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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Debra Sue Sallee,

Plaintiff,

v. 

Commissioner of Social Security 

Administration,

Defendant.

No. CV-17-04504-PHX-DWL

ORDER 

Pending before the Court is the motion for an award of attorneys’ fees under 42 

U.S.C. § 406(b), (Doc. 23), submitted by Plaintiff’s counsel, Mark Caldwell (“Counsel”), 

which the Commissioner does not oppose.1 (Doc. 24 at 2.) Counsel seeks $27,361.50 in 

§ 406(b) fees, which does not exceed 25% of Plaintiff’s past-due benefits. (Doc. 24 at 1-

2; Doc. 24-1 at 3.)

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. 24-2

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).

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 

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).

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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.” Id.

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 Id. at 

808. Counsel included a record of the hours he spent representing Plaintiff. (Doc. 24-3.) 

Having reviewed the timesheet, 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. 23) is GRANTED in the amount of $27,361.50.

IT IS FURTHER ORDERED that Plaintiff’s counsel must refund the lesser of 

the EAJA fee award and the § 406(b) fee award to Plaintiff.

Dated this 28th day of April, 2020.

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.”).

Case 2:17-cv-04504-DWL Document 25 Filed 04/28/20 Page 2 of 2