Astrue

MEMORANDUM ***

Real-party-in-interest Steven Rosales appeals the reduction of his attorney’s fees award to $9,750 in this successful Social Security benefits case. We reverse.

In order to provide for representation of social security claimants, Congress authorized payment of “a reasonable fee for such representation, not in excess of 25 percent of past due benefits” won through that representation. 42 U.S.C. § 406 (b)(1)(A). The statutory and regulatory regime is unusual in allowing only contingency fees. In other words, where benefits are denied, no fees are allowed. See Gisbrecht v. Barnhart, 535 U.S. 789, 795 , 122 S.Ct. 1817 , 152 L.Ed.2d 996 (2002). In fact, it is a criminal offense for an attorney to charge a noncontingent fee or a fee in excess of the 25 percent statutory ceiling. See 42 U.S.C. § 406 (b)(2); 20 CFR § 404.1740 (c)(2); Gisbrecht, 535 U.S. at 795-96 , 122 S.Ct. 1817 .

Under Gisbrecht , a district court is required to conduct an independent review of a fee request for “reasonableness.” Gisbrecht, 535 U.S. at 807-08 , 122 S.Ct. 1817 . Resolving a circuit split on the issue, Gisbrecht held that § 406(b) was designed to control contingency fee agreements, not…

dissenting.

I would affirm the district court’s award of attorney’s fees. The magistrate judge conducted an independent review of the fee request and awarded a not-unreasonable amount in fees. See Gisbrecht v. Barnhart, 535 U.S. 789, 807-08 , 122 S.Ct. 1817 , 152 L.Ed.2d 996 (2002). Because the magistrate judge applied the correct law and did not make any clearly erroneous factual findings, the reduction of the requested contingency fee did not constitute an abuse of discretion. See Allen v. Shalala, 48 F.3d 456, 457 (9th Cir.1995), abrogated on other grounds by Gisbrecht, 535 U.S. 789 , 122 S.Ct. 1817 .

Appellant’s argument that the amount requested was reasonable on the grounds that the request was based on a contingency fee agreement and that counsel had unilaterally reduced his fee request overlooks Gisbrecht’s mandate of “court review” to operate as “an independent check” on the reasonableness of a contingency fee agreement in a Social Security benefits case. Id. at 807 , 122 S.Ct. 1817 .

Appellant’s second argument—that the magistrate judge’s discussion of hourly rates indicates a failure to follow Gis brecht—is not persuasive. The magistrate judge referred to Gisbrecht ,…