Vega v. Commissioner of Social Security Administration

Filing 32

ORDER: IT IS ORDERED that Plaintiff's Attorney's Motion for an Award of Attorney Fees under 42 U.S.C. § 406(b) (Doc. 24 ) is GRANTED in the amount of $13,493.25. IT IS FURTHER ORDERED that Plaintiff's counsel must refund the lesser of the EAJA fee award and the § 406(b) fee award to Plaintiff. (See Order for full details.) Signed by Judge Dominic W Lanza on 3/19/2020. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kim A Vega,

No. CV-18-01552-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 a motion for an award of attorneys’ fees under 42 U.S.C.

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§ 406(b), submitted by Plaintiff’s counsel, Mark Caldwell (Doc. 24), which the Court

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addressed at length in a December 26, 2019 order (Doc. 26). That order explained that the

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only obstacle to granting the motion was the lack of documentation establishing the amount

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of past-due benefits owed to Plaintiff. (Doc. 26 at 2.) Without knowing the amount of

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past-due benefits, it was impossible to determine whether the amount of fees requested

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exceeded 25 percent of the past-due benefits. (Id.)

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The Court acknowledged that “it is frustrating if indeed the Social Security

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Administration did not provide enough information for Caldwell to know how much is due

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to his client and him” but concluded that “it is unfortunately incumbent upon Caldwell to

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provide information he might not know and must, therefore, ascertain.” (Id. at 3.) Thus,

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Caldwell was ordered to file a supplement that demonstrated the amount of past-due

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benefits owed to Plaintiff or documented Caldwell’s good-faith efforts to obtain that

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information from the Social Security Administration (“SSA”). (Id. at 4.) The order set a

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January 17, 2020 deadline, which seemed like ample time to obtain information the SSA

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should have had readily available. (Id.)

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Nevertheless, on January 3, 2020, Caldwell filed an unopposed motion for a 60-day
extension. (Doc. 27 at 1.) This request was granted. (Doc. 28.)

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On March 17, 2020, Caldwell filed the court-ordered supplement, documenting his

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good-faith (but unsuccessful) attempts to obtain documentation of Plaintiff’s past-due

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benefits. (Doc. 31.) Caldwell documented nine attempts between January 3, 2020 and

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March 10, 2020. (Id. at 2-3.) According to Caldwell, his legal assistant called the SSA’s

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North Eastern Program Service Center, Mod 12 (“NEPSC”) multiple times and was

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frequently told that a technician would get back to him, but the call was never returned.

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(Id. at 2.) Finally, on February 20, 2020, he was advised to call Plaintiff’s local SSA office

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and was informed that the Notice of Award was indeed deficient and that the total amount

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of past-due benefits was $53,973, such that $13,493.25 was 25% of the total award. (Id. at

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3.) He was told a new Notice of Award would issue, but that it might take a while. (Id.)

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To date, and despite follow-up from Caldwell’s office, the Notice of Award has not

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materialized.

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The supplement is sufficient to establish that the fees requested do not exceed 25%

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of the amount of past-due benefits awarded to Plaintiff. The Court will grant the motion

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for § 406(b) fees.

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But more needs to be said. The SSA’s lack of responsiveness in this case is

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unacceptable. In light of the current pandemic and the likelihood that the SSA is now

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dealing with an unusually difficult set of circumstances, the Court will not order the SSA

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to show cause.

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appropriately.

But if such conduct persists in future cases, it will be dealt with

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Furthermore, the Court advises Caldwell that in future cases, if the amount of past-

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due benefits is not indicated in the Notice of Award, he should clearly indicate that fact in

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the fees motion, along with documentation of his efforts to obtain the information. That

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way, if the Court is satisfied that the problem lies with the SSA, the Court can order the

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SSA to file the documentation.
Based on the foregoing, and the analysis contained in the Court’s December 26,
2019 order (Doc. 26),

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IT IS ORDERED that Plaintiff’s Attorney’s Motion for an Award of

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Attorney Fees under 42 U.S.C. § 406(b) (Doc. 24) is GRANTED in the amount of

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$13,493.25.

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IT IS FURTHER ORDERED that Plaintiff’s counsel must refund the lesser of the
EAJA fee award and the § 406(b) fee award to Plaintiff.
Dated this 19th day of March, 2020.

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