W.D. Pa. Notes Split Re Whether Social Security Commissioner's Failure to Follow SSA Policy Manual Is Reversible Error

Per Lang v. Barnhart, Slip Copy, 2006 WL 3858579 (W.D. Pa. Dec. 06, 2006):

Plaintiff rests his argument on the ALJ's failure to follow the procedures set out in the SSA's internal policy manual, the Hearings, Appeals, and Litigation Law Manual ("HALLEX".) (Plf.'s Brief at 14-15.) HALLEX is intended to convey "guiding principles, procedural guidance and information to the Office of Hearings and Appeals staff." Cromer v. Apfel, No. 00-1858, 2000 U.S.App. LEXIS 26861, *5 (7th Cir. Oct. 16, 2000), quoting HALLEX, Chapt. I-1-001. At this time, the circuits are split on the question of whether the Commissioner's failure to follow HALLEX is reversible error. [FN11] The Third Circuit Court of Appeals has not handed down a decision which directly addresses that issue. . . .

FN11. Compare, e.g., Moore v. Apfel, 216 F.3d 864, 868-869 (9th Cir.2000), holding that HALLEX is "strictly an internal guidance tool" and as such has no legal force and is not binding, in part because it was not published in either the Federal Register or the Code of Federal Regulations and thus not promulgated in accordance with the procedural requirements imposed by Congress for creation of binding regulations, with Newton v.Apfel, 209 F.3d 448, 459 (5th Cir.2000), holding that although HALLEX does not carry the force of law, an agency must follow its own procedures where the rights of individuals are affected, "even where the internal procedures are more rigorous than otherwise would be required." See also E.E.P. v. Barnhart, CA No. 03-246, 2004 U.S. Dist. LEXIS 11636, *5-*6 (D. Me. June 24, 2004), noting that although the First Circuit has not addressed the role of HALLEX in any reported decision, the Circuit's requirement that the Commissioner comply with the SSA's Program Operation Manual System ("POMS") was a sufficient basis from which to conclude that the First Circuit would likely to follow the view of the Fifth Circuit; and Thornton v. Barnhart, CA No. 05-55, 2006 U.S. Dist. LEXIS 12859, *32 (W.D.Va. Mar. 21, 2006), "assuming, without deciding, that the agency must follow its HALLEX guidelines, even when they are more rigorous than constitutionally required."