Maske v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Karla Ivonne Maske,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-18-04891-PHX-DWL
ORDER
Pending before the Court is the motion for an award of attorneys’ fees under 42
U.S.C. § 406(b) (Doc. 29) and memorandum in support thereof (Doc. 30), submitted by
Plaintiff’s counsel (“Counsel”), which the Commissioner does not oppose1 (Doc. 32).
Counsel seeks $22,367 in § 406(b) fees. (Doc. 29.)
The client-attorney fee agreement provides for a contingency fee—Plaintiff agreed
that the attorneys’ fee would be 25% of all past-due benefits awarded to her. (Doc. 30-2.)
This is unsurprising, as 25% contingency fee agreements are nearly ubiquitous in the
context of social security appeals. Gisbrecht v. Barnhart, 535 U.S. 789, 802-04 (2002).
Section 406(b) “calls for court review” of contingency fee agreements. Id. at 807-
08. “Congress has provided one boundary line: Agreements are unenforceable to the
extent that they provide for fees exceeding 25 percent of the past-due benefits.” Id.
“Within the 25 percent boundary, as petitioners in this case acknowledge, the attorney for
1 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).
Case 2:18-cv-04891-DWL Document 33 Filed 01/29/26 Page 1 of 3

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the successful claimant must show that the fee sought is reasonable for the services
rendered.” Id.
Counsel provided a notice of award from the Social Security Administration that
states: “We usually withhold 25 percent of the past due benefits in order to pay the
approved representative’s fee. We withheld $22,367.00 from your past due benefits in
case we need to pay your representative. (Doc. 30-1 at 4.) The Court notes that this is
not an affirmative statement that $22,367 is 25 percent of the past due benefits, and the
notice of award fails to state the total amount of the past due benefits. The Court has
repeatedly, in various other cases, asked the Social Security Administration to provide a
notice of award that affirmatively states the total amount of past due benefits, but
commonly the notices of award lack such an affirmative statement. In the Court’s
experience, the amount withheld is consistently 25% of the total amount. Thus, the Court
will infer that the amount Counsel seeks does not exceed 25% of the past due benefits.
The Court must determine whether it is appropriate to reduce Counsel’s recovery
“based on the character of the representation and the results the representative achieved”
by assessing, for example, whether Counsel is “responsible for delay” or whether “the
benefits are large in comparison to the amount of time counsel spent on the case.”2
Gisbrecht, 535 U.S. at 808. Counsel included a record of the hours spent representing
Plaintiff. (Doc. 30-3.) Having reviewed the docket and the time records, the Court finds
no cause to reduce Counsel’s recovery.
Accordingly,
IT IS ORDERED that Counsel’s Motion for an Award of Attorney Fees under 42
U.S.C. § 406(b) (Doc. 29) is GRANTED in the amount of $22,367.
IT IS FURTHER ORDERED that Plaintiff’s counsel must refund the lesser of
2 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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the EAJA fee award and the § 406(b) fee award to Plaintiff.
Dated this 29th day of January, 2026.
Case 2:18-cv-04891-DWL Document 33 Filed 01/29/26 Page 3 of 3