Section 406(b) Attorney Fees Reduced to $9,075

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April 20, 2026 Get Citation Alerts Download PDF Add Note

Luz G. Q. E. v. Commissioner of Social Security

District Court, D. Puerto Rico

• Citations: None known
• Docket Number: 3:21-cv-01557

• Precedential Status: Unknown Status

• Opinion

• Authorities (3)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.9K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

Luz G. Q. E.1,
Plaintiff,
v. CIVIL NO. 21-1557 (GLS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER

Pending before the Court is Plaintiff counsel’s request for attorney’s fees under Section 406(b) of
the Social Security Act, 42 U.S.C. § 406 (b)(1), in the amount of $9,625.00. Docket No. 22. For the reasons
discussed below, Plaintiff counsel’s Section 406(b) petition is GRANTED in part and DENIED in part,
provided that the fees previously awarded by the Court under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (d), be refunded to Plaintiff.
I. Background
Plaintiff signed a contingency fee agreement with Attorney Luis R. Pérez Morales which
established that, if Plaintiff succeeded in her claim, the Court could order the Social Security
Administration (“SSA”) to pay attorney’s fees pursuant to the EAJA. Docket No. 22-1. The agreement
also established that Section 406(b) fees could be requested and capped at 25% of past due benefits
awarded to Plaintiff and her family. Id. On November 23, 2021, Plaintiff’s counsel filed a complaint seeking review of the Commissioner
of Social Security’s (“Commissioner”) denial of Plaintiff’s disability benefits. Docket No. 3. The
Commissioner moved the Court to remand Plaintiff’s case to the SSA for further proceedings pursuant to
sentence four of 42 U.S.C. § 405 (g). Docket No. 15. The Court issued an Order granting the
Commissioner’s request and entered Judgment remanding Plaintiff’s claim. Docket Nos. 16-17. Plaintiff
moved for attorney’s fees under the EAJA. Docket No. 18. The parties reached an agreement for the

1 Plaintiff’s last name is omitted for privacy reasons.
payment of those fees in the amount of $3,300.00. Docket No. 19. The Court then granted Plaintiff’s
request for attorney’s fees under the EAJA pursuant to the agreement between the parties. Docket No. 21.
On March 13, 2024, the SSA issued a Notice of Award (“NOA”) granting Plaintiff past due
benefits of $86,492.70 for September 2017 through February 2024. See Docket No. 22-2. On March 22,
2024 — nine (9) days after the NOA was issued — Plaintiff’s counsel requested the payment of attorney’s
fees pursuant to Section 406(b). Docket No. 22. Plaintiff’s counsel argues that Plaintiff’s past due benefits
are $86,492.70 without legal fees, and 25% of that amount ($21,623.18) was withheld for legal fees.
Docket No. 22 at ¶ 3,6. Plaintiff’s counsel requests the Court to grant him $9,625.00 in attorney’s fees
which is lower than Section 406(b)’s 25% cap. Docket Nos. 22, 25. Plaintiff’s counsel sustains that his
request is reasonable because it is significantly lower than the 25% established in the contingency fee
agreement and he adequately represented Plaintiff in court proceedings. Id. The Commissioner neither
opposed nor assented to the request for attorney’s fees under Section 406(b). Docket No. 24. The Court
pauses to consider reasonableness and concludes that the attorney’s fees requested are to be minimally
reduced to account for administrative tasks.
II. Discussion
Attorneys who successfully represent a Social Security benefits claimant may be awarded
attorney’s fees under the EAJA or Section 406(b). Under the EAJA, the prevailing party may be awarded
reasonable attorney’s fees and expenses if the Government’s position in the litigation was not
“substantially justified”. See 28 U.S.C. §§ 2412 (d)(1)(A), (d)(2)(A). The fees are calculated based on the
time expended and the attorney’s hourly rate. Id. In turn, Section 406(b) provides that attorney’s fees may
be granted if the request is reasonable and does not exceed 25% of past due benefits awarded to the
claimant. 42 U.S.C. § 406 (b)(1)(A). Unlike petitions under the EAJA, which are payable by the SSA,
Section 406(b) fees are payable “out of, and not in addition to, the amount of past-due benefits” awarded
to claimant. Id.; see also Gisbrecht v. Barnhart, 535 U.S. 789, 792 (2002). If fee awards are claimed under
both the EAJA and Section 406(b), the attorney must refund the claimant the amount pertaining to the
smaller fee. Gisbrecht, 535 U.S. at 796.
Local Rule 9(d)(2) establishes that a party seeking attorneys’ fees under Section 406(b) has thirty
(30) days after counsel’s receipt of the original, amended, or corrected NOA to file the Section 406(b)
petition. L. CV. R. 9(d)(2). Plaintiff’s counsel filed his request well within the thirty (30) days of the NOA,
which was issued on March 13, 2024. Having decided that Plaintiff counsel’s request for Section 406(b)
fees is timely, the Court must delve on its reasonableness. Gisbrecht, 535 U.S. at 807. Contingency fee
agreements are “the primary means by which fees are set for successfully representing Social Security
claimants in Court[.]” Id. at 791, 807. However, when a petition under Section 406(b) is made, courts are
called to make an independent review of contingency-fee agreements to make sure that reasonable results
are obtained. Id. Reasonableness is determined “based on the character of the representation and the results
the representative achieved.” Id. at 808; see also Roldán-Urbina v. Comm’r of Soc. Sec., 2022 WL 34663,
at *2 (D.P.R. Jan. 4, 2022). When analyzing reasonableness, the Court considers whether: (1) the
representation provided by the attorney was substandard, (2) the attorney can be deemed responsible for
any delays in the resolution of the case, or (3) the contingency fee is disproportionately large in comparison
to the amount of time spent by the attorney working on the case. Gisbrecht, 535 U.S at 807-808. Courts
should reduce fees when these are “inordinately large” vis-à-vis counsel’s efforts in the case. Id. If there
is some “unearned advantage” for the attorney, the fee may be considered a windfall and should be
disallowed. Id.; see also Jeter v. Astrue, 622 F.3d 371, 377 (5th Cir. 2010); Siraco v. Astrue, 806 F.Supp.2d
272, 276 (D. Me. 2011). The Court’s duty here is to make sure that Plaintiff’s counsel is reasonably
compensated for the efforts of his own making without losing sight that Section 406(b) fees are withheld
from a disabled person’s benefits.
Plaintiff’s counsel requests a total of $9,625.00 in attorney’s fees. Docket No. 25. In support of
his petition, he submits proof that he devoted 17.5 hours to this case at a rate of $550.00 per hour.2 Docket
No. 22 at p. 2. Furthermore, he sustains that the amount requested is proper because it does not exceed the
statutory cap of 25% or the contingency fee agreement with Plaintiff. And because the case was resolved
in his client’s favor. Id. There is no question that Plaintiff achieved a favorable result as the case was remanded to the SSA
and an award of past due benefits was obtained. Docket Nos. 16, 21. Nothing in the record suggests that
Plaintiff’s counsel unreasonably delayed proceedings or that his representation was in any way improper
or substandard. The fees requested by counsel do not exceed the statutory cap. And the hourly rate of
$550.00 is reasonable. See Carrasquillo-Rosa v. C’mm’r of Soc. Sec., 2022 WL 3312974, at *4 (D.P.R.
Aug. 11, 2022) (an award of $600.00 to $700.00 per hour is reasonable); Santiago Díaz v. C’mm’r of Soc.
Sec., 2022 WL 420443, at *2 (D.P.R. Feb. 11, 2022) (granting counsel attorney’s fees at a rate of $600.00
per hour). Further, a review of the docket reveals that Plaintiff’s counsel performed substantive work, such

2 In his motion for attorney’s fees, counsel states that his hourly rate is $550.00. See Docket No. 22. However,
the time logs submitted in support of the request for fees show an hourly rate of $213.74. See Docket No. 22-3. Given that 17.5
hours of work at a rate of $550.00 per hour would yield the requested total $9,625.00, the Court concludes that the $213.74
rate listed in the time records is an error.
as drafting the complaint and memorandum, reviewing transcripts, and meeting with Plaintiff to discuss
her case and steps of litigation. Docket No. 22-3. This justifies the hours of work spent by Plaintiff’s
counsel in this case. Nonetheless, a minimal reduction is warranted. Counsel reported 1.5 hours for the
“prepar[ation] [of] service of four summons and mail[ing] the summons by certified mail.” Id. But mailing
summons is akin to a delivery or messenger service and not substantive legal work. The requested fee of
$9,625.00 should be minimally reduced to reflect a reasonable fee for the services rendered. There is no
mathematical formula for calculating a reduced fee. One (1.0) hour of the 17.5 hours requested by
Plaintiff’s counsel will thus be reduced under Gisbrecht. See Vázquez v. C’mm’r of Soc. Sec., 2023 WL
4285991, at *6 (D.P.R. June 30, 2023) (quoting Gisbrecht, 535 U.S. at 808). Using its independent
judgment and for the reasons explained above, the Court reasons that an award of $9,075.00 (16.5 hours
at an hourly rate of $550.00) is a fair compensation for the work performed.
III. Conclusion
The Court finds that Plaintiff counsel’s Section 406(b) petition is timely, but a reduction in the
requested fee is warranted. Plaintiff counsel’s Section 406(b) request is GRANTED in part and
DENIED in part. Plaintiff’s counsel is granted $9,075.00 in attorney’s fees but should refund Plaintiff
the amount of $3,300.00 awarded under the EAJA.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 20th day of April 2026.

s/Giselle López-Soler
GISELLE LÓPEZ-SOLER
United States Magistrate Judge