Wigginton v. Social Security Administration
ORDER AND REASONS GRANTING 42 Motion for Attorney Fees, as set forth herein. $17,797.50 in attorney's fees is hereby awarded to Plaintiff's counsel under 42 U.S.C. § 406(b). FURTHER ORDERED that Plaintiff's counsel shall refund to the claimant $6,792.72 in EAJA fees already paid to counsel. Signed by Chief Judge Nannette Jolivette Brown on 1/13/2023. (jls)
Case 2:19-cv-11418-NJB Document 44 Filed 01/17/23 Page 1 of 7
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOCIAL SECURITY ADMINISTRATION
ORDER AND REASONS
Before the Court is Plaintiff Melissa Wigginton’s (“Plaintiff”) Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b). 1 Kilolo Kijakazi, Acting Commissioner of Social Security, (the
“Commissioner”) has responded to the instant motion. 2 Considering the result obtained and the
amount of time involved in litigating this case, the Court concludes that the requested fee is
reasonable and does not result in a windfall to the attorney. Accordingly, having considered the
motion, the memoranda in support and in response, the record, and applicable law, for the reasons
discussed below, the Court grants the motion.
In February 2013, Plaintiff filed an application with the Social Security Administration for
disability insurance benefits (“DBI”) and supplemental security income (“SSI”), alleging disability
due to petit mal seizures, fibromyalgia, edema of her feet or ankles, anxiety and depression, and
chronic low platelets. 3 The matter first came before this Court in 2015 when Plaintiff initially filed
an action for judicial review of the final decision of the Acting Commissioner of the Social Security
Rec. Doc. 42.
Rec. Doc. 43.
Adm. Rec. at 170–179, 198.
Case 2:19-cv-11418-NJB Document 44 Filed 01/17/23 Page 2 of 7
Administration denying her claim for DBI and SSI. 4 On March 6, 2017, this Court remanded the
case to the ALJ for a new hearing and for further consideration of the evidence. 5
After holding the mandated hearing on June 14, 2018, the ALJ issued an opinion on
October 2, 2018 again denying Plaintiff’s claim for DBI and SSI. 6 On April 25, 2019, the Social
Security Appeals Council affirmed the ALJ’s decision. 7 On June 28, 2019, Plaintiff filed this
second action for judicial review of the final decision of the Acting Commissioner of the Social
Security Administration denying her claim for DBI and SSI action pursuant to 42 U.S.C. § 405(g). 8
This matter was referred to a United States Magistrate Judge to prepare a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B).
The Magistrate Judge issued a Report and Recommendation on January 8, 2021,
recommending that the decision denying Plaintiff’s claim for SSI and DIB be affirmed. 9 After
Plaintiff filed timely objections to the Report and Recommendation, 10 the Court reviewed
Plaintiff’s claims de novo. On March 30, 2021, the Court declined to adopt the recommendation
and remanded this matter to the ALJ for a second time. 11
Case No. 15-6694, Rec. Doc. 1.
Case No. 15-6694, Rec. Doc. 16.
Adm. Rec. at 399–432, 393.
Id. at 372–75.
Rec. Doc. 1.
Rec. Doc. 28.
Rec. Doc. 29.
Rec. Doc. 33.
Case 2:19-cv-11418-NJB Document 44 Filed 01/17/23 Page 3 of 7
On June 30, 2021, Plaintiff filed a motion for attorney’s fees. 12 On August 10, 2021, the
Commissioner filed a response to the motion for attorney’s fees. 13 On August 27, 2021, the Court
granted the motion in part and denied it in part. 14 The Court found that Plaintiff was a prevailing
party under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), and awarded Plaintiff
attorney’s fees in the amount of $6,792.72, representing 33 hours of time at a rate of $205.84 per
On September 26, 2022, following the second remand by this Court, the SSA issued
Plaintiff an award for $95,190 in past due benefits, with $23,797.50 withheld for payment of
attorney fees. 16 Plaintiff’s counsel was awarded fees in the amount of $6,000 for representation at
the administrative level, leaving $17,797.50 available for 42 U.S.C. § 406(b) fees. 17On November
2, 2022, Plaintiff filed the instant motion for attorney’s fees, requesting an award of attorney’s fees
in the amount of $17,797.50 and an order for Plaintiff’s counsel to refund Plaintiff the EAJA fees
already received by counsel. 18 On November 7, 2022, the Commissioner filed a response to the
Rec. Doc. 37.
Rec. Doc. 38.
Rec. Doc. 39.
Rec. Doc. 42-2 at 3–4.
Rec. Doc. 42.
Rec. Doc. 43.
Case 2:19-cv-11418-NJB Document 44 Filed 01/17/23 Page 4 of 7
II. Parties’ Arguments
Plaintiff’s Arguments in Support of the Motion
Plaintiff seeks an award of $17,797.50 from this Court under Section 404(b). 20 Plaintiff
notes that this award represents a contingency fee of approximately 25% of the total award.21
Plaintiff asserts that this fee is appropriate considering that this litigation has lasted for seven years
and the ultimate result obtained. 22 If the fee is awarded under Section 406(b), Plaintiff notes that
the EAJA fees of $6,792.72 that were previously awarded by this Court must be refunded to
The Commissioner’s Arguments in Response to the Motion
The Commissioner filed a response to the motion but “declines to assert a position on the
reasonableness of Plaintiff’s attorney’s request, because the Commissioner is not the true party in
interest.” 24 The Commissioner notes that the district court is obligated to independently review
Section 406(b) requests to ensure that they satisfy the statutory requirement of yielding reasonable
results in particular cases. 25 Additionally, the Commissioner points out that Section 406(b) fees
Rec. Doc. 42-1 at 2.
Id. at 4.
Id. at 2.
Rec. Doc. 43 at 1 (citing Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002)).
Case 2:19-cv-11418-NJB Document 44 Filed 01/17/23 Page 5 of 7
are permissive rather than mandatory, and the Court should determine the reasonableness and
timeliness of the fee request before awarding fees. 26
III. Law and Analysis
The Social Security Act provides in pertinent part:
Whenever a court renders a judgment favorable to a claimant under this title 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 . . . . 27
Section 406(b) authorizes a district court to award attorney fees, not only when the district
court orders an award of benefits to the claimant, but also in conjunction with a remand for further
proceedings. 28 Nevertheless, “a predicate to a [Section] 406(b)(1) fee award is that the claimant
eventually be awarded past-due benefits, whether at the agency level or during further judicial
In Gisbrecht v. Barnhart, the Supreme Court rejected the application of the lodestar method
to calculate fees under Section 406(b). 30 The Supreme Court has held that Section 406(b) does not
displace contingent-fee agreements as the primary means for setting fees for the successful
42 U.S.C. § 406(b)(1).
McGraw v. Barnhart, 450 F.3d 493, 503 (10th Cir. 2006).
Id.; see also Jackson v. Barnhart, 705 F.3d 527, 531 (5th Cir. 2013) (“all five circuits to consider the
question have determined that § 406(b) fees are authorized in cases where an attorney obtains a favorable decision on
535 U.S. 789, 798 (2002).
Case 2:19-cv-11418-NJB Document 44 Filed 01/17/23 Page 6 of 7
representation of Social Security claimants. 31 However, the Supreme Court did not conclude that
all contingent-fee agreements should be enforced in all cases. 32 Instead, “[i]f the benefits [resulting
from the contingency fee] are large in comparison to the amount of time counsel spent on the case,
a downward adjustment is similarly in order [to] . . . disallow windfalls for lawyers.” 33 Mindful of
the permissive nature of the Section 406(b) fee award inquiry, the Court assesses the timeliness
and reasonableness of an attorney’s Section 406(b) request. 34
The instant motion is timely because it was filed within the deadline set by this Court.35
Plaintiff’s attorney requests a fee of $17,797.50. 36 This request is approximately 18.69% of
Plaintiff’s past-due benefits of $95,190.00. However, Plaintiff’s counsel acknowledges that he
already received $6,000.00 for Section 406(a) fees at the administrative level. Therefore, the total
fee would be 25% of the benefits awarded to Plaintiff. Considering the complexity of this case, the
Court finds that the requested fee is reasonable. Plaintiff appealed the agency’s decision to this
Court on two separate occasions. Both times, the Court remanded the case to the agency for
additional proceedings. On the second remand, Plaintiff secured a substantial award of past
benefits, and Plaintiff will likely be entitled to future benefits until she reaches retirement age.
Id. at 792–93.
Id. at 808.
See McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).
See Rec. Doc. 41.
Rec. Doc. 42-4.
Case 2:19-cv-11418-NJB Document 44 Filed 01/17/23 Page 7 of 7
Plaintiff’s counsel also submits documentation showing that he devoted 60.35 hours to
handling this case in federal court. This would equate to a rate of $294.90 per hour. 37 Considering
the result obtained and the amount of time involved in litigating this case, the Court concludes that
the requested fee is reasonable and does not result in a windfall to the attorney.
The Court previously awarded Plaintiff attorney’s fees in the amount of $6,792.72 under
the EAJA. 38 “Fee awards may be made under both [EAJA and Section 406(b)], but the claimant’s
attorney must refund to the claimant the amount of the smaller fee.” 39 Thus, Plaintiff’s counsel
must refund the EAJA fee award to Plaintiff. Accordingly,
IT IS HEREBY ORDERED that Plaintiff Melissa Wigginton’s Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) 40 is GRANTED. $17,797.50 in attorney’s fees is hereby awarded
to Plaintiff's counsel under 42 U.S.C. § 406(b).
IT IS FURTHER ORDERED that Plaintiff's counsel shall refund to the claimant
$6,792.72 in EAJA fees already paid to counsel.
13th day of January, 2023.
NEW ORLEANS, LOUISIANA, this _____
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT COURT
Rec. Doc. 39.
Gisbrecht, 535 U.S. at 796.
Rec. Doc. 42.
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