UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Travis King, Claimant

v. Case No. 20-cv-1139-SM Opinion No.

Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant

O R D E R

Following remand of this Social Security Disability case,

claimant, Travis King, was awarded past-due benefits in the

amount of $95,734.10. Invoking her contingent fee agreement

with King, as well as the provisions of

(b),

King’s counsel seeks an award of attorney’s fees in the amount

of $23,000 (representing slightly less than twenty-five percent

of King’s recovered benefits). For the reasons discussed, that

motion is granted in part and denied in part.

Background

More than six years ago, King filed applications for

Disability Insurance Benefits and Supplemental Security Income,

alleging that he was disabled and had been unable to work since June 23, 2015, by reason of degenerative disc disease, PTSD, and

recent surgeries on his rotator cuff and right knee. He was 34

years old at the time. The agency initially denied King’s

applications and he requested a hearing before an Administrative

Law Judge (“ALJ”). By Order dated March 26, 2018, the ALJ also

concluded that King was not disabled, as defined in the Social

Security Act. King appealed and the Appeals Council remanded

the matter for a new hearing, which was held before a different

ALJ. That ALJ, too, concluded that King was not disabled within

the meaning of the Act and the Appeals Council subsequently

affirmed that decision. King was represented by various

attorneys at the law firm of Jackson & MacNichol through all

stages of the administrative process.

On October 27, 2020, King retained Alexandra M. Jackson,

Esq., also of Jackson & MacNichol, to appeal the administrative

denial of disability benefits to this court. He signed a

“Contingent Fee Agreement” with that firm. Pursuant to that

agreement, King agreed to “pay a fee equal to twenty five

percent (25%) of the total amount of any past benefits awarded

to Client.” King also acknowledged that absent such an

agreement, “the services of the attorney . . . would ordinarily

be billed to the client by the hour at a rate in excess of $350

per hour.” Approximately one month later, Attorney Jackson

2 filed a two-page, form complaint alleging that King had been

improperly denied the benefits for which he had applied. Almost

immediately (and before Attorney Jackson had filed any

substantive legal memoranda or argument in this court), the

Acting Commissioner recognized that the ALJ had committed plain

legal error (by refusing to consider relevant and properly

introduced evidence) and promptly agreed to a remand of the

matter back to the Social Security Administration. In total,

Attorney Jackson spent 4.1 hours on legal work related to King’s

appeal to this court. 1

On remand, a third hearing was held before a different ALJ

and King was awarded $95,734.10 in past due benefits. Counsel

now seeks $23,000 in fees, which represents slightly less than

twenty-five percent (25%) of that amount. If granted in full,

such a fee award would be equivalent to a “de facto hourly rate”

of roughly $5,600 for work performed before this court. King

has not filed any objection to counsel’s fee request. And,

because the Commissioner has no direct financial stake in the

1 Counsel is only seeking fees for representation provided in this forum. See

(b). Compensation for work performed at the administrative level is determined by the Commissioner and subject to a statutory cap. See

(a). See generally Gisbrecht v. Barnhart,

(2002); Pais v. Kijakazi,

(1st Cir. 2022). Effective November 30, 2022, that cap was increased to $7,200. See

.

3 resolution of counsel’s request for fees, she does not formally

oppose that petition. Nevertheless, the Commissioner has filed

a “response” to counsel’s application, to assist the court in

determining a “reasonable” award. The Commissioner recommends a

fee award of $4,000.

Parenthetically, the court notes that counsel apparently

received no compensation pursuant to

(a) for all

the legal work performed on claimant’s behalf over the course of

roughly six years at the administrative level – work that in the

end proved successful, despite serial defeat along the way. See

Petitioner’s Reply Brief (document no. 16) at 1-2 (“[T]he] ALJ

rejected counsel’s fee agreement so that no fee had been awarded

at the administrative level.”). It appears the Commissioner

rejected counsel’s fee agreement with Mr. King because, although

that agreement is plainly between King and the law firm of

Jackson & MacNichol, not all attorneys who worked on Mr. King’s

case signed that agreement. See Hearings, Appeals, and

Litigation Law Manual (HALLEX), I-1-2-12, Fee Agreements –

Evaluation Policy. See also Form SSA-1693 (“You and your

representative must sign and date this form. If you are

appointing multiple representatives, all of your representatives

who intend to seek a fee for services provided on your claim

must sign on a single fee agreement for the fee agreement to be

4 approved.”). While not directly relevant to the pending fee

petition (since only work before this court may be compensated

under § 406(b)), that fact might well explain why Mr. King has

no objection to counsel receiving the full $23,000 in fees she

seeks: he, unlike the court, is unconstrained by the limits of

§ 406(b) and may look at the global body of work performed by

the attorneys at Jackson & MacNichol over the years – including

three administrative hearings before three different ALJs, two

appeals to the Appeals Council, and, of course, the successful

appeal to this court.

Discussion

The portion of the Social Security Act governing counsel’s

request for attorney’s fees provides, in relevant part, that:

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.

(b)(1)(A) (emphasis supplied). In interpreting

the meaning of that provision, the Supreme Court concluded that

section “406(b) does not displace contingent-fee agreements

within the statutory ceiling; instead, § 406(b) instructs courts

5 to review for reasonableness fees yielded by those agreements.”

Gisbrecht v. Barnhart,

(2002). If the

benefits awarded to the claimant are substantial in comparison

to the amount of time counsel spent on the case, or if counsel

was responsible for a delay in resolving claimant’s case, a

downward adjustment is appropriate to avoid giving counsel a

windfall.

.

Although the Supreme Court’s guidance in this area is

vague, the Court has made at least one point clear: primary

reliance on the familiar “lodestar” method for calculating a

“reasonable” fee award is not appropriate when considering a fee

application under § 406(b).

[T]he lodestar method today holds sway in federal- court adjudication of disputes over the amount of fees properly shifted to the loser in the litigation. Fees shifted to the losing party, however, are not at issue here. Unlike

and EAJA,

(b) does not authorize the prevailing party to recover fees from the losing party. Section 406(b) is of another genre: It authorizes fees payable from the successful party’s recovery.

Gisbrecht,

(citations omitted). See also

(“[W]e again emphasize, the lodestar method was designed to

govern imposition of fees on the losing party.”). Nevertheless,

the Court did acknowledge that the lodestar method of

6 calculating fees may be a useful factor for courts to consider

in making a “reasonableness” determination.

If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order. In this regard, the court may require the claimant’s attorney to submit, not as a basis for satellite litigation, but as an aid to the court’s assessment of the reasonableness of the fee yielded by the fee agreement, a record of the hours spent representing the claimant and a statement of the lawyers normal hourly billing charge for noncontingent-fee cases.

(citations omitted). That guidance from the Court

has left lower courts uncertain about the extent, if any, to

which the lodestar method should influence a calculation of fees

under § 406(b) when there is a valid contingency fee agreement.

In any event, the starting point in the analysis is plain:

a court must begin with a review of the parties’ contingent-fee

agreement and determine whether strict application of the

agreement’s terms would yield a “reasonable” fee or a

“windfall.” Gisbrecht,

. Courts making such

determinations in similar cases have attempted to balance

numerous factors, including:

the benefits received by the claimant in comparison to the amount of time counsel spent working on the case;

whether counsel was responsible for any delay for which she should not be compensated;

7 the fees awarded in similar cases;

the character of the representation and the results obtained;

the complexity of the case;

the risk assumed by counsel in agreeing to represent the claimant based on an assessment of the strength of the claimant’s case and the likelihood that no benefits would be awarded to the claimant;

whether counsel was aware of that risk at the time she signed the contingent fee agreement with the claimant;

the knowledge, experience, training, and expertise counsel brought to bear on the case;

the claimant’s satisfaction with counsel’s representation and whether there is any indication that the claimant objects to the requested fee award;

the “de facto hourly rate” presented by counsel’s fee request; and, finally,

the fee award that would result if the court were to apply the “lodestar” method of calculation.

See generally

See also Jeter v. Astrue,

(5th Cir. 2010); Fields v. Kijakazi,

(2d Cir. 2022).

Of course, courts must also be mindful that, to encourage

counsel to represent social security claimants who might

otherwise be unable to afford their services, contingent fee

awards must be sufficiently generous to allow counsel in

prevailing cases to cover otherwise unrecoverable costs incurred

8 while representing claimant’s in unsuccessful cases. See, e.g.,

Ezekiel v. Astrue,

(D. Me. 2012)

(“[T]he rationale of contingent fee agreements is that the

lawyer will be paid nothing in the cases he/she loses.

Necessarily, therefore, the lawyer must generate significantly

more than the lodestar in the cases he/she wins, in order to

protect the lawyer’s income as well as the overhead (rent, heat,

light, insurance, staff, supplies, computers, etc.) that are

required regardless, win or lose.”); Fields,

(“This case and cases like it are about getting parties who are

disabled what they are owed while encouraging truly good lawyers

to take on their cases. The question before us involves the

role of contingency fees in achieving these goals. A

contingency fee charged in any given winning case is likely to

be high in relation to the hours actually spent on the case by

the lawyer. But, without contingency fees, people in need of

good lawyers would often not be able to hire them.”).

As noted above, counsel seeks reimbursement for legal work

before this court that, while successful and unarguably critical

to claimant’s recovery, required only 4.1 hours of counsel’s

time. If the court were to award counsel the full $23,000

called for by the contingent fee agreement (at a de facto hourly

rate in excess of $5,600), that would constitute compensation at

9 an hourly rate that other courts in this circuit have thought to

be a windfall. See, e.g., Nichols v. Colvin,

,

(D.N.H. Sept. 26, 2016); Enos v. Saul,

, No. 19-10023-RGS (D. Mass Oct. 15, 2020); Ezekiel, 853

F. Supp 2d at 179-80. See generally Gisbrecht,

(“If the benefits are large in comparison to the amount of time

counsel spent on the case, a downward adjustment is similarly in

order.”); Fields,

(“A windfall is more likely to

be present in a case where the lawyer takes on a contingency-fee

representation that succeeds immediately and with minimal

effort, suggesting very little risk of nonrecovery. That kind

of unearned advantage is what the windfall concern really is

about.”).

Consequently, some reduction is necessary to ensure that a

windfall is avoided and the fee award is reasonable.

Importantly, however, a “reasonable” fee in circumstances such

as these likely falls somewhere along a fairly long continuum;

it is not a point. Given that, it would seem that the court’s

responsibility is to begin with the amount sought by counsel

under her contingent fee agreement and work downward, in an

effort to discern the highest fee award that is sensible,

justifiable, and proper under the circumstances – that is to

say, “reasonable.” After all, Mr. King has agreed to pay

10 Attorney Jackson the full $23,000 in fees requested. And this

court’s role is simply to act as a check against inappropriately

high fee awards, windfalls, and unjust results – that is, to

“contain” the product of contingent fee agreements within some

reasonable limits. See Gisbrecht,

. See

generally Crawford v. Astrue,

(9th Cir.

2009) (“[T]he district courts in these cases started with the

lodestar calculation and then adjusted upward to account for the

contingent nature of the representation. This is contrary to

the Supreme Court’s clear directive that the district court must

first look to the fee agreement and then adjust downward if the

attorney provided substandard representation or delayed the

case, or if the requested fee would result in a windfall.”);

Ezekiel,

(“As Gisbrecht, Crawford, and

Jeter emphasize, however, the lodestar amount (hourly rates

times hours) is not the starting point.”) (emphasis in

original). See also Wells v. Sullivan,

(2d

Cir. 1990) (“[S]ince there is no shifting of fees under §

406(b), courts need not be Solomon-like arbiters of

‘reasonableness’ between the opposing interests of prevailing

plaintiffs and losing defendants. Rather, because a successful

social security claimant evaluates and pays his own attorney, a

court’s primary focus should be on the reasonableness of the

contingency agreement in the context of the particular case; and

11 the best indicator of the ‘reasonableness’ of a contingency fee

in a social security case is the contingency percentage actually

negotiated between the attorney and client, not an hourly rate

determined under lodestar calculations.”).

Turning to the facts in this case, it is plain that, on the

one hand, counsel assumed little risk when she agreed to

represent King in this court – the error made by the ALJ, while

devastating to King, was an obvious one (at least to Attorney

Jackson who had successfully litigated that very error before).

See Kelly v. Saul,

,

(D.N.H. Aug. 1,

2019). And, of course, obtaining the order of remand required

comparatively little time or effort on her part because once

counsel for the Commissioner looked at the case, the

Commissioner promptly agreed to a remand.

But, on the other hand, counsel should not be penalized

simply because her experience and expertise in this field

allowed her to quickly recognize the ALJ’s error and the value

of King’s case. Nor should it be overlooked that her years of

experience and expertise allowed her to quickly identify the

12 ALJ’s error and call it to the attention of the Appeals Council. 2

A practitioner of less experience or expertise might well have

turned the case down altogether, or taken significantly longer

to arrive at the same point. See generally Jeter, 622 F.3d at

380–81 (“[W]e do not read Gisbrecht’s ‘windfall’ as support for

the proposition that experienced, competent counsel should be

punished for accomplishing an arduous task in a shorter span of

time than less-experienced, less-aggressive counsel.”).

Having considered and weighed each of the relevant factors,

the court concludes that a fee award of $12,000 (roughly 12.5

percent (12.5%) of Mr. King’s past-due benefits) strikes an

appropriate balance and falls comfortably within the description

of a “reasonable” fee under the circumstances. It avoids

granting counsel a windfall for the effective but not terribly

time-intensive representation here, yet it recognizes not only

the extensive experience and heightened expertise she brought to

bear in this case, but also the excellent results obtained. It

2 Despite having been alerted to the ALJ’s plain error, see Admin. Rec. at 358-59, the Appeals Council inexplicably failed to recognize or acknowledge it and, instead, simply denied the appeal, id. at 1. Nevertheless, counsel’s brief to the Appeals Council was not entirely in vain – it alerted the Commissioner’s legal counsel to the ALJ’s plain error. That, in turn, prompted the Commissioner to concede that a remand order from this court was appropriate, thereby reviving what was then a repeatedly- denied benefits claim.

13 is also sufficiently generous to encourage her and other

qualified attorneys to continue to represent social security

claimants on a contingent-fee basis – claimants who might

otherwise be unable to secure the assistance of experienced and

capable counsel. Finally, given the facts of record, it strikes

the court as being consistent with § 406(b)’s mandate that an

award of attorney’s fees must be “reasonable” under all of the

relevant circumstances. When counsel filed the appeal in this

court, the claimant had been denied any benefits by the

Commissioner. The Appeals Council provided no relief,

notwithstanding the ALJ’s plain error (which was recognized and

acknowledged only after claimant’s counsel sought relief in this

court). Claimant should not have been required to file the case

to obtain the relief sought, but by filing the successful appeal

to this court, counsel revived the denied claim and opened the

“gateway” to obtaining a significant benefit for her client.

Her victory in this forum was both essential and extremely

valuable to Mr. King.

As an aside, the court notes that had the administrative

process worked as indented, Mr. King’s claims would have been

fully resolved in the administrative forum and the appeal filed

in this court would never have been necessary: the ALJ’s error

was plain and the Appeals Council should have corrected that

14 error. If that had been the case (and, of course, had the

Commissioner not rejected counsel’s fee agreement with Mr. King

on what seems to have been something of a technicality), counsel

likely would have received $7,200 in compensation for the years

of administrative work her law firm had done on claimant’s

behalf. Viewed from that perspective, it is difficult to

imagine that counsel will complain about the court’s fee award

for work performed in this forum – despite being roughly half of

what she seeks. Nor can claimant complaint given that the

amount awarded is substantially less than he agreed to pay, and

a fee award much lower would constitute an unintended windfall

to him at counsel’s expense.

Conclusion

This court’s calculation of “reasonableness” is, of course,

unavoidably subjective in many respects. Sensible minds can

certainly disagree on what a “reasonable” fee in these

circumstances might be. But, as Judge Hornby has observed,

“There is no mathematical answer to guide me or the lawyers

. . . I acknowledge the regrettable imprecision of this

analysis, but the caselaw leaves me no alternative.” Ezekiel,

853 F. Supp 2d at 180-81.

15 For the foregoing reasons, claimant’s Motion for an Award

of § 406(b) Fees (document no. 13) is granted in part, and

denied in part. It is granted to the extent counsel is entitled

to $12,000.00 from Mr. King’s award of past-due benefits as a

reasonable fee for her representation of him in this court.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

February 6, 2023

cc: Counsel of Record

16