dissenting.
Because I believe that this court’s decision in Trident Marine Construction, Inc. v. District Engineer, United States Army Corps of Engineers, 766 F.2d 974 (6th Cir.1985), is binding precedent for the definition of the term “substantially justified,” and that the majority’s treatment of the legislative history of the 1985 amendments to the Equal Access to Justice Act, 28 U.S.C. § 2412, conflicts with a number of Supreme Court decisions, I respectfully dissent.
I respectfully suggest that if the majority concluded that Trident Marine should no longer be followed in this circuit, it was under a duty to seek en banc reconsideration of the question. Even more important, its reliance upon a legislative report filed five years after the enactment of the pertinent language is contrary to the express prohibition of the Supreme Court in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), and does not justify ignoring our practice requiring en banc consideration.
The Equal Access to Justice Act (EAJA) allows a prevailing party to recover litigation costs against the United States unless “the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The EAJA was “designed to encourage small private plaintiffs and defendants to persevere against or resist the U.S. government if the government takes an unjustified [administrative or] litigating position. And, perhaps more importantly, the statute is meant to discourage the federal government from using its superior litigating resources unreasonably....” Battles Farm Company v. Pierce, 806 F.2d 1098, 1101 (D.C.Cir.1986) (footnotes omitted). Under the EAJA, it is not enough for a party to “prevail” against the government in order to obtain attorney fees. If the government shows that its position was “substantially justified,” a court cannot award attorney fees. Congress initially enacted the statute in 1980 with a sunset provision and reenacted it with amendments in 1985.
The question before us is whether the Secretary’s position in this case was “substantially justified.” That term is unique to this statute. Until 1985, each circuit that had considered the question, with the exception only of the District of Columbia Circuit, defined “substantially justified” to mean “reasonable.” See United States v. Yoffe, 775 F.2d 447, 449 (1st Cir.1985) and cases cited therein. The court explicitly adopted the majority position in Trident Marine, supra.
Appellant argues that whatever “substantially justified” may have meant before 1985, the 1985 amendments and legislative history altered the standard. Although the 1985 amendments changed portions of the Act, the amendments retained the original language precluding attorney fees if the position of the United States was “substantially justified.” Thus, in my view, the amendments do not support appellant’s po*1245sition. In 1980, the relevant portions of section 2412 provided:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (1982) (emphasis added). The relevant portions of the statutory language after the 1985 amendments are:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
* * * *
(D) “position of the United States” means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings[.]
28 U.S.C. §§ 2412(d)(1)(A), (d)(2)(D) (emphasis added). While the phrase “including proceedings for judicial review of agency action” was added to subsection (d)(1)(A), plainly the underscored language relating to “substantially justified” has remained unchanged since Trident Marine interpreted it. The majority never considers this statutory language, but simply moves on to the legislative history of the 1985 amendments. Certainly, “this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.” Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956).
The only important change the 1985 amendments made, the addition of subsection (d)(2)(D), affected the precedential value of Trident Marine in but one respect. Before the enactment of that subsection, the circuits were divided on the meaning of the term “position of the United States.” See Temp Tech Industries, Inc. v. NLRB. 756 F.2d 586, 589-90 (7th Cir.1985) and cases cited therein. The dispute centered on whether the term referred only to the litigating position of the government or to the government’s administrative action as well. In Trident Marine, 766 F.2d at 978, this court adopted the position of six other circuits that the former was the proper meaning of the term.1 Whether Congress in 1980 intended that the broader reading of the phrase was the proper one is irrelevant; as of 1985, Congress made its views quite clear by adding subsection (d)(2)(D) above. I therefore agree that Trident Marine has been superseded by congressional enactment, but only in its definition of the term “position of the United States.”
Since the amendments did not alter the meaning of the term “substantially justified,” the majority erroneously depends on portions of the 1985 legislative history to argue that Congress changed the meaning of “substantially justified” to something more than reasonableness. The House Report accompanying the 1985 amendments declared that the meaning of “substantially *1246justified” would be clarified by the amendments. H.R.Rep. No. 99-120, 99th Cong., 1st Sess. 11, reprinted in 1985 U.S. Code Cong. & Ad. News 132, 139. The report also noted its objection to decisions of various courts of appeals that had interpreted “substantially justified” to mean reasonableness:
Because in 1980 Congress rejected a standard of “reasonably justified,” in favor of “substantially justified,” the test must be more than mere reasonableness.
Especially puzzling, however, have been statements by some courts that an administrative decision may be substantially justified under the Act even if it must be reversed because it was arbitrary and capricious or was not supported by substantial evidence. Agency action found to be arbitrary and capricious or unsupported by substantial evidence is virtually certain not to have been substantially justified under the Act. Only the most extraordinary special circumstances could permit such an action to be found to be substantially justified under the Act. /
Id. at 9-10, 1985 U.S. Code Cong. & Ad. News at 138 (footnote omitte'd). As the majority notes, Congressmen Kindness, Moorehead, and Kastenmeier, and Senators Grassley and Thurmond, all rejected from the floor the committee report’s statement that an agency action found unsupported by substantial evidence could not have been substantially justified except in extreme circumstances. The majority also correctly notes that the House Report’s assertion regarding a standard higher than reasonableness was not challenged on the floor of either House. The appellant in his brief relies on the same legislative history. Appellant’s brief at 12.
Not only is reliance on subsequent legislative history absolutely precluded by Supreme Court precedent, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), but also the majority’s selective and preferential treatment of the 1985 legislative history disregards clearly established rules of statutory construction and the realities of the legislative process. In Oscar Mayer & Co. v. Evans, the question was whether the Age Discrimination in Employment Act [ADEA] mandated resort to state administrative procedures before the filing of a federal lawsuit. The plaintiff argued that resort to state procedures was optional despite previous judicial construction of the ADEA mandating preliminary resort to state processes. In support of his argument, plaintiff relied on the legislative history of amendments to the ADEA that did not affect the original pertinent language. In Oscar Mayer, the Supreme Court not only did not examine whether the purported legislative history accurately reflected the intent of Congress, but refused even to consider these documents. “Senate Report No. 95-493 was written eleven years after the ADEA was passed in 1967, and such ‘[legislative observations ... are in no sense part of the legislative history.’ United Airlines Inc. v. McMann, 434 U.S. 192, 200 n. 7 [98 S.Ct. 444, 449 n. 7, 54 L.Ed.2d 402] (1977). ‘It is the intent of the Congress that enacted [the section] ... that controls.’ Teamsters v. United States, 431 U.S. 324, 354 n. 39 [97 S.Ct. 1843, 1864 n. 39, 52 L.Ed.2d 396] (1977).” 441 U.S. at 758, 99 S.Ct. at 2072.2 “[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960). See Waterman S.S. Corp. v. United States, 381 U.S. 252, 269, 85 S.Ct. 1389, 1398-99, 14 L.Ed.2d 370 (1965). More recently, the Court has noted that “even when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment.” Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 118 n. 13, 100 S.Ct. 2051, 2061 n. 13, 64 L.Ed.2d 766 (1980). Therefore, the “legis*1247lative history” offered by the appellant in this case is irrelevant to our inquiry.
Furthermore, Oscar Mayer and other Supreme Court precedent clearly establishes that where parties offer competing statutory interpretations, “[t]he starting point of our analysis ... must, of course, be the language of [the statute]. We assume ‘that the legislative purpose is expressed by the ordinary meaning of the words used.’ ” Kosak v. United States, 465 U.S. 848, 853, 104 S.Ct. 1519, 1523, 79 L.Ed.2d 860 (1984) (footnote and internal citations omitted). We begin with the language of the statute itself, Bread Political Action Committee v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237-38, 71 L.Ed.2d 432 (1982), and interpret it according to its plain language absent evidence of a contrary legislative intent. United States v. Apfelbaum, 445 U.S. 115, 121, 100 S.Ct. 948, 952, 63 L.Ed.2d 250 (1980). Only if the statutory language is unclear, must we examine the legislative history. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547-48, 79 L.Ed.2d 891 (1984).
I believe that this court in Trident Marine, supra, in determining the meaning of the term “substantially justified,” considered the statutory language and properly resorted to the legislative history from the time of the phrase’s original enactment. As noted, “substantially justified” is a standard unique to this statute. Congress could have used the frequently and definitely construed “substantial evidence” standard or another term of similar clarity, but instead chose a different term. In these circumstances, this court correctly examined the relevant legislative history accompanying the initial enactment and interpreted the statute in accordance thereto, allowing the possibility for Congress to amend the statute if it intended otherwise. Since that time, Congress has not seen fit to alter the statutory language. Instead, we are asked to change our interpretation of the meaning of “substantially justified” on the basis of a committee report produced by a subsequent Congress whose amendments did not affect the language in question. I believe relevant Supreme Court precedents preclude us from so doing.
Even if one rejects this argument that courts may not consider subsequent legislative history as affecting unamended statutory language, the majority improperly relies on selected portions of the legislative history of the 1985 amendments to support its assertion that the meaning of “substantially justified” was changed. Admittedly, the legislative history of the 1985 amendments is ambiguous. The Fifth Circuit stated in Russell v. National Mediation Board, 775 F.2d 1284, 1289 (5th Cir.1985):
This legislative history is puzzling. The unchallenged portion of the House Report indicates that government action must be more than merely reasonable to be substantially justified. The cosponsors’ comments during the floor debates, by contrast, indicate that an action may be substantially justified even though it is arbitrary and capricious. We see no way to harmonize these positions____
However, the presence of ambiguity does not allow a court to prefer certain portions of legislative history over other portions. Contrary to the majority, I see little reason to grant statements on the floor more weight than the House Report even though such statements may accord more with my own view. “The contemporaneous remarks of a sponsor of legislation are certainly not controlling in analyzing legislative history. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 [100 S.Ct. 2051, 2061, 64 L.Ed.2d 766] (1980); Chrysler Corp. v. Brown, 441 U.S. 281, 311 [99 S.Ct. 1705, 1722, 60 L.Ed.2d 208] (1979).” Weinberger v. Rossi, 456 U.S. 25, 35 n. 15, 102 S.Ct. 1510, 1517 n. 15, 71 L.Ed.2d 715 (1982). No basis exists for concluding that the standards of the sponsors should prevail over those of the House Report, or that other portions of that Report prevail because they were not rejected on the floor.
Furthermore, reliance on the House Report to resolve the ambiguity in the legislative history is particularly suspect in light of Judge (now Justice) Scalia’s comments *1248concerning the same House Report with reference to a different issue under EAJA:
I frankly doubt that it is ever reasonable to assume that the details, as opposed to the broad outlines of purpose, set forth in a committee report come to the attention of, much less are approved by, the house which enacts the committee’s bill. And I think it is time for courts to become concerned about the fact that routine deference to the detail of committee reports, and the predictable expansion in that detail which routine deference has produced, are converting a system of judicial construction into a system of committee-staff prescription. But the authority of the committee report in the present case is even more suspect than usual. Where a committee-generated report deals with the meaning of a committee-generated text, one can at least surmise that someone selected these statutory words to convey this intended meaning. The portion of the report at issue here, however, comments upon language drafted in an earlier Congress, and reenacted, unamended so far as is relevant to the present point, in the 1985 law. We are supposed to believe that the legislative action recommended by the committee and adopted by the Congress, in order to resolve a difficult question of interpretation that had produced a conflict of the circuits ... was reenactment of the same language unchanged! Such a supposition is absurd on its face____
Hirschey v. FERC, 777 F.2d 1, 7-8 (D.C.Cir.1985) (Scalia, J., concurring) (emphasis in original) (footnote omitted). See also Federal Election Commission v. Rose, 806 F.2d 1081, 1090 (D.C.Cir.1986), which noted that legislative history at the committee level is deliberately manipulated “to achieve what likely cannot be won before Congress as a whole.” These cases suggest that the House Report on the 1985 EAJA amendments may be inherently unreliable.
Finally, several circuits have construed the ambiguous legislative history of the 1985 amendments to lead to different results. Specifically relying upon this legislative history, the Federal Circuit held that substantial justification requires more than reasonableness. “The government must show that it has not ‘persisted in pressing a tenuous factual or legal position, albeit one not wholly without foundation.’ ” Gavette v. Office of Personnel Management, 785 F.2d 1568, 1579 (Fed.Cir.1986), quoting Gava v. United States, 699 F.2d 1367, 1375 (Fed.Cir.1983) (Baldwin, J., dissenting). See also Devine v. National Treasury Employees Union, 805 F.2d 384, 386 (Fed.Cir.1986); L.G. Lefler, Inc. v. United States, 801 F.2d 387, 388 (Fed.Cir.1986). Likewise, the Eleventh Circuit has held that “the test is actually more than mere reasonableness.” Haitian Refugee Center v. Meese, 791 F.2d 1489, 1497 (11th Cir.1986), vacated in part on other grounds, 804 F.2d 1573 (11th Cir.1986). In contrast, the Fifth and Seventh Circuits expressly retained a reasonableness standard after considering the 1985 amendments and “legislative history.” Russell v. National Mediation Board, 775 F.2d 1284, 1289 (5th Cir.1985);3 Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 642 n. 5 (1987).4
Two circuits have concluded that the standard remains one of reasonableness in light of the 1985 amendments, but these circuits did not discuss the 1985 legislative history. United States v. Yoffe, 775 F.2d 447, 450 (1st Cir.1985); Weakley v. Bowen, 803 F.2d 575, 577 (10th Cir.1986). Two circuits have also continued to apply a reasonableness standard without explicit reference to the 1985 amendments or their legislative history. Sierra Club v. United States Army Corps of Engineers, 776 F.2d 383, 393 (2d Cir.1985); League of Women *1249Voters of California v. FCC, 798 F.2d 1255, 1257 (9th Cir.1986).5
The conflict and confusion in circuit law shown by these cases can only spawn increasing problems for the judges in our circuit if we allow ourselves to be drawn into the morass of arguing contradictory legislative history. The majority may be well-intentioned in splitting hairs, but its standard will create confusion. Nothing in the statute indicates that this is the proper standard, nor will the majority view assist beleaguered district judges who must decide, under this frequently litigated statute, whether the reasonableness standard or some more nebulous “more than reasonable” test is appropriate. See Weber v. Weinberger, 651 F.Supp. 1379 (W.D.Mich.1987) (noting circuit split and legislative history and resolving issue by deciding that government position failed to satisfy even the reasonableness test). Perhaps it is enough to say to the majority that we would “rather bear those ills we have, Than fly to others that we know not of.” Shakespeare, Hamlet, III.1.81—82.
As the majority states, Senator Grassley said that “where the agency is found by a court to be arbitrary and capricious or where there is little or no factual support for the agency action, the Government — as a practical matter — has its work cut out for it to prove substantial justification.” Maj. op. at 1241. While this problem exists, it is not solved but rather obfuscated by the majority’s creation of a new and uncertain standard that will cause difficulty both in application and upon review. By contrast, as Judge Bownes noted when the First Circuit adopted the reasonableness test:
Not only does the unanimity of eleven circuits on this definition impress us, but we think it makes more sense and is easier to apply than the test of the D.C. Circuit [“more than reasonableness”]. The concept of reasonableness is one with which judges and lawyers alike are familiar. The test breaks down into three parts: did the government have a reasonable basis for the facts alleged; did it have a reasonable basis in law for the theories advanced; and did the facts support its theory. This represents a middle ground between an automatic award of fees to a prevailing party and an award made only when the government’s position was frivolous.
United States v. Yoffe, 775 F.2d 447, 450 (1st Cir.1985) (citations omitted).
Even if the majority’s new standard were workable, I cannot condone its departure from Trident Marine without the required recourse to en banc reconsideration. The Trident Marine standard derives from legislative history at the time this unamended language was adopted. Presumably it reflected a legislative judgment balancing the equitable interests of citizens and the government’s need for flexibility in the exercise of its discretion. It is true that in this case the result reached by the majority has surface appeal, for it awards attorneys fees to someone who is challenging what he believes to be arbitrary government action, and which by all accounts was action not based upon substantial evidence. In my opinion, however, the majority result comes at too high a price by offending principles of stare decisis and ignoring the plain command of Oscar Mayer, supra.
*1250Since appellant can rely neither upon the 1985 amendments nor the purported legislative history thereof, the portion of Trident Marine concerning the definition of “substantially justified” remains good law. To the extent Congress disagrees, it can alter that rule through the same constitutionally mandated process by which it changed our circuit’s holding defining the “position of the United States.” Until such time, I would reaffirm Trident Marine despite Congress’ 1985 actions, and I now proceed to apply that standard to these facts.
A district court’s denial of attorneys fees under the EAJA is reviewed under an abuse of discretion standard. Westerman, Inc. v. NLRB, 749 F.2d 14, 17 (6th Cir.1984). Under this standard, we accept the facts of the district court unless clearly erroneous, and give de novo review to the district court’s evaluation of the reasonableness of the government’s position. Id. Although the district court did not comply with Trident Marine’s holding that “position of the United States” means only its litigating position and instead considered whether the “decision of the Secretary” was substantially justified, Memorandum Opinion at 2, its approach was consistent with the congressional decision to amend subsection (d)(2)(D) as noted above and hence is, in my view, proper under the 1985 amendments.
The record indicates that although the Secretary’s position was unsupported by substantial evidence on the record as a whole, it was based on a reasonable belief in fact and law that the appellant was not disabled. The AU, based on appellant’s hearing testimony, determined that appellant could read and watch television with fairly good vision if he turned his head to the right. App. 71, 94. Since appellant’s treating physician Riherd noted that appellant’s major problem was double vision rather than neck pain, and prescribed conservative further range of motion exercises accompanied by removal of appellant’s neck collar, App. 213-14, and since nonprescription Tylenol by appellant’s own testimony helped relieve his pain, App. 97, 143, the AU had a reasonable basis to determine that appellant’s claims of severe pain were not credible. Such a determination would be entitled to great weight. Houston v. Secretary of HHS, 736 F.2d 365, 367 (6th Cir.1984). These findings also would lend support to the AU’s conclusion that the pain was remediable and not so constant that it might preclude appellant from engaging in substantial gainful activity.
Likewise, the AU noted that appellant alleged no pulmonary condition at his hearing, and that his fractures were healing well. App. 73. These conclusions are supported by Dr. O’Bryan’s consultation note that appellant left the hospital with few residual problems. App. 208. The AU’s determination that appellant could perform the full range of sedentary work is supported by treating physician Binegar’s prescribed limitations only of avoiding heavy equipment and tasks requiring binocular vision, App. 220. Further, appellant did not make a follow-up visit with Dr. Riherd until two months after he was scheduled, as noted by the AU at App. 73, testified that he can sit for two or three hours and can sit or stand for a prolonged period of twelve hours, App. 104r-05, and had gained weight and “continues to do more and more with respect to activities” according the Dr. O’Bryan’s consultation note, App. 208.
Upon consideration of all these facts, and the AU’s proper finding that, at age 40, appellant is a “younger individual,” App. 75, 20 C.F.R. §§ 404.1563 and 416.963, I believe that the Secretary’s decision and litigating positions were supported by a reasonable basis in fact and law. I would therefore affirm the district court’s denial of attorney fees.6
. Ashburn v. United States, 740 F.2d 843, 849 (11th Cir.1984); Boudin v. Thomas, 732 F.2d 1107, 1116 (2d Cir.1984); United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1487 (10th Cir.1984); Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983); Tyler Business Services, Inc. v. NLRB, 695 F.2d 73, 75 (4th Cir.1982); Broad Avenue Laundry and Tailoring v. United States, 693 F.2d 1387, 1390-91 (Fed.Cir.1982).
. All of the Justices concurred in this portion of the opinion in Oscar Mayer concerning subsequent legislative history. The concurrences and dissents in that decision related only to the discussion in Part III of the opinion that considered the meaning of the Age Discrimination in Employment Act.
. See also Arasto v. O'Neil, 803 F.2d 187, 189 (5th Cir.1986) (per curiam); Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir.1986) (per curiam); USLIFE Title Insurance Co. v. Harbison, 784 F.2d 1238, 1242 (5th Cir.1986) (adhering to reasonableness standard).
. The Smidt case followed a previous decision in which the court had applied a reasonableness standard without reference to the 1985 amendments or their legislative history. United States v. Kemper Money Market Fund, Inc., 781 F.2d 1268, 1276 (7th Cir.1986).
. Three circuits have reached internally inconsistent results. The District of Columbia, originally the only circuit to conclude before 1985 that “substantially justified” meant something more than reasonableness, adhered to that view in Federal Election Commission v. Rose, 806 F.2d 1081, 1089 (D.C.Cir.1986). The court viewed the 1985 legislative history as irrelevant, as the standard had always been one greater than reasonableness. However, only ten days after the decision in Rose, the District of Columbia Circuit adopted a reasonableness standard without mentioning Rose. Battles Farm Co. v. Pierce, 806 F.2d 1098, 1101-02 n. 11 (D.C.Cir.1986). The Third and Eighth Circuits have similarly reached inconsistent results. Lee v. Johnson, 799 F.2d 31, 38 n. 7 (3d Cir.1986) (government position must be more than merely reasonable); Brinker v. Guiffrida, 798 F.2d 661, 664 (3d Cir.1986) (“[s]ubstantial justification is essentially a standard of reasonableness....”); United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1317-18 & n. 2 (8th Cir.1986) (Congress intended a standard greater than reasonableness); Derickson Company, Inc. v. NLRB, 774 F.2d 229, 232 (8th Cir.1985) (test was whether the agency’s position was reasonable). See also Granville House v. Department of HEW, 796 F.2d 1046, 1049 (8th Cir.1986).
. 1 do not understand this case to present the question of the relationship of the EAJA to the award of attorney fees under 42 U.S.C. § 406(b)(1), a question which has produced significant confusion. Compare Wolverton v. Heckler, 726 F.2d 580 (9th Cir.1984), and Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill.1982), aff’d, 713 F.2d 1290 (7th Cir.1983) (awards may be made under both sections) with Dunn v. Heckler, 614 F.Supp. 45, 51 (E.D.N.C.1985) (award under EAJA can only be for work done in court proceedings, award under *1251§ 406(b)(1) can only be for work done at the administrative level, with total fees for both levels limited to 25% of the award) and Bohn v. Heckler, 613 F.Supp. 232 (N.D.Ill.1985) (EAJA does not apply to administrative proceedings, but no 25% limit on combined fees at both levels noted) and Lovell v. Heckler, 606 F.Supp. 621, 624 (M.D.Pa.1985) (when attorney fees are awarded under EAJA, no fees are to be awarded under § 406(b)(1)).