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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Thomas Paul Solomon, Sr.,

Plaintiff,

v. 

Commissioner of Social Security 

Administration,

Defendant.

No. CV-18-00306-PHX-DWL

ORDER 

On July 29, 2021, the Court denied without prejudice Plaintiff’s counsel’s 

(“Counsel”) motion for award of attorneys’ fees under 42 U.S.C. § 406(b), noting that “the 

Notice of Award provided by the [Social Security Administration (‘SSA’)]” that Counsel 

attached to his motion as proof of the amount of past-due benefits did not actually “indicate 

the amount of past-due benefits . . . , making it impossible to verify that the award sought 

does not exceed 25% of this amount.” (Doc. 29 at 2.) The Court initially ordered Counsel 

to submit “additional evidence establishing the amount of past-due benefits” or, 

alternatively, “a declaration setting forth the steps taken to obtain verification paperwork 

from the SSA.” (Id.) The Court added that “[i]f and when Counsel submits the required 

additional evidence, the Court will proceed to analyze the reasonableness of the requested 

award.” (Id.) 

On July 31, 2021, Counsel informed the Court that Counsel and his staff had “made 

over 20 phone calls to SSA’s Payment Center and expended more than six hours of 

uncompensated time attempting to communicate with the Payment Center,” and that after 

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finally reaching “a human being,” Counsel “was able to confirm that SSA has not issued a 

Notice of Award and that the Agency has refused [Counsel’s] requests to issue one.” (Doc. 

30 at 1-2.)

On August 3, 2021, the Court issued an order stating that “[t]he SSA is responsible 

for informing Plaintiff and his attorney as to this amount of past-due benefits, for the 

obvious reason that Plaintiff has a right to know how much money he is owed, and also 

because Counsel cannot seek § 406(b) fees until this information is received,” and added 

that “[t]he SSA’s failure to do so—especially after repeated requests to do so—is 

frustrating and inexplicable.” (Doc. 31 at 2.) The Court ordered the Commissioner to “file 

a Notice of Award that includes (1) the date when Plaintiff’s award went into effect, (2) 

the total amount of past-due benefits as of the date when the award went into effect, and 

(3) a chart breaking down the periods of time in which the benefits accrued.” (Id. at 3.)

On August 16, 2021, the Commissioner filed a document dated June 27, 2020, 

which appeared to contain inaccuracies and, at any rate, was not responsive to the Court’s 

order. (Doc. 32-1.)

On August 17, 2021, the Court noted that the document filed the previous day was 

inadequate and further noted that the Commissioner had seven remaining days to comply 

with the August 3, 2021 order or face potential sanctions. (Doc. 34.)

On August 20, 2021, the Commissioner filed a response, attaching a declaration 

from employee Chantrice Lyons, who declared that “the Notice of Award will not be 

available in letter format in time to meet the Court’s deadline of August 24, 2021” due to 

the SSA’s mysteriously slow technology. (Doc. 35-1 ¶¶ 4-5.) The Commissioner attached 

a “screen shot” of the Notice of Award in digital format. (Doc. 35-2.)

The “screen shot” contains the information ordered by the Court, and therefore the 

Court’s August 3, 2021 order is satisfied. Furthermore, the digital Notice of Award 

affirmatively states that the past due benefits for the months of April 2012 through May 

2020 amount to $155,168. (Doc. 35-2 at 9.) It took a lot of prodding to get this information

out of the SSA, but the Court is finally satisfied that Counsel’s requested § 406(b) fees—

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$38,792.00—do not exceed 25% of Plaintiff’s past-due benefits.

The Court will therefore proceed to analyze the reasonableness of the requested 

award.

1

 Section 406(b) “calls for court review of such arrangements as an independent 

check, to assure that they yield reasonable results in particular cases.” Gisbrecht v. 

Barnhart, 535 U.S. 789, 807 (2002); see also Crawford v. Astrue, 586 F.3d 1142, 1149 

(9th Cir. 2009) (“Because the SSA has no direct interest in how much of the award goes to 

counsel and how much to the disabled person, the district court has an affirmative duty to 

assure that the reasonableness of the fee is established.”). As noted in the July 29, 2021 

order, this determination does not equate to use of the lodestar method. Crawford, 586 

F.3d at 1149 (“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.”). “[A] district 

court charged with determining a reasonable fee award under § 406(b)(1)(A) must 

respect ‘the primacy of lawful attorney-client fee agreements,’ ‘looking first to the 

contingent-fee agreement, then testing it for reasonableness.’” Id. at 1148 (quoting 

Gisbrecht, 535 U.S. at 793, 808.) The Court must determine whether it is appropriate to 

reduce Counsel’s recovery from the contingency fee “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.” Gisbrecht, 535 U.S. at 808. “[R]eviewing 

court should disallow windfalls for lawyers.” Id. (internal quotation marks omitted). “The 

attorney bears the burden of establishing that the fee sought is reasonable.” Crawford, 586 

F.3d at 1148.

1 There is no motion pending at this time—the Court denied without prejudice 

Counsel’s motion for § 406(b) attorneys’ fees (Doc. 29), and no subsequent motion for fees 

has been filed because the Court previously indicated that it would “proceed to analyze the 

reasonableness of the requested award” after evidence regarding the amount of the pastdue benefits was provided. Despite the lack of pending motion, this matter is ripe for 

resolution.

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Here, there is no need to reduce the fee award due to “substandard performance” or 

“dilatory conduct.” Id. at 1151. The Court’s sole concern is that “the benefits are large in 

comparison to the amount of time counsel spent on the case.” Gisbrecht, 535 U.S. at 808.

Counsel submitted a summary of the attorney hours spent litigating this case, 

totaling 38.6 hours. Some of the time included in this summary, however, is not 

compensable. Time billed for clerical tasks should not be included in the award because 

such tasks should be subsumed in firm overhead rather than billed. Nadarajah v. Holder, 

569 F.3d 906, 921 (9th Cir. 2009). This is true regardless of who does the clerical work—

a legal assistant, paralegal, or attorney. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) 

(non-legal work “is not enhanced just because a lawyer does it.”); Neil v. Comm’r Soc. Sec. 

Admin., 495 Fed. App’x. 845, 847 (9th Cir. 2012) (affirming a reduction of fees for “purely 

clerical tasks such as filing documents and preparing and serving summons” performed by 

an attorney); McAnally v. Saul, 2019 WL 6179217, *2 (D. Alaska 2019) (deducting time 

billed by an attorney for clerical tasks); Brandt v. Astrue, 2009 WL 1727472, *4 (D. Or. 

2009) (same); Gough v. Apfel, 133 F. Supp. 2d 878, 881 (W.D. Va. 2001) (“Purely clerical 

activities, regardless of who performs them, are considered overhead and are not 

compensable as EAJA attorney fees.”).

Counsel billed 2.2 hours for activities described as “[p]rep FDC file for closure and 

prep EAJA docs, tickle” on June 18, 2019, but closing the file and “tickling” (calendaring 

a reminder to check the case again) are administrative tasks that can’t be billed, and the 

EAJA motion is pure boilerplate that likely took no more than a few minutes to paste 

together. This time is not compensable.

The 0.5 billed on February 2, 2018 is not compensable either. Confirming that the 

complaint was filed, reviewing the docket, and tickling for “service and answer check” are 

clerical tasks. Informing the client that his IFP application was granted is a compensable 

activity, but having been lumped together with clerical tasks in a block-billing entry, there 

is no way to determine how long that task took, and presumably it should not have taken 

long.

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The 0.2 billed on March 12, 2018 for checking the docket and tickling again is 

likewise clerical and not compensable.

Subtracting 2.9 hours of non-compensable time, Counsel spent 35.7 hours on this 

case. Moreover, Counsel reduced the time he considered compensable to 35 hours for the 

EAJA motion he submitted, so it seems appropriate to use the same number of hours for 

the 406(b) motion.

An award of $38,792.00 in § 406(b) fees, arising from a case in which 35 hours of 

compensable time was expended, equates to a de facto hourly rate of $1,108.34 per hour. 

The Court finds that the benefits are “large in comparison to the amount of time counsel 

spent on the case” and “a downward adjustment” is “in order.” Gisbrecht, 535 U.S. 789, 

808. Counsel asserts that the Court “should recognize the considerable risk counsel took 

in agreeing to represent this claimant on a contingency basis in federal court” (Doc. 26 at 

4 ¶ 10), but Counsel does not elaborate on any factors that make this specific case a 

particularly risky one, compared to the general risk that always adheres to representation 

on a contingency basis, and the Court cannot independently perceive any. Nor were the 

factual and legal issues particularly complex. Counsel has not met his “burden of 

establishing that the fee sought is reasonable.” Crawford, 586 F.3d at 1148.

Having determined that there is no unusual complexity or risk involved in this case, 

and keeping in mind that “reasonable contingency fees generally should exceed a 

reasonable lodestar,” Biggerstaff v. Saul, 840 F. App’x 69, 71 (9th Cir. 2020), the Court is 

now tasked with determining how great a reduction from the contingency award of 

$38,792.00 is appropriate. 

The Court must make this determination as an exercise of discretion, and courts 

have reached widely disparate conclusions as to the reasonable de facto rate in a case where 

there is no special complexity or higher-than-usual risk. For example, in a case involving 

“a complex application for Social Security benefits” in which the district court 

acknowledged that “counsel undertook some risk in agreeing to represent this plaintiff on 

a contingency basis, and successfully represented his client in a case that was disputed by 

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defendant and required skill and expertise,” the court determined that an award of 

$30,623.75 was “not in proportion to” the 51.5 hours the attorney spent on the case. 

Carlson v. Astrue, 2010 WL 2813427, *4 (D. Or. 2010. The district court reduced the 

award to $24,499, or 20% of the past-due benefits—a reduction of the de facto hourly rate 

from $594.64 per hour to $475.71 per hour. Id. The Ninth Circuit affirmed, holding that 

“[t]he district court did not abuse its discretion by reducing the fees from the amount 

specified in the fee agreement based on the court’s assessment of what was reasonable 

given the risk and complexity involved in this case.” Carlson v. Comm’r of Soc. Sec. 

Admin., 467 F. App’x 591, 592 (9th Cir. 2012).

2

In contrast, in Biggerstaff, the Ninth Circuit affirmed a district court’s decision to 

reduce the contracted contingency fee of $65,109 to $32,760—nearly a 50% reduction—

which, even after the sharp reduction, amounted to a de facto rate of $1,400 per hour. 840 

F. App’x at 69-71. The district court noted that there was “no evidence that the underlying 

issues in the action were complex or novel” and that plaintiff’s counsel had “not shown 

that, at the time counsel first was retained, the likelihood of securing benefits for plaintiff 

was highly unlikely, highly likely, or somewhere in between”—but nevertheless, counsel 

sought an award that was “approximately 3.79 times” the high end of the “median hourly 

attorney rate for consumer law attorneys in California in 2015 and 2016.” Biggerstaff v. 

Saul, 2019 WL 4138015, *4 (C.D. Cal. 2019). The district court concluded that 

“[a]lthough a reasonable contingent fee recovery generally should well exceed a reasonable 

2 The Ninth Circuit’s affirmance of a reduced award that amounts to a de facto hourly 

rate of $475.71 per hour demonstrates that the higher awards ordered in Crawford do not 

establish a floor for what is reasonable in every case. Contra Matthews v. Astrue, 2013 

WL 4502216, *1 (D. Ariz. 2013) (“The court is concerned by the size of the award in 

relation to the number of hours spent [resulting an effective hourly rate of $713.34]. The 

Ninth Circuit, however, has approved effective hourly rates of $519, $875, and $902 

without finding that they are unreasonable.”). The determination of whether an award is 

reasonable remains case-specific. Although the Ninth Circuit instructed the district court 

to award fees without reduction at a de facto hourly rate of “$519 in Washington, $875 

in Crawford, and $902 in Trejo,” it did not discuss the level of complexity or risk in each 

of these cases. Crawford, 586 F.3d at 1153 (Clifton, J., dissenting). Without that 

information, the bare amount of these awards is of limited use. Crawford, 586 F.3d at 

1152-53 (majority opinion) (explaining that courts should assess “the complexity and risk 

involved in the specific case at issue,” rather than social security cases in general, when 

analyzing the reasonableness of the requested fees).

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lodestar, the extraordinary disparity here between what is reported for consumer law 

attorneys and counsel’s request weakens counsel’s argument that the requested fee would 

be reasonable.” Id.3 On appeal, the Ninth Circuit held that “[c]onsidering the district court 

is accustomed to making reasonableness determinations . . . and its assessments qualify for 

highly respectful review,” the amount of fees awarded was not error. Id. at 71. 

This Court routinely approves, without any reduction for reasonableness, fee 

applications where the amount requested is in a more typical range—for a case of ordinary 

complexity and risk, an award between $9,500 and $17,000 is quite common and usually 

amounts to a de facto hourly rate between $350 to $410. See, e.g., Vega v. Commissioner 

of Social Security Administration, 2:18-cv-01552-DWL ($13,493.25 award, 36.5 hours 

billed, $369.68 de facto hourly rate); Bello v. Commissioner of Social Security 

Administration, 2:18-cv-01620-DWL ($16,776.50 award, 41.7 hours billed, $402.31 de 

facto hourly rate); Cox v. Commissioner of Social Security Administration, 3:18-cv-08335-

DWL ($9,528.40 award, 23.2 hours billed, $410.71 de facto hourly rate); Eastes v. 

Commissioner of Social Security Administration, 2:18-cv-00013-DWL ($13,394.75 award, 

35.5 hours billed, $377.00 de facto hourly rate); Sharp v. Commissioner of Social Security 

Administration, $14,816.40 award, 40.7 hours billed, $364.04 de facto hourly rate). This 

bears mentioning because it at least establishes a baseline—albeit not a ceiling—for what 

can easily be determined to be reasonable in a case of average complexity and risk.4

The only distinguishing factor in the case at hand is the amount of past-due benefits. 

3 The district court “acknowledge[d] the regrettable imprecision of the analysis,” 

Biggerstaff, 2019 WL 4138015 at *4, and quoted Justice Scalia’s dissenting opinion in 

Gisbrecht, which criticized the majority opinion for doing “nothing whatever to subject 

these fees to anything approximating a uniform rule of law” and for “trying to combine the 

incompatible”—that is, for “tell[ing] the judge to commence his analysis with the 

contingent-fee agreement, but then to adjust the figure . . . on the basis of factors [including 

the proportion of time spent to the size of the award],” which is “the precise antithesis of 

the contingent-fee agreement.” Gisbrecht, 535 U.S. at 809 (Scalia, J., dissenting).

4 Up until this case, the only outlier (a § 406(b) request that hasn’t fit into this typical 

range) presented to this Court involved a higher award but also a higher number of attorney 

hours billed, such that the de facto hourly rate was somewhat higher, but not astronomically 

so. Sallee v. Commissioner of Social Security Administration, 2:17-cv-04504-DWL

($27,361.50 award, 50.8 hours billed, $538.62 de facto hourly rate).

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In terms of the level of complexity, the number of hours worked, and the experience of the 

attorney, some of these cases are indistinguishable. In Eastes, a case of similar complexity, 

the attorney, who had “practiced law for approximately 30 years, the last twenty plus of 

which [have] been devoted almost exclusively to disability law,” argued that a de facto

hourly rate of $377.00 was reasonable ($13,394.75 for 35.5 hours of work), and the Court 

agreed. (2:18-cv-00013-DWL, Doc. 34-1 at 16.) In Sharp, another case of similar 

complexity, the attorney, who had “practiced law in this state for over 40 years,” “all but 

the first two years” of which were “devoted almost exclusively to Social Security disability 

law,” argued that a de facto hourly rate of $364.04 was reasonable ($14,816.40 for 40.7 

hours of work), and the Court agreed. (3:17-cv-08133-DWL, Doc. 26 at 6.) The Court 

finds that those cases are in line with this one, in the approximate complexity and risk level 

of the cases, the approximate experience level of the attorneys,5and the approximate 

amount of attorney time spent. Nevertheless, as noted above, the typical range should not 

function as a ceiling. 

“[T]he prevailing non-contingent rate in the Phoenix market is $250.00 per hour,” 

and courts in the District of Arizona have reduced § 406(b) fee awards to an amount 

approximately three times higher than this rate, a de facto rate of $750 or thereabout. 

Kellogg v. Astrue, 2013 WL 5236638, *2 (D. Ariz. 2013); see also Snyder v. Berryhill, 

2018 WL 905143, *2 (D. Ariz. 2018) (“Any greater award [than $750 per hour] would 

result in an improper windfall to [p]laintiff’s counsel contrary to Gisbrecht.”); Loveless v. 

Astrue, 2012 WL 1190823, *1-2 (D. Ariz. 2012) (“Plaintiff’s counsel has provided records 

indicating that he spent 29.7 hours on plaintiff’s case. His requested award of $31,000 

therefore represents an hourly rate of $1,043.77. The court concludes that such an award 

is excessive and therefore unreasonable. . . . The court concludes that an award of $20,000 

is appropriate. Although $20,000 represents a high hourly rate—almost $700—it accounts 

5 Counsel has “nearly 25 years of experience” (Doc. 26 at 4 ¶ 11), which is 

significantly less than the “approximately 30 years” and “over 40 years” of experience of 

the attorneys who litigated Eastes and Sharp, but the Court regards all three attorneys as 

highly seasoned.

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for the risk that plaintiff’s counsel took, counsel’s experience in the field, and the favorable 

disposition of plaintiff’s claim.”). 

Counsel, a Philadelphia attorney, did not provide information regarding the 

prevailing non-contingent rate in Philadelphia or cite to cases establishing what is typically 

regarded reasonable for attorneys in the Philadelphia market.6 The Community Legal 

Services (“CLS”) of Philadelphia has “articulated reasonable hourly rates,” which courts 

have used when considering fees for Philadelphia attorneys. Americans for Prosperity v. 

Grewal, 2021 WL 1153194, *14 (D.N.J. 2021). The CLS rate for attorneys with 21-25 

years’ experience is $550-640. Counsel’s non-contingent hourly rate of $595.00 (Doc. 26 

at 4 ¶ 11) falls within this range. The Social Security Administration in Philadelphia has

“acknowledg[ed] that up to $600 per hour would not be unreasonable” for a § 406(b) fee 

award. Perez v. Barnhart, 2006 WL 781899, *2 (E.D. Pa. 2006); see also Shackles v. 

Barnhart, 2006 WL 680960, *2 (E.D. Pa. 2006) (concluding that de facto hourly rate of 

$1,120.50 “would constitute a windfall” and reducing the § 406(b) fee to an amount that 

equated to a de facto hourly rate of $664.92).

The Court will reduce the award to $26,825.00, which the Court considers to be the 

high end of what could reasonably be awarded in a case of this level of risk and complexity. 

This equates to a de facto hourly rate of $766.43 per hour, which still greatly exceeds 

Counsel’s non-contingent hourly rate of $595.00. (Doc. 26 at 4 ¶ 11.) This rate is far 

above the amount a Phoenix attorney typically gains for a case similar to this one—whether 

the award is based on a contingency fee or not—and it aligns with the amount other judges 

in this district have found to be at the high end of reasonable for a case of ordinary 

complexity. Kellogg, 2013 WL 5236638 at *2; Snyder, 2018 WL 905143 at *2; Loveless, 

2012 WL 1190823 at *1–2; Matthews, 2013 WL 4502216 at *1.

Accordingly,

6 The Laffey Matrix, “which provides the billing rates for attorneys in the Washington 

D.C. market with various degrees of experience,” “is not relevant outside of the 

Washington D.C. area.” Americans for Prosperity v. Grewal, 2021 WL 1153194, *14 

(D.N.J. 2021).

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IT IS ORDERED that attorneys’ fees under 42 U.S.C. § 406(b) are awarded in the 

amount of $26,825.00.

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 24th day of September, 2021.

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