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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Alan Snyder, 

Plaintiff, 

v. 

Nancy A. Berryhill, Acting Commissioner 

of Social Security Administration, 

Defendant. 

No. CV 15-00516-TUC-BPV

ORDER 

 Pending before the Court is Plaintiff’s Application for Award of Attorney’s Fees 

and Costs under 42 U.S.C. '406(b) of the Social Security Act with accompanying 

exhibits. (Doc. 18). Defendant has filed a Response in opposition (Doc. 19). For the 

following reasons, the Court grants Plaintiff’s Motion in part. 

I. Discussion 

 Plaintiff filed this action in November 2015, seeking review of the denial of his 

application for benefits under the Social Security Act for disability and supplemental 

security income. (Doc. 5). Thereafter, the parties stipulated to remand the matter to the 

Administrative Law Judge for further proceedings, and the Court remanded the matter 

pursuant to the stipulation. (Docs. 15, 16). Upon remand, Plaintiff was granted disability 

benefits. 
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 Plaintiff now seeks attorney’s fees in the amount of $12,155.85 pursuant to 42 

U.S.C. § 406(b). The record reflects that the Court has not previously awarded attorney’s 

fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). 

 Plaintiff’s counsel, Amy Foster, states that “considering the risks and benefits, the 

reasonable hourly billing rate for an attorney with 14 years of legal experience who 

handles cases on a contingency basis is in excess of $500.00 per hour. This rate has been 

found reasonable by District Courts throughout the Country.” (Doc. 18-1 at ¶5). Ms. 

Foster also indicates that Plaintiff entered a 25% contingency fee agreement. (Doc. 18-1 

at ¶9; see also Doc. 18-3). 

 Defendant objects to the amount of fees sought given that Ms. Foster spent only 

three hours litigating the case in federal court. (Doc. 19). Defendant points out that 

“[f]or 3 hours of work before the district court, a fee of $12,155.85 would amount to an 

hourly rate of $4,051.95, in a case where the parties were able to reach a stipulated 

settlement agreement for remand without the need for Plaintiff’s attorney to draft an 

opening brief.” (Id. at 4). Defendant contends that an award of more than $2,250.00, i.e., 

$750.00 per hour, would constitute an improper windfall under § 406(b). Plaintiff did not 

file a Reply and, thus, has not objected to the government’s position. 

 Section 406 sets forth “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), “controls fees for representation . . .” before the 

court. Id. at 794. Pursuant to § 40b(b), “[w]henever a court renders a judgment favorable 

to a claimant under this subchapter 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). 

 The record reflects that Plaintiff entered into a contingent-fee agreement wherein 

he agreed to pay attorney’s fees not to exceed 25%. (Doc. 18-3). The Supreme Court, 

when discussing the term “reasonable fee” as used in § 406(b), concluded that “§ 406(b) 
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does not displace contingent-fee agreements as the primary means by which fees are set 

for successfully representing Social Security benefits claimants in court. Rather, § 406(b) 

calls for court review of such arrangements as an independent check, to assure that they 

yield reasonable results in particular cases.” Gisbrecht, 535 U.S. at 807 (footnote 

omitted). The Court also pointed out that “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. (citing 42 U.S.C. § 406(b)(1)(A)) (footnote 

omitted). In assessing reasonableness of the fee sought, district courts should consider the 

results achieved and may properly apply a reduction if the attorney provided substandard 

representation or engaged in dilatory conduct in order to increase the accrued amount of 

past-due benefits, or if the benefits are out of proportion to the time spent on the case, 

thereby resulting in a windfall to counsel. Crawford v. Astrue, 586 F.3d 1142, 1148, 

1151 (9th Cir. 2009) (citing Gisbrecht, 535 U.S. at 808) see also Gisbrecht, 535 U.S. at 

808. (the court should “disallow windfalls for lawyers” (internal quotation marks and 

citation omitted)). In making its assessment, the district court may consider the lodestar 

calculation as an aid, if necessary. Crawford, 586 F.3d at 1148. The attorney bears the 

burden of establishing that the fee sought is reasonable. Id. (citing Gisbrecht, 535 U.S. at 

807). 

 In applying Gisbrecht, the Ninth Circuit has emphasized that district courts “must 

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

contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at 

1148 (quoting Gisbrecht, 535 U.S. at 793, 808). Here, the fee agreement between 

Plaintiff and counsel provided for a 25% contingency fee consistent with Gisbrecht. The 

parties do not dispute that the $12,155.85 sought by Plaintiff’s counsel constitutes 25% of 

the past-due amount awarded to Plaintiff. 

 With regard to the reasonableness of the fees sought, Defendant correctly points 

out that counsel can only receive fees for “the attorney’s work before a federal court on 

behalf of the Social Security claimant in connection with the action that resulted in past-
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due benefits.” Parrish v. Commissioner of Social Sec. Admin., 698 F.3d 1215, 1220 (9th 

Cir. 2012); cf. Clark v. Astrue, 529 F.3d 1211, 1215 (9th Cir. 2008) (“the plain text of § 

406(b) limits only the award of attorney’s fees for representation of a Social Security 

claimant before the district court . . . .”). Plaintiff’s counsel has submitted a time record 

indicating that she seeks compensation for time spent on the case during the 

administrative proceeding after this Court remanded the matter. (Doc. 18-2). Counsel’s 

time spent on the matter in administrative proceedings subsequent to the remand order 

does not fall within the ambit of § 406(b). Cf. Parrish, 698 F.3d at 1220-21. The time 

record reflects that Plaintiff’s counsel spent 3.0 hours working on the case before this 

Court. (18-2 (entries from October 2, 2015 through March 16, 2016)). 

 On the instant record, there is no indication of any substandard performance by 

Plaintiff’s counsel or that she engaged in any unreasonable delay. Instead, counsel 

achieved a favorable result for Plaintiff and should be compensated to recognize the risks 

attendant to contingent fee litigation. Although Plaintiff’s counsel states that a fee in 

excess of $500.00 per hour is reasonable, she provides no support for the conclusion that 

over $4,000 per hour is a reasonable amount in this case. Plaintiff’s counsel has the 

burden to establish the reasonableness of the fees sought. Gisbrecht, 535 U.S. at 807. 

 The government has asserted that an hourly rate of $750.00 in this case is 

reasonable, and Plaintiff has not objected. The amount suggested by the government is 

more than double the $250.00 rate that attorneys practicing disability law in the District 

of Arizona are awarded “per hour on Court Long Term Disability claims.” (Doc. 18-1 at 

¶7). “In cases of this type, the Ninth Circuit sitting en banc has approved effective hourly 

rates of $519, $875, and $902 without finding that they are unreasonable.” Young v. 

Colvin, 2014 WL 590335, *1 (D. Ariz. Feb. 14, 2014) (citing Crawford, 586 F.3d at 

1153). 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 $2,250.00 is reasonable in this case. Any greater award would result 

 
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in an improper windfall to Plaintiff’s counsel contrary to Gisbrecht. 

II. Conclusion 

For the foregoing reasons, 

 IT IS ORDERED that Plaintiff’s Application for Award of Attorney’s Fees and 

Costs under 42 U.S.C. § 406(b) of the Social Security Act is GRANTED IN PART to the 

extent that Plaintiff’s counsel is AWARDED $2,250.00 in attorney’s fees pursuant to 42 

U.S.C. § 406(b). 

 IT IS FURTHER ORDERED that Plaintiff’s Motion is DENIED to the extent that 

he seeks an award of fees in excess of $2,250.00. 

 The Clerk of Court is DIRECTED to amend the judgment in this matter 

accordingly. 

 Dated this 14th day of February, 2018.