Summers v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARK S.,1 3:19-cv-00629-BR

Plaintiff, OPINION AND ORDER

v.

Commissioner, Social

Security Administration,

Defendant.

KEVIN KERR

Schneider Kerr & Robichaux

P.O. Box 14490

Portland, OR 97293

(503) 255-9092

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1021

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case.

1 - OPINION AND ORDER

MICHAEL W. PILE

Acting Regional Chief Counsel

JACOB PHILLIPS

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2274

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Mark S. seeks judicial review of a final decision

of the Commissioner of the Social Security Administration (SSA)

in which he denied Plaintiff's application for Disability

Insurance Benefits (DIB) under Title II of the Social Security

Act. This Court has jurisdiction to review the Commissioner's

final decision pursuant to 42 U.S.C. § 405(g).

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for DIB on March 20, 2015,

alleging a disability onset date of January 1, 2008. Tr. 247.1

The application was denied initially and on reconsideration. An

Administrative Law Judge (ALJ) held a hearing on February 9,

2018. Tr. 84-100. At the hearing Plaintiff amended his alleged

1 Citations to the official transcript of record filed by

the Commissioner on October 8, 2019, are referred to as "Tr."

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onset date to December 31, 2012, “which is [also] the last day he

was insured for [DIB] purposes.” Tr. 15, 88. Plaintiff and a

vocational expert (VE) testified at the hearing, and Plaintiff

was represented by an attorney.

The ALJ issued a decision on March 15, 2018, in which he

found Plaintiff was not disabled on December 31, 2012, his

amended alleged onset date and his date last insured, and,

therefore, he is not entitled to benefits. Tr. 30. Pursuant to

20 C.F.R. § 404.984(d), that decision became the final decision

of the Commissioner on March 12, 2019, when the Appeals Council

denied Plaintiff's request for review. Tr. 1-6. See Sims v.

Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND

Plaintiff was born on May 28, 1959, and was 59 years old at

the time of the hearing. Tr. 247. Plaintiff has a high-school

education. Tr. 90. Plaintiff has past relevant work experience

as a tugboat deck hand and truck driver. Tr. 96.

Plaintiff alleges disability during the relevant period due

to a stroke in 2008, seizures, inguinal hernia, “memory issues,”

and bursitis in his left shoulder. Tr. 271.

Except when noted Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

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medical evidence. See Tr. 24-26.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate his

inability "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months." 42 U.S.C.

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)).

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

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evidence] but less than a preponderance." Id. (citing Valentine,

574 F.3d at 690).

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 404.1520. Each step is potentially

dispositive.

At Step One the claimant is not disabled if the Commissioner

5 - OPINION AND ORDER

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R.

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments).

If the Commissioner proceeds beyond Step Three, he must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

6 - OPINION AND ORDER

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work he has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, he must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff did not engage in

substantial gainful activity on December 31, 2012, his alleged

onset date and his date last insured.

7 - OPINION AND ORDER

Tr. 18.

At Step Two the ALJ found during the relevant period

Plaintiff had the severe impairments of degenerative disc

disease, a “remote history of traumatic brain injury,” a “history

of intra cranial hemorrhage in October 2008,” a seizure disorder,

an “adjustment disorder with depression and anxiety symptoms,”

and a “history of alcohol dependence and polysubstance abuse.”

Tr. 18.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments during the relevant period did not meet

or medically equal one of the listed impairments in 20 C.F.R.

part 404, subpart P, appendix 1. Tr. 19. The ALJ found during

the relevant period that Plaintiff had the RFC to perform light

work that

did not require more than frequent stooping,

kneeling, or crouching; that did not require more

than occasional balancing, crawling, or climbing

of ramps or stairs; that did not require climbing

of ladders, ropes, or scaffolds; that did not

require more than occasional overhead reaching;

that did not require exposure to hazards; that

consisted of simple, routine tasks; and that did

not require more than occasional interaction with

the general public.

Tr. 19.

At Step Four the ALJ found Plaintiff could not perform his

past relevant work during the relevant period. Tr. 27.

At Step Five the ALJ found Plaintiff could perform other

work that existed in the national economy during the relevant

8 - OPINION AND ORDER

period. Tr. 28. Accordingly, the ALJ concluded Plaintiff was

not disabled on December 31, 2012, Plaintiff’s alleged onset date

and date last insured. Tr. 30.

DISCUSSION

Plaintiff contends the ALJ erred at Step Five when he

applied “the medical-vocational grid rules mechanically.”

I. The ALJ did not err at Step Five.

As noted, Plaintiff contends the ALJ erred at Step Five when

he applied “the medical-vocational grid rules mechanically.”

When the Commissioner reaches Step Five, he must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood, 616

F.3d at 1071. The Commissioner may satisfy this burden through

the testimony of a VE or by reference to the Medical-Vocational

Guidelines set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. See also Lockwood, 616 F.3d at 1071. If

the Commissioner meets this burden, the claimant is not disabled.

20 C.F.R. § 404.1520(g)(1).

The medical-vocational grids (the grids) are “matrices of

the ‘four factors identified by Congress — physical ability, age,

9 - OPINION AND ORDER

education, and work experience — and set forth rules that

identify whether jobs requiring specific combinations of these

factors exist in significant numbers in the national economy.’”

Lockwood, 616 F.3d at 1071 (quoting Heckler v. Campbell, 461 U.S.

458, 461-62 (1983)). The grids use three age categories:

(1) “younger person (under age 50),” (2) “person closely

approaching advanced age (age 50-54),” and (3) “person of

advanced age (age 55 or older).” Lockwood, 616 F.3d at 1072

(citing 20 C.F.R. § 404.1563(c)–(e)).

When “a claimant is within a few days or a few months of

reaching an older age category (a ‘borderline situation’), an ALJ

has discretion, but is not required, to use the older age

category.” Lockwood, 616 F.3d at 1069 (citing 20 C.F.R.

§ 404.1563(b)). In fact, 20 C.F.R. § 404.1563(b) provides the

ALJ

will not apply the age categories mechanically in

a borderline situation. If you are within a few

days to a few months of reaching an older age

category, and using the older age category would

result in a determination . . . that you are

disabled, [the ALJ] will consider whether to use

the older age category after evaluating the

overall impact of all the factors of your case.

Here the ALJ acknowledged “a borderline age situation exists

because the claimant is within a ‘few days to a few months’ of

attaining the next higher age category and use of the higher age

category would result in a finding of ‘disabled’ instead of ‘not

disabled.’” Tr. 27-28 (quoting 20 C.F.R. § 404.1563(b)). The

10 - OPINION AND ORDER

ALJ, however, concluded “use of [the next higher] age category is

not supported by the limited adverse impact of all factors on the

claimant's ability to adjust to other work.” Tr. 28.

Plaintiff concedes the ALJ has discretion to decide whether

to use the older-age category, but Plaintiff asserts in this case

that the ALJ abused his discretion when he decided not to use the

older-age category because the ALJ did not comply with guidelines

found in the Social Security Agency’s Hearings, Appeals, and

Litigation Manual (HALLEX) and Program Operations Manual System

(POMS). The Ninth Circuit, however, has made clear the “HALLEX

does not carry the force of law and therefore [the Ninth Circuit]

do[es] not review allegations of non-compliance with it.” Wilson

v. Berryhill, 732 F. App'x 504, 507 (9th Cir. 2018)(declining to

review the claimant's argument that the ALJ did not comply with

the HALLEX)(citation omitted)). See also Roberts v. Comm’r, 644

F.3d 931, 933 (9th Cir. 2011)(the HALLEX “does not carry the

force of law and [is] not binding upon the agency”)(quotation

omitted)); Lockwood, 616 F.3d at 1072 (the “HALLEX does not

impose judicially enforceable duties on either the ALJ or this

court”); Nabis-Smith v. Berryhill, No. 6:16-cv-01915-JR, 2018 WL

3404057, at *6 (D. Or. Apr. 26, 2018)(rejecting the plaintiff's

argument that the ALJ failed to follow certain policies outlined

in the HALLEX); Rickman v. Colvin, No. 6:12-cv-01201-SI, 2013 WL

4773627, at *5 (D. Or. Sept. 4, 2013)(“[t]he ALJ . . . has no

11 - OPINION AND ORDER

duty to follow the HALLEX” because the HALLEX “does not carry

the force of law and is not binding on the agency”)(citations

omitted)). Hanh L. v. Comm'r, Soc. Sec. Admin., No. 3:17-

CV-01613-JE, 2019 WL 5858187, at *5 (D. Or. July 23, 2019),

report and recommendation adopted, No. 3:17-CV-01613-JE, 2019 WL

5858182 (D. Or. Sept. 3, 2019). The Ninth Circuit reached a

similar conclusion regarding POMS finding it constitutes an

agency interpretation “that does not impose judicially

enforceable duties on either this court or the ALJ.” Lockwood,

616 F.3d at 1073.

Plaintiff asserts POMS and the HALLEX now have “the power to

persuade” pursuant to Social Security Ruling 13-2p, 2013 WL

603764 (Feb. 20, 2013). According to Plaintiff, therefore, the

ALJ is required to explain his decision not to use the older-age

category “in light of the factors” set out in POMS and the

HALLEX. “‘SSR 13-2p[, however,] is a policy ruling clarifying

how the Agency determines whether drug addiction is a

contributing factor material to the determination of

disability.’” Jeanne E. v. Saul, No. 6:18-CV-01722-SB, 2020 WL

602279, at *5 (D. Or. Feb. 7, 2020)(quoting Kathleen S. v. Saul,

No. 3:19-cv-00651, 2020 WL 353602, at *7 (S.D. Cal. Jan. 21,

2020)). “[E]ven after the promulgation of SSR 13-2p on

February 20, 2013, the Ninth Circuit has continued to cite

Roberts and Lockwood for the proposition that the Agency's

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internal policy manuals such as [POMS and] HALLEX do not give

rise to any legally enforceable rights.” Kathleen S., 2020 WL

353602, at *7 (citing Wilson, 732 F. App'x at 507); Withrow v.

Colvin, 672 F. App'x 748, 749 (9th Cir. 2017); Whitten v. Colvin,

642 F. App'x 710, 713 (9th Cir. 2016); Durden v. Colvin, 546 F.

App'x 690, 690-91 (9th Cir. 2013)). Plaintiff’s argument that

SSR 13-2p establishes a requirement that the ALJ is required to

explain his decision in light of the factors set out in POMS

and/or the HALLEX also has been rejected by district courts in

the Ninth Circuit. See, e.g., Jeanne E., 2020 WL 602279, at *5;

Hanh L. v. Comm'r, 2019 WL 5858187, at *5 (“SSR 13-2p, which

Plaintiff cites in support of the argument that POMS is binding

on Agency adjudicators . . . is inapplicable here and does not

change this Court's application of Lockwood.”); Martinez v.

Colvin, No. 6:14-cv-01703-MC, 2016 WL 270911, at *5 (D. Or.

Jan. 20, 2016); Kathleen S., 2020 WL 353602, at *7; Elias v.

Comm'r, No. CV-18-00200-TUC-RCC (DTF), 2019 WL 4296779, at *3 (D.

Ariz. Sept. 11, 2019); Hollen v. Comm'r, No. 15-2357, 2017 WL

1075194, at *8-*9 (S.D. Cal. Mar. 22, 2017).

The Court adopts the reasoning of these cases and concludes

POMS and the HALLEX do “not carry the force of law and,

therefore, the Court need not ‘review allegations of non-

compliance with it.’” Jeanne E., 2020 WL 602279, at *5 (quoting

Wilson, 732 F. App’x at 507). See also Dragoo v. Comm'r,

13 - OPINION AND ORDER

No. 19-01988, 2020 WL 525678, at *5 (D. Ariz. Feb. 3, 2020)

(“[W]hether the ALJ complied with HALLEX I-2-9-10(A) or any other

provision in [the] HALLEX is irrelevant, and the Court need not

engage in any further analysis of any alleged noncompliance with

[the] HALLEX.”); Groom v. Berryhill, No. 17-1117, 2018 WL

1517165, at *5 (C.D. Cal. Mar. 27, 2018)(concluding the

plaintiff’s argument that the ALJ violated requirements set forth

in the HALLEX “lack[ed] merit” because the HALLEX “do[es] not

impose judicially enforceable duties on [a] federal court or ALJ

regarding borderline situations.”)(citation omitted)).

In addition, even if the policy guidelines in POMS and/or

the HALLEX were binding on the ALJ, the ALJ’s reasoning in this

case was consistent with those guidelines. Specifically, the

HALLEX provides: “The ALJ will explain in the decision that he

. . . considered the borderline age situation, state whether he

. . . applied the higher age category or the chronological age,

and note the specific factor(s) he . . . considered.” HALLEX

I-2-2-42(C)(5). As noted, here the ALJ stated “a borderline age

situation exists,” explained Plaintiff was at the “outer edge” of

what the Social Security Regulations describe as “borderline

age,” and noted this was “a circumstance suggesting that

[Plaintiff] was less disadvantaged by his age” in obtaining other

work. Tr. 28. The ALJ also found “other considerations in the

record support the inference that the claimant could adjust to

14 - OPINION AND ORDER

doing other work” such as the fact that Plaintiff’s RFC

limitations did not significantly erode the occupational base for

light work, Plaintiff “has only mild limitation[s] in adapting or

managing himself,” and “a neuropsychological evaluation . . .

revealed few limitations in adaptation.” Tr. 28. The ALJ,

therefore, concluded the “use of a higher age category is not

supported by the relevant factors.” Tr. 28.

The Court concludes on this record that the ALJ’s decision

is consistent with POMS and the HALLEX because the ALJ considered

Plaintiff’s borderline age situation, reached a conclusion as to

which age category to apply, and noted the factors that the ALJ

considered in making his decision. Accordingly, the Court

concludes on this record that the ALJ did not err at Step Five

when he declined to use the higher-age category.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter pursuant to sentence four

of 42 U.S.C. § 405(g).

IT IS SO ORDERED.

DATED this 20th day of April, 2020.

/s/ Anna J. Brown

ANNA J. BROWN

United States Senior District Judge

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