                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 13 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RICHARD HOFF,                                    No.   14-16291

              Plaintiff-Appellant,               DC No. 3:13 cv-05558 MEJ

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant-Appellee.


                   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


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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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