United States District Court, D. Arizona
Dominic W. Lanza United States District Judge.
before the Court is the motion for an award of attorneys'
fees under 42 U.S.C. § 406(b), submitted by
Plaintiff's counsel, Mark Caldwell, which the
Commissioner does not oppose. (Doc. 24.) Caldwell submitted a
memorandum in support of the motion (Doc. 25), attaching a
“Notice of Award” from the Social Security
Administration (Doc. 25-1), the client-attorney fee agreement
(Doc. 25-2), and an itemization of services (Doc. 25-3).
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. 25-2 at 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).
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 the successful claimant must show that the
fee sought is reasonable for the services rendered.”
requests $9, 468.25, an amount he appears to have reached by
subtracting $4, 025.00 (fee for administrative services
authorized by 42 U.S.C. § 406(a)) from $13, 493.25, the
amount the Social Security Administration withheld from
past-due benefits for a potential attorneys' fee. (Doc.
25 at 2.)
amount requested appears to be reasonable,  and there is no
question that the fee agreement between Plaintiff and
Caldwell is enforceable, as it provides for 25% of past-due
benefits, as is authorized by Gisbrecht. The only
problem facing the Court is that Caldwell has not submitted
documentation demonstrating that $13, 493.25 is, in
fact, 25% (or less) of the past-due benefits awarded to
Plaintiff. The Social Security Administration's Notice of
Award (Doc. 25-1) does not ever identify the amount of
past-due benefits awarded to Plaintiff. Rather, the Notice
Your lawyer may ask the court to approve a fee nolarger [sic]
than 25 percent of past due benefits. Past due benefits are
those payable to you (and your family) through August 2019,
the month before the court's decision. For this reason,
we are withholding $13, 493.25.
(Doc. 25-1 at 4.)
appears to the Court that Caldwell simply assumes that the
amount the Social Security Administration withheld must be
equal to 25% of Plaintiff's past-due benefits. But the
Social Security Administration did not certify that this is
true, nor did it affirmatively state the amount of past-due
benefits, which would enable Caldwell and this Court to do
the simple mathematical task of multiplying that amount by
0.25. Fox v. Astrue, 2007 WL 4365489, *1 (D. Ariz.
2007) (calculating 25% of the past-due benefits after the
Social Security Administration calculated incorrectly).
it is possible to deduce the amount of past-due benefits
awarded from other parts of the Notice of Award, but if this
is so, Caldwell must “show his work” and explain
the mathematical process by which he determined the amount of
past-due benefits awarded. Cf. Saunders v. Astrue,
2:08-cv-00595-DGC, Doc. 51 at 2 (table demonstrating the
amount awarded per month for different time periods,
multiplying those amounts by the number of months in each
respective period, and adding the sums to generate the total
amount of past-due benefits); Saunders v. Astrue,
2012 WL 1564629, *2 (D. Ariz. 2012) (“The Court finds
that the notice of award . . . contains enough information to
determine the amount of the award and the amount of fees due
under this motion.”).
extent that Caldwell relied on the assumption that the amount
withheld equals 25% of Plaintiff's past-due benefits, the
Court recognizes that it is frustrating if indeed the Social
Security Administration did not provide enough information
for Caldwell to know how much is due to his client and to
him. But the Court cannot authorize an award of
attorneys' fees under 42 U.S.C. § 406(b) until the
Court knows the amount of Plaintiff's past-due benefits,
and thus it is unfortunately incumbent upon Caldwell to
provide information he might not know and must, therefore,
ascertain. See, e.g., Christopherson v.
Astrue, 2:09-cv-1005, Doc. 58 (“From this
supplement, and on this record, the Court cannot
independently calculate 25% of past due benefits. Further,
counsel never represents that he has independently calculated
what 25% of Plaintiff's past due benefits would be;
instead, he seems to adopt the number used by the social
security administration. Thus, basically, counsel is asking
the Court to accept social security's statement of
‘We usually withhold 25 percent of past due benefits in
order to pay the approved lawyer's fee. We withheld $6,
635.75…' to mean, ‘we have calculated 25% of
your past due benefits and guarantee it to be $6,
635.75.' Perhaps such a reading is indeed what social
security intended, but it is not what they said.”).
IT IS ORDERED that by January 17, 2020,
Caldwell shall file a supplement to the request for fees (1)
explaining how the amount of past-due benefits owed to
Plaintiff can be deduced from the Notice of Award, (2)
providing additional documentation establishing the amount of
past-due benefits owed to Plaintiff, and/or (3) documenting
Caldwell's good-faith efforts to obtain this information
from the Social Security Administration.