David v. Social Security

Filing 27

ORDER granting 24 Motion for Attorney Fees. Signed by US Magistrate Judge Bruce J. McGiverin on 3/6/2025. (CSV)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LILLIAM DAVID RIVERA,
Plaintiff,
v.

Civil No. 18-1653 (BJM)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION & ORDER
Plaintiff Lilliam David Rivera (“David”) filed the present case challenging the
Commissioner of the Social Security Administration’s (“Commissioner’s”) denial of her petition
for Social Security disability insurance benefits. Docket No. (“Dkt.”) 1. The parties consented to
proceed before me. Dkts. 5, 6. In due course, the Commissioner filed a consent motion to remand
pursuant to sentence four of 42 U.S.C. §405(g). Dkt. 17. I granted the motion. Dkt. 18. Judgment
in the case was entered on May 22, 2019. Dkt. 19.
On July 15, 2020, David’s counsel, Rafael Colon Flores (“Colon”), filed a motion for
attorney fees pursuant to § 406(b) of the Social Security Act (“§ 406(b)”) in the amount of
$16,334.25. Dkt. 24. For the reasons explained below, Colon’s motion for attorney’s fees pursuant
to § 406(b) is GRANTED.
APPLICABLE LEGAL STANDARDS
In Social Security cases, attorney fees can be obtained pursuant to the EAJA or the Social
Security Act, 42 U.S.C. § 406. Fee awards may be made under both the EAJA and 406(b), but if
fees are awarded under both, the attorney claiming the award must refund the lesser award to the
client. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002); 28 U.S.C. § 2412.

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Under the EAJA, a party prevailing against the United States in court, including a
successful Social Security benefits claimant, may be awarded fees payable by the United States if
the government’s position in the litigation was not “substantially justified.” § 2412(d)(1)(A); see
also Gisbrecht, 535 U.S. at 796. EAJA fees are determined not by a percent of the amount
recovered, but by the “time expended” and the attorney’s “[hourly] rate,” § 2412(d)(1)(B), which
is capped at $125 per hour. § 2412(d)(2)(A). See Gerardo Dieppa-Velázquez v. Comm’r of Soc.
Sec., 19-CV-1574 (CVR) (D.P.R. May 25, 2021).
However, as noted above, a reasonable fee may be awarded to an attorney who successfully
represented a claimant in federal court under 42 U.S.C. § 406(b)(1)(A). When a court renders
judgment favorable to a Social Security claimant who has legal representation, the court may allow
“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.” 42 U.S.C. § 406(b)(1)(A). Unlike the EAJA, however,
406(b) does not authorize the prevailing party to recover fees from the losing party. Instead, 406(b)
authorizes fees payable from the successful party’s recovery. Gisbrecht, 535 U.S. at 795.
The Commissioner has interpreted 406(b) to “prohibi[t] a lawyer from charging fees when
there is no award of back benefits.” Id. A court may award fees under 406(b) when, for example,
“the court remands . . . a case for further proceedings and the Commissioner ultimately determines
that the claimant is entitled to an award of past-due benefits.” McGraw v. Barnhart, 450 F.3d 49396 (10th Cir. 2006). However, 406(b) is not meant to permit counsel to request inordinate or
unreasonable fees under the guise of a contingency fee agreement. 406(b) calls for court review of
contingent fee arrangements between claimants and counsel to assure that they yield reasonable
results. Agreements are also de facto unenforceable if they provide for fees exceeding 25 percent
of the past-due benefits. § 406(b)(1)(A). Even within the 25 percent boundary, plaintiff’s counsel

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must show that the fee sought is reasonable given the services rendered. Id. Courts must ensure
that fees are reasonable even if they are less than 25% of the past-due benefits, as there is no
presumption that 25% is reasonable. Gisbrecht, 535 U.S. at 807 n.17.
In determining a reasonable fee, a court should look first to the contingent fee arrangement,
then test for reasonableness “based on the character of the representation and the results the
representative achieved.” Id. at 808. Factors relevant to reasonableness include: (1) whether the
attorney’s representation was substandard; (2) whether the attorney was responsible for any delay
in the resolution of the case; and (3) whether the contingency fee is disproportionately large in
comparison to the amount of time spent on the case. Id. The claimant’s attorney can also be
required to submit a record of the hours spent representing the claimant and a statement of the
lawyer’s normal billing rate for non-contingency fee cases. Id. “If the benefits are large in
comparison to the amount of time counsel spent on a case, a downward adjustment is similarly in
order.” Id. (citations omitted).
The statute does not specify a deadline for requesting fees. District of Puerto Rico Local
Rule 54(b) states that “An application for attorneys' fees in those cases for which fees have been
contracted . . . shall be filed within fourteen (14) days of the expiration of the time for filing a
timely appeal.” Furthermore, District of Puerto Rico Local Rule 9(d)(2) was amended effective on
February 28, 2022 to state that “[a] party seeking attorneys’ fees pursuant to 42 U.S.C. § 406(b)
shall have thirty (30) days after counsel’s receipt of the original, amended, or corrected Notice of
Award, or the Social Security Correspondence sent at the conclusion of the Agency’s past-due
benefit calculation, stating the amount withheld.” See 03-MC-115, Dkt. 71-1. Local Rule 1(a)
provides that “[t]he Court may modify [the local] rules in exceptional circumstances or when
justice so requires.”

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DISCUSSION
A. Timeliness
Colon received the award notice (termed the Notice of Award, or “NOA”) by the Social
Security Administration (“SSA”) on July 11, 2020. Dkt. 24 at 1; 24-2. A fourteen-day filing
deadline applies to 406(b) motions and the countdown to this deadline begins upon delivery of an
original or amended NOA to counsel. Pais v. Kijakazi, 52 F.4th 486, 494 (1st Cir. 2022); D.P.R.
Civ. R. 9(b)(2); see also L.Civ.R. 9(d)(2). Social security regulations state the date of notification
is considered to be five days after the date on the notice. See 20 C.F.R. §404.1703. Regardless,
since Colon filed his motion on July 15, 2020, four days after receiving the NOA from the SSA,
he has filed his motion timely.
B. Reasonableness of Fees
I next turn to the reasonableness of the fees requested. Colon requests $16,334.25 in
attorney’s fees per the agreement between David and Colon, which provides for Colon to receive
25% of David’s past-due benefits. 1 Dkt. 24-3. Colon does not address whether his fees are
reasonable but only states the contract between himself and David provides that Colon may seek
25% of the past due benefits awarded to David. Dkt. 24. The government does not oppose Colon’s
request for $16,3345.25 in attorney’s fees. Dkt. 25 at 3-4.

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The government notes in their reply that Colon’s fee agreement states:
Claimant and Attorney agree that If SSA favorably decides the
claims. Claimant will pay attorney a fee equal to the lesser of the
amount specified under 42 U.S.C.A. § 406(a)(2)(A), currently $600,
or twenty five percent (25%) of past-due benefits to claimant and
claimant’s family resulting from the claim(s).
Dkts. 24-3; 25 at 4. However, the agreement states the above language only applies to a favorable
decision obtained at the administrative level. Dkt. 24-3. If there is an appeal and a favorable
decision is obtained there, Colon can request fees in the amount of 25% of past-due benefits. Id.

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It is up to the courts to determine whether a fee amount requested pursuant to 406(b) is
reasonable. See Gisbrecht, 535 U.S. at 807. When determining if a fee is reasonable, courts should
first look to the contingent fee arrangement, then test for reasonableness based on the character of
the representation and the results the representative achieved. Id. at 808. Colon submitted proof
that he spent a total of 42 hours working on David’s case. Dkt. 24-1 at 3. There also is no indication
that Colon’s conduct was improper or that his representation was significantly substandard. A
review of the docket and his time log reveals that Colon performed substantive work, such as
drafting the complaint, reviewing transcripts and meeting with David to discuss the administrative
decisions, court orders and further steps. See Dkt. 37-2. And ultimately, Colon achieved a
favorable result as the case was remanded to the Agency and an award of past due benefits was
obtained.
However, a reduction in hours is warranted. Colon reported 4.5 hours in preparing for the
administrative proceedings after the May 22, 2019 Final Judgment was entered. See Dkt. 24-1 at
2-3. These hours are inapplicable under § 406(b) because the fees that may be awarded under this
section are for representation in federal court. See 42 U.S.C. § 406(b)(1)(A). Therefore, I reduce
these 4.5 hours. Colon also includes in his billable hours the time spent preparing his attorney’s
fees motions. Colon drafted his first motion under § 406(b) on January 23, 2020, but it was
withdrawn. See Dkts. 20-21. Colon spent 2.75 hours. Then, on July 15, 2020, Colon filed the
present motion and claims to have spent 2 hours in preparing it. See Dkt. 24-1 at 3. “The First
Circuit has not addressed whether an attorney should be compensated for time spent preparing a
motion for fees under § 406(b).” Edwin B.P. v. Comm’r of Soc. Sec., 21-CV-1383 (GLS), 2023
WL 6803791, at *3 (D.P.R. Oct. 16, 2023). Other courts have disfavored compensation for time
spent preparing the motion for fees under § 406(b). See Amburgey v. Colvin, 2016 WL 2859611,

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at *2 (E.D. Ky. May 16, 2016), Craig v. Sec. Dep’t of Health and Human Servs., 864 F.2d 324,
328 (4th Cir. 1989). As such, I also reduce the 4.75 hours billed for the preparation of § 406(b)
motions.
For purposes of this motion, the total hours Colon worked are 32.75. Colon’s § 406(b) fee
petition therefore amounts to a de facto rate of approximately $498.76 per hour, or the requested
$16,334.25 divided by the 32.75 hours Colon expended on the case. I find the hourly rate is
reasonable as this court has approved fees between $600 and $1,231.50 for cases where there was
a voluntary remand. See, e.g., Piñeiro-Fuentes v. Comm’r of Soc. Sec., 18-CV-1556 (MDM), 2023
WL 6605907 (D.P.R. Oct. 10, 2023) (approving de facto hourly rate of $1,010 for 19.8 hours of
work on case involving post-briefing voluntary remand); Vazquez-Soto v. Comm’r of Soc. Sec.,
19-CV-1168 (MDM), 2023 WL 4285991 (D.P.R. June 30, 2023) (reduced fee award resulting in
de facto hourly rate of $1,231.50 for 7.8 hours of work in case involving pre-briefing voluntary
remand); Hernandez-Miranda v. Comm’r of Soc. Sec., 18-CV-1390 (MEL), 2022 WL 6174113
(D.P.R. Oct. 10, 2022) (reduced fee award due to pre-briefing voluntary remand resulting in de
facto rate of $815.22 for 9.2 hours); Santiago Diaz v. Comm'r of Soc. Sec., 19-CV-1139 (MEL),
2022 WL 420443 (D.P.R. Feb. 11, 2022) (granting an award of $6,180.00 for 10.3 hours of billable
work despite denying $25,000.00 as excessive, which amounts to $600.00 an hour); Pagan-Torres
v. Comm’r of Soc. Sec., 18-CV-1921 (MDM), Dkt. 42 (granting an award of $5,111.00 in attorney
fees for 8.3 hours of billable work despite denying the attorney’s full claim of $11,000.00 as
excessive, which amounts to approximately $615.78 per hour).
Other relevant factors also reflect the fee is reasonable. For example, the fee amount
requested does comply with the statutory cap because it is not more than 25% of David’s past-due
benefits. There is also no indication that the terms of the contingent fee agreement reached by

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David and Colon were unreasonable, and the agreement provides for Colon to keep 25% of David’s
past-due benefits. See Dkt. 41-1.
Accordingly, I grant Colon’s petition for attorney’s fees in the amount of $16,334.25 under
§406(b).
CONCLUSION
For the foregoing reasons, Colon’s petition for attorney fees under § 406(b) is GRANTED
and payment of $16,334.25 in attorney fees to Colon is authorized.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 6th day of March 2025.
S/ Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge