those portions of the consultant's conclusions which differed from those of the examining doctors. Most shockingly, the transcript reveals that the consultant realized that he had been pressured by the ALJ into reaching contradictory conclusions, but continued to allow his testimony to be recharacterized by the ALJ.
One wonders whether the Appeals Council reviewed this transcript before affirming the ALJ. In fact, the administrative record from the Appeals Council is so thin as to make judicial review of that proceeding all but impossible. It is not clear whether the Appeals Council reviewed anything other than the note, handwritten on Spurlock's behalf, to the effect that the ALJ hearing was unfair. Certainly, one could reach the conclusion that Spurlock's appeal was substantively ignored by the Appeals Council.
For sure, counsel for the Secretary has reviewed the administrative record. Section 405(g) requires that the Secretary file a certified copy of the administrative record along with his answer to the complaint, and the Secretary must therefore be charged with knowledge of the administrative record. In two hearings before this court, counsel for the Secretary has asserted that typically this is the first time that the full administrative record is compiled and reviewed. That review formed the basis for the Secretary to propose that the matter be remanded for further proceedings, an offer which Spurlock naturally accepted. But the stipulated remand itself cannot serve as a defense to an award of EAJA attorney fees. This is particularly true in this case, where there can be no doubt that the Secretary's position in these proceedings, from the hearing before the ALJ until the Secretary agreed to remand this matter for further evidence, cannot be substantially justified.
The Secretary now argues that an award of EAJA fees in this case would deter the Secretary from the laudable practice followed here whereby counsel reviews the administrative record and offers to stipulate to a remand in appropriate cases. The court cannot agree. The Secretary's answer was filed three months, after the complaint, presumably because the compilation of the administrative record takes time. There can be no doubt that applicants in Spurlock's position, and the court, would permit the Secretary even more time to file the answer in cases where such review and remand were a possibility. Under the system of incentives crafted by § 405(g) and the EAJA, a stipulated remand entered before the Secretary filed the answer would have been characterized as one pursuant to § 405(g) sentence six, and EAJA fees would be available, if at all, only if the applicant prevailed on the merits of the SSI application. An award of attorney fees in this case, rather than serving as a deterrent to review by counsel for the Secretary, will instead encourage review of the full administrative record at an earlier point in the proceedings. This result serves the interests of the applicant and of the district court, and is entirely consistent with the statutory scheme crafted by Congress, as interpreted by the Supreme Court in the Melkonyan case.
Thus, upon reconsideration, the court finds that the position of the government was not substantially justified, and an award of attorney fees is appropriate. The Supreme Court has cautioned that a request for attorney fees "should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Hence, an award of attorney fees under the EAJA should encompass not only the fees incurred in the litigation on the merits, but also the fees incurred by the prevailing party in protecting that fee award in subsequent litigation by the government over the propriety or amount of the EAJA fee award, even if the position taken by the government in opposing the fee award is substantially justified. INS v. Jean, 496 U.S. 154, 110 S. Ct. 2316, 2322, 110 L. Ed. 2d 134 (1990).
When the period for appeal has run on this order, and for thirty days thereafter, the court will entertain from Spurlock an application for all expenses and attorney fees incurred in litigating these issues in this court.
IT IS SO ORDERED.
DATED: May 6, 1992
VAUGHN R. WALKER
United States District Judge
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