Tom Krause, NOSSCR Of-Counsel

Resurrecting The Treating Source Rule After Loper Bright: A Year of Limited Success

This is the fourth in a series of articles on the Treating Source Rule. The first article discusses the early history and development of the Treating Source Rule (1954-78). The second continues the history (1979-1991) and the publication of the 1991 regulations. The third article discusses the development of the 2017 regulations, including the 2010 Administrative Conference Report. This article builds on prior articles, examining potential litigation issues and the state of litigation a year after the Supreme Court overruled Chevron deference. The Court’s decision in Loper Bright stripped SSA’s regulations of deference and, at least theoretically, makes challenges to the 2017 regulations easier.  

• Krause Chronicles: The Treating Physician Rule, Part I
• Krause Chronicles: The Treating Physician Rule, Part II
• Krause Chronicles: The Treating Physician Rule, Part III

(At the end of each article, including this one, is a link to a more thorough discussion of the issues raised)

The Supreme Court’s landmark decision in Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), fundamentally altered administrative law by overruling the Chevron doctrine that had required courts to defer to agency interpretations of ambiguous statutes. This shift sparked immediate speculation about the fate of the Social Security Administration’s controversial 2017 regulations that eliminated the treating source rule. However, after nearly a year of litigation, the practical impact has proven far more limited than many practitioners anticipated.

Background: The Case Against the 2017 Regulations

The 2017 regulations, codified at 20 C.F.R. §§ 404.1520c and 416.920c, eliminated the longstanding treating source rule that had required Administrative Law Judges to give “controlling weight” to treating physicians’ opinions when they were well-supported and not inconsistent with other substantial evidence. The regulations also removed the requirement that ALJs provide “good reasons” when not giving controlling weight to treating source opinions.

Critics argue these regulations violate fundamental statutory requirements. The Administrative Procedure Act requires agency decisions to include “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.” 5 U.S.C. § 557(c)(3). Similarly, the Social Security Act mandates that decisions “contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner’s determination and the reason or reasons upon which it is based.” 42 U.S.C. §§ 405(b)(1), 1383(c)(1)(A). Most importantly, judicial review of a disability claim looks for substantial evidence in the record as a whole. The courts, particularly the Second Circuit, have consistently held that “substantial evidence” requires SSA to give greater weight to the opinions of treating sources.

There are several potential issues. The 2017 regulations, for example, generally require much less articulation of the weight given to medical opinions, contrary to the APA and SSA. The 2017 regulations do not provide any special weight to treating sources, contrary to 42 U.S.C. § 405(g). Similarly, the new regulations fail to give any special weight to VA Ratings Decisions and their underlying medical records, despite numerous court decisions implicitly finding the Act requires special weight.  

The Loper Bright Enterprises, 603 U.S. 369 Decision and Initial Expectations

The Supreme Court’s decision in Loper Bright Enterprises, 603 U.S. 369 overruled Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), declaring that courts must exercise independent judgment when interpreting statutes rather than deferring to agency interpretations. This development raised hopes among disability advocates that courts would take a fresh look at the 2017 regulations without the protective shield of Chevron deference. However, the Supreme Court explicitly stated that overruling Chevron “do[es] not call into question prior cases that relied on the Chevron framework,” noting that such holdings remain subject to statutory stare decisis. Loper Bright Enterprises, 603 U.S. at 412. This decision gave advocates hope that the 2017 regulations would now be subject to challenge. As discussed below, the decisions to date have not been helpful.

Court Decisions: A Pattern of Rejection

The most significant post-Loper Bright development came in Williams v. O’Malley, No. 23-35358, 2024 WL 3519774 (9th Cir. July 24, 2024), where the Ninth Circuit explicitly addressed Loper Bright‘s impact on Social Security law. The court noted that its earlier decision in Cross v. O’Malley, 89 F.4th 1211 (9th Cir. 2024), issued prior the Loper Bright Enterprises, 603 U.S. 369decision, had upheld the 2017 regulations by finding that the Social Security Act “plainly encompassed the Commissioner’s authority to adopt regulations to govern the weighing of medical evidence” without relying on Chevron deference. Consequently, the court concluded that “Loper does not undercut Cross.” Several decisions from the District of Oregon have applied this reasoning, including Devan G. v. Comm’r Soc. Sec., No. 6:24-CV-00660-SB, 2025 WL 1640176, at *6 (D. Or. June 10, 2025); Alan M. v. Comm’r Soc. Sec. Admin., No. 6:24-CV-00784-SB, 2025 WL 926590, at *7 (D. Or. Mar. 27, 2025); Maria W. v. Comm’r, Soc. Sec., No. 6:24-CV-1266-SB, 2025 WL 1540866, at *2 (D. Or. May 30, 2025); and Corwin H. v. Comm’r, Soc. Sec., No. 6:24-CV-00149-SB, 2025 WL 1204427, at *6 (D. Or. Apr. 25, 2025).

The Northern District of Alabama addressed the continued validity of the Eleventh Circuit’s decision in Harner v. Social Security Administration, Commissioner, 38 F.4th 892 (11th Cir. 2022), which had relied on Chevron to uphold the 2017 regulations. In Childress v. King, No. 4:21-CV-237-CLS, 2025 WL 540092, at *5 (N.D. Ala. Feb. 18, 2025), the court noted that Harner remains binding because “Loper Bright do[es] not call into question prior cases that were decided by the Chevron framework.”

District courts in other circuits have similarly followed this reasoning. In Kimberly M. v. Commissioner of Social Security, No. 1:24-CV-527, 2025 WL 449429, at *4 (W.D. Mich. Jan. 8, 2025), the court found that the 2017 regulations “remain good law even with Chevron overruled” because “nothing in the Act specifies how treating-physician evidence is to be weighed or requires the treating-physician rule.” The court in Thomas v. Commissioner of Social Security, No. 3:23-cv-1243, 2024 WL 4764465, at *3 n.9 (M.D. Fla. Nov. 13, 2024), reached the same conclusion. Finally, in Hicks v. Commissioner of Social Security Administration, No. 7:23-CV-70, 2024 WL 3901190, at *2 n.3 (E.D. Ky. Aug. 19, 2024), the court noted that “social security cases post-dating Loper have afforded the same level of deference to the Agency.”

The courts have also noted significant procedural deficiencies in many Loper Bright challenges:

• Waiver Issues: In Apple v. Bisignano, No. 24-307, 2025 WL 1525314, at *1 (9th Cir. May 29, 2025), the Ninth Circuit found that the claimant “waived his argument that Loper Bright Enterprises v. Raimondo undermines the validity of the 2017 regulations by raising the contention only in his reply brief.”

• Notice Requirements: The Southern District of California emphasized in Andrewphillip E. v. Dudek, No. 24CV108-LR, 2025 WL 874788, at *11-12 (S.D. Cal. Mar. 20, 2025), that “the mere existence of a court’s decision is insufficient to put an opposing party on notice of a party’s claim involving that decision,” rejecting arguments raised for the first time after Loper Bright‘s publication.

While Loper Bright challenges to the treating source rule have largely been unsuccessful, the decision has sparked broader questioning of Social Security regulations. In Ginder v. Commissioner of Social Security, No. 24-2098, 2025 WL 323095, at *3 (3d Cir. Jan. 29, 2025), Judge Porter’s concurrence questioned whether obesity qualifies as a disability under the statutory definition, noting that Loper Bright requires courts to “exercise [their] independent judgment” and focus on statutory text.

The post-Loper Bright landscape suggests several key takeaways for Social Security practitioners:

• Circuit-Specific Strategies: The Ninth Circuit appears to have closed the door on treating source rule challenges; however, other circuits, particularly the Second Circuit. As discussed in earlier articles, the Second Circuit was home to the extended Schisler litigation that led to the 1991 regulations and may present better opportunities for future consideration. See, e.g., Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988); Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986).
• Alternative Arguments: Focus on articulation requirements generally rather than the specific treating source rule. Courts remain receptive to arguments that ALJs must “build an accurate and logical bridge from the evidence to their conclusion,” as established in Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015).
• VA Ratings and Other Agency Decisions: The 2017 regulations’ treatment of VA disability ratings and other agency determinations may present more promising avenues for challenge, particularly given the strong historical precedent requiring consideration of these determinations.
• Procedural Compliance: Ensure Loper Bright arguments are properly preserved and raised in initial briefs rather than reply briefs to avoid waiver.

Conclusion

While Loper Bright represented a seismic shift in administrative law, its impact on Social Security disability law has proven more limited than initially hoped. Courts have consistently found that the Social Security Act provides sufficient statutory authority for the Commissioner’s regulatory approach, making Chevron deference unnecessary for upholding the 2017 regulations.

However, the emphasis on statutory text and articulation requirements may still provide fertile ground for challenges, particularly regarding the ALJs’ duty to explain their reasoning when evaluating medical evidence. Articulation is generally a strong argument. A VA Ratings challenge may be worth it in light of the caselaw prior to SSR 00-6p. Other agency decisions (non-VA) may be a tougher sell.

The battle over the treating source rule continues. Still, practitioners must adapt their strategies to the post-Loper Bright legal landscape while maintaining focus on the fundamental due process and articulation requirements that remain the cornerstone of administrative justice.

The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of NOSSCR, its leadership, or staff.