Kerr v. Commissioner of Social Security Administration, 1:15-cv-00029

Plaintiff Donald Gene Kerr sued the Commissioner of Social Security; the district court reversed the denial of benefits and remanded under sentence four of 42 U.S.C. § 405(g).
The court previously awarded Kerr $5,000 in EAJA fees.
The Commissioner later awarded Kerr $61,286 in past-due benefits covering August 9, 2012 through July 2017.
Plaintiff’s counsel moved for approval of a contingent fee of $15,321.50 (25% of past-due benefits), pursuant to a signed contingency agreement.
The court reviewed the fee under 42 U.S.C. § 406(b) and Gisbrecht reasonableness standards, considering time spent at district court (31 hours) and substantial administrative-level work over several years.
The court approved the $15,321.50 fee and ordered counsel to refund the $5,000 EAJA fee to Plaintiff.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the agreed 25% contingent fee is reasonable under § 406(b)	Fee is within 25% cap and reasonable given lengthy representation and results	Consent from SSA counsel obtained; fee falls under statutory cap	Approved as reasonable under Gisbrecht; fee not out of line with character/results
Whether counsel caused delay that inflated past-due benefits	Counsel did not delay; filings timely	No assertion of delay by Commissioner	Court found no counsel delay and denied reduction on this ground
Whether the fee is large compared to hours expended	Counsel logged 31 district-court hours but substantial agency work justifies contingent fee	Fee may appear high if measured only by district hours	Court considered agency-level work and found fee not unreasonably large
Whether EAJA award must be returned to claimant after § 406(b) recovery	Counsel should refund the smaller EAJA fee to claimant when § 406(b) award is received	Same; consistent with Gisbrecht guidance	Court ordered counsel to refund the $5,000 EAJA fee to Plaintiff

Gisbrecht v. Barnhardt, 535 U.S. 789 (2002) (contingent-fee agreements under § 406(b) must be reviewed for reasonableness; court may reduce fee for specific factors)
Mudd v. Barnhardt, 418 F.3d 424 (4th Cir. 2005) (courts may consider attorney’s work at the agency level as a factor in § 406(b) reasonableness determinations)