FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH DAVID ROBERTS,
Plaintiff-Appellant, No. 10-35512
v.
D.C. No.
3:09 cv 0336 KI
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted May 5, 2011*
Portland, Oregon
Filed May 24, 2011
Before: A. Wallace Tashima, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
6831
ROBERTS v. CSSA 6833
COUNSEL
Tim Wilborn, Oregon City, Oregon, for the plaintiff-
appellant.
Daphne Banay, Assistant Regional Counsel, Social Security
Administration, Seattle, Washington, for the defendant-
appellee.
OPINION
PER CURIAM:
Kenneth David Roberts (“Roberts”) applied for Supple-
mental Security Income disability benefits on October 17,
2005, alleging disability due to a combination of impairments
that included bilateral carpal tunnel syndrome, degenerative
disc disease, Hepatitis C, and hearing loss. After his applica-
6834 ROBERTS v. CSSA
tion was denied initially and upon reconsideration, Roberts
received a hearing before an administrative law judge
(“ALJ”). The ALJ determined that Roberts suffered from
severe carpal tunnel syndrome, degenerative disc disease, and
hearing loss, but found that he was able to perform jobs that
existed in significant numbers in the national economy;
hence, that he was not disabled. The district court affirmed the
ALJ’s decision. Roberts now appeals, contending, inter alia,
that his waiver of his right to representation at his hearing
before the ALJ was invalid. We affirm.1
Roberts was represented by counsel in the initial stages of
his agency appeal. However, his counsel withdrew prior to his
hearing before the ALJ. Roberts therefore was unrepresented
at the hearing. He argues that the ALJ erred by failing to
make sure he had sufficient information to make a decision
regarding representation at the hearing and that this failure
affected the outcome of his agency appeal.
[1] The Commissioner of the Social Security Administra-
tion (“Commissioner”) is required by statute to “notify each
claimant in writing . . . of the options for obtaining attorneys
to represent individuals in presenting their cases before the
Commissioner . . . .” This notification must “also advise the
claimant of the availability to qualifying claimants of legal
services organizations which provide legal services free of
charge.” 42 U.S.C. § 406(c); see also 20 C.F.R. § 404.1706.
Roberts does not contend that this statutory requirement was
not met here, nor would he have any basis for doing so. The
Notice of Disapproved Claim that he received after the initial
denial of his claim and the Notice of Reconsideration that he
received after denial on reconsideration both state that “you
can have a friend, lawyer or someone else” help with the
1
In this opinion, we address only Roberts’ contention regarding his
waiver of representation at the hearing. We address Roberts’ remaining
contentions in a memorandum disposition filed concurrently with this
opinion.
ROBERTS v. CSSA 6835
appeal and that “[t]here are groups that can . . . give you free
legal services if you qualify.” These notices also mention the
possibility of hiring an attorney on a contingency basis and
refer claimants to their local Social Security office for a list
of groups that can help with the appeal.
[2] Instead, Roberts contends that the ALJ was required to
give him additional information on the value of having an
attorney, and his options for securing one. He relies on two
sources for this argument. One is the Commissioner’s Hear-
ings, Appeals and Litigation Law Manual (“HALLEX”),
which states that the ALJ “should ensure on the record” that
an unrepresented claimant “has been properly advised of the
right to representation and . . . is capable of making an
informed choice about representation,” and goes on to list
several questions that an ALJ may wish to ask the claimant
in order to accomplish this. HALLEX I-2-6-52. HALLEX,
however, does not “carry the force of law and [is] not binding
upon the agency.” Parra v. Astrue, 481 F.3d 742, 749 (9th
Cir. 2007). Therefore, we do not “review allegations of non-
compliance with [its] provisions.” Id.
The other authority on which Robert relies is Thompson v.
Sullivan, 933 F.2d 581 (7th Cir. 1991). There, the Seventh
Circuit held that the agency erred even though the claimant
had received a notice of hearing stating that he had the right
to be represented by an attorney, explaining the ways in
which an attorney could help him at the hearing, noting the
possibility of free or contingency-based representation, and
listing organizations which could help him locate an attorney.
Id. at 584. The ALJ had allowed the claimant to proceed with
the hearing without representation despite the fact that the
claimant had made comments at the outset suggesting that he
had decided to do so because he believed his inability to pay
would prevent him from obtaining an attorney. Id. at 585. The
Seventh Circuit concluded that the ALJ had erred by failing
“to fully discuss the benefits of legal representation or the
possibility of contingency arrangements.” Id. The Fifth and
6836 ROBERTS v. CSSA
Eleventh Circuits also have imposed disclosure requirements
on the Commissioner that go beyond those currently required
by 42 U.S.C. § 406(c). See Edwards v. Sullivan, 937 F.2d
580, 585-86 (11th Cir. 1991) (holding that the Commissioner
is required to inform claimants that contingency fees are lim-
ited by statute to twenty-five percent of awarded benefits);
Clark v. Schweiker, 652 F.2d 399, 403-04 (5th Cir. 1981)
(holding that the Commissioner is required to inform claim-
ants that free legal representation may be available).
[3] The enhanced disclosure requirements set forth in
Thompson have never been adopted by this court. The Second
Circuit recently elected not to adopt such requirements. See
Lamay v. Comm’r Soc. Sec. Admin., 562 F.3d 503, 508 (2d
Cir. 2009). That court noted that the major appellate cases
adopting enhanced disclosure requirements all predate the
1991 effective date of the current version of § 406(c), which
mandates a more limited written disclosure to accompany the
notice of an adverse decision. It concluded that the require-
ments of § 406(c) “supplanted prior judicially-created stan-
dards,” and thus that “the statutory requirements are all that
we can apply.” Id. The court also noted that social security
hearings are not meant to be adversarial in nature and that the
ALJ’s duty to explore for relevant facts is heightened in cases
involving pro se claimants; therefore, “the limited, yet clear,
requirements for notification enacted by Congress seem both
sensible and likely adequate.” Id. at 508-09.
[4] We agree with the reasoning of the Second Circuit in
Lamay and therefore hold that no disclosure is required, other
than the disclosure required by § 406(c). Because the § 406(c)
disclosure requirements were met in this case, there was no
agency error. Accordingly, the judgment of the district court,
affirming the Commissioner’s decision, is AFFIRMED.