Sasser v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Shelly Sasser,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-22-01725-PHX-DJH
ORDER
Plaintiff Shelly Sasser (“Plaintiff”) filed a Motion for Attorney Fees pursuant to
42 U.S.C. § 406(b) (Doc. 28), seeking an award of $21,024.00. Plaintiff’s Motion was
backed by her Memorandum of Points and Authorities. (See id. at 3–7). The Social
Security Administration (“SSA”) Commissioner (the “Commissioner”) filed a Response
(Doc. 29) neither supporting nor opposing the award sought.
I. Background
Plaintiff filed Applications for Disability Insurance benefits and Supplemental
Security Income benefits, claiming a disability onset date of November 7, 2018. (R. at 22).
Following a hearing on the issue, the ALJ concluded that Plaintiff was not disabled before
June 18, 2020. (Id.) Plaintiff then sought judicial review of the ALJ’s decision. (See Doc.
1). On April 29, 2021, the Court reversed the ALJ’s decision and remanded the case for
further proceedings. (See Doc. 24). In accordance with the parties’ stipulation, the Court
also issued Plaintiff an award of $4,505.00 in attorney fees and costs under the Equal
Access to Justice Act (“EAJA”). (Doc. 27).
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On remand, Plaintiff recovered past-due benefits in the amount of $84,096.00.
(Doc. 28 at 3). Pursuant to the fee agreement, Plaintiff’s counsel now seeks $21,024.00 in
attorney fees.
II. Legal Standard
Section 4061 establishes “the exclusive regime for obtaining fees for successful
representation of Social Security benefits claimants.” Gisbrecht v. Barnhart, 535 U.S. 789,
795–96 (2002). Section 406(b) provides that “[w]henever a court renders a judgment
favorable to a claimant . . . 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 . . . .” 42 U.S.C. § 406(b)(1)(A). Fees are payable out
of, and not in addition to, the amount of the past-due benefits. Id. Before awarding fees,
the Court must consider whether the 42 U.S.C. § 406(b) fee requested is (1) within the
statutory guidelines; (2) consistent with the fee agreement; and (3) reasonable in light of
the contingent-fee agreement. Gisbrecht, 535 U.S. at 807–08.
III. Discussion
Plaintiff’s counsel is seeking $21,024.00 in § 496(b) fees. (Doc. 28 at 3–4). Upon
review of counsel’s Declaration (Id. at 8), the time expended and the amounts charged by
Plaintiff’s counsel are reasonable in this case. First, the fees sought adhere to § 406(b)’s
guidelines. Plaintiff was awarded $84,096.00 in past-due benefits, and the requested
$21,024.00 in attorney fees equals 25% of the award. Second, this amount is consistent
with the fee agreement which clearly states that Plaintiff’s attorney would be entitled to
25% of past-due benefits. (Id. at 10). Lastly, the requested fee is reasonable given the
contingent-fee agreement because it reflects the nature of the recovery. (Id. at 5).
Plaintiff’s case had a substantial risk of loss because Plaintiff had been repeatedly denied
on agency review before the initiating this civil action. (Id.) In sum, the Court finds that
the amount requested is reasonable under Gisbrecht and will award Plaintiff $21,024.00 in
1 Unless where otherwise noted, all Section references are to the Social Security Act.
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§ 406(b) fees.
Under the present circumstances, however, an offset is necessary. The Court
granted the parties’ Stipulation for Attorney Fees under the EAJA and awarded fees in the
amount of $4,505.00. (Doc. 27). When an attorney receives an award under § 406(b) and
the EAJA, the attorney must refund to the client the smaller of the awards. See Parrish v.
Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1221 (9th Cir. 2012) (holding “[w]here the
same attorney represented a claimant at each stage of judicial review, the court need merely
offset all EAJA awards against the § 406(b) award”). Given the $21,024.00 award of §
406(b) fees to Plaintiff’s counsel, the fees awarded under the EAJA here shall be refunded
to Plaintiff.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney Fees (Doc. 28) is
granted under 42 U.S.C. § 406(b). Plaintiff’s counsel Gayle D. Anthony is awarded
$21,024.00 in attorney fees to be paid out of the sum from Plaintiff’s past-due benefits.
IT IS FURTHER ORDERED that Plaintiff’s counsel shall refund to Plaintiff the
lesser of the fees awarded under 42 U.S.C. § 406(b) and the Equal Access to Justice Act.
Dated this 18th day of November, 2025.
Honorable Diane J. Humetewa
United States District Judge
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