Johnson v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Amy Johnson,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-22-02138-PHX-JAT
ORDER
Pending before the Court is Plaintiff Amy Johnson’s Motion for Attorney Fees
under 42 U.S.C. § 406(b) and Memorandum in support thereof. (Docs. 23, 23-1). The
Commissioner of the Social Security Administration (“Commissioner”) did not respond.
The Court now rules.
I. BACKGROUND
Plaintiff initially filed her application for social security disability benefits in June
2017. The Commissioner denied Plaintiff’s application in August 2020 and the SSA
Appeals Council adopted that decision as final. Plaintiff appealed and a Magistrate Judge
remanded the case for a new administrative hearing.1 On remand, the ALJ issued a second
unfavorable decision in December 2022 and Plaintiff again appealed. In December 2023,
this Court reversed the Commissioner’s unfavorable decision and ordered a second remand
for further proceedings.2 (Doc. 19); Johnson v. Comm’r of Soc. Sec. Admin., No. CV-22-
1 The Magistrate Judge awarded Plaintiff’s counsel $5,800 in attorney fees under the Equal
Access to Justice Act (“EAJA”) for representing Plaintiff in the first appeal. (2:20-CV-
02151-MHB, Doc. 25 at 2).
2 This Court awarded Plaintiff’s counsel $5,486.83 in attorney fees under the EAJA for
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02138-PHX-JAT, 2023 WL 8651321, at *1, *5 (D. Ariz. Dec. 14, 2023) (detailing the
procedural history of Plaintiff’s case).
At the second remand hearing, the ALJ issued a fully favorable decision, awarding
Plaintiff $212,900 in backpay, and withholding $52,625.75 for payment of attorney fees.
(Doc. 23-5 at 3, 5 (stating that the Commissioner “usually withhold[s] 25 percent of past-
due benefits” and had withheld $52,625.75)).
Plaintiff’s counsel now seeks this amount—$52,625.75—as a total fee award
pursuant 42 U.S.C. § 406(b). (Doc. 23).
II. LEGAL STANDARD
A court entering judgment in favor of a Social Security claimant represented by
counsel “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). Though “[t]he
statute does not specify how courts should determine whether a requested fee is
reasonable,” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009), the Supreme Court
has made clear that the first step is to respect “the primacy of lawful attorney-client fee
agreements,” Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002). A court may deviate
downward from a requested fee award “if the attorney provided substandard representation
or delayed the case, or if the requested fee would result in a windfall.” Crawford, 586 F.3d
at 1151. “Because the [Commissioner] has no direct interest” in how the award is
apportioned between client and counsel, district courts must independently “assure that the
reasonableness of the fee is established.” Id. at 1149.
In determining whether fees sought under § 406(b) are reasonable, the Court
considers the contingent-fee agreement, the character of the attorney’s representation, and
the achieved result. Gisbrecht, 535 U.S. at 808. Although not controlling, courts may also
consider the number of hours spent representing the claimant and the attorney’s normal
representing Plaintiff in the second appeal. (Doc. 22 at 2). Plaintiff’s counsel has thus
collected $11,286.83 in fees under the EAJA related to her representation of Plaintiff in
both appeals. (Doc. 23-1 at 2).
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hourly billing rate for non-contingent-fee cases in determining reasonableness. Id. at 808–
09. Finally, if a claimant’s attorney receives fees under both the EAJA and § 406(b), the
attorney must “refund to the claimant the amount of the smaller fee.” Id. at 796 (citation
omitted).
III. DISCUSSION
Plaintiff contractually agreed to pay counsel 25% of past-due benefits “with no
maximum cap.” (Doc. 23-4). Plaintiff’s counsel now seeks $52,625.75, or 25%, of the past-
due amount awarded to Plaintiff. (Doc. 23). Counsel’s itemization of services indicates
51.85 hours of attorney services rendered. (Doc. 23-3). Plaintiff’s counsel requests an
hourly rate of $1,014.96 per hour ($52,625.75/51.85 hours), which is on the high end of
effective hourly rates that have been previously approved in this Circuit. See Young v.
Colvin, No. CV-11-538-PHX-SMM, 2014 WL 590335, at *2 (D. Ariz. Feb. 14, 2014)
(citing Crawford, 586 F.3d at 1153) (noting approval of effective hourly rates of $519,
$875, and $902); see also Hopkins v. Comm’r of Soc. Sec. Admin., No. CV-18-08129-PCT-
DGC, 2024 WL 3010939, at *1 (D. Ariz. June 14, 2024) (effective hourly rate of $231.94);
Mize v. Comm’r of Soc. Sec. Admin., No. CV-21-00330-TUC-JGZ, 2024 WL 3951986, at
*2 (D. Ariz. Aug. 27, 2024) (effective hourly rate of $350.79).
However, the $1,014.96 rate is still within the range of reasonableness.3 See
Williams v. Comm’r of Soc. Sec. Admin., No. CV-20-00136-PHX-JAT, 2025 WL 1342821,
at *2 (D. Ariz. May 8, 2025) (approving an effective hourly rate of $1,482.05); see also
Roegner v. Comm’r of Soc. Sec. Admin., No. CV-20-01974-PHX-DLR, 2024 WL 5106647,
at *1 (D. Ariz. Dec. 13, 2024) (approving an effective hourly rate of $1,912.35); McCabe
v. Comm’r of Soc. Sec. Admin., No. CV-22-00192-PHX-DLR, 2025 WL 460744, at *1 (D.
Ariz. Feb. 11, 2025) (approving an effective hourly rate of $1,513.51).
Furthermore, upon review of the record, the Court finds no indication that Plaintiff’s
counsel engaged in any substandard performance or undue delay in prosecuting Plaintiff’s
3 Further, the effective hourly rate lowers to $797.28 per hour when the Court factors in
the EAJA fees that will be refunded to Plaintiff. (Doc. 23-1 at 2, 5 ($52,625.75 (the
requested fee award under § 406(b)(1)(A)) – $11,286.83 (refunded EAJA fees) =
$41,338.92/51.85 hours = $797.28/hour)).
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case. Indeed, counsel represented Plaintiff through two appeals and obtained a favorable
decision. Through counsel’s efforts, Plaintiff was ultimately awarded all benefits for which
she applied. Thus, upon consideration of the Gisbrecht reasonableness factors, in addition
to the risk involved in the contingency fee arrangement in this case, the Court concludes
that a fee award of $52,625.75 is reasonable and will approve an award in this amount.
Because Plaintiff’s counsel “must refund to the claimant the amount of the smaller
fee [between the attorney fees payable under both the EAJA and § 406(b)],” Gisbrecht,
535 U.S. at 796, the Court will order Plaintiff’s counsel to refund the $11,286.83 EAJA
award to Plaintiff upon Plaintiff’s counsel’s receipt of the attorney fees awarded by this
Order.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s counsel’s Motion for Attorney Fees under 42
U.S.C. § 406(b)(1)(A), (Doc. 23), is GRANTED in the amount of $52,625.75.
IT IS FURTHER ORDERED that Plaintiff’s counsel shall, after receipt of the
above-awarded fee, refund to Plaintiff the fee previously awarded under the EAJA, in the
amount of $11,286.83.
Dated this 26th day of January, 2026.
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