Solomon v. Commissioner of Social Security Administration

Filing 31

ORDER: IT IS ORDERED that within 21 days of the date of this order, the Commissioner shall file a Notice of Award that includes (1) the date when Plaintiff's award went into effect, (2) the total amount of past-due benefits as of the date when the award went into effect, and (3) a chart breaking down the periods of time in which the benefits accrued [see attached Order for details]. Signed by Judge Dominic W Lanza on 8/3/21. (MAW)

Case 2:18-cv-00306-DWL Document 31 Filed 08/03/21 Page 1 of 3

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Thomas Paul Solomon, Sr.,

No. CV-18-00306-PHX-DWL

Plaintiff,

10
11

v.

12

Commissioner
Administration,

ORDER

13
14

of

Social

Security

Defendant.

15

On July 29, 2021, the Court denied without prejudice Plaintiff’s counsel’s

16

(“Counsel”) motion for award of attorneys’ fees under 42 U.S.C. § 406(b), noting that “the

17

Notice of Award provided by the [Social Security Administration (‘SSA’)]” that Counsel

18

attached to his motion as proof of the amount of past-due benefits did not actually “indicate

19

the amount of past-due benefits . . . , making it impossible to verify that the award sought

20

does not exceed 25% of this amount.” (Doc. 29 at 2.) After all, § 406(b) “calls for court

21

review,” and this review is rendered meaningless if the Court has no way to ensure that the

22

“one boundary line” Congress established as to whether the contingency fee agreement is

23

enforceable was met. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). Thus, the Court

24

ordered Counsel to “submit additional evidence establishing the amount of past-due

25

benefits,” ideally consisting of “paperwork from the SSA confirming the size of the benefit

26

award”—or, “[a]lternatively, if Counsel [were] unable to obtain such paperwork after

27

making a diligent effort to do so, Counsel [could] submit a declaration setting forth the

28

steps taken to obtain verification paperwork from the SSA.” (Doc. 29 at 3.)

Case 2:18-cv-00306-DWL Document 31 Filed 08/03/21 Page 2 of 3

1

On July 31, 2021, Counsel submitted a “reply brief as to the 42 U.S.C. § 406(b)

2

motion,” which the Court construes as Counsel’s declaration setting forth the steps he has

3

taken to obtain verification paperwork from the SSA. (Doc. 30.)1 Counsel states:
The undersigned and his staff have now made over 20 phone calls to SSA’s
Payment Center and expended more than six hours of uncompensated time
attempting to communicate with the Payment Center. Those efforts routinely
involved extremely long hold times and rarely resulted in the ability to
actually speak to a human being. After this additional effort, counsel was
able to confirm that SSA has not issued a Notice of Award and that the
Agency has refused our requests to issue one.

4
5
6
7
8

(Id. at 1-2.)

9

The SSA is responsible for calculating the amount of past-due benefits. Indeed, the

10

SSA cannot pay Plaintiff these past-due benefits, nor calculate the amount of money to

11

withhold for § 406(b) fees, without first performing this basic calculation. Here, the SSA

12

must have already calculated the amount of past-due benefits, and that information must

13

be a part of Plaintiff’s record. The SSA is responsible for informing Plaintiff and his

14

attorney as to this amount of past-due benefits, for the obvious reason that Plaintiff has a

15

right to know how much money he is owed, and also because Counsel cannot seek § 406(b)

16

fees until this information is received. Cf. West v. Astrue, 2008 WL 4570683, *2 (D. Alaska

17

2008) (“Eaglin’s motion for fees under § 406(b) will be denied without prejudice because

18

it is premature.

19

due benefits.”). The SSA’s failure to do so—especially after repeated requests to do so—

20

is frustrating and inexplicable.2 This is not the first time a court has made this observation.

21

See, e.g., Wilkinson v. Saul, 2020 WL 4275259, *1 n.1 (D.N.D. 2020) (“Inexplicably, the

22

SSA’s award notices do not set forth the total amount of past-due benefits. . . . In short, it

23

is not possible to tell from the information in the award notice whether the SSA has

24

properly calculated the past-due benefits, under withheld for potential attorney fees, or

Eaglin may reassert the motion once the agency calculates past-

25
1

26
27
28

The deadline to file a reply brief has long since lapsed, and the motion has already
been denied.
2
The Court recognizes that the COVID-19 pandemic has caused difficulties for the
SSA, along with the rest of the world, for the past 17 months. Nevertheless, notifying
disabled claimants who prevail on appeal as to the amount of their past-due benefits is a
simple administrative task that presumably takes little time and effort on the SSA’s part.
-2-

Case 2:18-cv-00306-DWL Document 31 Filed 08/03/21 Page 3 of 3

1

both. Since the SSA obviously made a calculation and given the fact the statute governing

2

fees makes the calculation material, one wonders whether it is being deliberately obtuse in

3

not providing the exact number.”); McCown v. Astrue, 2009 WL 602939, *3 (S.D.N.Y.

4

2009) (“Although the plaintiff’s application for attorney’s fees includes a copy of SSA’s

5

determination following the remand, as well as SSA’s notification to the plaintiff about his

6

entitlement to benefits beginning July 2003, no information is provided in those documents

7

concerning the total amount of the past-due benefits to which the plaintiff is entitled. The

8

plaintiff’s counsel assumes, based on SSA’s notification to the plaintiff, that SSA: (i)

9

‘usually withhold[s] 25 percent of past due benefits in order to pay the approved lawyer’s

10

fee;’ and (ii) ‘withheld $10,600.00 from your past due benefits in case we need to pay your

11

lawyer,’ that the total amount of the past-due benefits to which the plaintiff is entitled is

12

$42,400. However, in light of the facts that SSA ‘usually,’ but not always, withholds 25

13

percent of past due benefits in order to pay attorney’s fees and that SSA’s determination of

14

the amount of benefits to which the plaintiff is entitled may be appealed, . . . the Court has

15

no basis upon which to determine the reasonableness of the attorney’s fee requested or

16

whether the fee requested is within the statutory boundary of 25 percent.”).

17

Accordingly,

18

IT IS ORDERED that within 21 days of the date of this order, the Commissioner

19

shall file a Notice of Award that includes (1) the date when Plaintiff’s award went into

20

effect, (2) the total amount of past-due benefits as of the date when the award went into

21

effect, and (3) a chart breaking down the periods of time in which the benefits accrued.

22

Dated this 3rd day of August, 2021.

23
24
25
26
27
28

-3-