govinfo:USCOURTS-azd-3_19-cv-08010-2

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Jason Chisholm, 
 
Plaintiff, 
 
v. 
 
Commissioner of Social Security 
Administration, 
 
Defendant. 
No. CV-19-08010-PCT-JAT 
 
ORDER 
 
 
 Pending before the Court is Plaintiff’s Attorney’s First Amended Motion for 
Attorney Fees Under 42 U.S.C. § 406(b). (Doc. 21). The government filed a response 
offering an analysis to assist this Court. (Doc. 23). Plaintiff’s counsel replied. (Doc. 24). 
After this Court ordered supplemental briefing on April 4, 2022, (Doc. 25), both parties 
filed supplemental responses (Docs. 28, 29). The Court now rules. 
I. BACKGROUND 
Following denials at the administrative level, Plaintiff filed this action seeking 
judicial r eview of the Commissioner’s decision. (Doc. 1) . After the parties submitted 
briefing (Docs. 13, 14, 15), the Court entered an order reversing the ALJ’s decision and 
remanding this matter for further administrative proceedings and the Clerk of the Court 
entered judgment in this case (Docs. 16, 17). On remand, the ALJ issued a fully favorable 
disability decision , finding Plaintiff disabled as of April 22, 2014. ( See Doc. 21 at 2). 
Thereafter, the Commissioner issued a Notice of Award in the amount of $181,254.00 for 
past-due benefits and indicated that $36,218.50 has been withheld for payment of 

 
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attorney’s fees. (Doc. 21-1 at 2).1 
Plaintiff’s counsel seeks a total fee award of $45,313.50, equal to 25% of Plaintiff’s 
back pay, but is requesting that Defendant “subtract the amount actually paid as [Equal 
Access to Justice Act (EAJA)] fees, which totals $6,600,” and send the remaining balance, 
or $38,713.50, to Plaintiff’s counsel. (Doc. 21 at 13). For the following reasons the Court 
will grant the Plaintiff’s motion requesting fees in the amount of $45,313.50 but deny 
Plaintiff’s request for an EAJA fee offset. 
II. APPLICABLE LAW AND ANALYSIS 
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) (emphasis 
added). Although “[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 take a downward departure from a requested fee award “if the at torney provided 
substandard representation or delayed the case, or if the requested fee would result in a 
windfall.” Crawford, 586 F.3d at 1151. A court can also “consider the lodestar calculation, 
but only as an aid in assessing the reasonableness of the fee.” Id. (citing Gisbrecht, 535 
U.S. at 808). “Because the SSA 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 result achieved. Gisbrecht, 535 U.S. at 808. Courts may also consider the number of 
hours spent representing the claimant and the lawyer’s normal hourly billing rate for non -
 
1 As the government conceded in its supplemental brief, the government incorrectly 
withheld less than 25 percent of the total fee award. (Doc. 28 at 2). 

 
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contingent-fee cases, but this information does not control the reasonableness 
determination. 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). 
Applying the Gisbrecht factors, the fee requested is reasonable here. Plaintiff 
contracted to pay 25 percent of past -due benefits on a contingent fee basis for work 
performed by Plaintiff’s counsel in this action. (Doc. 21 -3 at 1). Plaintiff’s counsel seeks 
$45,313.50, or 25% of the past-due amount awarded to Plaintiff. Counsel’s itemizati on of 
services indicates 46.85 hours of services rendered. (Doc. 21 -2 at 3). Based on the hours 
expended and given the offset from the EAJA fee award that will be refunded to Plaintiff, 
counsel’s effective hourly rate for this work is $826.33, amounting to a 21.4% contingency 
fee. This amount is in line with effective hourly rates previously approved by the Ninth 
Circuit. See Young v. Colvin , No. CV–11–538–PHX–SMM, 2014 WL 590335, at *1 (D. 
Ariz. Feb. 14, 2014) (citing Crawford, 586 F.3d at 1153). 
On the i nstant record, there is no indication of any substandard performance by 
Plaintiff’s counsel. Counsel successfully convinced this Court that the ALJ’s disability 
determination was in error. There is also no indication of substandard performance or 
undue del ay in prosecuting Plaintiff’s case. Crawford, 586 F.3d at 1151. Moreover, 
Plaintiff’s counsel avers that he expended effort attempting to procure a notice of award in 
this case after the government failed to timely provide it , and when it was finally issue d, 
Plaintiff’s counsel had to analyze the government’s erroneous calculations within. (Doc. 
24 at 1). 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 $45,313.50 is reasonable. 
The Court notes that Plaintiff’s counsel requests the Court to allow him to offset the 
$6,600 awarded under the EAJA against the allowed fees here, resulting in a net attorney’s 
fees award of $38,713.50. (Doc. 21 at 13). The government opposes this request for a net 
award as “not permissible under § 406(b),” but makes no arguments regard ing the 

 
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reasonableness of the requested fees otherwise. (Doc. 23 at 4). In reply, Plaintiff cites to 
no precedent authorizing this Court to award Plaintiff’s counsel a net attorney’s fee award 
but asserts that there is no authority forbidding such a net award.2 (Doc. 24 at 1). 
The Court agrees with the government that such an offset is not permissible under 
Gisbrecht, which requires: “the claimant’s attorney must refund to the claimant the amount 
of the smaller fee.” Gisbrecht, 535 U.S. at 796 (quotations omitted). Here, the EAJA award 
is the smaller fee, so it must be refunded back to Plaintiff upon Plaintiff’s counsel’s receipt 
of the attorney’s fees awarded by this Order. 
III. CONCLUSION 
Therefore, 
IT IS ORDERED that Plaintiff’s Attorney’s First Amended Mot ion for an Award 
of Attorney Fees Under 42 U.S.C. § 406(b) (Doc. 21) is GRANTED in the amount of 
$45,313,50. 
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 Equal Access 
to Justice Act, in the amount of $6,600.00. 
Dated this 18th day of May, 2022. 
 
 
2 Although the government appears to make additional arguments related to the fee offset 
in its supplemental brief, the Court did not ask for supplemental briefing on this issue and 
has not considered these arguments in making its decision. 

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