Friday, March 25, 2016

Lockwood is Dead, Long Live HALLEX

This goes in the category of "I told you so." 

Lockwood v. Commissioner Soc. Sec. Admin.  stands for the proposition that an ALJ need not discuss why she didn't use a higher age category in a borderline age situation.  The court rejected use of POMS  DI 25015.005(B)(4) as applying to the burden of explaining the decision to use the chronological age -- because it wasn't in force when the ALJ decided the case; because it conflicted with HALLEX II-3-5-2; and because the courts don't enforce either HALLEX or POMS. 

We know that when the agency tells us what a regulation means, that interpretation of the regulation is controlling unless plainly erroneous or inconsistent with the regulation.  Washington State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler ("While [POMS]administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect."  Keffeler continues:
In short, the Commissioner's interpretation of her own regulations is eminently sensible and should have been given deference under Auer v. Robbins
Auer gives controlling deference to an interpretation of a regulation unless plainly erroneous or inconsistent with the regulation.  We eliminate strike three against POMS; let's look at strikes one and two. 

Strike two and inconsistency with HALLEX falls today.  HALLEX I-2-2-42 states clearly that the ALJ will explain why she used the chronological age instead of the higher age category whenever the borderline age situation occurs.  HALLEX and POMS now agree, an explanation is due. 

Strike one and applying the interpretation to the case the court has before it -- IS NOT A RETROACTIVE PROBLEM.  In re Schooner Peggy holds that the court applies the law in effect at the time of decision, not the law in effect at the time of the act.  The Supreme Court grants an exception to prevent manifest injustice.  The ALJ is not a party to court proceedings and it is not unjust to have administrative decisions get decided according to the law as we now understand it. 

Lockwood is dead.  Long live HALLEX ... and POMS too. 


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