The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
The present action was brought under sections 205(g) and 1631(c) (3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c) (3), to review the Secretary of Health and Human Services' (Secretary) final determination terminating claimant's supplemental security income (SSI) benefits. This court held in claimant's favor and remanded the action to the Secretary for calculation of benefits. Presently before the court is claimant's motion for attorney fees under 42 U.S.C. § 406(b) (1). For the reasons discussed below the court finds that attorney fees pursuant to section 406 are available in SSI cases, and the court grants claimant's motion.
On October 28, 1980 an Administrative Law Judge (ALJ) found that claimant was entitled to SSI benefits. The ALJ's decision was based on his finding that claimant was psychologically disabled. On August 20, 1982 a second ALJ held that claimant was no longer entitled to supplemental benefits because claimant's "kidney problem" had improved. On October 26, 1982 the Appeals Council approved the second ALJ's decision, and it became the Secretary's final determination. Claimant subsequently appealed. This court adopted the Magistrate's Report and Recommendation and reversed the Secretary's decision for failure to show the necessary medical improvement. The matter was remanded to the Secretary for calculation of benefits.
Claimant now moves for attorney fees under 42 U.S.C. § 406(b) (1). The Secretary opposes claimant's motion on the ground that the court has no jurisdiction to grant attorney fees in SSI cases.
Title II of the Social Security Act provides benefits to disabled individuals who cannot engage in substantial gainful activity. 42 U.S.C. § 423 et seq. In 1972 the Act was amended to provide supplemental benefits to those disabled individuals whose income falls below subsistence levels. 42 U.S.C. § 1383 et seq. A claimant may be eligible for SSI benefits under Title XVI even though he is not eligible for disability benefits under Title II. Reid v. Heckler, 735 F.2d 757, 760 (3d Cir. 1984).
42 U.S.C. § 406(b) (1) authorizes the court to grant a prevailing claimant attorney fees not in excess of 25% of the past-due benefits to which the claimant is entitled. Section 406(b) (1) provides:
Whenever a court renders a judgment favorable to a claimant under this title 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, and the Secretary may, notwithstanding the provisions of section 205(i) [42 USCS § 405(i)], certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.
Attorney fees under section 406 are deducted directly from the claimant's past-due benefits and are only available for services rendered before the court. Burgo v. Harris, 527 F. Supp. 1157 (E.D.N.Y. 1981).
Section 406 is contained in Title II of the Social Security Act and is applicable to disability cases. The issue before the court is whether section 406 also applies to SSI cases under Title XVI. The Secretary contends that the court has no authority to grant attorney fees in SSI cases because Title XVI contains no express language incorporating section 406. She also argues that awarding attorney fees from claimant's recovery would violate the legislative intent of Title XVI. In support of her position the Secretary asserts that SSI payments are subsistence benefits which Congress intended to protect from depletion by outside sources. The Secretary cites 42 U.S.C. § 407(a), which is applicable to Title XVI through 42 U.S.C. § 1383(d) (1). This provision precludes assignment of a claimant's benefits. The Secretary also cites language in the House Report on the original Title XVI amendments which provides:
Where an individual who has requested a hearing is represented before the Secretary by an attorney, the provisions of the case social security program (pertaining to attorney fees) would be applicable except that there would be no withholding of attorney feed from such individual's benefits. Your committee believes that to withhold such fees would be contrary to the purpose of the program.
H.R. No. 231, 92d Cong., 1st Sess. 3 (1971). Finally, the Secretary cites 42 U.S.C. § 1383(c) (3), § 1383(d) (1) which incorporates several Title II provisions into Title ...