Two claimants walk into two hearing rooms in the same building on the same day. Same herniated disc, same imaging, same attorneys, same legal standard. One walks out with benefits. The other doesn't. The difference isn't the evidence — it's that one ALJ believed her claimant and the other didn't.
In this episode, Gwen and Marc break down the two factors that most often explain why identical cases produce opposite outcomes:
- How Social Security overhauled its credibility framework in 2016 to shift from "do I believe this person" to "are these symptoms consistent with the record" — and why ALJs are still making character judgments anyway
- The specificity principle: why "a sharp, stabbing pain that radiates down my right leg to my knee" carries more weight than "it really hurts" — and why admitting what you can do makes you more believable about what you can't
- Social media, surveillance, and the pattern problem — it's not the concert photo that destroys your case, it's the gap between the photo and what you told the judge
- The boilerplate credibility finding that showed up in thousands of decisions and why the Ninth Circuit said summarizing the medical evidence isn't the same as explaining why you don't believe the claimant
- The structural tension at the heart of burden of proof: the APA says the proponent bears the burden, which means the claimant in a benefits case loses on a 50/50 record — even though the ALJ was supposed to be helping develop that record
- Why that interaction plays out completely differently in asylum, where the substantive standard is more generous but the evidence base can be so narrow that a single credibility finding is the entire case
Credibility determines how much of your evidence the judge credits. Burden determines how much credited evidence you need. And which ALJ ends up in the room with you may matter more than either — which is exactly where the next episode picks up.
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:50 this series. Mark, I'd like you to imagine two
00:00:50 --> 00:00:52 Social Security disability hearings happening
00:00:52 --> 00:00:55 on the same day in the same building in different
00:00:55 --> 00:00:59 hearing rooms. OK. So room A, you have Sarah.
00:00:59 --> 00:01:01 She testifies that she has debilitating back
00:01:01 --> 00:01:03 pain that prevents her from working. She has
00:01:03 --> 00:01:05 medical records that show she has a herniated
00:01:05 --> 00:01:08 disc and the ALJ denies her claim. In room B.
00:01:09 --> 00:01:11 You have Michael. He testifies that he has debilitating
00:01:11 --> 00:01:13 back pain that prevents him from working and
00:01:13 --> 00:01:15 also has medical records showing a herniated
00:01:15 --> 00:01:19 disc. But the ALJ approves his claim. So same
00:01:19 --> 00:01:22 medical condition, but different outcomes. Right.
00:01:22 --> 00:01:25 Same condition, same evidence. In this case,
00:01:25 --> 00:01:27 we'll say they're both represented by attorneys.
00:01:27 --> 00:01:29 They both had vocational experts testify. But
00:01:29 --> 00:01:32 one gets benefits and one doesn't. Okay. What's
00:01:32 --> 00:01:35 the difference? The ALJ believed Michael. The
00:01:35 --> 00:01:37 ALJ didn't believe Sarah. Credibility determined
00:01:37 --> 00:01:40 everything. That seems deeply problematic. I
00:01:40 --> 00:01:42 mean, how can something that important come down
00:01:42 --> 00:01:45 to whether a judge personally believes you? It
00:01:45 --> 00:01:48 is problematic, but it's also unavoidable. The
00:01:48 --> 00:01:49 last time we talked about Kathleen's case, we
00:01:49 --> 00:01:52 followed it through the whole system, from when
00:01:52 --> 00:01:53 she applied to when she was ready to go to federal
00:01:53 --> 00:01:56 court. Today, we're talking about why one person
00:01:56 --> 00:01:58 walks out with a favorable decision and another
00:01:58 --> 00:02:01 one doesn't. We're specifically looking at two
00:02:01 --> 00:02:03 factors, credibility, whether the judge believes
00:02:03 --> 00:02:05 you, and burden of proof, who has to prove what
00:02:05 --> 00:02:08 and how convincing the evidence has to be. So
00:02:08 --> 00:02:10 the analytical framework behind all of these
00:02:10 --> 00:02:13 different outcomes. Right. And once you understand
00:02:13 --> 00:02:15 how judges think about these two factors, you
00:02:15 --> 00:02:17 can understand why cases that look identical
00:02:17 --> 00:02:19 on paper can start to come out completely differently.
00:02:20 --> 00:02:22 We should start with what we actually mean when
00:02:22 --> 00:02:24 we're saying that a judge is evaluating credibility.
00:02:25 --> 00:02:27 What we normally mean is that credibility means
00:02:27 --> 00:02:30 whether you're telling the truth. All right.
00:02:30 --> 00:02:32 Yes. Here, it's a little more layered than that.
00:02:32 --> 00:02:34 So it's not just whether the person is intentionally
00:02:34 --> 00:02:36 lying, although if they are, they don't have
00:02:36 --> 00:02:39 a lot of credibility. But it's also, are they
00:02:39 --> 00:02:42 trying to... Be slightly deceptive? Are they
00:02:42 --> 00:02:45 just honestly mistaken about the facts? Are they
00:02:45 --> 00:02:47 overstating symptoms? Or are they minimizing
00:02:47 --> 00:02:49 things, saying they can't do stuff that they
00:02:49 --> 00:02:52 seem to be capable of? Or even their memory.
00:02:52 --> 00:02:54 Is their memory reliable? Do their perceptions
00:02:54 --> 00:02:57 seem trustworthy? So someone could be completely
00:02:57 --> 00:02:59 honest and still have credibility issues. Right.
00:02:59 --> 00:03:02 You could genuinely believe that you can't lift
00:03:02 --> 00:03:04 10 pounds. But if medical evidence shows you
00:03:04 --> 00:03:06 can lift 20, you're not lying. You're mistaken.
00:03:06 --> 00:03:08 But the judge still won't credit your testimony.
00:03:09 --> 00:03:11 So why does credibility matter so much in administrative
00:03:11 --> 00:03:15 cases specifically? Because here, so many of
00:03:15 --> 00:03:17 these cases are turning on subjective facts.
00:03:17 --> 00:03:19 The medical record might show a herniated disc.
00:03:19 --> 00:03:22 That's objective. The MRI could prove that. But
00:03:22 --> 00:03:24 how much pain does it cause? There's the real
00:03:24 --> 00:03:26 problem. How limiting is it? How much does it
00:03:26 --> 00:03:28 prevent you from working? That's subjective.
00:03:28 --> 00:03:31 Only you can testify to that. And if the judge
00:03:31 --> 00:03:33 doesn't believe you, you lose, even if you genuinely
00:03:33 --> 00:03:36 experience those symptoms. So is there any actual
00:03:36 --> 00:03:39 regulatory guidance on how judges can evaluate
00:03:39 --> 00:03:42 this, or is this just intuition? There is detailed
00:03:42 --> 00:03:45 guidance. Social Security overhauled the framework
00:03:45 --> 00:03:50 here in 2016 with SSR 16 -3P, which replaced
00:03:50 --> 00:03:51 an older ruling that used the word credibility
00:03:51 --> 00:03:54 explicitly. And they changed it pretty significantly.
00:03:54 --> 00:03:58 Here's the key language. In evaluating an individual's
00:03:58 --> 00:04:01 symptoms, our adjudicators will not assess an
00:04:01 --> 00:04:03 individual's overall character or truthfulness
00:04:03 --> 00:04:06 in the manner typically used during an adversarial
00:04:06 --> 00:04:08 court litigation. The focus of the evaluation
00:04:08 --> 00:04:11 of an individual's symptoms should not be to
00:04:11 --> 00:04:14 determine whether he or she is a truthful person.
00:04:14 --> 00:04:17 So it's not about whether they're a truthful
00:04:17 --> 00:04:20 person, then what is it about? Here, we're talking
00:04:20 --> 00:04:22 about whether there's symptom consistency. The
00:04:22 --> 00:04:25 regulatory intent was to shift from, do I believe
00:04:25 --> 00:04:28 this person, to are these reported symptoms consistent
00:04:28 --> 00:04:30 with the medical evidence and the record as a
00:04:30 --> 00:04:32 whole? That's a meaningful distinction. They
00:04:32 --> 00:04:35 were trying to make it more analytical and less
00:04:35 --> 00:04:37 character -based. But how does that work in practice?
00:04:38 --> 00:04:40 In practice, the ALJs are still making character
00:04:40 --> 00:04:42 judgments. It's hard not to when you're sitting
00:04:42 --> 00:04:45 across from someone for 45 minutes watching their
00:04:45 --> 00:04:47 body language and listening to how they describe
00:04:47 --> 00:04:50 their limitations. The regulation says to focus
00:04:50 --> 00:04:52 on consistency, but human psychology says you're
00:04:52 --> 00:04:54 going to form an impression of the whole person.
00:04:54 --> 00:04:56 That gap between what the regulation requires
00:04:56 --> 00:04:58 and what actually happens in the hearing room
00:04:58 --> 00:05:00 is one of the central tensions in administrative
00:05:00 --> 00:05:02 adjudication. So with that, what are the judges
00:05:02 --> 00:05:04 actually looking for? Let's look at the regulatory
00:05:04 --> 00:05:06 framework, because these aren't supposed to be
00:05:06 --> 00:05:08 judicial hunches. They're legally required considerations.
00:05:09 --> 00:05:15 Here's 20 CFR 404 9. Because symptoms such
00:05:15 --> 00:05:18 as pain are subjective and difficult to quantify,
00:05:18 --> 00:05:21 any symptom -related functional limitations and
00:05:21 --> 00:05:24 restrictions that your medical sources or non
00:05:24 --> 00:05:26 -medical sources report, which can reasonably
00:05:26 --> 00:05:29 be accepted as consistent with the objective
00:05:29 --> 00:05:31 medical evidence and other evidence, will be
00:05:31 --> 00:05:34 taken into account in reaching a conclusion as
00:05:34 --> 00:05:37 to whether you are disabled. We will consider
00:05:37 --> 00:05:39 all of the evidence presented, including information
00:05:39 --> 00:05:42 about your prior work record, your statements
00:05:42 --> 00:05:44 about your symptoms, evidence submitted by your
00:05:44 --> 00:05:47 medical sources, and observations by our employees
00:05:47 --> 00:05:50 and other persons. So prior work history, your
00:05:50 --> 00:05:52 statements, the medical sources, the judge's
00:05:52 --> 00:05:54 observations, these are the categories that the
00:05:54 --> 00:05:58 regulation tells the ALJ to evaluate. Let's talk
00:05:58 --> 00:06:00 about how they actually do it in practice. So
00:06:00 --> 00:06:03 the regulation mentioned consistency. Yes, and
00:06:03 --> 00:06:06 that's huge. That part of the regulation talks
00:06:06 --> 00:06:08 about consistency with the medical records, but
00:06:08 --> 00:06:09 here's another part that's worth looking at.
00:06:09 --> 00:06:12 We will consider whether there are any inconsistencies
00:06:12 --> 00:06:15 in the evidence and the extent to which there
00:06:15 --> 00:06:17 are any conflicts between your statement and
00:06:17 --> 00:06:19 the rest of the evidence, including your history,
00:06:19 --> 00:06:22 the signs and laboratory findings, the statements
00:06:22 --> 00:06:24 by your medical sources or other persons about
00:06:24 --> 00:06:27 how your symptoms affect you. Here it's explicitly
00:06:27 --> 00:06:30 talking about inconsistencies. What you said
00:06:30 --> 00:06:32 in your initial application versus what you told
00:06:32 --> 00:06:34 your doctor versus what you wrote in statements
00:06:34 --> 00:06:37 and what you testified at the hearing. Do they
00:06:37 --> 00:06:40 all match? If you told the doctor in 2022 you
00:06:40 --> 00:06:42 couldn't walk two miles, but at the hearing in
00:06:42 --> 00:06:45 2024 you say you've never been able to walk more
00:06:45 --> 00:06:48 than a block, judges notice. And they question
00:06:48 --> 00:06:50 everything else you say. Okay, what if the condition,
00:06:50 --> 00:06:52 though, actually got worse? Then you have to
00:06:52 --> 00:06:55 explain it. In 2022, I could walk two miles,
00:06:55 --> 00:06:58 but since my surgery in 2023, I can only walk
00:06:58 --> 00:07:00 one block. With explanation, that inconsistency
00:07:00 --> 00:07:03 becomes consistent. What judges are looking for
00:07:03 --> 00:07:05 is whether you acknowledge and explain the change
00:07:05 --> 00:07:06 or whether you pretend the earlier statement
00:07:06 --> 00:07:09 never happened. Okay, so what about the medical
00:07:09 --> 00:07:11 evidence then? Yeah, so we want things to be
00:07:11 --> 00:07:13 consistent with the medical evidence. If you
00:07:13 --> 00:07:15 testify that you have severe debilitating migraines
00:07:15 --> 00:07:17 three times a week, but your medical records
00:07:17 --> 00:07:19 show you've seen a doctor for headaches twice
00:07:19 --> 00:07:22 in the past year total, You're not on any migraine
00:07:22 --> 00:07:24 medication. You haven't had any imaging done.
00:07:24 --> 00:07:26 Then the judge won't believe the headaches are
00:07:26 --> 00:07:29 really that severe. Right. Probably not. What
00:07:29 --> 00:07:31 if someone can't afford treatment? Here, the
00:07:31 --> 00:07:34 context matters a lot. Normally, the judge might
00:07:34 --> 00:07:36 think if you truly had these really terrible
00:07:36 --> 00:07:38 migraines, you'd be seeking the most... aggressive
00:07:38 --> 00:07:41 treatment you possibly could but if you come
00:07:41 --> 00:07:43 in and say i'd love to see a neurologist but
00:07:43 --> 00:07:45 i don't have insurance and i can't afford the
00:07:45 --> 00:07:48 300 appointment then that explains the gap judges
00:07:48 --> 00:07:50 are supposed to also look at barriers to care
00:07:50 --> 00:07:52 but they only know about it if you tell them
00:07:52 --> 00:07:54 about it An unexplained treatment gap looks like
00:07:54 --> 00:07:57 evidence your symptoms aren't that bad. An explained
00:07:57 --> 00:07:59 treatment gap is a barrier to access. Same facts,
00:07:59 --> 00:08:01 but completely different credibility implications.
00:08:01 --> 00:08:03 OK, what about how you present yourself, your
00:08:03 --> 00:08:06 body language, your demeanor? Yes, this is the
00:08:06 --> 00:08:08 most subjective factor, and it can be kind of
00:08:08 --> 00:08:11 problematic. Judges are paying attention to eye
00:08:11 --> 00:08:12 contact. They're paying attention to whether
00:08:12 --> 00:08:14 you seem genuine or if you've rehearsed this
00:08:14 --> 00:08:17 a lot, whether you're forthcoming or evasive,
00:08:17 --> 00:08:18 whether you appear to be in pain while you're
00:08:18 --> 00:08:21 testifying. So that seems like it introduces
00:08:21 --> 00:08:24 an enormous bias. Some people are nervous. Some
00:08:24 --> 00:08:26 come from cultures where eye contact with authority
00:08:26 --> 00:08:30 figures is disrespectful. Trauma survivors might
00:08:30 --> 00:08:32 be emotionally flat. And some people are just
00:08:32 --> 00:08:36 better actors. That is totally true. What makes
00:08:36 --> 00:08:39 it worse is that demeanor findings can be essentially
00:08:39 --> 00:08:41 unreviewable on appeal. If the ALJ writes, I
00:08:41 --> 00:08:43 observed the claimant was evasive and avoided
00:08:43 --> 00:08:46 eye contact, an appellate court can't contradict
00:08:46 --> 00:08:48 that, even if, as we'll see, they can still try
00:08:48 --> 00:08:51 and play with the facts a little. They weren't
00:08:51 --> 00:08:53 in the room. So this most subjective, the most
00:08:53 --> 00:08:55 bias -prone factor can also be the ones with
00:08:55 --> 00:08:57 the least appellate check. And the factor most
00:08:57 --> 00:09:00 likely to be wrong is the one most insulated
00:09:00 --> 00:09:02 from correction. Right. So courts have upheld
00:09:02 --> 00:09:04 demeanor as a permissible factor as long as it's
00:09:04 --> 00:09:07 not the only basis for a credibility finding.
00:09:07 --> 00:09:09 But in practice, demeanor observations can color
00:09:09 --> 00:09:12 the entire analysis. If the ALJ's first impression
00:09:12 --> 00:09:15 is this person seems evasive, that impression
00:09:15 --> 00:09:17 affects how they read every other piece of evidence.
00:09:17 --> 00:09:19 Okay. Are there factors that cut the other way
00:09:19 --> 00:09:22 then, things that help credibility? Yes. There
00:09:22 --> 00:09:24 are two important ones. The first is specificity.
00:09:24 --> 00:09:27 Can you describe your experience in concrete
00:09:27 --> 00:09:30 detail? It really hurts as... a pretty vague
00:09:30 --> 00:09:32 way of describing things. It's a sharp, stabbing
00:09:32 --> 00:09:34 pain that starts in my lower back and radiates
00:09:34 --> 00:09:36 down my right leg to my knees. It's worse first
00:09:36 --> 00:09:39 thing in the morning, usually a 7 out of 10,
00:09:39 --> 00:09:40 but it spikes to a 9 if I've been standing for
00:09:40 --> 00:09:43 more than a few minutes. That's going to be pretty
00:09:43 --> 00:09:46 specific. That second description, it sounds
00:09:46 --> 00:09:48 like someone who actually lives with that pain
00:09:48 --> 00:09:50 every day, not someone that's reciting a script.
00:09:51 --> 00:09:53 Right. But in order to be able to talk like that,
00:09:53 --> 00:09:55 you have to have the language to describe it.
00:09:56 --> 00:09:58 Your response is how judges are generally going
00:09:58 --> 00:10:00 to react to it. Specificity suggests authenticity.
00:10:01 --> 00:10:03 Vagueness says you might be describing something
00:10:03 --> 00:10:05 you've been told to say rather than what you've
00:10:05 --> 00:10:07 actually experienced. But you've probably had
00:10:07 --> 00:10:10 the experience of going to a doctor because of
00:10:10 --> 00:10:13 some sort of pain, and they try and supply potential
00:10:13 --> 00:10:16 descriptors. Is it sharp? Is it throbbing? You
00:10:16 --> 00:10:17 might not have really been able to describe it
00:10:17 --> 00:10:19 without them offering these possible options.
00:10:19 --> 00:10:22 And this isn't... just true about pain. This
00:10:22 --> 00:10:25 works across all other kinds of testimony. Specific
00:10:25 --> 00:10:27 details about your daily routine. Specific descriptions
00:10:27 --> 00:10:29 of what you can and can't do. Specific examples
00:10:29 --> 00:10:32 of how your condition limits you. Concrete beats
00:10:32 --> 00:10:35 general basically every time. Okay, what about
00:10:35 --> 00:10:37 the other? The other thing is admitting what
00:10:37 --> 00:10:40 doesn't help you. This can seem counterintuitive
00:10:40 --> 00:10:42 to people, but we want to see whether you're
00:10:42 --> 00:10:44 actually acknowledging your own capabilities.
00:10:44 --> 00:10:46 I can't do anything in the kitchen sounds like
00:10:46 --> 00:10:49 an exaggeration. I can make sandwiches and microwave
00:10:49 --> 00:10:51 meals, but I can't stand long enough to cook
00:10:51 --> 00:10:53 a full dinner. My spouse does most of the cooking.
00:10:53 --> 00:10:56 Sounds like you're being honest. Real disability
00:10:56 --> 00:10:58 has nuance. If you claim a total inability to
00:10:58 --> 00:11:01 do anything, judges get skeptical. If you honestly
00:11:01 --> 00:11:02 describe what you can and can't do, you seem
00:11:02 --> 00:11:04 more trustworthy about the limitations you are
00:11:04 --> 00:11:07 describing. So now we go to the other side, the
00:11:07 --> 00:11:10 thing that can really sink a case. And I want
00:11:10 --> 00:11:12 to focus on one in particular because it illustrates
00:11:12 --> 00:11:13 something important about how the modern system
00:11:13 --> 00:11:18 works. Social media? It is social media. ALJs
00:11:18 --> 00:11:20 aren't supposed to go into social media on their
00:11:20 --> 00:11:22 own, but it can be introduced by the claimant
00:11:22 --> 00:11:24 or it can be introduced through a fraud referral.
00:11:24 --> 00:11:26 This could be things like claiming you can't
00:11:26 --> 00:11:28 get out of bed, but then posting yourself standing
00:11:28 --> 00:11:31 at a concert for hours. But going to one concert
00:11:31 --> 00:11:33 doesn't mean you're not disabled. People with
00:11:33 --> 00:11:35 chronic pain push through for important events
00:11:35 --> 00:11:37 all the time. Right, and a good representative
00:11:37 --> 00:11:40 could make that argument. The problem wouldn't
00:11:40 --> 00:11:42 automatically be the concert itself, but the
00:11:42 --> 00:11:44 contradiction. If you say bedridden most days
00:11:44 --> 00:11:46 but have photos contradicting that claim, you're
00:11:46 --> 00:11:49 affecting your credibility. If this person testifies,
00:11:49 --> 00:11:51 I have severe pain most days, but occasionally
00:11:51 --> 00:11:52 I push through for something important and pay
00:11:52 --> 00:11:55 for it afterwards with days of recovery, that's
00:11:55 --> 00:11:57 going to be a lot more consistent with the photos.
00:11:57 --> 00:11:59 The exaggeration destroys the credibility, not
00:11:59 --> 00:12:02 the activity itself. So the lesson isn't don't
00:12:02 --> 00:12:05 go to concerts. It's don't overstate your limitations.
00:12:05 --> 00:12:10 Yes. And here it's worth noting that this social
00:12:10 --> 00:12:13 media stuff, it's used by insurance companies
00:12:13 --> 00:12:15 a lot more aggressively. They'll actively look
00:12:15 --> 00:12:18 for things that seem to contradict what somebody's
00:12:18 --> 00:12:20 claiming. Social security really is supposed
00:12:20 --> 00:12:22 to be barred from it aside from these few instances,
00:12:23 --> 00:12:27 but it still matters. And this can kind of connect
00:12:27 --> 00:12:30 to the broader pattern. What can destroy credibility
00:12:30 --> 00:12:33 isn't usually one dramatic lie. It's a pattern
00:12:33 --> 00:12:34 of overstatement that makes the judge question
00:12:34 --> 00:12:37 everything. You say you can't walk, but surveillance
00:12:37 --> 00:12:39 shows you walking to your car. You say you can't
00:12:39 --> 00:12:41 lift anything, but you just posted about helping
00:12:41 --> 00:12:44 a friend move. Each individual discrepancy might
00:12:44 --> 00:12:47 potentially be explainable. But as the judge
00:12:47 --> 00:12:48 starts to see these stack up, the cumulative
00:12:48 --> 00:12:51 effect can be devastating. So the pattern matters
00:12:51 --> 00:12:54 more than any single inconsistency. Yeah. And
00:12:54 --> 00:12:56 once credibility collapses, it can take the whole
00:12:56 --> 00:12:58 case with it. The judge stops crediting your
00:12:58 --> 00:13:01 pain testimony, starts discounting your descriptions
00:13:01 --> 00:13:03 of limitations, and suddenly the residual functional
00:13:03 --> 00:13:06 capacity, the assessment of what you can still
00:13:06 --> 00:13:08 do, shifts dramatically. You can go from can
00:13:08 --> 00:13:11 sit for four hours to can sit for six, and that
00:13:11 --> 00:13:13 two -hour difference is enough to put a lot of
00:13:13 --> 00:13:14 jobs back on the table that you can potentially
00:13:14 --> 00:13:17 do. Credibility doesn't just affect whether the
00:13:17 --> 00:13:20 judge believes you then. It affects the factual
00:13:20 --> 00:13:22 findings that drive the entire legal analysis.
00:13:22 --> 00:13:24 Right. And that's why it could be dispositive.
00:13:24 --> 00:13:27 But they have to do it correctly. If they don't
00:13:27 --> 00:13:28 properly document why they're finding certain
00:13:28 --> 00:13:31 things, it won't work. And courts take this seriously.
00:13:31 --> 00:13:33 If an ALJ is going to discount your testimony,
00:13:33 --> 00:13:35 they can't just say, I didn't believe her and
00:13:35 --> 00:13:38 move on. As an example, there was a Ninth Circuit
00:13:38 --> 00:13:41 case where... The Ninth Circuit didn't believe
00:13:41 --> 00:13:43 the ALJ. The ALJ had denied disability benefits,
00:13:43 --> 00:13:45 but the entire credibility analysis was essentially,
00:13:46 --> 00:13:48 I've summarized the medical evidence and the
00:13:48 --> 00:13:49 claimant's symptoms are not as bad as she says.
00:13:50 --> 00:13:52 Read what the court had to say about that. We
00:13:52 --> 00:13:56 hold an ALJ does not provide specific, clear,
00:13:56 --> 00:13:58 and convincing reasons for rejecting a claimant's
00:13:58 --> 00:14:01 testimony by simply reciting the medical evidence
00:14:01 --> 00:14:03 in support of his or her residual functional
00:14:03 --> 00:14:07 capacity determination. To ensure that our review
00:14:07 --> 00:14:10 of the ALJ's credibility determination is meaningful
00:14:10 --> 00:14:13 and that the claimant's testimony is not rejected
00:14:13 --> 00:14:16 arbitrarily, we require the ALJ to specify which
00:14:16 --> 00:14:19 testimony she finds not credible and then provide
00:14:19 --> 00:14:22 clear and convincing reasons, supported by evidence
00:14:22 --> 00:14:24 in the record, to support that credibility determination.
00:14:42 --> 00:14:48 So, she said, I don't believe her and then listed
00:14:48 --> 00:14:51 the medical evidence, but never connected the
00:14:51 --> 00:14:53 two, never said which specific testimony she
00:14:53 --> 00:14:56 rejected or which specific evidence contradicted
00:14:56 --> 00:14:58 it. Right. And the court was saying that's not
00:14:58 --> 00:15:00 enough. You have to identify the specific testimony
00:15:00 --> 00:15:03 you're rejecting and explain why. A summary of
00:15:03 --> 00:15:05 the medical evidence isn't the same as an explanation
00:15:05 --> 00:15:08 of why you don't believe the claimant. So that
00:15:08 --> 00:15:10 kind of seems like it should be obvious. Yeah,
00:15:10 --> 00:15:12 you might think that, but this pattern, these
00:15:12 --> 00:15:14 cursory credibility findings followed by a medical
00:15:14 --> 00:15:17 evidence summary, this was so common that courts
00:15:17 --> 00:15:19 had to keep saying it over and over again. And
00:15:19 --> 00:15:21 the regulatory framework now reinforces this.
00:15:22 --> 00:15:24 Stuff we read earlier says adjudicators must
00:15:24 --> 00:15:26 provide specific reasons for the weight given
00:15:26 --> 00:15:29 to the individual's symptoms. It must be consistent
00:15:29 --> 00:15:31 with and supported by the evidence and be clearly
00:15:31 --> 00:15:33 articulated so the individual and any subsequent
00:15:33 --> 00:15:35 reviewer can assess how the adjudicator evaluated
00:15:35 --> 00:15:38 the individual's symptoms. Okay. So the system
00:15:38 --> 00:15:40 is trying to discipline the credibility determination
00:15:40 --> 00:15:44 and force the adjudicator to show their work.
00:15:44 --> 00:15:46 Right. Because without that sort of discipline,
00:15:46 --> 00:15:49 this credibility determination just becomes a
00:15:49 --> 00:15:52 black box. The ALJ says not credible. Nobody
00:15:52 --> 00:15:54 knows why. And the reviewing court can determine
00:15:54 --> 00:15:56 whether these findings were based on legitimate
00:15:56 --> 00:15:58 inconsistencies or if this was just a gut feeling
00:15:58 --> 00:16:00 about whether this person looked like they were
00:16:00 --> 00:16:04 really in pain. So let's switch to the other
00:16:04 --> 00:16:07 half of why these outcomes can differ. At least
00:16:07 --> 00:16:09 the other half of what we're talking about this
00:16:09 --> 00:16:11 episode. There is certainly plenty more to come.
00:16:11 --> 00:16:13 Because even if you're perfectly credible, you
00:16:13 --> 00:16:15 still have to meet your burden of proof. Who
00:16:15 --> 00:16:18 bears the burden matters in every legal proceeding.
00:16:18 --> 00:16:20 But the default rule is usually straightforward.
00:16:21 --> 00:16:23 The party bringing the action has to prove their
00:16:23 --> 00:16:25 case. Right. And that's pretty much what the
00:16:25 --> 00:16:30 APA says. Here's 5 U .S .C. 556D. Okay. Except
00:16:30 --> 00:16:32 as otherwise provided by statute, the proponent
00:16:32 --> 00:16:36 of a rule or order has the burden of proof. Proponent
00:16:36 --> 00:16:39 bears the burden. It sounds straightforward enough.
00:16:39 --> 00:16:42 It can be, but you have to ask, who's the proponent?
00:16:42 --> 00:16:44 Because that can change depending on what kind
00:16:44 --> 00:16:47 of case you're in. In an enforcement case, OSHA
00:16:47 --> 00:16:49 is citing a company for a safety violation. In
00:16:49 --> 00:16:52 that case, the agency is the proponent. The agency
00:16:52 --> 00:16:54 is seeking an order imposing the penalty, so
00:16:54 --> 00:16:55 the agency bears the burden of proving the violation.
00:16:56 --> 00:16:58 And in a benefits case? In a benefits case, you
00:16:58 --> 00:17:00 are the proponent. You are seeking the order
00:17:00 --> 00:17:03 granting benefits. So you bear the burden. Same
00:17:03 --> 00:17:06 APA rule, same statutory language, but completely
00:17:06 --> 00:17:08 different practical consequences depending on
00:17:08 --> 00:17:10 which side of the table you're sitting on. So
00:17:10 --> 00:17:12 the burden follows whoever is asking the government
00:17:12 --> 00:17:16 to take action. Right. And in Social Security,
00:17:16 --> 00:17:18 Congress spelled out exactly what that burden
00:17:18 --> 00:17:22 looks like. Here's 42 U .S .C. 423D5. An individual
00:17:22 --> 00:17:24 shall not be considered to be under a disability
00:17:24 --> 00:17:28 unless he furnishes such medical and other evidence
00:17:28 --> 00:17:31 of the existence thereof as the commissioner
00:17:31 --> 00:17:34 of Social Security may require. Unless he furnishes
00:17:34 --> 00:17:37 such evidence. So not only do I bear the burden,
00:17:37 --> 00:17:39 the agency gets to define what evidence I need
00:17:39 --> 00:17:42 to bring. Yeah, that's the practical bite. You're
00:17:42 --> 00:17:44 the proponent, so you need to prove your case.
00:17:44 --> 00:17:46 And Social Security gets to decide what that
00:17:46 --> 00:17:48 proof looks like. But we've already talked about
00:17:48 --> 00:17:50 how Social Security is an inquisitorial system.
00:17:51 --> 00:17:54 The ALJ has an affirmative duty to develop the
00:17:54 --> 00:17:55 record, to get the evidence needed for a fair
00:17:55 --> 00:17:58 decision. We spent an entire episode on that.
00:17:58 --> 00:18:01 But you're also telling me that the claimant
00:18:01 --> 00:18:04 bears the burden of proof. The evidence is 50
00:18:04 --> 00:18:07 -50. The claimant loses, even though the ALJ
00:18:07 --> 00:18:09 was supposed to be helping develop the evidence.
00:18:09 --> 00:18:11 This is one of the deepest structural tensions
00:18:11 --> 00:18:14 in Social Security adjudication. Yeah, in civil
00:18:14 --> 00:18:17 law systems, the inquisitorial model doesn't
00:18:17 --> 00:18:19 work that way. When the judge is responsible
00:18:19 --> 00:18:21 for developing the evidence, the concept of burden
00:18:21 --> 00:18:25 on the claimant operates differently. The tribunal's
00:18:25 --> 00:18:27 obligation to find the truth means the system
00:18:27 --> 00:18:30 doesn't just shrug when the evidence is in equipose
00:18:30 --> 00:18:34 and say, you lose. Right. But our system borrowed
00:18:34 --> 00:18:36 some inquisitorial features without adopting
00:18:36 --> 00:18:39 the inquisitorial approach to burden. We gave
00:18:39 --> 00:18:41 the ALJ the duty to develop the record, but we
00:18:41 --> 00:18:44 kept the rule that the proponent bears the burden
00:18:44 --> 00:18:46 of persuasion. So if the ALJ's investigation
00:18:46 --> 00:18:49 produces a balanced record, some evidence of
00:18:49 --> 00:18:51 disability, some evidence of capability, the
00:18:51 --> 00:18:53 claimant loses. The system helps you build your
00:18:53 --> 00:18:56 case, but not necessarily enough. And if it doesn't,
00:18:56 --> 00:18:59 that's your problem. It really feels like the
00:18:59 --> 00:19:01 worst of both worlds. You get an investigator
00:19:01 --> 00:19:04 who might develop the evidence against you, but
00:19:04 --> 00:19:07 you still bear the burden as if you were in an
00:19:07 --> 00:19:09 adversarial system with your lawyer building
00:19:09 --> 00:19:12 your own case. Yes, this is a hybrid problem
00:19:12 --> 00:19:14 we were talking about in the acquisitorial model
00:19:14 --> 00:19:17 episode. The system inherited the risks of both
00:19:17 --> 00:19:19 parents, and the practical consequence is exactly
00:19:19 --> 00:19:22 what you'd predict. The burden placement determines
00:19:22 --> 00:19:24 the outcome in every closed case. If the evidence
00:19:24 --> 00:19:27 is 50 -50 in a Social Security case, you lose.
00:19:27 --> 00:19:29 You're the proponent and you didn't carry your
00:19:29 --> 00:19:31 burden. If it's 50 -50 in an OSHA enforcement
00:19:31 --> 00:19:34 case, the employer wins. The agency was the proponent
00:19:34 --> 00:19:36 and it didn't carry its burden. So same evidence,
00:19:37 --> 00:19:39 different outcomes, entirely because of who's
00:19:39 --> 00:19:42 the proponent. Yes. So the burden tells you who
00:19:42 --> 00:19:44 has to prove something. The standard of proof
00:19:44 --> 00:19:47 shows how convincing that evidence has to be.
00:19:47 --> 00:19:49 And administrative law has its own landscape
00:19:49 --> 00:19:53 here. So preponderance of the evidence is the
00:19:53 --> 00:19:57 common one. Right. It's most common. And so there
00:19:57 --> 00:19:59 we're thinking more likely than not, like 51
00:19:59 --> 00:20:01 percent. If the evidence tilts slightly in your
00:20:01 --> 00:20:04 favor, you've met the standard. And a lot of
00:20:04 --> 00:20:06 administrative cases use this. Social Security
00:20:06 --> 00:20:09 does. OSHA. This is what we use in standard employment
00:20:09 --> 00:20:12 disputes. So then what's the next level? All
00:20:12 --> 00:20:14 right, then we move to clear and convincing evidence.
00:20:14 --> 00:20:16 More than a preponderance, the evidence must
00:20:16 --> 00:20:19 be highly probable. Some immigration proceedings
00:20:19 --> 00:20:22 use this. Here's the contrast. Okay, the service
00:20:22 --> 00:20:24 has the burden of establishing by clear and convincing
00:20:24 --> 00:20:27 evidence that in the case of an alien who has
00:20:27 --> 00:20:29 been admitted to the United States, the alien
00:20:29 --> 00:20:32 is deportable. All right, so compare this to
00:20:32 --> 00:20:35 OSHA, which just has to prove its case by a preponderance.
00:20:35 --> 00:20:38 Immigration uses clear and convincing. OSHA uses
00:20:38 --> 00:20:48 preponderance. Interesting. So the standard theoretically
00:20:48 --> 00:20:51 tracks the severity of the consequences. Deportation
00:20:51 --> 00:20:53 here could mean returning to persecution and
00:20:53 --> 00:20:55 losing everything you've built. Congress decided
00:20:55 --> 00:20:57 that requires the government to be more certain.
00:20:58 --> 00:21:00 Ocean penalties are serious, but less catastrophic.
00:21:00 --> 00:21:03 Preponderance is sufficient. And beyond a reasonable
00:21:03 --> 00:21:05 doubt? This is criminal cases. Agencies can impose
00:21:05 --> 00:21:09 pretty serious penalties, fines, license revocations,
00:21:09 --> 00:21:12 even as we've seen deporting you, but they don't
00:21:12 --> 00:21:14 send you to prison, theoretically. Okay, here's
00:21:14 --> 00:21:17 what I keep thinking about. In a regular trial,
00:21:17 --> 00:21:19 a jury applies the standard of proof to evidence
00:21:19 --> 00:21:21 they're hearing for the first time. They have
00:21:21 --> 00:21:24 fresh eyes, but in the system we've been describing
00:21:24 --> 00:21:27 all season, the ALJ who applies the standard
00:21:27 --> 00:21:29 of proof is the same person. who developed the
00:21:29 --> 00:21:31 evidence, questioned the witnesses, and formed
00:21:31 --> 00:21:34 impressions throughout the investigation. Applying
00:21:34 --> 00:21:37 a preponderance when you've spent months building
00:21:37 --> 00:21:40 the record is a very different cognitive exercise
00:21:40 --> 00:21:43 than applying it when you're a juror hearing
00:21:43 --> 00:21:46 a cold case. Right. And that is a problem. This
00:21:46 --> 00:21:49 circles back to the confirmation bias and the
00:21:49 --> 00:21:51 ownership effects that we were talking about
00:21:51 --> 00:21:54 in that inquisitorial model episode. And the
00:21:54 --> 00:21:57 ALJ who ordered the consultative exam and reviewed
00:21:57 --> 00:21:59 the file for months. isn't applying the standard
00:21:59 --> 00:22:01 approved from a blank slate. There's no question
00:22:01 --> 00:22:03 there. They're applying it to evidence that they
00:22:03 --> 00:22:05 have a psychological investment in. The standard
00:22:05 --> 00:22:07 is supposed to be a neutral measuring stick,
00:22:07 --> 00:22:09 but the person holding the stick isn't neutral
00:22:09 --> 00:22:12 the way a juror would be. And that's still constitutionally
00:22:12 --> 00:22:14 permissible under Withrow. Yes, it's permissible.
00:22:14 --> 00:22:16 It might not be perfect, but it is permissible.
00:22:17 --> 00:22:20 So now let's put these together, the reason we're
00:22:20 --> 00:22:22 talking about both of them in this episode, because
00:22:22 --> 00:22:24 they don't operate in isolation. They can interact
00:22:24 --> 00:22:26 to determine outcomes. And we've already seen
00:22:26 --> 00:22:29 the credibility piece. So both Sarah and Michael
00:22:29 --> 00:22:32 from the opening, same herniated disc, same imaging,
00:22:33 --> 00:22:35 same burden of proof. The medical condition was
00:22:35 --> 00:22:37 identical and the credibility analysis wasn't.
00:22:37 --> 00:22:39 And that's what produced different outcomes.
00:22:40 --> 00:22:43 Right. So that's credibility doing its work.
00:22:43 --> 00:22:45 But now we can move to a system where testimony
00:22:45 --> 00:22:48 does different work. Asylum. Okay. Different
00:22:48 --> 00:22:50 system and a different burden. Right. In Social
00:22:50 --> 00:22:52 Security, as we've said, the person needs to
00:22:52 --> 00:22:55 prove they're disabled by preponderance. that
00:22:55 --> 00:22:57 it's just more likely than not. And even when
00:22:57 --> 00:22:59 credibility is shaky there, there's usually some
00:22:59 --> 00:23:01 sort of paper trail to fall back on. We probably
00:23:01 --> 00:23:03 have medical records. We might have imaging.
00:23:04 --> 00:23:06 We can have treatment notes, consultative exams.
00:23:06 --> 00:23:08 The objective evidence can carry a case even
00:23:08 --> 00:23:11 when the testimony is a little wobbly. OK, then
00:23:11 --> 00:23:13 what's the standard in an asylum case? Here,
00:23:13 --> 00:23:16 the applicant has to establish a well -founded
00:23:16 --> 00:23:18 fear of persecution on account of a protected
00:23:18 --> 00:23:21 ground, race, religion, nationality, political
00:23:21 --> 00:23:23 opinion or membership in a particular social
00:23:23 --> 00:23:25 group. And the Supreme Court said in Cardoso
00:23:25 --> 00:23:28 Fonseca that this can be satisfied by showing
00:23:28 --> 00:23:29 as little as a 10 percent chance of persecution.
00:23:30 --> 00:23:32 So the substantive standard is actually more
00:23:32 --> 00:23:34 generous than a preponderance. That sounds like
00:23:34 --> 00:23:37 it should be easier to win. It does on paper.
00:23:37 --> 00:23:39 But here's what can make asylum cases so different.
00:23:39 --> 00:23:43 In Social Security, Sarah had medical records,
00:23:43 --> 00:23:46 imaging, treatment history, potentially hundreds
00:23:46 --> 00:23:48 of pages of objective evidence. But in asylum,
00:23:49 --> 00:23:52 the applicant often has none of that. They might
00:23:52 --> 00:23:53 not have a police report from the country they
00:23:53 --> 00:23:55 fled. They might not have hospital records documenting
00:23:55 --> 00:23:59 an assault or government documents that prove
00:23:59 --> 00:24:00 the political activity that made them a target.
00:24:01 --> 00:24:04 And there can certainly be cases where the primary,
00:24:04 --> 00:24:05 if not the only evidence, is just their testimony.
00:24:06 --> 00:24:09 So credibility isn't just important. It's often
00:24:09 --> 00:24:13 the entire case. Yes, it can be. So let's take
00:24:13 --> 00:24:15 someone with Michael's credibility profile. He's
00:24:15 --> 00:24:17 the one who received Social Security Disability.
00:24:18 --> 00:24:20 He is consistent, specific, corroborated with
00:24:20 --> 00:24:24 documentation. So in an immigration case, that
00:24:24 --> 00:24:26 might mean that he's describing the persecution
00:24:26 --> 00:24:29 clearly, that the dates line up, that the account
00:24:29 --> 00:24:31 is internally consistent, and the immigration
00:24:31 --> 00:24:34 judge could credit his testimony. So a well -founded
00:24:34 --> 00:24:37 fear based on a 10 % threshold supported by credible
00:24:37 --> 00:24:39 testimony, he can clear the bar. And someone
00:24:39 --> 00:24:42 with Sarah's credibility profile? So she was
00:24:42 --> 00:24:45 the one who lost. Same claim, but she might have
00:24:45 --> 00:24:47 told the asylum officer that the attack happened
00:24:47 --> 00:24:49 in March and then told the judge it happened
00:24:49 --> 00:24:51 in April. Her written declaration could describe
00:24:51 --> 00:24:53 three attackers, and at the hearing she might
00:24:53 --> 00:24:56 say two. She might have difficulty making eye
00:24:56 --> 00:24:59 contact, and her affect could be flat when she's
00:24:59 --> 00:25:00 describing events that the judge thinks should
00:25:00 --> 00:25:03 be emotionally devastating. The judge could read
00:25:03 --> 00:25:05 these inconsistencies, evasiveness, and lack
00:25:05 --> 00:25:08 of emotion as credibility problems. But flat
00:25:08 --> 00:25:10 effect and fragmented memory could also be symptoms
00:25:10 --> 00:25:13 of the trauma she's describing. Yes, exactly.
00:25:13 --> 00:25:16 Emotional numbing, inconsistent recall, difficulty
00:25:16 --> 00:25:18 engaging with authority figures. These are clinical
00:25:18 --> 00:25:21 features of PTSD. But the immigration judge sees
00:25:21 --> 00:25:24 credibility red flags. And once you're in an
00:25:24 --> 00:25:26 asylum case, if the judge discounts the testimony,
00:25:27 --> 00:25:30 there might not be anything left. This is if
00:25:30 --> 00:25:32 we don't have medical records from the home country
00:25:32 --> 00:25:35 or police reports or imaging. So this generous
00:25:35 --> 00:25:37 standard doesn't necessarily help if the only
00:25:37 --> 00:25:39 evidence that could meet it is testimony that
00:25:39 --> 00:25:42 the judge has just discounted. OK, so a lower
00:25:42 --> 00:25:45 standard of proof, but higher dependence on credibility.
00:25:45 --> 00:25:48 Yes, that can be the interaction. In Social Security,
00:25:48 --> 00:25:49 the standard is higher, but the evidence base
00:25:49 --> 00:25:52 is broader. Credibility problems could be survivable
00:25:52 --> 00:25:54 because the paper record can also do independent
00:25:54 --> 00:25:57 work. In asylum, the standard might be more generous,
00:25:57 --> 00:25:59 but the evidence base can be narrower. Credibility
00:25:59 --> 00:26:02 problems can be fatal if there's nothing else
00:26:02 --> 00:26:04 that the judge can rely on. Same credibility
00:26:04 --> 00:26:06 problems, completely different consequences,
00:26:06 --> 00:26:08 depending on which system you're in. Yes. Credibility
00:26:08 --> 00:26:10 determines how much of your evidence the judge
00:26:10 --> 00:26:12 credits. The burden determines how much credited
00:26:12 --> 00:26:15 evidence you need. And the available evidence
00:26:15 --> 00:26:17 base determines whether anything can compensate
00:26:17 --> 00:26:20 if credibility falters. All three interact, and
00:26:20 --> 00:26:21 the interaction looks completely different depending
00:26:21 --> 00:26:23 on which agency's hearing room you're sitting
00:26:23 --> 00:26:26 in. OK, so here's what stays with me. The system
00:26:26 --> 00:26:28 asks you to carry the burden of proving your
00:26:28 --> 00:26:31 case in a proceeding where the judge is simultaneously
00:26:31 --> 00:26:34 helping you and evaluating you. And credibility
00:26:34 --> 00:26:37 is how the judge resolves that tension. It's
00:26:37 --> 00:26:40 the mechanism that decides whether the investigator
00:26:40 --> 00:26:43 judge's dual role works for you or against you.
00:26:43 --> 00:26:45 Yeah. So if the judge finds you credible, the
00:26:45 --> 00:26:47 inquisitorial features can help you. The judge
00:26:47 --> 00:26:49 is developing evidence to support your claim.
00:26:50 --> 00:26:51 If the judge doesn't find you credible, those
00:26:51 --> 00:26:53 same features can hurt you. The judge can develop
00:26:53 --> 00:26:55 evidence that undermines your claim, and you
00:26:55 --> 00:26:57 still bear the burden of persuasion. And the
00:26:57 --> 00:27:00 credibility finding is based on the ALJ sitting
00:27:00 --> 00:27:02 in the room with you, watching you testify, hearing
00:27:02 --> 00:27:05 your voice, reading your body language. That's
00:27:05 --> 00:27:07 why it matters that this is a live hearing and
00:27:07 --> 00:27:10 not just a paper review. Right. It matters that
00:27:10 --> 00:27:12 it's a live hearing. It matters which ALJ is
00:27:12 --> 00:27:15 the one conducting the hearing. And that raises
00:27:15 --> 00:27:17 a question that we spent two episodes circling
00:27:17 --> 00:27:19 without really asking. We've been looking at
00:27:19 --> 00:27:21 two specific factors, credibility and burden
00:27:21 --> 00:27:23 of proof, that shape what happens in the hearing
00:27:23 --> 00:27:25 room, but those are two inputs into a larger
00:27:25 --> 00:27:28 question. Which is what produces hearing outcomes
00:27:28 --> 00:27:30 in general. Right. Because if credibility is
00:27:30 --> 00:27:32 making this much difference, and the burden is
00:27:32 --> 00:27:34 interacting with credibility in this way, and
00:27:34 --> 00:27:36 different ALJs will assess credibility differently
00:27:36 --> 00:27:39 and apply the burden differently, then how much
00:27:39 --> 00:27:41 does the outcome depend on which specific ALJ
00:27:41 --> 00:27:44 ends up in the room with you? Same claim, same
00:27:44 --> 00:27:47 record, different judge. How different is the
00:27:47 --> 00:27:49 likely outcome? Right. That's the question we
00:27:49 --> 00:27:52 look at next. We've been looking at the inside
00:27:52 --> 00:27:54 of the hearing. Next episode, we step back and
00:27:54 --> 00:27:56 ask what hearing -level outcomes actually look
00:27:56 --> 00:27:58 like across the system, what determines them,
00:27:58 --> 00:28:00 how much variation there is, and what that tells
00:28:00 --> 00:28:03 us about what administrative adjudication actually
00:28:03 --> 00:28:05 produces. Credibility and burden of proof are
00:28:05 --> 00:28:07 two pieces of a larger picture. And I'm guessing
00:28:07 --> 00:28:10 the larger picture isn't reassuring. Yeah, the
00:28:10 --> 00:28:12 larger picture is that credibility and burden
00:28:12 --> 00:28:14 aren't the only things that matter, and maybe
00:28:14 --> 00:28:16 not even the things that matter most. What matters
00:28:16 --> 00:28:18 most may be structural features of the system
00:28:18 --> 00:28:20 that operate before either credibility or burden
00:28:20 --> 00:28:24 comes into play. That's the next episode. So
00:28:24 --> 00:28:26 that does it for today's episode on administrative
00:28:26 --> 00:28:29 remedies. Thank you for joining us today. Please,
00:28:29 --> 00:28:31 if you enjoy this podcast and enjoy this episode,
00:28:31 --> 00:28:35 give us a like on Spotify, iTunes, or whatever
00:28:35 --> 00:28:38 platform you're listening on. And be sure to
00:28:38 --> 00:28:40 tune in next time where we'll continue to dive
00:28:40 --> 00:28:42 into the contours of administrative law, because
00:28:42 --> 00:28:44 remember, you can't fix what you don't understand.