Shelly Sasser v. Commissioner of Social Security Administration

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Shelly Sasser, No. CV-22-01725-PHX-DJH 10 Plaintiff, ORDER v. Commissioner of Social Security Administration, Defendant.

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).

1 On remand, Plaintiff recovered past-due benefits in the amount of $84,096.00.

2 (Doc. 28 at 3). Pursuant to the fee agreement, Plaintiff’s counsel now seeks $21,024.00 in attorney fees.

4 II. Legal Standard 5 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.

16 III. Discussion 17 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).

25 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 Unless where otherwise noted, all Section references are to the Social Security Act.

§ 406(b) fees.

2 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 4|| 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 § 9|| 406(b) fees to Plaintiffs counsel, the fees awarded under the EAJA here shall be refunded || to Plaintiff.

11 Accordingly, 12 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 Plaintiffs past-due benefits.

15 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.

17 Dated this 18th day of November, 2025.

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