The Court finds that the ALJ did err by not directly addressing Plaintiff's reference to fatigue during the hearing, especially where Plaintiff did not assert HIV as a disability nor fatigue as an impairment in his application (see id. at 182) and focused his hearing presentation on his lower extremity impairments. See Barreras v. Saul, 803 Fed.Appx. 70, 73 (9th Cir. 2020) (explaining that a “single comment . . . was neither significant nor probative”); Michelle D. v. Comm'r of Soc. Sec., No. 2:20-cv-00878-TLF, 2021 WL 3783161, at *3 (W.D. Wash. Aug. 26, 2021) (concluding that a vague medical opinion recommendation was not significant, probative evidence); cf. Navarro v. Berryhill, No. ED 18-cv-00197-MAA, 2018 WL 4204502, at *3 (C.D. Cal. Sept. 4, 2018) (“[S]ince Plaintiff's allegation of fatigue was a critical aspect of her claim of disability (because it was raised as a primary ground for disability and because she asserted it with specificity and detail in her written questionnaire), the failure to address the allegation was reversible legal error.”
Although Plaintiff argues that the ALJ's reasoning was flawed and failed to comply with the guidance set forth in HALLEX and POMS, Lockwood forecloses any such challenge. See also Barreras v. Saul, 803 Fed.Appx. 70, 72 (9th Cir. 2020) (“The ALJ did not err by declining to categorize Barreras in the ‘advanced age category.' When confronted with a borderline age situation, an ALJ is only required to consider whether to use the older age category.
Rather, an ALJ has discretion to use the higher age category. Id. at 1069 (citing 20 C.F.R. § 404.1563(b)); see also Barreras v. Saul, 803 Fed.Appx. 70, 72 (9th Cir. 2020).
That observation remains true today, as there has been no change to § 404.1563 since Lockwood issued. See Barreras v. Saul, 803 Fed.Appx. 70, 72 (9th Cir. 2020) (“It is inconsequential to our analysis that the ALJ's decision was contrary to internal Social Security Administration policies listed in [POMS] or [HALLEX], which instructs the ALJ to consider ‘additional vocational adversities' when determining whether to use a higher age category, because neither manual ‘impose[s] judicially enforceable duties on either the ALJ or this court.'”) (quoting Lockwood, 616 F.3d at 1072-73)
“An ALJ is not required to discuss every piece of evidence presented, but must only explain why significant probative evidence has been rejected.” Barreras v. Saul, 803 Fed.Appx. 70, 73 (9th Cir. 2020) (citing Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)); see also Robertson v. Comm'r of Soc. Sec., No. 2:18-CV-1172-DMC, 2019 WL 2026508 at *4 (E.D. Cal. May 8, 2019) (citation omitted) (An “ALJ may properly ignore[] evidence which [is] neither significant or probative.”))
The Ninth Circuit has maintained its determination that HALLEX “does not carry the force of law.” See, e.g., Wilson v. Berryhill, 732 Fed. App'x 504, 507 (9th Cir. 2018) (declining to review an assertion of error for failure to comply with HALLEX); see also McGowan v. Saul, 833 Fed. App'x 138 (9th Cir. Jan. 6, 2021) (finding the ALJ “did not commit reversible error” by failing to comply with HALLEX “because the ALJ's noncompliance with HALLEX is not legally enforceable”); Barreras v. Saul, 803 Fed.Appx. 70 (9th Cir. 2020) (finding it was “inconsequential” that the ALJ acted contrary to policies in HALLEX because the manual does not “impose[] judicially enforceable duties on either the ALJ or this court”) (citation omitted). Because HALLEX is not legally enforceable, Plaintiff is unable to show reversible error for any failure by the ALJ to comply with the standards related to creation of an exhibit list.
The Ninth Circuit rejected the argument that the Commissioner's Hearings, Appeals, and Litigation Manual (“HALLEX”) and Program Operations Manual System (“POMS”) impose any additional legally enforceable duties upon an ALJ. Id. at 1072-73; see also Barreras v. Saul, 803 Fed.Appx. 70, 72 (9th Cir. 2020). Accordingly, Plaintiff has not shown error.
The Ninth Circuit has maintained its determination that HALLEX "does not carry the force of law." See, e.g., Wilson v. Berryhill, 732 Fed. App'x 504, 507 (9th Cir. 2018) (declining to review an assertion of error for failure to comply with HALLEX); see also McGowan v. Saul, 833 Fed. App'x 138 (9th Cir. Jan. 6, 2021) (finding the ALJ "did not commit reversible error" by failing to comply with HALLEX "because the ALJ's noncompliance with HALLEX is not legally enforceable"); Barreras v. Saul, 803 Fed. App'x 70 (9th Cir. 2020) (finding it was "inconsequential" that the ALJ acted contrary to policies in HALLEX because the manual does not "impose[] judicially enforceable duties on either the ALJ or this court") (citation omitted).Id.
The Ninth Circuit has maintained its determination that HALLEX "does not carry the force of law." See, e.g., Wilson v. Berryhill, 732 Fed. App'x 504, 507 (9th Cir. 2018) (declining to review an assertion of error for failure to comply with HALLEX); see also McGowan v. Saul, 833 Fed. App'x 138 (9th Cir. Jan. 6, 2021) (finding the ALJ "did not commit reversible error" by failing to comply with HALLEX "because the ALJ's noncompliance with HALLEX is not legally enforceable"); Barreras v. Saul, 803 Fed. App'x 70 (9th Cir. 2020) (finding it was "inconsequential" that the ALJ acted contrary to policies in HALLEX because the manual does not "impose[] judicially enforceable duties on either the ALJ or this court") (citation omitted). Because HALLEX is not legally enforceable, Plaintiff is unable to show reversible error for any failure by the ALJ to comply with the standards related to obtaining medical expert testimony.
An ALJ is only required to discuss significant, probative evidence. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (holding that evidence that is not significant or probative need not be explicitly discussed by the ALJ); accord Barreras v. Saul, 803 F. App'x 70, 73 (9th Cir. 2020). Here, the evidence proffered by plaintiff is neither significant nor probative.