How does the 42 U.S.C. § 406(b) fee petition standard differ from EAJA § 2412(d), and how does the Sinkler offset work?

42 U.S.C. § 406(b) authorizes the federal district court to allow 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' as part of the judgment — capped at 25% of past-due benefits, with a historical dollar cap that SSA has applied. Gisbrecht v. Barnhart, 535 U.S. 789 (2002) held that § 406(b) fee awards are not pure lodestar calculations: the court evaluates the reasonableness of a contingency fee agreement capped at 25% of past-due benefits, considering whether the fee is out of proportion to the work done (a windfall reduction) or whether the attorney caused the delay that increased the past-due benefits amount. EAJA § 2412(d), 28 U.S.C. § 2412(d), awards fees at the EAJA rate (approximately $235/hr in 2026) when the government's position was not substantially justified and the claimant's net worth is below $2 million. Under the Sinkler offset rule (from Sinkler v. Berryhill, adopted in most circuits), an attorney who receives both an EAJA award and a § 406(b) award must refund the smaller of the two to the client — so if EAJA hours × $235 exceeds the § 406(b) award, the attorney keeps the EAJA amount and refunds the § 406(b) amount to the client (or vice versa). The practical effect is that the attorney keeps whichever is larger. This means contemporaneous hourly records are critical even in contingency-fee SSD representations: the lodestar calculation determines (a) whether the § 406(b) contingency fee is a windfall relative to hours worked under Gisbrecht, and (b) which of the two fee awards — § 406(b) or EAJA — is larger and therefore which the attorney retains under Sinkler.

What temporal anchors does the court use to evaluate Social Security disability billing reconstruction?

In SSA disability cases, the temporal anchor framework uses the SSA Notice of Hearing date (produced in the administrative record filed with the district court — dated and specific), the ALJ hearing date (also in the administrative record), the ALJ decision date (publicly identified in the administrative record's final page), the AC denial date (produced as the Notice of Appeals Council Action in the administrative record), the federal complaint filing date (PACER-indexed), and the SSA Notice of Award date (issued by SSA when past-due benefits are determined, creating the § 406(b) fee petition deadline). Courts evaluating EAJA fee petitions cross-reference billing entries against the federal court docket — every brief filed, every extension granted, every hearing held — and the administrative record timeline to evaluate whether the hours claimed for the federal briefing phase are consistent with the complexity and length of the briefs actually filed. For Gisbrecht § 406(b) windfall analysis, courts compare the total hours worked (from the Notice of Hearing through the federal remand) against the § 406(b) fee to determine whether the effective hourly rate is excessive: if a 15-hour case generates a $10,000 § 406(b) fee based on $40,000 in past-due benefits, the court applies Gisbrecht to determine whether $667/hour is a windfall relative to the market rate for SSD representation, which requires contemporaneous records documenting all 15 hours.

Fee petition mechanics · Updated June 2026

Social Security disability attorney fee petition mechanics: ALJ hearing preparation advisory call cycle, SSA Appeals Council and federal court EAJA advisory call cycle, and 42 U.S.C. § 406(b) lodestar documentation

Q: How do ALJ hearing preparation advisory calls generate billing gaps on the SSA's hearing notice schedule?

Under 20 C.F.R. § 404.938, the SSA is required to send written notice of the hearing time and place to the claimant at least 75 days before the hearing — the ALJ's hearing scheduling office sets the hearing date, not the claimant's attorney. When the Notice of Hearing is received, the claimant's attorney must immediately respond to a series of actions driven by the hearing date calendar: the medical records update review (treating physicians must be re-contacted if records within the past 12 months are not in the file), the vocational expert's credentials review (the ALJ designates the vocational expert; the VE's testimony at the hearing will determine whether any jobs exist in the national economy that the claimant can perform under the Dictionary of Occupational Titles), the treating physician's RFC (Residual Functional Capacity) update (a new RFC from the treating physician within 90 days of the hearing strengthens the claimant's case under the treating physician rule, 20 C.F.R. § 404.1527(c)(2), and its SSR 96-2p administrative equivalent), and the hearing preparation call with the claimant (the final preparation call before the ALJ hearing, reviewing the claimant's testimony about daily activities, pain levels, and work-preclusive limitations). These calls arrive on the SSA's hearing scheduling calendar — 75 days of preparation triggered by the Notice of Hearing — not on any billing cycle the claimant's attorney controls. At 55% untracked: 15 active ALJ hearing clients × 3 calls × 42 min × 55% = 1,040 min / 60 ≈ 17.3 hours = $5,190–$8,650/year at $300–$500/hr.

Q: How do SSA Appeals Council and federal court advisory calls generate billing gaps on the AC's processing calendar?

After an ALJ denial, the claimant must request review by the SSA Appeals Council within 60 days of the ALJ's decision under 20 C.F.R. § 404.968. The Appeals Council processes requests at its own pace — typically 110–180 days from the request for review — and issues its decision denying review, granting review, or remanding to the ALJ on the AC's own schedule. When the AC issues a denial of review, the 60-day deadline for filing a federal court complaint under 42 U.S.C. § 405(g) begins to run from the date of the AC's denial letter (plus 5 days for mail under 20 C.F.R. § 422.210(c)). The AC's denial letter and the resulting federal court briefing deadlines all arrive on the AC's processing calendar and the district court's scheduling calendar — not on any billing cycle the claimant's attorney controls. The EAJA fee petition — available when the Commissioner's position was not 'substantially justified' under EAJA § 2412(d), 28 U.S.C. § 2412(d) — requires contemporaneous Hensley-quality billing records documenting the federal court phase of the representation, including the briefing on the specific administrative errors that led to the remand. At 55% untracked: 5 federal court clients × 4 calls × 46 min × 55% = 667 min / 60 ≈ 11.1 hours = $3,330–$5,550/year at $300–$500/hr.

Social Security disability attorneys representing claimants from initial application through ALJ hearings and federal district court appeals — whose time records must satisfy the contemporaneous-documentation standard required by Gisbrecht v. Barnhart, 535 U.S. 789 (2002) for any 42 U.S.C. § 406(b) fee petition and by Hensley v. Eckerhart, 461 U.S. 424 (1983) as applied through EAJA § 2412(d), 28 U.S.C. § 2412(d), for any EAJA petition when the Commissioner's position was not substantially justified under Pierce v. Underwood, 487 U.S. 552 (1988) — generate three billing gaps driven by advisory calls arriving on external SSA administrative calendars outside counsel's billing control: ALJ hearing preparation advisory calls arriving on the SSA's 75-day hearing notice schedule under 20 C.F.R. § 404.938 (15 active ALJ hearing clients × 3 calls × 42 min × 55% untracked ≈ 17.3 hrs = $5,190–$8,650/year at $300–$500/hr), SSA Appeals Council review and federal district court advisory calls arriving on the AC's processing calendar and the district court's scheduling calendar (5 federal court clients × 4 calls × 46 min × 55% untracked ≈ 11.1 hrs = $3,330–$5,550/year), and 42 U.S.C. § 406(b) fee petition preparation and Sinkler EAJA offset advisory calls after a successful past-due benefits award (4 clients × 2 calls × 52 min × 55% ≈ 4.0 hrs = $1,200–$2,000/year). For a solo SSD practice with 150–300 active matters in the ALJ hearing and federal court pipeline, the annual billing gap from advisory call underlogging is $9,720–$16,200.

TL;DR

ClaimHour captures every ALJ hearing preparation advisory call that arrives on the SSA's 75-day hearing notice schedule, every SSA Appeals Council and federal court EAJA advisory call that arrives on the AC's processing calendar and the district court's scheduling calendar, and every § 406(b) fee petition and Sinkler EAJA offset advisory call after a successful past-due benefits award — passively, no timer, no audio, no call contents. $29–$59/mo. No PMS required.

ALJ hearing preparation advisory: calls on the SSA's hearing notice schedule

Under 20 C.F.R. § 404.938, the SSA must provide written notice of the hearing at least 75 days before the hearing date — the ALJ's hearing scheduling office determines the hearing date, and the claimant's attorney has 75 days to prepare from the receipt of the Notice of Hearing. The Notice of Hearing is not a billing trigger the attorney controls; it is an administrative notice that arrives on the SSA's docketing calendar and immediately starts the preparation clock. In a SSD practice with 150–300 active matters, the ALJ hearings are distributed throughout the year on the hearing office's scheduling calendar — typically 10–25 hearings per month in a high-volume practice — and the 75-day preparation window for each hearing creates a recurring cycle of preparation calls that arrive on the SSA's schedule rather than on any billing prompt the attorney manages.

Three ALJ hearing preparation advisory call types that arrive on the SSA's hearing notice schedule: (1) medical records update and treating physician RFC advisory — arrives within 5–10 days of receiving the Notice of Hearing, requiring analysis of whether the medical records in the SSA's file extend through the past 12 months (stale records — those more than 12 months old — may lead the ALJ to order a consultative examination by the SSA's selected physician, whose opinion often conflicts with the treating physician), whether the treating physician has provided a current Residual Functional Capacity assessment on SSA Form RFC-Physical or RFC-Mental within the past 90 days, whether the treating physician's RFC supports the claimant's allegations of total disability under the SSA's disability evaluation framework (20 C.F.R. § 404.1520(a)(4) five-step sequential evaluation), and whether a consultative examination ordered by the ALJ requires a rebuttal letter to the consultative examiner's RFC before the hearing (42–48 min); (2) vocational expert testimony and Dictionary of Occupational Titles advisory — arrives when the ALJ designates a vocational expert and the VE's credentials are produced, requiring analysis of whether the VE is qualified to testify about the claimant's past relevant work (20 C.F.R. § 404.1560(b)) and the existence of other work in the national economy (20 C.F.R. § 404.1566), whether any of the hypothetical jobs the VE identifies are inconsistent with the claimant's RFC limitations under SSR 00-4p (which requires the ALJ to ask the VE about any inconsistency with the Dictionary of Occupational Titles before relying on the testimony), and what cross-examination questions will expose the VE's reliance on outdated DOT codes or light-work assumptions that conflict with the claimant's specific RFC limitations (40–46 min); (3) final hearing preparation advisory with claimant — arrives 5–7 days before the hearing date, requiring review of the complete administrative record with the claimant (the claimant has not reviewed the record; the attorney must review the record's exhibits with the claimant to identify any inaccuracies, missing treating physician records, or outdated vocational information), preparation of the claimant's testimony about daily activities and functional limitations at five points of the day (morning, midday, afternoon, evening, night) in a format responsive to the ALJ's standard daily-activities inquiry, and discussion of the hearing procedures (the claimant's right to review all evidence, submit pre-hearing briefs under HALLEX I-2-6-58, and object to the VE's testimony) (44–50 min). At 55% untracked: 15 active ALJ hearing clients × 3 calls × 42 min × 55% = 1,040 min / 60 ≈ 17.3 hours = $5,190–$8,650/year at $300–$500/hr.

SSA Appeals Council and federal court EAJA advisory: calls on the AC's processing calendar

After an ALJ unfavorable decision, the claimant must request Appeals Council review within 60 days of the ALJ decision under 20 C.F.R. § 404.968 (plus 5 days for mail under § 404.901). The Appeals Council processes AC review requests at its own pace — the median AC processing time is 110–180 days, but individual cases may take longer based on the volume of pending cases at the SSA's Office of Appellate Operations. When the AC denies review, the claimant has 60 days from the AC denial to file a complaint in federal district court under 42 U.S.C. § 405(g). The federal court complaint triggers a scheduling order setting briefing deadlines for the claimant's opening brief, the Commissioner's response brief, and the claimant's reply — all on the court's scheduling calendar, not on any billing cycle the claimant's attorney manages.

Four SSA Appeals Council and federal court advisory call types that arrive on the AC's and court's scheduling calendars: (1) AC brief strategy and AC denial anticipation advisory — arrives when the AC review request is filed, requiring analysis of what specific errors of law or fact in the ALJ's decision warrant AC review (the AC grants review only when there is an error of law, an abuse of discretion, or substantial evidence fails to support the ALJ's findings — ALJ factual determinations that are merely "wrong" do not warrant review without a specific legal error), whether a brief to the AC is warranted given the AC's low grant-review rate (approximately 2–3% of AC requests result in a grant of review), and whether federal court complaint preparation should begin immediately given the 60-day deadline that will follow the AC denial (46–52 min); (2) federal court complaint filing and briefing strategy advisory — arrives when the AC denies review and the 60-day federal complaint deadline begins, requiring analysis of the federal court filing deadline (60 days from the AC denial date, with 5 days added for mail under 20 C.F.R. § 422.210(c)), whether the district court in the applicable federal circuit applies the substantial-evidence standard under 42 U.S.C. § 405(g) strictly (deferential) or applies heightened scrutiny to specific ALJ credibility determinations, whether the ALJ's decision fails to contain sufficient reasoning under SSR 96-8p (RFC assessment) and the articulation requirement of 20 C.F.R. § 404.1520c (evaluation of medical opinions under the 2017 regulations) to survive review, and the EAJA fee petition strategy if the ALJ committed a specific legal error (48–54 min); (3) Commissioner's response brief and reply advisory — arrives when the SSA's attorney files the Commissioner's answer and brief on the court's scheduling calendar, requiring analysis of the Commissioner's defense of the ALJ's decision, whether the Commissioner relies on post-hoc rationalizations not present in the ALJ's written decision (which courts reject under SEC v. Chenery, 332 U.S. 194 (1947)), and how to present the reply brief's EAJA preservation argument if the Commissioner's brief reveals that the government's litigating position — as opposed to the underlying SSA administrative action — was not substantially justified under Pierce v. Underwood, 487 U.S. 552 (1988) (48–54 min); (4) sentence-four remand order and EAJA petition timing advisory — arrives when the district court issues a sentence-four remand order under § 405(g) (the most common outcome), starting the 30-day EAJA petition deadline under EAJA § 2412(d)(1)(B) (28 U.S.C. § 2412(d)(1)(B) requires the petition to be filed within 30 days of final judgment becoming final — the district court's remand order becomes final after the Commissioner's time to appeal has elapsed), requiring analysis of whether the Commissioner's litigating position was not substantially justified, how to document the EAJA lodestar at Hensley task-specific level for the federal court phase (the administrative phase is not recoverable in the EAJA petition — only federal court hours are), and whether the EAJA award or the § 406(b) award will be larger under the Sinkler offset analysis given the anticipated past-due benefits amount (44–50 min). At 55% untracked: 5 federal court clients × 4 calls × 46 min × 55% = 667 min / 60 ≈ 11.1 hours = $3,330–$5,550/year at $300–$500/hr.

42 U.S.C. § 406(b) fee petition and Sinkler EAJA offset advisory: calls after successful benefits award

When the district court's remand results in a favorable ALJ decision on remand — or when the court itself awards benefits under sentence-six of § 405(g) — the SSA issues a Notice of Award specifying the amount of past-due benefits. The § 406(b) fee petition may be filed within 14 days of the notice of award in some circuits (per local rules and the SSA's fee approval process). 42 U.S.C. § 406(b) caps the fee at 25% of past-due benefits; Gisbrecht v. Barnhart, 535 U.S. 789 (2002) requires the court to evaluate whether the contingency fee represents a windfall relative to the work performed, applying a de facto hourly rate analysis: if 25% of past-due benefits divided by hours worked produces a per-hour rate substantially higher than the market rate, Gisbrecht requires a reduction. The Sinkler EAJA offset rule (adopted in most circuits) requires the attorney to refund the smaller of the EAJA award or the § 406(b) award to the client — the attorney retains the larger of the two.

Two § 406(b) fee petition and Sinkler EAJA offset advisory call types that arrive after successful benefits award: (1) § 406(b) fee calculation and Gisbrecht windfall analysis advisory — arrives when the SSA Notice of Award is issued, requiring analysis of the total past-due benefits award, the 25% cap calculation, the market rate for SSD representation in the applicable jurisdiction, whether the effective hourly rate (25% fee divided by total hours worked from first client contact through the remand outcome) is reasonable under Gisbrecht or constitutes a windfall, whether any delay in the case was caused by the attorney's own conduct (which triggers a mandatory Gisbrecht reduction under Gisbrecht's third factor), and the amount of the § 330 administrative fee previously approved by the SSA under 42 U.S.C. § 406(a) that must be deducted from the § 406(b) maximum (52–58 min); (2) Sinkler EAJA offset coordination and fee petition timing advisory — arrives when both the EAJA petition deadline and the § 406(b) petition window are running concurrently, requiring analysis of the exact amounts of both the potential EAJA award (federal court hours × $235 EAJA rate) and the potential § 406(b) award (25% × past-due benefits, minus any § 406(a) administrative fee previously paid), whether the EAJA filing deadline of 30 days from final judgment has elapsed and whether a late EAJA petition can be salvaged, and how to structure the § 406(b) petition to present the Gisbrecht reasonableness analysis — including the complete hourly record from Notice of Hearing through final remand outcome — in a format that maximizes the § 406(b) award and avoids a windfall reduction (48–54 min). At 55% untracked: 4 clients × 2 calls × 52 min × 55% = 241 min / 60 ≈ 4.0 hours = $1,200–$2,000/year at $300–$500/hr.

How ClaimHour fits Social Security disability practice

If you represent SSD claimants from ALJ hearing preparation through federal district court appeals — with ALJ hearing preparation advisory calls arriving on the SSA's 75-day Notice of Hearing calendar, treating physician RFC update calls arriving on the physician's availability calendar, and VE cross-examination preparation calls arriving when the ALJ designates a vocational expert — SSA Appeals Council and federal court advisory calls arriving on the AC's processing calendar and the court's briefing schedule — and § 406(b) fee petition and Sinkler EAJA offset advisory calls arriving when the Notice of Award is issued — and if your § 406(b) petitions under Gisbrecht v. Barnhart must be supported by contemporaneous billing records documenting every hour from first client contact through the remand outcome to survive the Gisbrecht windfall analysis, and if your EAJA petitions under Hensley and Pierce v. Underwood require task-specific federal court phase documentation at the 0.1-hour level — ClaimHour was built for that gap.

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