Solomon v. Commissioner of Social Security Administration

Filing 29

ORDER: IT IS ORDERED that Counsel's motion for an award of attorneys' fees under 42 U.S.C. § 406(b) (Doc. 26 ) is denied without prejudice. Counsel must, within 21 days of this order, submit additional evidence establishing the amount of past-due benefits [see attached Order for details]. Signed by Judge Dominic W Lanza on 7/29/21. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas Paul Solomon, Sr.,

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No. CV-18-00306-PHX-DWL

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is the motion for an award of attorneys’ fees under 42

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U.S.C. § 406(b), (Doc. 26), submitted by Plaintiff’s counsel, David Chermol (“Counsel”),

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which the Commissioner does not oppose1 (Doc. 28). Counsel seeks $38,792.00 in

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§ 406(b) fees. (Doc. 26 at 2.)

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The client-attorney fee agreement provides for a contingency fee—Plaintiff agreed

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that the attorneys’ fee would be 25% of all past-due benefits awarded to her. (Doc. 22-2

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at 2.) This is unsurprising, as 25% contingency fee agreements are nearly ubiquitous in

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the context of social security appeals. Gisbrecht v. Barnhart, 535 U.S. 789, 802–04 (2002).

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Section 406(b) “calls for court review” of contingency fee agreements. Id. at 807.

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“Congress has provided one boundary line: Agreements are unenforceable to the extent

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that they provide for fees exceeding 25 percent of the past-due benefits.” Id. “Within the

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25 percent boundary . . . the attorney for the successful claimant must show that the fee

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The Commissioner “has no direct financial stake in the answer to the § 406(b)
question” because the fees, if granted, will be taken out of Plaintiff’s past-due benefits, and
therefore the Commissioner’s role “resembl[es] that of a trustee for the claimants.”
Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002).

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sought is reasonable for the services rendered.” Id.

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The Court must next determine whether it is appropriate to reduce Counsel’s

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recovery “based on the character of the representation and the results the representative

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achieved” by assessing, for example, whether Counsel is “responsible for delay” or

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whether “the benefits are large in comparison to the amount of time counsel spent on the

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case.”2 Id. at 808. “Because the SSA has no direct interest in how much of the award goes

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to counsel and how much to the disabled person, the district court has an affirmative duty

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to assure that the reasonableness of the fee is established.” Crawford v. Astrue, 586 F.3d

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1142, 1149 (9th Cir. 2009). “It must be remembered that every dollar that goes to the

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attorney comes out of an award that otherwise should be going to a person whom the law

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has said is exceedingly needy.” Ashing v. Astrue, 798 F. Supp. 2d 1143, 1147 (C.D. Cal.

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2011).

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Counsel attached the Notice of Award provided by the SSA, which does not

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indicate the amount of past-due benefits (Doc. 26-1), making it impossible to verify that

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the award sought does not exceed 25% of this amount.3 Counsel notes that the $38,792.00

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he seeks is the amount withheld by the SSA, and because the SSA stated that it “cannot

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withhold more than 25 percent of past-due benefits” (id. at 1), Counsel assumes that the

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amount of past-due benefits must be $155,168.00. (Doc. 26 at 2.) The Commissioner did

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not oppose this assumption (Doc. 28), and therefore the Court might ordinarily accept it.

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Dunnigan v. Astrue, 2009 WL 6067058, *9 (D. Or. 2009), report and recommendation

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adopted, 2010 WL 1029809 (D. Or. 2010) (“Although evidence of the precise amount or

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This determination does not equate to use of the lodestar method. Crawford v.
Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (“The lodestar method under-compensates
attorneys for the risk they assume in representing SSDI claimants and ordinarily produces
remarkably smaller fees than would be produced by starting with the contingent-fee
agreement. A district court’s use of the lodestar to determine a reasonable fee thus
ultimately works to the disadvantage of SSDI claimants who need counsel to recover any
past-due benefits at all.”).
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This is, unfortunately, a recurring problem. See, e.g., Vega v. Comm’r of Soc. Sec.
Admin., 2:18-cv-01552-DWL, Doc. 26 at 2 (“The Social Security Administration’s Notice
of Award . . . does not ever identify the amount of past-due benefits awarded to Plaintiff.”);
Hires v. Comm’r of Soc. Sec. Admin., 2010 WL 2720821, *1 (D. Ariz. 2010) (“[T]he notice
does not set forth the total amount of the award. . . . Therefore, we are unable to verify the
calculation.”).
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an estimate supported by the record of the past-due benefit is the better method of

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establishing this element of the attorney’s § 406(b) burden, the record in this case supports

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accepting [the plaintiff’s] attorney’s representation as adequate for conducting its

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reasonableness assessment.”).

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However, the award sought here is quite large, and the Court is concerned about not

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having any verification of the amount of past-due benefits, let alone a chart of some kind

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breaking down the periods of time in which the benefits accrued, as is sometimes submitted

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with these fee requests.

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Accordingly,

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IT IS ORDERED that Counsel’s motion for an award of attorneys’ fees under 42

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U.S.C. § 406(b) (Doc. 26) is denied without prejudice. Counsel must, within 21 days of

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this order, submit additional evidence establishing the amount of past-due benefits. Such

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evidence should ideally consist of paperwork from the SSA confirming the size of the

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benefit award. Alternatively, if Counsel is unable to obtain such paperwork after making

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a diligent effort to do so, Counsel may submit a declaration setting forth the steps taken to

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obtain verification paperwork from the SSA. If and when Counsel submits the required

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additional evidence, the Court will proceed to analyze the reasonableness of the requested

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award.

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Dated this 29th day of July, 2021.

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