MEMORANDUM OPINION AND ORDER

DAVID A. SANDERS, Magistrate Judge.

This matter is before the court on the motion of plaintiff's counsel for attorney's fees and expenses. The court has considered the plaintiff's motion, the defendant's response, the argument presented at the hearing on the motion, as well as evidence submitted to the court without objection after the hearing. The court finds as follows:

1. LEGAL FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT

Plaintiff's counsel has moved for an award of legal fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. The defendant has opposed the motion as untimely. While the parties acknowledge the motion for attorney's fees and expenses under this statute must be filed within thirty days of the final judgment in this action, the parties disagree about what triggers the time limit in this action. This dispute arises because, in spite of the court entering its judgment on March 11, 2015 in the plaintiff's favor reversing the ALJ's decision and remanding this action, plaintiff's counsel waited more than a year — until after the conclusion of the post-remand administrative action and an award of benefits to his client — to file this EAJA application.

There are two paths under which a court may remand a case back to the Social Security Administration for further action under 42 U.S.C. § 405(g), which governs judicial review of that agency's decisions. The two types of remands are very different, with different consequences for an EAJA fee petition. Melkonyan v. Sullivan, 501 U.S. 89, 102-103 (1991). A sentence four remand is an adjudication on the merits of the appeal and terminates the action in the courts, while in a sentence six remand, the court retains jurisdiction during the pendency of post-remand administrative proceedings. Determining which sentence controls the remand in the instant action determines whether the instant motion is timely.

The defendant argued that this court's remand was pursuant to sentence four and that the plaintiff had ninety days after entry of the March 2014 judgment to file for EAJA fees and expenses. Plaintiff's counsel argued that the court's remand was under sentence six because the judgment of this court on appeal did not result in an award of benefits. According to the plaintiff's attorney, the time for filing a petition for attorneys fees commenced only upon the award of benefits.1

The court looks first to the statute to determine the nature of the remand in this case. Sentence four of § 405(g) provides: "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for rehearing." This is by far the more commonly occurring type of Social Security remand. In the sentence four remands, the court makes a substantive decision on "the correctness of the administrative decision." Faucher v. Sec. of Health and Human Services, 17 F.3d 171, 174 (6th Cir. 1994). The judgment closes the case and divests the court of jurisdiction. Shalala v. Schaefer, 509 U.S. 292, 297-98 (1993). By entry of a judgment the court closes the case, and the plaintiff is the prevailing party. If other conditions are met, the plaintiff is then entitled to an award of EAJA fees, whether or not there is ever an ultimate finding of entitlement to benefits. Id. at 299.

The second type of remand arises under sentence six of 42 U.S.C. § 405(g) which provides:

With sentence six remands, the court retains jurisdiction during the remand and the remand order is thus not a final order or judgment but an unappealable, interlocutory order. These remands do not involve findings of error by the agency.

Sentence six remands are limited to two circumstances. First the court may remand a case on a pre-answer motion by the Social Security Administration. These motions typically address some problem with producing a complete administrative record for appellate review. On rare occasions entire case records are lost. More frequently tapes of administrative hearings are lost, or portions may be too unintelligible for transcription. On occasion other parts of the record are missing. Thus the court must allow the agency to correct flaws in the record with further administrative proceedings. As a matter of common sense, this type of remand is not a victory for a plaintiff. They have not prevailed on the merits against the defendant, but rather the appeal cannot proceed because there is no adequate record.

The other type of sentence six remand occurs only when two conditions concur. First, the court must be shown new and material evidence on appeal that is not included in the administrative record. The new evidence is only material if the court finds that the agency, given the opportunity to review the new evidence, might well alter its decision. Melkonyan, 501 U.S. at 98. The statute requires a showing of good cause for failing to make this new, material evidence a part of the administrative record before the court can issue this sentence six remand. In this circumstance the court allows the agency to review the new evidence and to reconsider its findings in light of the new evidence, taking up the appeal later if necessary. Again, this type or remand does not find agency error, nor does it make the appealing claimant a prevailing party on the merits of the appeal. Rather this type of remand allows for the completion of administrative proceedings prior to any appellate review.

After completion of the post-remand proceedings under sentence six, if there is a less than fully favorable decision, the Social Security Administration is required to file a supplemental administrative record with the federal court, which can then proceed with the appeal. If there is a favorable ruling, the plaintiff may apply to the court for entry of a judgment. With the entry of the judgment in federal court, the plaintiff is then recognized as the party that prevailed on the sentence six remand and the time for filing an EAJA petition commences. Melkonyan, 501 U.S. at 103 (1991).

In this case the court finds that it clearly remanded this action under sentence four of 42 U.S.C. § 405(g). The court found the ALJ erred when he refused to allow any additional time for the submission of missing medical evidence. The court also found the ALJ erred when he interfered with counsel's attempt to develop his client's testimony. The ALJ, in effect, refused to allow the plaintiff to develop the record, a ruling closely analogous to finding error when an ALJ fails to properly develop the record, which is a sentence four remand. Ingram v. Commissioner of Social Security Adm., 496 F.3d 1253 (11th Cir. 2011).

The court appreciates the potential problems for plaintiff's counsel if there is ambiguity about whether a remand is under sentence four or sentence six, but can find no ambiguity in this case. There was no pre-answer motion to remand under the sentence six. The plaintiff, while complaining about not being allowed to supplement the record after the hearing, did not present any new evidence to this court during the appellate review. Consequently, the court remanded this action under sentence four. Courts are required to enter a judgment to conclude sentence four remands. Melkonyan, 501 U.S. 101-102. This court entered just such a judgment in the plaintiff's favor. As to the argument that the plaintiff cannot be considered a prevailing party unless and until there is an award of benefits, the U.S. Supreme Court rejected precisely that argument in Schaefer, 509 U.S. at 300.

The court finds that the application for legal fees under EAJA was not filed within the time limit set out in the statute. The application had to be filed "within thirty days of final judgment in the action. . . ." 24 U.S.C. § 2412 (d)(1(b). As the Social Security Administration has urged, plaintiff's counsel had a total of ninety days from the entry of the judgment in which to file his application for EAJA fees and this motion was not filed for more than a year after the entry of judgment. Having failed to file within the prescribed time limits the court must deny the motion for EAJA fees and expenses. Schaefer, 509 U.S. at 303.

2. LEGAL FEES UNDER 42 U.S.C. § 406(b)

Plaintiff's counsel amended his motion at the hearing to claim he is seeking legal fees under 42 U.S.C. § 406(b). There are two potential sources of attorney's fees set forth within the Social Security Act. An attorney can receive compensation under 42 U.S.C § 406(a) for services rendered on behalf of a claimant before the Social Security Administration. The agency determines a reasonable fee subject to the statutory cap of twenty-five percent of a claimant's back due benefits. An attorney can also receive attorneys fees under the Social Security Act for representation of a claimant before the federal courts. This fee is also capped at twenty-five percent of the back benefits due a claimant under 42 U.S.C. § 406 (b). While there is some difference of opinion between the circuits, in the Fifth Circuit Court of Appeals, the claims for attorney's fees for administrative and court work are subject to an aggregate cap of twenty-five percent of the total back benefits award. Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970).

Furthermore, to prevent double recoveries by attorneys, any EAJA attorneys fees awarded must be offset against any § 406(b) fee award. A claimant's attorney may either reduce a § 406(b) claim by the amount of EAJA fees, or may receive both fees, but must then refund the smaller of the two fees to the plaintiff. Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 2173 (11th Cir. 2010) ("Regardless of whether the attorney writes a refund check to his client or deducts the amount of the EAJA award from his § 406(b) fee request, the purpose of the Savings Provision is fulfilled—the attorney does not get a double recovery.").

After the hearing, at the request of the court, plaintiff's counsel submitted both a notice of award to his client and a letter to counsel dated December 27, 2015. These documents are attached to this order as Exhibit 1.2 According to the Administration's letter to counsel, it retains $1,064.00, representing the balance of the twenty-five percent it withheld from the claimant's past due benefits. The letter states it has already paid plaintiff's counsel $10,000.00 for legal services before the agency, less the normal user fee. Plaintiff's counsel now seeks payment of the $1,064.00 balance for his work before this court under § 406(b).

Counsel has submitted an itemization of time and expenses to the court and requests the balance of the withheld funds as his fee. The defendant concedes this small sum would be a reasonable fee for counsel's representation of the plaintiff before the federal courts. The court concurs that this small fee is not only a reasonable fee request, but requests significantly less than a reasonable hourly rate for work performed despite the problems that are manifest with the itemizations provided.3 Nevertheless, because the amount sought is so small and because this district does not yet have a definitive set of rules for attorneys who apply for fees under § 406(b), and because the Commissioner concedes the amount sought here is reasonable, the court will grant the motion for fees filed pursuant to § 406(b).4

IT IS, THEREFORE, ORDERED that the motion for attorney's fees and expenses is hereby granted in part and denied in part. The motion for attorney's fees filed pursuant to the EAJA is denied, and the motion for attorney's fees filed pursuant to 42 U.S.C. § 406(b) is granted. Plaintiff's counsel is entitled to $1,064.00.

EXHIBIT 1

Dear Mr. Keenum:

We are withholding the amount of $1,064.00, which represents the balance of 25 percent of the past-due benefits for Angelia M Moore, in anticipation of direct payment of an authorized attorney's fee. We previously paid you $1,269.96 ($1,355.00 minus $85.37 user fee) August 10, 2015 and $8,639.37 ($8,645.00 minus $5.63 user fee) October 14, 2015 which totals $10,000.00 under section 206(A) of the Social Security Act, as amended, for your services before the administration. We are writing at this time to determine whether you have petitioned the United States District Court for the Northern District of Mississippi for a fee for your services before the court.

Please write to: Social Security Administration, Office of Central Operations, Office of Disability Operations, Special Appeals & Examining Section 1, P.O. Box 32913, Baltimore MD 21241-2913 or send a fax (410) 966-0769 to let us know whether you have or will petition for a fee.

If you have been authorized to receive a fee in this case, please send us a copy of that authorization. If you do not intend to petition for a fee for your services, your written statement expressly waiving a fee is necessary before we can release the withheld benefits to the claimant.

We are writing to let you know that you are entitled to monthly disability benefits from Social Security beginning April 2011.

Your Benefits

The following chart shows your benefit amount(s) before any deductions or rounding. The amount you actually receive may differ from your full benefit amount. When we figure how much to pay you, we must deduct certain amounts, such as Medicare premiums and worker's compensation offset. We must also round down to the nearest dollar.

What We Will Pay

Your past due benefit period is 04/2011 through 03/2015 at $38,836.00. We must withhold 25% of this past due benefit amount ($9,709.00) from any future payments. We must also withhold any Supplemental Security Income (SSI) that you received, but we determined that you did not receive any during this period. After calculating all benefits both paid and due, we determined that you were due $29,862.00.

The Date You Became Disabled

We found that you became disabled under our rules on October 27, 2010.

You have to be disabled for 5 full calendar months in a row before you can be entitled to benefits. Your first month of entitlement is April 2011.

Information About Lawyer's Fees

When a representative wants to charge for helping with a Social Security claim, we must approve the fee. We usually withhold 25 percent of past-due benefits in order to pay the approved representative's fee. We withheld $9,709.00 from your past-due benefits in case we need to pay your representative.

When we decide the amount of the fee, we will let you and the representative know how much of this money will be used to pay the fee. We will send any remainder to you.

Section 206(B) of the Social Security Act, as amended, governs fees for services before the court. If your lawyer wishes to receive a fee for those services, he/she must send the petition for that fee to the U.S. District Court for the Northern District of Mississippi with a copy to the United States Attorneys Office. He should also send a copy to the Social Security Administration at:

Your lawyer may also petition for a fee under the Equal Access Justice Act (EAJA). These awards are paid from administrative funds, and unlike fees under Section 206 of the Act, are not deducted from your past due benefits.The EAJA specifically provides that where an attorney receives fees for thesame work under both Section 206(B) of the Social Security Act and the EAJA, the attorney must refund to you the amount of the smaller fee.

If your lawyer is not going to file a fee petition with the court, he should notify us in writing so that we can send you and your family any funds we withheld from your past due benefits.

You are entitled to benefits because of a decision made by the Administrative Law Judge.

If you disagree with this decision, you have the right to appeal. We will review your case and consider any new facts you have. A person who did not make the first decision will decide your case. We will correct any mistakes. We will review thoseparts of the decision, which you believe are wrong and will look at any new facts you have. We may also review those parts, which you believe are correct and may make them unfavorable or less favorable to you.

Information About Medicare

You are entitled to hospital insurance under Medicare beginning April 2013.

You are entitled to medical insurance under Medicare beginning May 2015.

We did not give you earlier medical insurance because we did not process it timely. If you want to have these benefits earlier, you can choose medical insurance benefits beginning April 2013. If you want this benefit to start earlier, you must do the following things within 60 days after the date of this notice:

If you want the benefits beginning April 2013 but find it hard to pay the premium amount in a lump sum, ask us about other ways to pay the money.

We charge a monthly premium for your medical insurance. The rates are shown below:

We are taking medical insurance premiums due through May 2015 out of the check you will receive around May 23, 2015. These premiums total $209.80. We will deduct medical insurance premiums 1 month in advance.

We are deducting past-due premiums from your check.

Medicare Prescription Drug Plan Enrollment

Now that you are eligible for Medicare, you can enroll in a Medicare prescription drug plan (Part D).

To learn more about the Medicare prescription drug plans and when you can enroll, visit www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227; TTY 1-877-486-2048). Medicare also can tell you about agencies in your area that can help you choose your prescription drug coverage.

If you have limited income and resources, we encourage you to apply for the extra help that is available to assist with Medicare prescription drug costs. The extra help can pay the monthly premiums, annual deductibles and prescription copayments. To learn more or apply, please visit www.socialsecurity.gov, call 1-800-772-1213 (TTY 1-800-325-0778) or visit the nearest Social Security office.

Other Social Security Benefits

This benefit is the only benefit you can receive from us at this time. In the future, if you think you might qualify for another benefit from us, you will need to apply again.

Your Responsibilities

The decisions we made on your claim are based on information you gave us. If this information changes, it could affect your benefits. For this reason, it is important that you report changes to us right away. We have enclosed a pamphlet, "What You Need To Know When You Get Social Security Disability Benefits". It will tell you what must be reported and how to report. Be sure to read the parts of the pamphlet which explain what to do if you go to work or if your health improves.

Things To Remember

The doctors and other trained personnel who decided that you are disabled expect your health to improve. Therefore, we will review your case in April 2017. We will send you a letter before we start the review. Based on that review, your benefits will continue if you are still disabled, but will end if you are no longer disabled.

Do You Think We Are Wrong?

If you do not agree with this decision, you have the right to appeal. We will review your case and look at any new facts you have. A person who did not make the first decision will decide your case. We will review the parts of the decision that you think are wrong and correct any mistakes. We may also review the parts of our decision that you think are right. We will make a decision that may or may not be in your favor.

If You Want Help With Your Appeal

You can have a friend, representative, or someone else help you. There are groups that can help you find a representative or give you free legal services if you qualify. There also are representatives who do not charge unless you win your appeal. Your local Social Security office has a list of groups that can help you with your appeal.

If you get someone to help you, you should let us know If you hire someone, we must approve the fee before he or she can collect it. And if you hire a representative who is eligible for direct pay, we will withhold up to 25 percent of any past due benefits to pay toward the fee.

Suspect Social Security Fraud?

Please visit http://oig.ssa.gov/r or call the Inspector General's Fraud Hotline at 1-800-269-0271 (TTY 1-866-501-2101).

If You Have Questions

We invite you to visit our website at www.socialsecurity.gov on the Internet to find general information about Social Security. If you have any specific questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at 1-866-504-4267. We can answer most questions over the phone. If you are deaf or hard of hearing, you may call our TTY number, 1-800-325-0778. You can also write or visit any Social Security office. The office that serves your area is located at:

If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly when you arrive at the office.