Alverio v. Commissioner of Social Security
- Lewis Liman
- 1:19-cv-06298
- U.S. District Court · Southern District of New York
- 6
In Alverio v. Commissioner, Magistrate Judge Aaron recommended awarding counsel $25,515 and requiring counsel to return previously paid fees.
Milagros Alverio, her attorney Daniel Berger, and the Commissioner of Social Security. The recommendation principally concerns Berger’s fee and his obligation to refund previously paid Equal Access to Justice Act fees to Alverio.
What happened
In Alverio v. Commissioner of Social Security, Milagros Alverio’s lawyer, Daniel Berger, asked for 25% of her past-due benefits as a fee for successfully challenging the denial of benefits. The Social Security Administration had withheld $25,515 for that purpose.
The court found the requested fee reasonable because it stayed within the 25% legal limit, there was no evidence of improper conduct, Berger achieved a favorable result, and he did not cause unreasonable delay. The court also considered the 25.3 hours he spent on the federal case and the risk that he would not be paid if the case failed.
Magistrate Judge Stewart D. Aaron recommended granting the fee request and requiring Berger to return $6,500 in previously paid Equal Access to Justice Act fees to Alverio. The recommendation was submitted to District Judge Lewis J. Liman, and the parties had 14 days to object.
The detailed version
- Alverio v. Commissioner of Social Security · No. 1:19-cv-06298
- Lewis Liman
- June 19, 2025
Background
Milagros Alverio moved for an award of attorney’s fees under Section 406(b) of the Social Security Act. Her written agreements with Daniel Berger provided for a fee equal to 25% of her past-due benefits if the litigation succeeded. The Social Security Administration’s May 20, 2025 notice of award stated that it had withheld $25,515, representing 25% of Alverio’s past-due benefits, to pay approved attorney’s fees.
The opinion states that Berger challenged the denial of benefits, reviewed an administrative record of more than 883 pages, and filed a 25-page legal memorandum. The case was remanded to the Social Security Administration for further proceedings. After the remand, an administrative law judge found that Alverio was disabled and entitled to benefits.
Legal standard
Section 406(b) permits a court to approve a reasonable attorney’s fee from a claimant’s past-due benefits, up to 25% of those benefits. The court must independently review a contingency-fee agreement to determine whether the requested amount is reasonable. The review considers whether the fee is within the 25% limit, whether fraud or overreaching occurred, whether the fee fits the representation and result, whether the lawyer caused delay, and whether the fee would be an improper windfall compared with the time and effort involved.
Court’s analysis
The court found that the requested $25,515 fee met, but did not exceed, the statutory 25% limit. It found no evidence or suggestion of fraud or overreaching. The court also concluded that the fee was consistent with the representation and the successful result, and that Berger had not caused unreasonable delay.
For the windfall factor, the court considered Berger’s 25.3 hours of federal-court work, his experience litigating Social Security cases, the uncertainty of contingency-fee work, and the favorable result. It calculated a de facto hourly rate of $1,008.49 and stated that this was within the range approved by courts in the Second Circuit. The opinion concluded that the requested fee was reasonable.
Recommendation and procedure
Magistrate Judge Stewart D. Aaron recommended that the motion for attorney’s fees be GRANTED, that Berger be awarded $25,515, and that he refund to Alverio the previously paid Equal Access to Justice Act fees of $6,500 after receiving the Section 406(b) award. The document is a report and recommendation submitted to District Judge Lewis J. Liman, rather than a final ruling by the district judge. The parties had 14 days after service to file objections; the notice states that failure to object would waive objections and prevent appellate review.
Uncertainty in the opinion
The introduction and conclusion state that Berger must refund $6,500. One paragraph in the application section instead says that he should refund $5,500. The opinion does not explain this discrepancy.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.