its face, this seems 
excessive, and it is on the high end of what courts in this District have found reasonable. 
See Shane T. v. Saul, No. 18-CV-634 (BRT), 

, at *2 (D. Minn. Sept. 25, 
2020) (permitting a $21,646.25 contingency fee from a $86,585.50 award, which averaged 

to an hourly rate of $775.85, which at first seemed “excessive” to the Court); Jody A. E. v. 
Saul, No. 16-CV-969 (MJD/BRT), 

, at *2 (D. Minn. Oct. 7, 2019) 
(permitting a $29,388.25 contingency fee from a $117,553.00 award, averaging to an 
hourly rate of $1,229.63); Smith v. Astrue, No. 06-CV-2091 (ADM/AJB), 

, at *24 (D. Minn. June 24, 2008) (permitting a $30,066.50 contingent fee from a 

$120,000 disability award, averaging to an hourly rate of $1,141.91).     
    Nevertheless, the Court will not reduce the award requested. There is no indication 
that counsel performed poorly; counsel was able to win a motion for summary judgment 
over opposition and counter motion for summary judgment by the SSA. Counsel did not 
cause unnecessary delay, and timely moved for fees after receiving notice of their client’s 
past due benefits on August 14, 2024.                                     

    Finally, binding Supreme Court precedent has “accepted the twenty-five percent 
contingent fee as an appropriate starting point for determining the reasonable fees due to a 
claimant’s attorney given that contingency fee agreements” are ubiquitous in this area of 
law. Jody A. E., 

, at *2. The Court notes that counsel in this case have 
capped their fees for both representation before the SSA (under § 406(a)) and before this 
Court (under § 406(b)) at 25% of their client’s past due benefits, when the Supreme Court 

has said that such a cap applies only to fees awarded before the District Court. (Pl.’s Mot. 
Att’ys Fees 4 n.2 (citing Culbertson v. Berryhill, 

 (2019)). Counsel 
also used the smaller of two potential calculations of 25% of past due benefits to calculate 
the fees to which they were entitled. As a result, their request for fees before this court is a 
fraction of the 25% maximum they could attempt to get for proceedings before this Court 

alone, which supports a finding of reasonableness.                        
    IV. CONCLUSION                                                       
    Based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS  HEREBY 
ORDERED that:                                                             
    1. Plaintiff’s Motion (Dkt. No. 31) is GRANTED;                      

    2. The Social Security Administration will pay Gregg B. Nelson $18,586.50 in 
attorney’s fees under 

(b) no later than 30 days from the date of this Order;  
    3. Plaintiff’s counsel will refund Plaintiff the $4,420.59 this Court awarded them 
under the Equal Access to Justice Act, 

, no later than 30 days from the 

date Mr. Nelson receives his funds.                                       
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 

Date: December 17, 2024            s/  John F. Docherty                  
                                   JOHN F. DOCHERTY                      
                                   United States Magistrate Judge        

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


BRENT Z.,                       Case No. 22-CV-511 (JWB/JFD)             

               Plaintiff,                                                

v.                                     ORDER GRANTING                    
                                       ATTORNEY’S FEES                   
Carolyn Colvin,                           AND COSTS                      
Acting Commissioner of Social Security,                                  

               Defendant.                                                


    This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees under 

(b) (Dkt. No. 31), which is unopposed by Defendant (Dkt. No. 33). Because 
the Court finds that the requested amount is reasonable under the law, the motion is granted. 
See Gisbrecht v. Barnhart, 

, 807–08 (2002) (holding that § 406(b) requires 
independent judicial review of fee arrangements to ensure reasonableness of attorney fee 
awards in individual cases).                                              
    I. BACKGROUND                                                        
    People with disabilities can qualify for financial support from the Social Security 
Administration (“SSA”) through one or both of its assistance programs: the Disability 
Insurance (“DIB”) Program under Title II of the Social Security Act and the Supplemental 
Security Income (“SSI”) Program under Title XVI of the Act. Smith v. Berryhill, 587 U.S. 
—, 

 (2019) (citing Bowen v. Galbreath, 

 (1988)). 
Plaintiff filed for assistance under both programs.                       
    Plaintiff was denied benefits and filed a complaint against the Social Security 
Administration (“SSA”) challenging its decision in March 2022. (Compl., Dkt. No. 1.) 

Plaintiff hired attorneys Wes Kappelman and Gregg B. Nelson to represent him on a 
contingency basis. (Ex. 1, Dkt. No. 32-1.) The fee agreement between them provided that 
if he was successful in his appeal of the SSA’s decision, he would pay the attorneys 25% 
of the benefits that accrued before the SSA made a decision in his favor, which are called 
“past due benefits.” (Id.) 

. In exchange, the attorneys would represent 
Plaintiff through his appeal of the SSA’s decision. (Id.)                 

    After the administrative record was filed, the parties each moved for Summary 
Judgment. (Dkt. No. 14; Dkt. No. 16.) This Court found that the SSA made an error of law 
in determining that Mr. Zelinske was not eligible for benefits and recommended that the 
District Court remand the matter to the SSA on January 29, 2023. (Dkt. No. 22.) After 
neither  party  objected,  District  Judge  Jerry  W.  Blackwell  accepted  the  Report  and 

Recommendation of this Court and remanded the matter to the SSA on March 8, 2023. 
(Dkt. No. 24.) Plaintiff sought attorney’s fees under the Equal Access to Justice Act, 

, and this Court granted $4,420.59 in attorney’s fees and $100 in costs. (Order 
Granting Attorney’s Fees and Costs 2, Dkt. No. 30.)                       
    On remand, the SSA found Plaintiff qualified for benefits. (See Ex. 2, Dkt. No. 32-

2.) In an August 14, 2024 letter, the SSA told Plaintiff that he was eligible for benefits 
starting in May 2019 and set out the schedule for the maximum he could receive in monthly 
benefits. (Ex. 2.) Counsel represents that 25% of these past due benefits equals $25,786.50 
through December of 2023 and that the SSA’s calculation of 25% of past due benefits 
equals $25,959.43. (Pl.’s Mot. for Att’ys Fees 2, Dkt. No. 31.) Counsel assumes that this 
discrepancy is attributable to the SSA recalculating “2024 benefits at a slightly higher rate 

than [Mr. Zelinske] had previously been paid,” but nonetheless uses the lesser amount in 
its calculations of attorneys’ fees to be collected. (Id.)                
    Counsel now seeks $18,586.50 in attorney’s fees for the 18.75 hours they worked 
on the case in federal court. (Id. at 3.) This amount, counsel states, is equal to 25% of the 
past due benefits ($25,786.50) minus the $7,200 counsel is seeking before the SSA under 
42 U.S.C § 406(a), pursuant to the fee agreement between Mr. Zelinske and his counsel. 

(Id.)                                                                     
    II. LEGAL STANDARD                                                   
    

(b) provides that when a court enters a judgment favorable to a SSA 
claimant who is represented by an attorney in court, the court can “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.” 

(b)(1)(A). Gisbrecht, 

. Congress passed this 
law to discourage (1) fee arrangements which were “yielding exorbitant fees,” and (2) 
attorneys from elongating legal proceedings to increase the amount of past-due benefits, 
and as a result, their fee. 

 at 804–05. The Supreme Court has explained that the statute 

caps what attorneys can recover for practicing before the U.S. District Court—25% of the 
claimant’s past due benefits—and required that courts review fee “arrangements as an 
independent check, to assure that they yield reasonable results in particular cases.” 

 at 
807–08; Culbertson v. Berryhill, 

 (2019). Counsel have the burden of 
showing the Court that they seek no more than 25% of their client’s past-due benefits and 
that the amount they seek is reasonable. Gisbrecht, 535 U.S. at 807–08.1  

    A Social Security claimant who wins in court is also entitled to attorney’s fees under 
the Equal Access to Justice Act (“EAJA”) if the SSA took a legal position in the case that 
was  not  “substantially  justified.”  Gisbrecht,  

  (citing  

(1)(A)).2 But attorneys cannot recover both EAJA and § 406(b) fees; if a court 
awards both, the attorneys must give the smaller of the two fee awards to the claimant. (Id.) 
While the EAJA and § 406(b) appear alike, they come from different sources; EAJA fees 

come from the Social Security Administration (as a penalty for taking the position it did) 
while § 406(b) awards come from the claimant’s past due benefits (as a deduction to pay 
their  lawyers).  Theodoros  K.  v.  Kijakazi,  No.  20-CV-2228  (KMM-ECW),  

, at *3 (D. Minn. July 19, 2023).                                  
    III. ANALYSIS                                                        

    In assessing whether an attorney’s fee request under § 406(b) is reasonable, courts 
look to the fee agreement in the case and consider the “character of the representation and 
the  results  the  representative  achieved.”  Williamson  v.  Kijakazi,  No.  21-CV-2034 
(SRN/LIB), 

, at *2 (D. Minn. Dec. 1, 2023) (quoting Gisbrecht, 535 


1 

(b) applies not only to DIB claimants like Plaintiff, but also to SSI 
claimants under Title XVI. Pajdee T. v. Kijakazi, No. 22-CV-1260 (ECW), 

, at *2 (D. Minn. Dec. 5, 2023) (citing 

(d)).      

2 EAJA fees can be reduced (or “offset”) if the claimant already owes money to the 
government Astrue v. Ratliff, 

 (2010). There were no offsets in this case. 
(Pl.’s Mot. Att’ys Fees at 2.)                                            
U.S. at 807). Courts can decrease the fee awarded if counsel performed poorly, if counsel 
caused unnecessary delay, or if counsel’s fee is too large considering how much time they 

spent on the case. Id.; Sue V. v. Kijakazi, No. 20-CV-462 (LIB), 

, at *2 
(D. Minn. Nov. 1, 2023)                                                   
    Counsel has not articulated what the full past due benefits are in this case, but they 
have averred that 25% of the past due benefits is either $25,786.50 or $25,959.43, meaning 
the total past due benefits are at least $103,146 by counsel’s reckoning. (Pl.’s Mot. for 
Att’ys Fees 2, Dkt. No. 31 ($25,786.50 multiplied by 4 equals $103,146.).) This Court has 

already awarded $4,420 in EAJA fees, and counsel seek a § 406(b) award of $18,586.50 
for 18.75 hours of work. (Ex. 2.) That fee averages out to $991.28. On its face, this seems 
excessive, and it is on the high end of what courts in this District have found reasonable. 
See Shane T. v. Saul, No. 18-CV-634 (BRT), 

, at *2 (D. Minn. Sept. 25, 
2020) (permitting a $21,646.25 contingency fee from a $86,585.50 award, which averaged 

to an hourly rate of $775.85, which at first seemed “excessive” to the Court); Jody A. E. v. 
Saul, No. 16-CV-969 (MJD/BRT), 

, at *2 (D. Minn. Oct. 7, 2019) 
(permitting a $29,388.25 contingency fee from a $117,553.00 award, averaging to an 
hourly rate of $1,229.63); Smith v. Astrue, No. 06-CV-2091 (ADM/AJB), 

, at *24 (D. Minn. June 24, 2008) (permitting a $30,066.50 contingent fee from a 

$120,000 disability award, averaging to an hourly rate of $1,141.91).     
    Nevertheless, the Court will not reduce the award requested. There is no indication 
that counsel performed poorly; counsel was able to win a motion for summary judgment 
over opposition and counter motion for summary judgment by the SSA. Counsel did not 
cause unnecessary delay, and timely moved for fees after receiving notice of their client’s 
past due benefits on August 14, 2024.                                     

    Finally, binding Supreme Court precedent has “accepted the twenty-five percent 
contingent fee as an appropriate starting point for determining the reasonable fees due to a 
claimant’s attorney given that contingency fee agreements” are ubiquitous in this area of 
law. Jody A. E., 

, at *2. The Court notes that counsel in this case have 
capped their fees for both representation before the SSA (under § 406(a)) and before this 
Court (under § 406(b)) at 25% of their client’s past due benefits, when the Supreme Court 

has said that such a cap applies only to fees awarded before the District Court. (Pl.’s Mot. 
Att’ys Fees 4 n.2 (citing Culbertson v. Berryhill, 

 (2019)). Counsel 
also used the smaller of two potential calculations of 25% of past due benefits to calculate 
the fees to which they were entitled. As a result, their request for fees before this court is a 
fraction of the 25% maximum they could attempt to get for proceedings before this Court 

alone, which supports a finding of reasonableness.                        
    IV. CONCLUSION                                                       
    Based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS  HEREBY 
ORDERED that:                                                             
    1. Plaintiff’s Motion (Dkt. No. 31) is GRANTED;                      

    2. The Social Security Administration will pay Gregg B. Nelson $18,586.50 in 
attorney’s fees under 

(b) no later than 30 days from the date of this Order;  
    3. Plaintiff’s counsel will refund Plaintiff the $4,420.59 this Court awarded them 
under the Equal Access to Justice Act, 

, no later than 30 days from the 

date Mr. Nelson receives his funds.                                       
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 

Date: December 17, 2024            s/  John F. Docherty                  
                                   JOHN F. DOCHERTY                      
                                   United States Magistrate Judge