OPINION AND ORDER ON ATTORNEY’S FEES
This matter came on for consideration on the combined motion of plaintiff’s counsel for award of an attorney’s fee pursuant to 42 U.S.C. § 406(b) and of plaintiff for her attorney’s fees pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act (EAJA) (doc. 10), to which the Secretary has responded in opposition (doc. 11). As developed briefly below, both motions for fees are denied.
I. Section 406(b)
The Secretary aptly characterizes this case as “an appeal under the authority of 42 U.S.C. § 405(g) from a decision refusing to waive overpayments made to Plaintiff for a disallowed period of disability of her formerly incompetent child.” See doc. 11 at 1. In our decision adopting the Magistrate’s Report and Recommendation, we Ordered that the decision of the Secretary be reversed and that plaintiff be granted a waiver of collection of the overpayment claimed by the Secretary. See doc. 8. This disability insurance case, therefore, is not the usual one in which the Secretary is withholding twenty-five (25%) percent of the back benefits owing, out of which an award of attorney’s fees can be made. With this background, and having reviewed again 42 U.S.C. § 406 and cases appurtenant thereto, we fail to see how we grant plaintiff’s counsel’s request, as any approval attendant to section 406 clearly is dependent upon the existence of a back benefit fund out of which an approved attorney’s fee may be awarded.
We have searched in vain for some case authority that would allow us to accommodate plaintiff’s counsel’s request. The best we could untum was some broad language that we quote below:
Assuming arguendo, however, that 42 U.S.C. § 406(b) is not applicable to the judicial review of a title XVI claim, then, as the defendant concedes, this Court still has the inherent power to set the maximum fee allowable to counsel for *994 his representation of the plaintiff herein. An attorney appearing before this Court is its officer. Cohen v. Hurley (1961),366 U.S. 117 , 124,81 S.Ct. 954 [958]6 L.Ed.2d 156 , 162 (headnote 6); Powell v. Alabama (1932),287 U.S. 45 , 73,53 S.Ct. 55 [65]77 L.Ed. 158 , 172 (headnote 12). He is admitted to practice before the Court for something more than private gain; as an officer of the Court, and like the Court itself, he is an instrument or agency to advance the ends of justice. Theard v. United States (1957),354 U.S. 278 , 281,77 S.Ct. 1274 [1276]1 L.Ed.2d 1342 , 1345 (headnote 4). Such an attorney is ‘ * * * subject to continuing scrutiny by * * * the courts. * * * ’ In re Griffiths (1973),413 U.S. 717 , 727,93 S.Ct. 2851 , 2857,37 L.Ed.2d 910 , 918 (headnote 14). Because of an attorney’s special relationship to the responsibilities of the Court, the Court possesses ‘ * * * autonomous control over [his] conduct. * * * ’ Theard v. United States, supra,354 U.S. at 281 ,77 S.Ct. at 1276 ,1 L.Ed.2d at 1344 (headnote 3). Thus, this Court has inherent summary jurisdiction over the attorneys practicing before it to compel the proper relationship between themselves and their clients. Ex parte Wall (1883), 107 U.S. [17 Otto] 265,2 S.Ct. 569 ,27 L.Ed. 552 , 556. This inherent power extends obviously to the control of the maximum fees received by attorneys for their representation of clients before this Court.
Vaughn v. Califano,
Such is in contrast, of course, to the direct statutory authority district courts have in this regard with respect to Title II, or disability insurance benefits, cases. In so concluding, the McCarthy Court concluded that cases holding otherwise “may reflect sound policy — insuring adequate representation of SSI claimants— ... [but] such a result hints of judicial legislating.” Id., at 745. To be consonant with the teaching of our parent circuit, then, we believe we must act conservatively as to the instant situation that, because of the lack of withholding of back benefits, is a far less “parallel” proceeding.
Plaintiff's counsel’s caution is understandable, even admirable, given the stiff penalties that attach to improper fee collection under the Social Security Act. See, e.g., 42 U.S.C. § 406(a), (b)(2). For the record, however, we note that our denial of said motion is on “procedural grounds,” if you will, and is not meant to be read as an indication that the fee counsel seeks to “charge” in some fashion is unreasonable. Furthermore, we note that the Secretary seems to indicate that the appropriate course for counsel to follow is to collect his fee from plaintiff herself. 1 Mr. Rattan, the Assistant United States Attorney who responded to the instant fee petition and a seasoned veteran in the realm of Social Security law, pointed out no impropriety in counsel directly approaching his client without a court-approved order in hand. Because the United States Attorney would serve as a prosecutor in a fee collection violation case, counsel should be heartened by the tacit approval given by a representative of that office. But with respect to the narrow issue before us, the approval of an attorney’s fee for legal advice in “prosecuting” a waiver of overpayment case, in the absence of any more specific authority, we are bound to deny plaintiff’s counsel’s motion, but direct him instead to use his own *995 professional judgment as to how much of a fee to collect for services rendered.
II. EAJA
Plaintiffs instant fee petition under the EAJA asks this Court to award a total fee of $762, representing 10.2 hours of work compensated at a rate of $75 per hour. Plaintiff urges an award of fees under the EAJA because, borrowing on the Magistrate’s Report and Recommendation, “the AU used faulty logic and an incorrect legal standard by assuming that the average person has a clear understanding of the operations of the Social Security Act and Regulations____ [and failed] to give any consideration to the second prong of the test used to determine whether, in overpayment cases, repayment will be required or waived” (doc. 10).
This Court previously has concluded that the EAJA is applicable to Social Security cases.
Kerr v. Heckler,
As a preface to our analysis of whether the government’s position was substantially justified, we comment briefly as to why we adopted the Magistrate’s Report and Recommendation that plaintiff be granted a waiver of collection of the overpayments claimed by the Secretary. Primarily, we observed that the Secretary, despite notice that further appeal would be waived if objections were not filed timely, took no exception to the Magistrate’s Report and Recommendation. Second, after review of the file, we were convinced that a waiver of overpayments was appropriate. When no objections are filed to a Magistrate’s Report and Recommendation, we refrain from correcting factual assertions in error or toning down the language used if it makes no difference to the result we ultimately desire to reach. In this case, for example, the Magistrate used curt language to characterize the AU’s handling of plaintiff’s cause, but we are not troubled by the presence of such language as it was drafted for the purpose of evaluating whether there existed substantial evidence to support the AU’s position, not whether same was substantially justified.
Turning now to plaintiffs first argument in support of a fee award under the EAJA, we recall the federal regulation being applied.
§ 406.506 When waiver of adjustment or recovery may be applied.
Sections 204(b) and 1870(c) of the Act provide that there shall be no adjustment or recovery in any case where an incorrect payment under title II (old-age, dependent’s, survivor’s and disability insurance benefits) or under title XVIII (hospital and supplementary medical insurance benefits) has been made (including a payment under section 1814(e) of the Act) with respect to an individual:
(a) Who is without fault, and
(b) Adjustment or recovery would either:
(1) Defeat the purpose of title II of the Act, or
*996 (2) Be against equity and good conscience.
(Emphasis added.) It is the plaintiffs burden to prove that the waiver provision is applicable.
Hillenberg v. Bowen,
No. 85 CIV 3671 (PKL) (S.D.N.Y. June 2, 1986) [Available on WESTLAW, DCTU database] (available on Lexis, Genfed library, Dist file) (citing
Sierakowski v. Weinberger,
Plaintiff’s second ground for an award of fees discusses the AU’s failure to apply the “equity and good conscience” prong of the test. A close reading of the regulation reveals that it is written in the conjunctive — that is, to prevail, a plaintiff must be both without fault in causing the over-payments
and
a failure to waive collection of same by the Secretary would be against equity and good conscience. Therefore, when the AU found that plaintiff as not “without fault,” he was not required to continue his inquiry.
See Larson v. Bowen,
— F.Supp. - No. 81-2354 (D.Kan. Mar. 18, 1986);
Morgan,
Accordingly, plaintiff’s application for an award of attorney’s fees pursuant to the Equal Access to Justice Act is hereby DENIED.
III. Conclusion
To conclude, we rule that plaintiff’s counsel’s motion for award of an attorney’s fee pursuant to 42 U.S.C. § 406(b) is hereby DENIED. Likewise, plaintiff’s motion for her attorney’s fees pursuant to 28 U.S.C. § 2412(d), the EAJA, also is hereby DENIED.
SO ORDERED.
Notes
. Attorney Woliver is not a newcomer to the Social Security bar, as he has represented ably a number of claimants before this Court. We trust that he is aware that the case he presents to us is an unusual one. Although his motion in this regard was somewhat cryptic, we believe he simply seeks our imprimatur on the fees he intends to ask his client to pay. Given the brief in opposition that the government filed, however, we would have appreciated being favored with a reply brief to shed some clarification on plaintiffs counsel’s request.
. In his Report and Recommendation, the Magistrate referred to the fact that, evidently pursuant to agency custom, the SSA’s office’s telephone records would have been discarded before the fact of the claimed telephone call was drawn into question. While this lack of documentation is unfortunate, we must remember that it is
plaintiff's
burden to prove she acted "without fault;’’ accordingly, we decline to view the AU’s conclusions, for EAJA purposes, with the same harshness as the Magistrate did with respect to the merits of this case.
See generally Kendrick,
We note that in an overpayments case concerning benefits distributed pursuant to the Railroad Retirement Act, a plaintiff and his wife testified that they advised the agency of information that would affect plaintiff's eligibility for benefits; in addition, plaintiff submitted affidavits from agency employees that confirmed his contacts. Notably, at the first administrative level plaintiffs testimony was found to be not credible in the absence of any record of such contacts in the agency’s file. At appellate administrative level, however, that determination was reversed on the weight of the submitted affidavits sworn by the agency’s employees.
See Peterson v. United States Railroad Retirement Board,
. Our research for this Opinion and Order unturned the case of
Viehman v. Schweiker,
In the instant case, it is plain to the Court that the AU did not believe plaintiff, and therefore made a credibility assessment. We have interjected the question of corroboration only to illustrate why we think an EAJA fee assessment is inappropriate under the circumstances.
. Not all plaintiffs in these cases are so situated,
see, e.g., Kirk
v.
Mathews,