The Ninth Circuit published its opinion in Cross v. O'Malley on January 5, 2024. This is the first published opinion of the year and the first decision by the Ninth Circuit to name O'Malley as the COSS.
Cross contends that the COSS erred in eliminating the treating relationship from the first tier of consideration of medical evidence under the Administrative Procedures Act. The Court cited the broad powers delegated to the COSS under the Social Security Act. 42 USC § 405(a). The Court relied on Bowen v. Yuckert, 482 U.S. 137, 145 (1987) and Heckler v. Campbell, 461 U.S. 458, 466 (1983).
Yuckert does not cite the Administrative Procedure Act. Campbell cites 5 USC § 556(e) for the proposition that taking administrative notice requires that the litigant be given the opportunity to respond.
In Califano v. Sanders, 420 U.S. 99, 103-04 (1977), Court held that the Seventh Circuit reliance on the APA for the jurisdiction to review a refusal to reopen and revise was wrong. The Court held that "the APA is not to be interpreted as an implied grant of subject-matter jurisdiction to review agency actions." Id. at 105.
The Social Security Act incorporates the APA into the Medicare reimbursement cases. 42 USC § 1395oo(f)(1); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).
Heckler v. Ringer, 466 U.S. 602, 622 (1984) held that the Social Security Act precluded jurisdiction under the APA. See also, Weinberger v. Salfi, 422 U. S. 749 (1975) (constitutional claims barred by the exclusive jurisdiction of § 405(h).
Does the APA apply to regulations promulgated by SSA? Maybe but Cross does not make clear that it does.
Still puzzled.
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Suggested Citation:
Lawrence Rohlfing, Opinions Outside the Relevant Period, Probative -- Carrier v. Kijakazi, California Social Security Attorney (January 7, 2024) (amended March 7, 2024).
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