Another Argument Crossed Off -- Cross v. O'Malley

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. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Opinions Outside the Relevant Period, Probative -- Carrier v. Kijakazi, California Social Security Attorney (January 7, 2024) (amended March 7, 2024).

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

Be Prepared to Defend Cross-Examination on the OOH and CBP

Judges and vocational experts want to keep maximum discretion.  The regulations are clear:  the COSS takes administrative notice of the Dictionary of Occupational Titles; County Business Patterns; and the Occupational Outlook Handbook.  We know the regulations call for administrative notice for determining the number of jobs -- but the ALJ and VE will collude to deprive you of looking into the black box.  Here is a primer of why they cannot.  

1.  Heckler v. Campbell, 461 U.S. 458,469-70 (1983).  When an agency decides a claim based on administrative notice of facts, a claimant must have the opportunity to respond.  But when the agency has tested the accuracy of the facts administratively notice by rulemaking, the regulations provide sufficient procedural protection.  

2.  5 U.S.C. § 556(e) (emphasis added). 

      When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.

3.  20 C.F.R. §§ 404.1566(d); 416.966(d) (2017) (emphasis added).  

      Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

The purpose of administrative notice is to prove facts without the evidence appearing in the record.  That is the APA.  The presence of notice in the regulations provides all the notice the agency has to provide.  The claimant gets the opportunity to show that notice is wrong and that different facts exist.  The whole purpose of the administrative notice regulation is to determine job data and whether that work exists in significant numbers. 

We don’t seek to show the contrary – we seek to enforce the administrative notice and that the VE has not met the burdensome task of showing that the facts subject to administrative notice are wrong. 

And always remember to confirm -- the vocational expert is not a statistician.