Close v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

STEVEN B. C.,1 Case No.: 6:19-cv-00557-MK

Plaintiff, OPINION AND ORDER2

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

KASUBHAI, Magistrate Judge:

Plaintiff Steven B. C. sought judicial review of the decision by the Commissioner

(“Commissioner”) of the Social Security Administration (“Agency”) denying his application for

Disability Insurance Benefits under the Social Security Act (the “Act”). On April 6, 2020, this

Court reversed and remanded this case for immediate calculation and award of benefits. Op. and

Order, ECF No. 21; J., ECF No. 22. Before the Court is Plaintiff’s Motion for Award of Fees

pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act (“EAJA”). Pl.’s Mot., ECF No.

23. Plaintiff applies for award of fees in the amount of $12,756.28. Id. at 1. The Commissioner

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the

non-governmental parties in this case.

2 The parties consented to full jurisdiction by a U.S. Magistrate Judge. ECF No. 5.

opposes on the sole ground that the government’s position was substantially justified. Def.’s

Resp. 2, ECF No. 26; Pl.’s Reply, 1-2, ECF No. 27.

Under the EAJA, a court shall award fees to a prevailing party “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). “Where … a movant

under the EAJA has established that it is a prevailing party, the burden is on the

government to show that its litigation position was substantially justified on the law and

the facts.” Ibrahim v. U.S. Dep’t of Homeland Sec., 912 F.3d 1147, 1167 (9th Cir.), cert.

denied sub nom. Dep’t of Homeland Sec. v. Ibrahim, 140 S. Ct. 424, 205 L. Ed. 2d 241

(2019) (internal quotation marks omitted). “To establish substantial justification, the

government need not establish that it was correct or ‘justified to a high degree’[,] but only

that its position is one that ‘a reasonable person could think it correct, that is, [that the

position] has a reasonable basis in law and fact.’ Id.

Here, because the parties do not dispute that Plaintiff is the prevailing party, the

Commissioner bears the burden to show that the government’s position was substantially

justified. See id. At judicial review, the Commissioner’s position was that “the POMS

[Program Operations Manual System] and HALLEX [Emergency Messages, and the

Hearings, Appeals and Litigation Law manual] are not judicially enforceable and that

under Lockwood v. Comm’r, 616 F.3d 1068 (9th Cir. 2010), the ALJ was not required to

undertake any particular discussion of a borderline age situation notwithstanding a

HALLEX to the contrary.” Def.’s Resp. 2, ECF No. 26. In opposing Plaintiff’s motion

for award of fees, the Commissioner contends that, while the Court found the ALJ erred

by failing to explain how he considered the borderline age situation, “the Commissioner’s

position has enjoyed a string of successes in various federal courts (including this one).”

Id. at 2-4 (citing Dattilo v. Berryhill, 773 F. App’x 878, 882 (9th Cir. 2019)

(unpublished); Mark S. v. Comm’r, Soc. Sec. Admin., No. 3:19-CV-00629-BR, 2020 WL

1917332 (D. Or. Apr. 20, 2020); Jeanne E. v. Saul, No. 6:18-CV-01722-SB, 2020 WL

602279 (D. Or. Feb. 7, 2020); Black v. Berryhill, No. 1:17-CV-01208-SKO, 2018 WL

6184605 (E.D. Cal. Nov. 27, 2018); Dattilo v. Berryhill, No. 5:16-CV-05552-HRL, 2018

WL 827907, at *9 (N.D. Cal. Feb. 12, 2018), aff’d, 773 F. App’x 878 (9th Cir. 2019)).

Plaintiff argues that the Court must focus on two questions. First, whether the

government was substantially justified in taking its original action; and, second, whether

the government was substantially justified in defending the validity of the action in court.

Pl.’s Reply 2, ECF No. 27 (citing Gutierrez v. Barnhard, 274 F.3d 1255, 1259 (9th Cir.

2001)). Plaintiff contends that because the ALJ failed to “comply with 20 C.F.R. §

404.1563(b)[,] SSR 13-2[p] and the HALLEX and POMS policy mandates[,]” the

Agency’s position was based on violations of its own regulations. Id. at 5. Consequently,

Plaintiff contends that the Commissioner’s litigation position was not substantially

justified. Id. at 6 (citing Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996) (“A

finding than [sic] an agency’s position was substantially justified when the agency’s

position was based on violations of the Constitution, federal statute or the agency’s own

regulations, constitutes an abuse of discretion.”)).

The Agency’s regulation 20 C.F.R. § 404.1563(b) provides:

We 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 or decision that you

are disabled, we will consider whether to use the older age category after

evaluating the overall impact of all the factors of your case.

According to the Ninth Circuit, this regulation does not require the ALJ to explain the

reason why he did not choose an older age category. Specifically, in Lockwood, the Ninth Circuit

stated: “Although an ALJ is required by regulation to consider whether to use an older age

category in a borderline situation, there is no requirement that the ALJ explain in her written

decision why she did not use an older age category.” Lockwood v. Comm’r Soc. Sec. Admin., 616

F.3d 1068, 1070 (9th Cir. 2010) (citing 20 C.F.R. § 404.1563(b)) (emphasis added).

Following the Lockwood decision, the Commissioner issued Social Security Ruling 13-2p

and revised HALLEX AND POMS. As explained in this Court’s earlier Opinion and Order:

[A]fter the Lockwood decision in 2010, the Commissioner in a Social Security

Ruling (“SSR”) stated: “We require adjudicators at all levels of administrative

review to follow agency policy, as set out in the Commissioner’s regulations,

SSRs, Social Security Acquiescence Rulings (ARs), and other instructions, such

as the Program Operations Manual System (POMS), Emergency Messages, and

the Hearings, Appeals and Litigation Law manual (HALLEX).” SSR 13-

2[p].15.a. The Commissioner further stated: “All adjudicators must follow our

instructions.” Id. The Commissioner has also revised both POMS in 2017 and

HALLEX in 2016, so that they are now consistent with one another, negating one

of the Lockwood court’s reasons for discounting the persuasiveness of POMS and

HALLEX. See Trevino v. Berryhill, No. 7:16-cv-684, 2018 WL 1629211, at *13

n.13 (S.D. Tex. Mar. 3, 2018) (“[T]he amended HALLEX provisions now in

effect require ALJs to ‘explain in the decision that he or she considered the

borderline age situation,’ and ‘note the specific factor(s) he or she considered’”)

(quoting HALLEX 1-2-2-42.C.5), adopted, 2018 WL 1626365 (S.D. Tex. April 4,

2018).

Op. and Order 8, ECF No. 21 (footnotes omitted).

Despite the issuance of SSR 13-2p and the revisions of HALLEX and POMS, the Ninth

Circuit in 2019 again held that 20 C.F.R. § 404.1563(b) does not impose the requirement for an

ALJ to explain why an older age category is not used. Specifically:

If a claimant is “within a few days to a few months of reaching an older age

category,” an ALJ may consider using the older age category in certain cases, 20

C.F.R. § 404.1563(b), but the ALJ is not required to do so and need not explain

why an older age category was not used. Lockwood, 616 F.3d at 1069–71. The

ALJ is “required by regulation only to consider whether to use the older age

category.” Id. at 1069 (emphasis added).

Dattilo v. Berryhill, 773 F. App’x 878, 881–82 (9th Cir. 2019).

Recently, this District also addressed the issue whether an ALJ is required to explain why

an older age category is not used after the issuance of SSR 13-2p and revisions of POMS and

HALLEX. Mark S. v. Comm’r, Soc. Sec. Admin., No. 3:19-CV-00629-BR, 2020 WL 1917332, at

*4 (D. Or. Apr. 20, 2020). Senior Judge Brown discussed the issue as follows:

“[E]ven after the promulgation of SSR 13-2p on February 20, 2013, the Ninth

Circuit has continued to cite … Lockwood for the proposition that the Agency’s

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

legally enforceable rights.” Kathleen S.[ v. Saul, No. 3:19-cv-00651, ]2020 WL

353602, at *7 (S.D. Cal. Jan. 21, 2020) (citing Wilson [v. Berryhill], 732 F. Appx

[504,] 507 (9th Cir. 2018); 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.[ v. Saul, No. 6:18-CV-

01722-SB,] 2020 WL 602279, at *5 (D. Or. Feb. 7, 2020); 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).

Id.

In the instant matter, this Court explained its reasoning in finding that the ALJ erred in

failing to explain why he did not use older age category:

In addressing the POMS provisions, the Supreme Court noted: “While these

administrative interpretations are not products of formal rulemaking, they

nevertheless warrant respect.” Wash. State Dep’t of Soc. & Health Servs. v.

Guardianship Estate of Keffeler, 537 U.S. 371, 385-86 (2003) (citing Skidmore v.

Swift & Co., 323 U.S. 134, 139-140 (1944)). Similarly, the Ninth Circuit

previously held that although HALLEX is “strictly an internal Agency manual,

with no binding legal effect on the Administration or this court,” “as an Agency

manual, HALLEX is ‘entitled to respect’ under Skidmore to the extent that it has

the ‘power to persuade.’” Clark v. Astrue, 529 F.3d 1211, 1216 (9th Cir. 2008)

(citations omitted). Following the Supreme Court’s and the Ninth Circuit’s

guidance, the Court finds that the Commissioner’s current interpretation of the

borderline age regulation is “entitled to respect.”

POMS and HALLEX instruct ALJs to explain why they used a claimant’s

chronological age in borderline age situations. “The requirement of an

explanation isn’t conjured out of the ether. The regulation [20 C.F.R.

§ 404.1563(b)] specifically states that ALJs ‘will consider’ whether to give a

claimant the benefit of the doubt in borderline cases.” McKay v. Colvin, No. 15 c

9522, 2016 WL 6432582, at *5 (N.D. Ill. Oct. 31, 2016). By requiring ALJs to

explain how they applied the borderline age regulation, ALJs would promote

judicial review of the Commissioner’s decisions. See Young v. Colvin, No. CV

15-7874, 2016 WL 3124652, at *5 (C.D. Cal. May 31, 2016) (noting that the

Ninth Circuit “recently emphasized its dislike of such formulaic decision-

writing”) (citing Treichler v. Comm’r, 775 F.3d 1090, 1102 (9th Cir. 2014);

Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015)). Therefore, the ALJ

erred in failing to explain why he used Plaintiff’s chronological age rather than

the next higher age category.

Op. and Order 8-9, ECF No. 21.

In view of the above, case law is not settled on the issue whether 20 C.F.R. § 404.1563(b)

and SSR 13-2p require ALJs to explain their reasons in not choosing an older age category.

While this Court found that the Commissioner’s current interpretation of the borderline age

regulation in POM and HALLEX is “entitled to respect,” these internal policy manuals of the

Agency “do not give rise to any legally enforceable rights.” Mark S., No. 3:19-CV-00629-BR,

2020 WL 1917332, at *4 (citations omitted); Jeanne E., No. 6:18-CV-01722-SB, 2020 WL

602279, at *5. Therefore, the Agency’s position has a reasonable basis in law and fact. See

Ibrahim, 912 F.3d at 1167. As a result, the Commissioner’s position in defending the Agency’s

position is substantially justified.

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion for Award of Fees under the EAJA is

denied.

DATED this 7th day of August 2020.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI

United States Magistrate Judge