Richard Hoff v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD HOFF,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant-Appellee.
No. 14-16291
DC No. 3:13 cv-05558 MEJ
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Argued and Submitted June 16, 2016
San Francisco, California
Before: SCHROEDER, TASHIMA, and OWENS, Circuit Judges.
Richard Hoff appeals from the judgment of the district court, which affirmed
the Social Security Administration’s (“SSA”) reduction of his supplemental
security income (“SSI”) benefits. An administrative law judge (“ALJ”) concluded
that because Hoff failed to pay his pro rata share of the total monthly household
FILED
JUL 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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operating expenses, he received in-kind support and maintenance, triggering a
reduction in SSI benefits. See 20 C.F.R. §§ 416.1130, 416.1133(a). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Hoff argues that although he did not pay for his half of the household
expenses in cash, he still met his pro rata share by contributing goods (such as
firewood) and services (such as repairing the roof). The ALJ properly rejected
Hoff’s argument. Household operating expenses are defined as “the household’s
total monthly expenditures for food, rent, mortgage, property taxes, heating fuel,
gas, electricity, water, sewerage, and garbage collection service.” 20 C.F.R.
§ 416.1133(c). The SSA’s Program Operations Manual System (“POMS”)
provides: “An individual’s contribution equals the average amount of cash he/she
spends on household operating expenses.” POMS SI 00835.020 (B.3) (emphasis
added); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th
Cir. 2006) (“The POMS does not have the force of law, but it is persuasive
authority.” (citing Hermes v. Sec’y of Health & Human Servs., 926 F.2d 789, 791
n.1 (9th Cir. 1991))). The POMS explicitly excludes “[s]ervices and goods traded
in return for food and shelter” as contribution towards the pro rata share. POMS SI
00835.020 (B.3); see also POMS SI 00835.480 (C) (same). Accordingly, the ALJ
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did not err in rejecting Hoff’s provision of firewood and household services as
contribution towards his pro rata share of household expenses.
2. Hoff also contends that the ALJ erred by failing to consider his
rebuttal evidence of the actual value of his shelter. Under the presumed value rule,
a claimant may rebut the presumption that the in-kind support and maintenance is
worth one-third the federal benefit rate by showing that the actual value of that
in-kind support and maintenance is less than the presumed one-third value. 20
C.F.R. § 416.1140(a)(2). The actual value of shelter is determined based on “the
current market value . . . minus any payment [the claimant] make[s] for [it].” Id.
Hoff’s argument concerning what a renter would pay on the open market for his
living situation is irrelevant because Hoff, a co-owner of the house, received in-
kind support and maintenance in the form of mortgage payments, not rent. Hoff
has not submitted any evidence that he and his co-owner did not have an equal
ownership in the house or that they were not equally responsible for paying the
mortgage. Thus, Hoff has failed to rebut the application of the presumed value.
AFFIRMED.
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