Until June 2024, the Social Security Administration was denying disability claims on the grounds that applicants could work as pneumatic tube operators — a job that functionally disappeared decades ago. The agency's catalog of occupations hadn't been updated since 1991. Congress noticed. Courts complained. The agency issued two emergency messages. The fix removed 114 jobs nobody was citing anyway and added a documentation requirement to 13 jobs people were. The vocational expert who cited pneumatic tube operator last year can cite it again next year, as long as they say an extra sentence.
That catalog isn't the problem. It's the symptom. In this episode, Gwen and Marc walk through what Social Security disability adjudication actually looks like when you run it two and a half million times a year:
- The five-step sequential evaluation that decides every claim — substantial gainful activity, severity, the listings, past work, and the step five question that wins or loses most cases: is there any other job in the national economy you could do?
- The grids — literal rows and columns where you plug in age, education, work history, and RFC, and the table tells you whether you're disabled. The Supreme Court blessed this trade in Heckler v. Campbell: uniformity over individualized judgment, explicitly because the alternative would "hinder needlessly an already overburdened agency"
- The age cliff: at fifty-four, the grids say not disabled. At fifty-five, same medical condition, same RFC, same education, same work history — disabled. The borderline rule that's supposed to soften this treats five months as too far away
- How every structural feature from the trilogy — the forty-six point judge-level variation, the weak internal review, the ex ante control mechanisms — runs through the credibility finding and the RFC, which determine where you land on the grids
- The Matthews problem at scale: the test counts administrative burden as a factor, and at two and a half million applications a year, that factor dominates the math. There's no doctrinal floor on how thin process can get once the system is big enough
People die waiting for hearings. The GAO and Social Security's own inspector general have documented it. At a nine-month average wait — an improvement from the fifteen months it was running in 2023 — that number is meaningful every year. That's not the system failing. That's the system working as designed, at volume.
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. All right, Mark, picture a job,
00:00:50 --> 00:00:53 pneumatic tube operator. You receive cylinders
00:00:53 --> 00:00:55 that arrive through a network of tubes running
00:00:55 --> 00:00:57 through a building. You unload whatever's inside,
00:00:58 --> 00:01:00 paperwork or small items. You route them to the
00:01:00 --> 00:01:02 right department and you send the tubes back.
00:01:02 --> 00:01:05 Sure, like what they use at pharmacies and banks
00:01:05 --> 00:01:07 at the drive -thru. Yeah, they still have a specific
00:01:07 --> 00:01:10 purpose, but what they don't really have are
00:01:10 --> 00:01:12 people dedicated solely to operating them all
00:01:12 --> 00:01:14 day long. In large department stores, hospitals,
00:01:14 --> 00:01:16 and office buildings, that used to be an actual
00:01:16 --> 00:01:19 job, doing that all day. All right. Let's talk
00:01:19 --> 00:01:22 about another one now. Nuts order. You sit at
00:01:22 --> 00:01:24 a conveyor belt and you separate the good nuts
00:01:24 --> 00:01:26 from the bad nuts as they go by, by hand. Yeah,
00:01:27 --> 00:01:28 the trained squirrels in Willy Wonka, right?
00:01:29 --> 00:01:33 So not really a thriving profession. Right. Except
00:01:33 --> 00:01:35 until June of 2024, the Social Security Administration
00:01:35 --> 00:01:39 was using both of these jobs and others like
00:01:39 --> 00:01:41 them as reasons to deny people disability benefits.
00:01:42 --> 00:01:45 OK, what do you mean using them? The last step
00:01:45 --> 00:01:47 of the disability evaluation, and we will get
00:01:47 --> 00:01:50 to this in detail, the agency has to show that
00:01:50 --> 00:01:52 even if you can't do your old job, there's some
00:01:52 --> 00:01:54 other job you could do. And when it's looking
00:01:54 --> 00:01:56 for that other job, it reaches for a federal
00:01:56 --> 00:01:59 catalog of occupations. And that catalog's last
00:01:59 --> 00:02:04 edition came out in 1991. 1991. Right. And for
00:02:04 --> 00:02:06 years, if you applied for disability and you
00:02:06 --> 00:02:08 couldn't go back to your old job, the agency
00:02:08 --> 00:02:10 might tell you, well, you could be a pneumatic
00:02:10 --> 00:02:13 tube operator or a nut sorter and deny your claim
00:02:13 --> 00:02:17 on that basis. So real people have actually been
00:02:17 --> 00:02:20 denied disability because a federal adjudicator
00:02:20 --> 00:02:24 said that they could potentially be a pneumatic
00:02:24 --> 00:02:27 tube operator. Thousands of times. The Washington
00:02:27 --> 00:02:29 Post did a piece on it. Congress looked at it.
00:02:29 --> 00:02:31 Courts have been complaining about this for years.
00:02:32 --> 00:02:34 And in 2024, they fixed it, right? Well, they
00:02:34 --> 00:02:37 did something. They issued two emergency messages
00:02:37 --> 00:02:41 on the same day. The first one identified 114
00:02:41 --> 00:02:44 occupations that it called isolated. These were
00:02:44 --> 00:02:46 jobs that only existed in very limited numbers,
00:02:47 --> 00:02:50 like astronomer or oral and maxillofacial surgeon
00:02:50 --> 00:02:53 or director of a state historical society. Adjudicators
00:02:53 --> 00:02:56 can't cite to any of these to deny a claim anymore.
00:02:56 --> 00:02:59 Those don't sound like the jobs we were just
00:02:59 --> 00:03:01 talking about, though. No, they're not. And that's
00:03:01 --> 00:03:04 the point. So most of those on the first list
00:03:04 --> 00:03:06 weren't jobs that people were citing in the first
00:03:06 --> 00:03:10 place. Nobody was saying, we understand you can't
00:03:10 --> 00:03:12 go back to your old job, but that's fine. You
00:03:12 --> 00:03:15 can just become an astronomer. Yeah. So what
00:03:15 --> 00:03:17 about the pneumatic tube operator or the nut
00:03:17 --> 00:03:20 sorter or the document preparer or the addresser?
00:03:20 --> 00:03:22 All right. Those are on the second list. Those
00:03:22 --> 00:03:25 are 13 occupations that had been showing up in
00:03:25 --> 00:03:27 denials and that federal courts had been questioning.
00:03:27 --> 00:03:30 So the second list is where the reform actually
00:03:30 --> 00:03:33 bites. Right. It doesn't prohibit citing those
00:03:33 --> 00:03:35 jobs, but it requires the ALJ to get additional
00:03:35 --> 00:03:37 evidence from the vocational expert that the
00:03:37 --> 00:03:40 job, as it is currently performed, is consistent
00:03:40 --> 00:03:43 with the claimant's functional capacity and exists
00:03:43 --> 00:03:46 in significant numbers. Okay, hold on. That's
00:03:46 --> 00:03:48 not a fix. That's a paperwork requirement. The
00:03:48 --> 00:03:52 same V .E. who was citing pneumatic tube operator
00:03:52 --> 00:03:56 in 2023 can now cite it in 2026 as long as they
00:03:56 --> 00:04:00 say the magic words. Hundreds of cases per year
00:04:00 --> 00:04:02 per judge. How much friction does adding a sentence
00:04:02 --> 00:04:06 to the testimony actually create? Well, potentially
00:04:06 --> 00:04:09 not that much, but that's the question of the
00:04:09 --> 00:04:12 whole episode. Notice what they didn't do in
00:04:12 --> 00:04:14 either message. They didn't update the catalog.
00:04:14 --> 00:04:16 They didn't revise any of the job descriptions.
00:04:16 --> 00:04:19 They didn't fix how the agency understood modern
00:04:19 --> 00:04:21 work. They pulled a few entries off one list
00:04:21 --> 00:04:23 and they added a documentation step to another.
00:04:24 --> 00:04:26 Although certainly if someone were denied because
00:04:26 --> 00:04:28 it was claimed that there were more than a thousand
00:04:28 --> 00:04:31 local pneumatic tube operating jobs, that would
00:04:31 --> 00:04:33 be something they could challenge. OK, I feel
00:04:33 --> 00:04:35 like I should be angrier about this than I am.
00:04:35 --> 00:04:38 Why am I not that angry? It might be because
00:04:38 --> 00:04:41 you're not applying it to the 2 .5 million disability
00:04:41 --> 00:04:43 applications that Social Security receives every
00:04:43 --> 00:04:47 year. 2 .5 million? We've talked about it before,
00:04:47 --> 00:04:48 but really we're talking about the population
00:04:48 --> 00:04:51 of Chicago applying for disability every year.
00:04:51 --> 00:04:53 And every one of those applications has to get
00:04:53 --> 00:04:56 decided. Someone has to look at the medical evidence,
00:04:56 --> 00:04:58 figure out whether this person can still work,
00:04:58 --> 00:05:01 and say yes or no. Okay, I think I see where
00:05:01 --> 00:05:03 you're going. The stuff we've been talking about
00:05:03 --> 00:05:05 this season with due process, the inquisitorial
00:05:05 --> 00:05:08 model, the ALJ developing the record, credibility
00:05:08 --> 00:05:11 findings, internal appeals, those are designed
00:05:11 --> 00:05:14 for the individual case. We were talking about
00:05:14 --> 00:05:17 one claimant, one record, one hearing, one decision.
00:05:17 --> 00:05:20 And today we're asking what happens to all of
00:05:20 --> 00:05:22 that when you run it two and a half million times
00:05:22 --> 00:05:26 a year? And the 1991 catalog is what it looks
00:05:26 --> 00:05:29 like. Right. The catalog isn't the problem. The
00:05:29 --> 00:05:32 catalog is the symptom. The problem is a system
00:05:32 --> 00:05:34 that has to decide all these cases and can't
00:05:34 --> 00:05:36 afford to look too closely at any one of them,
00:05:36 --> 00:05:38 including the question of whether the job the
00:05:38 --> 00:05:40 agency says you could still do exists in the
00:05:40 --> 00:05:43 form it's described. So this isn't a new doctrine
00:05:43 --> 00:05:46 episode. Right. It is a stress test episode.
00:05:46 --> 00:05:48 We've spent the season building a model of how
00:05:48 --> 00:05:50 adjudication is supposed to work. And Social
00:05:50 --> 00:05:53 Security is what happens when you run it at industrial
00:05:53 --> 00:05:56 volume. And this 1991 catalog is one of the places
00:05:56 --> 00:05:59 where the strain shows. Plus, it's also just
00:05:59 --> 00:06:01 generally interesting. So there are roughly two
00:06:01 --> 00:06:04 and a half million applications every year, and
00:06:04 --> 00:06:06 most of them get decided on paper at the initial
00:06:06 --> 00:06:08 stage. And most of those initial decisions are
00:06:08 --> 00:06:11 denials. So how many denials of that two and
00:06:11 --> 00:06:12 a half million are we talking about roughly?
00:06:12 --> 00:06:16 So they historically run 60 to 70 percent. So
00:06:16 --> 00:06:19 out of two and a half million applicants. A million
00:06:19 --> 00:06:22 and a half -ish are being told no in the first
00:06:22 --> 00:06:25 round before any hearing, before any judge, just
00:06:25 --> 00:06:27 based on the paper review by a state disability
00:06:27 --> 00:06:30 examiner working with the medical file. And then
00:06:30 --> 00:06:32 what happens to those denials? They could ask
00:06:32 --> 00:06:33 for a reconsideration, which is another paper
00:06:33 --> 00:06:35 review by a different examiner in the same state
00:06:35 --> 00:06:38 agency. Most reconsiderations affirm the denial.
00:06:39 --> 00:06:41 Only then do you get to ask for your hearing
00:06:41 --> 00:06:43 in front of the administrative law judge. So
00:06:43 --> 00:06:45 by the time you actually see a judge, you've
00:06:45 --> 00:06:48 already been told no twice. Right. And statistically,
00:06:48 --> 00:06:50 the people who may get to the hearing level are
00:06:50 --> 00:06:52 much more likely to win than people at the earlier
00:06:52 --> 00:06:54 stages, which is kind of telling on its own.
00:06:55 --> 00:06:58 That's a strange signal. The initial determinations
00:06:58 --> 00:07:00 are getting things wrong often enough that a
00:07:00 --> 00:07:02 meaningful percentage of them flip when someone
00:07:02 --> 00:07:04 actually listens. That would certainly be one
00:07:04 --> 00:07:06 reading of it. The agency would tell you that
00:07:06 --> 00:07:08 the cases look different by the hearing stage
00:07:08 --> 00:07:11 because by that point, more medical evidence
00:07:11 --> 00:07:13 has been developed. Both things are probably
00:07:13 --> 00:07:16 true, but yes, the paper review process at the
00:07:16 --> 00:07:17 front end is doing something the hearing keeps
00:07:17 --> 00:07:20 correcting. And how many hearings is that now?
00:07:20 --> 00:07:23 Hundreds of thousands a year. And these are conducted
00:07:23 --> 00:07:26 out of the more than 160 hearing offices scattered
00:07:26 --> 00:07:28 across the country. And their own performance
00:07:28 --> 00:07:33 dashboard put the backlog at about 330 hearings
00:07:33 --> 00:07:36 as of January 26, with an average wait time of
00:07:36 --> 00:07:38 about nine months, which is actually a big improvement.
00:07:39 --> 00:07:41 In 2023, the average was more like 15 months.
00:07:41 --> 00:07:45 And it was worse in fiscal year 2018 when it
00:07:45 --> 00:07:50 was 595 days. Wow. People wait over a year, sometimes
00:07:50 --> 00:07:54 years, multiple years for their hearing. Right.
00:07:54 --> 00:07:57 And so before we go further, nothing we're about
00:07:57 --> 00:07:59 to talk about is an accusation of misconduct.
00:07:59 --> 00:08:02 The ALJs, the disability examiners, the support
00:08:02 --> 00:08:04 staff, they're doing their jobs. The system itself
00:08:04 --> 00:08:07 is what's under stress. So when I hear a judge
00:08:07 --> 00:08:10 is deciding hundreds of these cases a year...
00:08:10 --> 00:08:12 This is not a criticism of the judge. That's
00:08:12 --> 00:08:15 their job. We talked about this in the acquisitorial
00:08:15 --> 00:08:18 model episode. The ALJ isn't a neutral referee
00:08:18 --> 00:08:20 listening to two sides. The ALJ is supposed to
00:08:20 --> 00:08:22 be developing the record, questioning witnesses,
00:08:23 --> 00:08:25 and deciding the case. So the judge is theoretically
00:08:25 --> 00:08:28 the prosecutor's job, the defense attorney's
00:08:28 --> 00:08:31 job, and the judge's job all at once. Right.
00:08:31 --> 00:08:33 And they get to do that several hundred times
00:08:33 --> 00:08:37 a year. So you can ask how deep the record realistically
00:08:37 --> 00:08:39 is going to be developed in any single case.
00:08:39 --> 00:08:42 The structural problem isn't that anyone is lazy
00:08:42 --> 00:08:45 or careless. It's that the model assumes an amount
00:08:45 --> 00:08:47 of attention per case that's just mathematically
00:08:47 --> 00:08:50 impossible at this volume. Yeah, that's part
00:08:50 --> 00:08:52 of what we're talking about this episode. All
00:08:52 --> 00:08:54 of this is in one way or another a response to
00:08:54 --> 00:08:57 that math. Okay, how do you actually decide in
00:08:57 --> 00:08:59 two and a half million cases? What's the framework?
00:09:00 --> 00:09:02 This is the five -step sequential evaluation.
00:09:02 --> 00:09:05 It is the doctrinal heart of how disability gets
00:09:05 --> 00:09:07 decided, and we haven't really talked about it
00:09:07 --> 00:09:12 before. Let's look at 20 CFR 404 0. The sequential
00:09:12 --> 00:09:15 evaluation process is a series of five steps
00:09:15 --> 00:09:19 that we follow in set order. If we can find you
00:09:19 --> 00:09:22 are disabled or not disabled at a step, we can
00:09:22 --> 00:09:24 make our determination or decision, and we don't
00:09:24 --> 00:09:27 go to the next step. If we cannot find that you
00:09:27 --> 00:09:30 are disabled or not disabled at a step, we go
00:09:30 --> 00:09:32 on to the next step. All right. So there was
00:09:32 --> 00:09:34 a previous episode where we talked about Kathleen.
00:09:34 --> 00:09:37 She was 54 living in Oklahoma. She'd worked 22
00:09:37 --> 00:09:40 years as a warehouse supervisor. She had degenerative
00:09:40 --> 00:09:42 disc disease and she'd gotten denied at the initial
00:09:42 --> 00:09:45 stage by a state DDS analyst she'd never met.
00:09:45 --> 00:09:47 Then she got denied again at reconsideration
00:09:47 --> 00:09:50 by a different analyst at the same agency. And
00:09:50 --> 00:09:52 we sat with her in her hearing. But what we weren't
00:09:52 --> 00:09:54 walking through is exactly what the determination
00:09:54 --> 00:09:57 was based on, what those five steps ask. That's
00:09:57 --> 00:10:01 what we do today. Okay, step one. Substantial
00:10:01 --> 00:10:03 gainful activity. Are you working right now above
00:10:03 --> 00:10:06 a certain income threshold? If yes, you're automatically
00:10:06 --> 00:10:09 denied. It doesn't matter how sick you are. What
00:10:09 --> 00:10:12 amount do you think that is? Oh, I would say
00:10:12 --> 00:10:16 it's got to be above the poverty rate. I'm going
00:10:16 --> 00:10:19 to say $40 . That's per month. Oh, per month.
00:10:20 --> 00:10:24 So per month, 40 divided by 12 would be
00:10:24 --> 00:10:28 3 . So I'm going to say $3 a month.
00:10:28 --> 00:10:32 All right. It is actually $1 per month.
00:10:32 --> 00:10:35 Wow. So if you make more than $1 per month,
00:10:35 --> 00:10:40 you're automatically denied. Yes. Wow. So here
00:10:40 --> 00:10:42 Kathleen lost her job. She used it for Family
00:10:42 --> 00:10:44 Medical Leave Act. She couldn't perform the essential
00:10:44 --> 00:10:47 functions anymore. So she's not working. She's
00:10:47 --> 00:10:50 earning nothing. So she passes step one. Okay,
00:10:50 --> 00:10:53 what's step two? Step two, we ask, is there a
00:10:53 --> 00:10:56 severe impairment? Does she have a medically
00:10:56 --> 00:10:58 determinable impairment that significantly limits
00:10:58 --> 00:11:01 basic work activities? Degenerative disc disease
00:11:01 --> 00:11:03 with imaging to back it up? Sure. That counts
00:11:03 --> 00:11:06 as severe. She passes step two. This isn't a
00:11:06 --> 00:11:09 really hard bar to pass. And step two is mostly
00:11:09 --> 00:11:11 a filter for people with really minor conditions.
00:11:12 --> 00:11:15 Right. So mild allergy, a sprained ankle, these
00:11:15 --> 00:11:18 won't make it past step two. But most serious
00:11:18 --> 00:11:20 medical conditions do. Step three is where things
00:11:20 --> 00:11:22 start to get interesting. OK. This is where we
00:11:22 --> 00:11:25 say, does your condition meet or equal one of
00:11:25 --> 00:11:28 the listings? The listings are Social Security's
00:11:28 --> 00:11:30 catalog of conditions that are presumptively
00:11:30 --> 00:11:33 disabling. If you can document that your impairment
00:11:33 --> 00:11:35 matches the specific medical criteria of one
00:11:35 --> 00:11:37 of these listed impairments, you're approved
00:11:37 --> 00:11:40 without having to go any further. About 10 to
00:11:40 --> 00:11:42 15 percent of approvals happen at step three.
00:11:42 --> 00:11:44 This would be like you've been diagnosed with
00:11:44 --> 00:11:46 Huntington's disease or ALS. They're not going
00:11:46 --> 00:11:48 to need a lot of time figuring out exactly what
00:11:48 --> 00:11:51 you can do. Okay. So most people don't clear
00:11:51 --> 00:11:53 step three. Right. Most people don't get approved
00:11:53 --> 00:11:56 at step three. We still have to keep going. So
00:11:56 --> 00:11:58 here for Kathleen, her degenerative disc disease
00:11:58 --> 00:12:01 is real, but it probably doesn't meet the specific
00:12:01 --> 00:12:03 listing criteria for spinal disorders. They require
00:12:03 --> 00:12:06 things like specific neurological findings, particular
00:12:06 --> 00:12:09 MRI evidence, a lot of really detailed specific
00:12:09 --> 00:12:12 stuff. She's not going to get approved at step
00:12:12 --> 00:12:14 three, but she's also not going to get denied,
00:12:14 --> 00:12:18 so we move on. Okay, what about step four? Can
00:12:18 --> 00:12:20 you do your past relevant work? Here, the agency
00:12:20 --> 00:12:23 is making what it calls a residual function capacity
00:12:23 --> 00:12:26 finding, an RFC. What can you still do given
00:12:26 --> 00:12:29 your limitations? Can you lift stuff? How much
00:12:29 --> 00:12:32 can you lift? How long can you stand? Can you
00:12:32 --> 00:12:34 bend and reach? Okay, what about for Kathleen?
00:12:36 --> 00:12:38 This can find that she can do light work, like
00:12:38 --> 00:12:41 maybe lifting up to 20 pounds occasionally, 10
00:12:41 --> 00:12:43 pounds frequently, standing and walking about
00:12:43 --> 00:12:46 six hours a day. She clearly cannot go back to
00:12:46 --> 00:12:48 warehouse supervision at that level. That job
00:12:48 --> 00:12:50 required serious lifting, prolonged standing,
00:12:50 --> 00:12:54 climbing. So she passes step four. And now we're
00:12:54 --> 00:12:56 at step five, which I'm guessing is the one that
00:12:56 --> 00:12:58 actually matters in most cases. Right. So this
00:12:58 --> 00:13:01 is where most claims are won or lost. Given this
00:13:01 --> 00:13:04 person's residual functional capacity, plus their
00:13:04 --> 00:13:06 age, their education, and their work history,
00:13:06 --> 00:13:09 is there other work in significant numbers in
00:13:09 --> 00:13:11 the national economy that they could do? Any
00:13:11 --> 00:13:14 other work at all? Right. In the entire national
00:13:14 --> 00:13:16 economy. This is where the vocational expert
00:13:16 --> 00:13:18 comes in. They testify at the hearing, and the
00:13:18 --> 00:13:21 ALJ will describe a hypothetical claimant. a
00:13:21 --> 00:13:25 54 -year -old with limited education and a residual
00:13:25 --> 00:13:27 functional capacity for light work, and ask the
00:13:27 --> 00:13:29 vocational expert what jobs someone like them
00:13:29 --> 00:13:32 could do. And the VE says, what exactly? So in
00:13:32 --> 00:13:34 a lot of these cases, they might say something
00:13:34 --> 00:13:37 like surveillance system monitor or document
00:13:37 --> 00:13:41 preparer or addresser. But surveillance system
00:13:41 --> 00:13:45 monitor, like watching security cameras? Yes.
00:13:45 --> 00:13:48 Where are these jobs coming from? Like, who actually
00:13:48 --> 00:13:51 has this list? This is the Dictionary of Occupational
00:13:51 --> 00:13:54 Titles, the 1991 catalog. The one we opened with.
00:13:54 --> 00:13:56 Yep. Now you can see where it actually operates
00:13:56 --> 00:14:00 in the framework. It is step five. The vocational
00:14:00 --> 00:14:02 expert at Kathleen's 2026 hearing can look at
00:14:02 --> 00:14:05 her file and say she could be a document preparer.
00:14:05 --> 00:14:08 Document preparer is in the catalog. The description
00:14:08 --> 00:14:11 is from 1991. This was before widespread internet,
00:14:11 --> 00:14:15 before most people had email. And the ALJ handling
00:14:15 --> 00:14:17 hundreds of cases generally isn't going to go
00:14:17 --> 00:14:20 behind the VE's testimony and litigate whether
00:14:20 --> 00:14:23 the document preparer is performed the same way
00:14:23 --> 00:14:26 it was in 1991. Right. Not at this volume. So
00:14:26 --> 00:14:29 the vocational expert cites the job, the ALJ
00:14:29 --> 00:14:31 accepts it, and the claim is denied at step five.
00:14:31 --> 00:14:34 Even after the 2024 cleanup. Right. The cleanup
00:14:34 --> 00:14:37 wouldn't reach this case. All it did was remove
00:14:37 --> 00:14:40 jobs that nobody was citing anyway. There's not
00:14:40 --> 00:14:43 really a lot of National Historical Society operators
00:14:43 --> 00:14:45 at the national level. The list that actually
00:14:45 --> 00:14:48 mattered was the 13 occupation one. And for those,
00:14:48 --> 00:14:51 the agency didn't even prohibit citing it. It
00:14:51 --> 00:14:53 just added a documentation requirement. At the
00:14:53 --> 00:14:55 volume we're talking about, a documentation requirement
00:14:55 --> 00:14:59 can get satisfied. And so the VE says yes, as
00:14:59 --> 00:15:01 currently performed. And here's my supplementary
00:15:01 --> 00:15:04 explanation. And the ALJ accepts it and writes
00:15:04 --> 00:15:07 the denial. So the underlying problem, the catalog
00:15:07 --> 00:15:11 that dates from the year AOL was born and years
00:15:11 --> 00:15:14 before most of our students were born. So this
00:15:14 --> 00:15:16 is being used to tell present day claimants what
00:15:16 --> 00:15:18 jobs they could do. It's still there. The cleanup
00:15:18 --> 00:15:20 changed the words that get spoken at the hearing,
00:15:20 --> 00:15:23 but it didn't change a lot of the outcome. And
00:15:23 --> 00:15:25 that is because of the grids. They are officially
00:15:25 --> 00:15:27 called the medical vocational guidelines, but
00:15:27 --> 00:15:30 everyone calls them the grids. And what are the
00:15:30 --> 00:15:34 grids? These are literal rows and columns. They
00:15:34 --> 00:15:36 have four inputs, your residual functional capacity
00:15:36 --> 00:15:39 level, your age, your education, and your work
00:15:39 --> 00:15:42 experience. You plug those four values in, you
00:15:42 --> 00:15:44 read across the row, and the table tells you
00:15:44 --> 00:15:47 whether you're disabled or not. So the table
00:15:47 --> 00:15:49 decides the case. For a huge category of step
00:15:49 --> 00:15:53 five cases, yes, the table decides. So that's
00:15:53 --> 00:15:55 a core tension from Goldberg, isn't it? The whole
00:15:55 --> 00:15:57 point of an individualized hearing is that the
00:15:57 --> 00:16:00 human being considers your particular circumstances.
00:16:01 --> 00:16:04 But what the grid does is it basically amateurizes
00:16:04 --> 00:16:07 your disability. It puts a matrix in the middle
00:16:07 --> 00:16:10 of that. Right. This is before we've had any
00:16:10 --> 00:16:12 sort of property interest attached. We're deciding
00:16:12 --> 00:16:14 whether somebody gets something. The due process
00:16:14 --> 00:16:17 protections don't happen. And this mattered when
00:16:17 --> 00:16:20 it was challenged. In Heckler v. Campbell, this
00:16:20 --> 00:16:24 is 1983, Carmen Campbell had a bad back and hypertension.
00:16:24 --> 00:16:26 She couldn't do her job as a hotel maid anymore.
00:16:26 --> 00:16:29 The ALJ applied the grids and denied her claim.
00:16:29 --> 00:16:31 She argued the grids violated her right to an
00:16:31 --> 00:16:34 individualized determination. Okay, and so what
00:16:34 --> 00:16:36 happened? The Supreme Court upheld the grids
00:16:36 --> 00:16:40 here. Ah, that's shocking. I know. The court
00:16:40 --> 00:16:43 said the inquiry requires the secretary to determine
00:16:43 --> 00:16:46 an issue that is not unique to each claimant.
00:16:46 --> 00:16:48 the types and numbers of jobs that exist in the
00:16:48 --> 00:16:50 national economy. This type of general factual
00:16:50 --> 00:16:54 issue may be resolved as fairly through rulemaking
00:16:54 --> 00:16:57 as by introducing the testimony of vocational
00:16:57 --> 00:16:59 experts at each disability hearing. As the Secretary
00:16:59 --> 00:17:02 has argued, the use of published guidelines brings
00:17:02 --> 00:17:05 with it a uniformity that previously had been
00:17:05 --> 00:17:07 perceived as lacking. To require the Secretary
00:17:07 --> 00:17:10 to re -litigate the existence of jobs in the
00:17:10 --> 00:17:12 national economy at each hearing would hinder
00:17:12 --> 00:17:15 needlessly an already overburdened agency. A
00:17:15 --> 00:17:18 lot of people will have really standard residual
00:17:18 --> 00:17:22 functional capacities, RFCs. And so the grid
00:17:22 --> 00:17:24 works well for those. It's when you're deviating
00:17:24 --> 00:17:26 from what they define it. That's when we need
00:17:26 --> 00:17:30 the vocational experts. All right. So that last
00:17:30 --> 00:17:32 line there, that it would hinder needlessly an
00:17:32 --> 00:17:37 already overburdened agency. That was 1983. So
00:17:37 --> 00:17:39 the court is openly saying, we're letting you
00:17:39 --> 00:17:42 do this because doing it the other way would
00:17:42 --> 00:17:45 crush the system. Yes. These grids are a deliberate
00:17:45 --> 00:17:47 trait. Congress and the agency looked at the
00:17:47 --> 00:17:50 scale of disability claims and decided that some
00:17:50 --> 00:17:52 part of the individualized determination had
00:17:52 --> 00:17:54 to give way to a rule -based table or the system
00:17:54 --> 00:17:57 wouldn't function. So the grids are admin law's
00:17:57 --> 00:18:01 clearest example of agencies replacing individualized
00:18:01 --> 00:18:03 judgment with systemized rules for the explicit
00:18:03 --> 00:18:06 reason of keeping up with volume. Yes. And Campbell
00:18:06 --> 00:18:09 gave that trait a constitutional blessing. Who
00:18:09 --> 00:18:12 gets hurt by that trade -off? It's the people
00:18:12 --> 00:18:14 who don't fit into the table cleanly. And the
00:18:14 --> 00:18:17 cleanest example of fitting is probably age.
00:18:17 --> 00:18:20 Kathleen is 54. There is a reason for that. That
00:18:20 --> 00:18:23 puts her at what the grids call closely approaching
00:18:23 --> 00:18:26 advanced age, the 50 to 54 bracket. If she were
00:18:26 --> 00:18:30 55, she'd be in advanced age. So on her exact
00:18:30 --> 00:18:33 facts, limited education, semi -skilled past
00:18:33 --> 00:18:35 work with limited transferable skills, light
00:18:35 --> 00:18:38 work residual functional capacity, the grids
00:18:38 --> 00:18:40 direct different outcomes for the two brackets.
00:18:40 --> 00:18:44 How is that different? So at 55, the grids direct
00:18:44 --> 00:18:47 a finding of disabled. At 54, it directs a finding
00:18:47 --> 00:18:50 of not disabled. So one year of age is the difference
00:18:50 --> 00:18:53 between a yes and a no. Yes. Same medical condition,
00:18:53 --> 00:18:56 same residual functional capacity, same education,
00:18:56 --> 00:18:59 same work history. The grid treats the move from
00:18:59 --> 00:19:02 54 to 55 as a structural break in the labor market.
00:19:02 --> 00:19:04 The working theory is someone closer to retirement
00:19:04 --> 00:19:07 has a meaningful, harder time learning new work.
00:19:07 --> 00:19:09 And the regulations bake that theory in as a
00:19:09 --> 00:19:12 categorical line. That's the grids doing what
00:19:12 --> 00:19:16 they were designed to do. Predictable, uniform,
00:19:16 --> 00:19:20 and quite honestly, brutal. Yes. The whole point
00:19:20 --> 00:19:23 is to remove judgment from this question. The
00:19:23 --> 00:19:25 cost is a cliff at the category boundary, which
00:19:25 --> 00:19:27 the regulations themselves noticed eventually
00:19:27 --> 00:19:31 and created a rule for it. Here, this is 20 CFR
00:19:31 --> 00:19:35 404 -1563. We will not apply the age categories
00:19:35 --> 00:19:38 mechanically in a borderline situation. If you
00:19:38 --> 00:19:41 are within a few days to a few months of reaching
00:19:41 --> 00:19:44 an older age category. and using the older age
00:19:44 --> 00:19:47 category would result in a determination or decision
00:19:47 --> 00:19:49 that you are disabled, we will consider whether
00:19:49 --> 00:19:52 to use the older age category after evaluating
00:19:52 --> 00:19:55 the overall impact of all the factors in your
00:19:55 --> 00:19:58 case. So if Kathleen is 54 and 10 months, the
00:19:58 --> 00:20:02 ALJ can then just round up her age to 55. The
00:20:02 --> 00:20:05 ALJ can consider rounding up. This rule is permissive.
00:20:05 --> 00:20:08 It is not automatic. And the agency reads a few
00:20:08 --> 00:20:11 days to a few months really narrowly. Howeck's
00:20:11 --> 00:20:13 guidance treats six months as the outer edge.
00:20:13 --> 00:20:16 And in 2025, the Fifth Circuit affirmed a denial
00:20:16 --> 00:20:19 where the claimant was five months shy at 55.
00:20:19 --> 00:20:22 Five months shy of 55 at his onset date. Five
00:20:22 --> 00:20:25 months wasn't close enough. Five months? Wow.
00:20:25 --> 00:20:28 The court held the ALJ wasn't required to apply
00:20:28 --> 00:20:30 the borderline rule. So the rule exists, but
00:20:30 --> 00:20:32 the agency's working definition of borderline
00:20:32 --> 00:20:34 is tight enough that a substantial number of
00:20:34 --> 00:20:36 claimants who are close to the next category
00:20:36 --> 00:20:39 still get their current chronological age outcome.
00:20:40 --> 00:20:44 So, Kathleen, at 54, how close to 55 does she
00:20:44 --> 00:20:47 need to be to get pushed over the edge? All right.
00:20:47 --> 00:20:49 54 and 11 months, she should be inside the borderline
00:20:49 --> 00:20:51 window. Any lawyer would argue for the older
00:20:51 --> 00:20:54 category and probably get it. 54 and 7 months?
00:20:55 --> 00:20:57 Well, we're really at the outer edge here. Some
00:20:57 --> 00:21:00 ALJs would apply it. Plenty wouldn't. The circuits
00:21:00 --> 00:21:02 are split on whether the failure to address this
00:21:02 --> 00:21:05 issue is itself reversible error. If she's 54
00:21:05 --> 00:21:07 and 2 months, the borderline rule isn't going
00:21:07 --> 00:21:09 to help her. She has to win on the merits at
00:21:09 --> 00:21:12 light work residual functional capacity in front
00:21:12 --> 00:21:14 of a vocational expert who's about to cite document
00:21:14 --> 00:21:18 preparer. So the grid's uniformity has a softening
00:21:18 --> 00:21:20 rule built into it. And the softening rule has
00:21:20 --> 00:21:23 its own categorical line. And Kathleen is on
00:21:23 --> 00:21:26 the wrong side of that one, too. Right. It's
00:21:26 --> 00:21:28 worth noting that somebody can also partially
00:21:28 --> 00:21:31 win. The ALJ might say they are disabled as of
00:21:31 --> 00:21:34 their 55th birthday. But this is how the system
00:21:34 --> 00:21:36 handles its own brittleness. It adds a rule.
00:21:36 --> 00:21:38 The rule has its own edges. The cliff doesn't
00:21:38 --> 00:21:41 go away. It just moves. Okay. We spent three
00:21:41 --> 00:21:43 episodes on how the structural picture works.
00:21:44 --> 00:21:46 How does it actually land here? I mean, what
00:21:46 --> 00:21:48 does this trilogy look like when you run it through
00:21:48 --> 00:21:50 two and a half million cases per year? So you
00:21:50 --> 00:21:53 get the numbers we were looking at in that first
00:21:53 --> 00:21:56 episode. The ALJ approval rates can range from
00:21:56 --> 00:22:00 below 20 % to above 80%. Same agency, same regulations,
00:22:00 --> 00:22:03 same five steps, same grid, which means that
00:22:03 --> 00:22:05 two claimants with essentially identical files
00:22:05 --> 00:22:07 can get different outcomes based on which judge
00:22:07 --> 00:22:09 they happen to draw. All right, we covered that
00:22:09 --> 00:22:11 as a structural claim, but what does it look
00:22:11 --> 00:22:14 like for Kathleen? Last week, we talked about
00:22:14 --> 00:22:17 Judge Williams. This was the approval rate around
00:22:17 --> 00:22:20 the office median. Disc disease claim that she
00:22:20 --> 00:22:23 had approved and the quality review memo three
00:22:23 --> 00:22:25 months later that taught her something about
00:22:25 --> 00:22:27 what the system considers adequate. So if we
00:22:27 --> 00:22:31 put Kathleen in front of her in 2026, after a
00:22:31 --> 00:22:33 decade of those memos accumulating, whereas if
00:22:33 --> 00:22:36 we put her in 2010 before any of them, same medical
00:22:36 --> 00:22:38 record, same testimony, this would even be the
00:22:38 --> 00:22:41 same ALJ, but we could have a different system
00:22:41 --> 00:22:44 around her. And the outcome then also moves.
00:22:44 --> 00:22:46 Right. And it can move pretty dramatically. That's
00:22:46 --> 00:22:49 what we were talking about last week. Because
00:22:49 --> 00:22:52 Judge Williams in 2096 has absorbed a decade
00:22:52 --> 00:22:54 of guidance, training, and quality review feedback
00:22:54 --> 00:22:57 that the Judge Williams of 2010 hadn't seen yet.
00:22:57 --> 00:23:00 Same judge, same evidence, but the system around
00:23:00 --> 00:23:03 the judge tilted. Now let's hold the year steady
00:23:03 --> 00:23:06 and run the other axis. She's in 2026 with two
00:23:06 --> 00:23:08 different judges. She testifies she can only
00:23:08 --> 00:23:10 stand for about 20 minutes before the pain gets
00:23:10 --> 00:23:12 severe and that she has to lie down a couple
00:23:12 --> 00:23:14 of times during the day and her pain medication
00:23:14 --> 00:23:16 makes her foggy. The objective medical evidence,
00:23:16 --> 00:23:18 the MRI, is the same in front of both judges.
00:23:18 --> 00:23:21 But? But Judge A finds her testimony credible.
00:23:22 --> 00:23:24 The residual functional capacity ends up more
00:23:24 --> 00:23:27 restrictive. With her age and education and limited
00:23:27 --> 00:23:29 transferable skills from the warehouse job, she
00:23:29 --> 00:23:31 can land in a category where the - Grids direct
00:23:31 --> 00:23:34 to find disabled and she gets approved. Judge
00:23:34 --> 00:23:36 B might find the same testimony only partially
00:23:36 --> 00:23:40 credible. And so we'd come out as a residual
00:23:40 --> 00:23:42 functional capacity of light work with some qualifications.
00:23:43 --> 00:23:45 The grids say not disabled and she's denied.
00:23:45 --> 00:23:48 OK, so the same woman with the same medical record,
00:23:48 --> 00:23:50 but with different outcomes because of different
00:23:50 --> 00:23:53 years. So that was different outcomes because
00:23:53 --> 00:23:55 of different judges. OK, same woman with the
00:23:55 --> 00:23:58 same medical record, but different outcomes because
00:23:58 --> 00:24:00 of different judges. Right. And that judge who
00:24:00 --> 00:24:01 denied her wouldn't have inherently done anything
00:24:01 --> 00:24:04 wrong. They might have written a decision citing
00:24:04 --> 00:24:06 the medical evidence and explained why they found
00:24:06 --> 00:24:09 the testimony only partially credible and then
00:24:09 --> 00:24:11 apply the grids. On review, that credibility
00:24:11 --> 00:24:14 finding gets substantial deference. So all of
00:24:14 --> 00:24:15 the structural features we talked about across
00:24:15 --> 00:24:18 the trilogy, the horizontal variation, the weak
00:24:18 --> 00:24:21 internal review, the ex -ante mechanisms, they
00:24:21 --> 00:24:23 all run through the credibility finding and the
00:24:23 --> 00:24:26 RFC, which determine what the grids then output.
00:24:27 --> 00:24:29 Right. This is why social security outcomes look
00:24:29 --> 00:24:32 the way they do. The structural picture isn't
00:24:32 --> 00:24:34 abstract. We have this five -step framework,
00:24:34 --> 00:24:36 and the grids give it a specific funnel at the
00:24:36 --> 00:24:39 end. Credibility determines what evidence counts.
00:24:39 --> 00:24:41 That leads to what you have as a residual functional
00:24:41 --> 00:24:44 capacity, and that determines where we land on
00:24:44 --> 00:24:47 the grids. So whatever is shaping the ALJ's approach
00:24:47 --> 00:24:49 to credibility and the residual functional...
00:24:49 --> 00:24:52 capacity, like their experience in the local
00:24:52 --> 00:24:54 office culture and quality review environment,
00:24:54 --> 00:24:57 those shape the outcomes. And the data on claimants
00:24:57 --> 00:25:00 who don't make it to the end? So the GAO and
00:25:00 --> 00:25:02 Social Security's own inspector general have
00:25:02 --> 00:25:04 both reported on claimants dying while waiting
00:25:04 --> 00:25:07 for a hearing, which makes sense. This is a process
00:25:07 --> 00:25:11 people only start when they're not 100%. So at
00:25:11 --> 00:25:13 current processing times with a nine -month average
00:25:13 --> 00:25:17 and some offices running longer than that, the
00:25:17 --> 00:25:18 number of people who die during the pendency
00:25:18 --> 00:25:20 of their claim is going to be meaningful every
00:25:20 --> 00:25:22 year. And that's not the system failing in some
00:25:22 --> 00:25:24 exotic way. That's the system working as described
00:25:24 --> 00:25:27 at volume with a better wait time than it used
00:25:27 --> 00:25:30 to be. Okay. Everything we built this season
00:25:30 --> 00:25:33 shows up in this one system. Let's walk through
00:25:33 --> 00:25:38 how it does. What a great idea. Here's the doctrinal
00:25:38 --> 00:25:42 point anchoring all of it. Once disability benefits
00:25:42 --> 00:25:44 are awarded, they are a statutory entitlement
00:25:44 --> 00:25:46 that the Constitution is going to protect. That
00:25:46 --> 00:25:49 was Goldberg, Roth, and then Matthews itself.
00:25:49 --> 00:25:51 If you have benefits and the government wants
00:25:51 --> 00:25:54 to take them away, due process attaches. You're
00:25:54 --> 00:25:56 entitled to notice. You're entitled to be heard.
00:25:56 --> 00:25:58 The Constitution has things to say about how
00:25:58 --> 00:26:02 that has to happen. And once it's awarded, that's
00:26:02 --> 00:26:04 the termination cases? Right. So Matthews v.
00:26:04 --> 00:26:06 Eldridge was a termination case. He was already
00:26:06 --> 00:26:08 receiving benefits when Social Security moved
00:26:08 --> 00:26:11 to cut them off. That's when the three -factor
00:26:11 --> 00:26:13 balancing test got applied. What the court was
00:26:13 --> 00:26:15 deciding was how much process was constitutionally
00:26:15 --> 00:26:17 required before the government could take away
00:26:17 --> 00:26:20 something elders already had. Okay, and the initial
00:26:20 --> 00:26:22 application is different. Constitutionally different.
00:26:23 --> 00:26:25 So the first -time applicant doesn't have a property
00:26:25 --> 00:26:27 interest. There's no entitlement to a benefit
00:26:27 --> 00:26:29 you haven't been awarded. You have a statutory
00:26:29 --> 00:26:32 right to whatever process Congress put in the
00:26:32 --> 00:26:35 statute. Paper review, reconsideration, the ALJ
00:26:35 --> 00:26:37 hearing, appeals counsel, eventually federal
00:26:37 --> 00:26:39 court. But those are procedural rights Congress
00:26:39 --> 00:26:42 chose to give. The Constitution isn't requiring
00:26:42 --> 00:26:44 them. It's not requiring much of anything at
00:26:44 --> 00:26:46 the initial stage. So the two and a half million
00:26:46 --> 00:26:49 initial applications aren't getting a constitutional
00:26:49 --> 00:26:51 hearing. They're getting a statutory one. Yes.
00:26:51 --> 00:26:53 And it's going to be thinner. And that's a design
00:26:53 --> 00:26:57 choice that is driven in part by volume. So if
00:26:57 --> 00:27:00 we run Matthews over it, not for those initial
00:27:00 --> 00:27:02 applications, but for what happens when someone's
00:27:02 --> 00:27:04 in the system and the agency wants to deny continuing
00:27:04 --> 00:27:07 benefits or try and terminate them or recoup
00:27:07 --> 00:27:09 overpayments, those are the cases where the three
00:27:09 --> 00:27:12 -factor test actually does work. So Matthews
00:27:12 --> 00:27:14 balances the private interest, the risk of erroneous
00:27:14 --> 00:27:16 deprivation with additional procedure, and the
00:27:16 --> 00:27:19 government's administrative burden. Right. We
00:27:19 --> 00:27:21 plug the numbers in. The private interest, pretty
00:27:21 --> 00:27:23 big. These are people losing benefits they've
00:27:23 --> 00:27:25 been living on. I would say enormous, but the
00:27:25 --> 00:27:26 court has said. It is inherently not enormous.
00:27:27 --> 00:27:30 The risk of erroneous deprivation. It's demonstrably
00:27:30 --> 00:27:33 real. The GAO has documented that it's real.
00:27:33 --> 00:27:35 And the administrative burden of more individualized
00:27:35 --> 00:27:38 process. This is where the burden can get staggering.
00:27:39 --> 00:27:41 Continuing disability reviews alone run somewhere
00:27:41 --> 00:27:44 between one and a half and two million a year.
00:27:44 --> 00:27:47 So overpayment cases, there's hundreds of thousands
00:27:47 --> 00:27:49 more of those. The post -award population that
00:27:49 --> 00:27:52 Matthews actually governs is its own multi -million
00:27:52 --> 00:27:56 case per year system. And when you balance those
00:27:56 --> 00:27:59 three things honestly at that volume, you tend
00:27:59 --> 00:28:02 to get this. Yes, you get these truncated termination
00:28:02 --> 00:28:05 procedures. You get CDR processes that mostly
00:28:05 --> 00:28:07 run on paper, overpayment recruitment that starts
00:28:07 --> 00:28:09 before the claimant has meaningfully been heard,
00:28:09 --> 00:28:12 and an appellate path that can take years. The
00:28:12 --> 00:28:14 Constitution is in the room applying Matthews,
00:28:14 --> 00:28:16 and Matthews is doing what it does, which is
00:28:16 --> 00:28:19 ballots. And what it produces at this volume
00:28:19 --> 00:28:21 is a process that's much thinner than you might
00:28:21 --> 00:28:24 imagine. Matthews itself was a Social Security
00:28:24 --> 00:28:26 disability case. The court knew it was setting
00:28:26 --> 00:28:29 the rules for federal benefits program processing
00:28:29 --> 00:28:31 hundreds of thousands of terminations a year.
00:28:32 --> 00:28:35 It wasn't sitting there imagining one isolated
00:28:35 --> 00:28:38 termination case. Right. The court built the
00:28:38 --> 00:28:40 administrative burden into the test as the third
00:28:40 --> 00:28:42 factor precisely because it was thinking about
00:28:42 --> 00:28:45 these high volume benefit systems. Scale isn't
00:28:45 --> 00:28:47 an accident in Matthews. It is part of the intentional
00:28:47 --> 00:28:50 design. And so the third factor was designed
00:28:50 --> 00:28:53 to then count the volume. Yes. And it was designed
00:28:53 --> 00:28:55 to do that from the start. But what has changed
00:28:55 --> 00:28:59 since 1976 is the ratio. The disability adjudication
00:28:59 --> 00:29:01 system today is an order of magnitude bigger
00:29:01 --> 00:29:04 than the one the court was looking at. The initial
00:29:04 --> 00:29:06 applications, the CDRs, the terminations, the
00:29:06 --> 00:29:09 overpayments, same test, but a much bigger denominator.
00:29:10 --> 00:29:12 So the doctrinal question isn't whether Matthews
00:29:12 --> 00:29:15 was misapplied. It's whether a test that counts
00:29:15 --> 00:29:17 administrative burden as a factor at all can
00:29:17 --> 00:29:20 ever produce a result that requires more process
00:29:20 --> 00:29:22 once the system is big enough that the burden
00:29:22 --> 00:29:25 dominates the math. Yeah. If one of those factors
00:29:25 --> 00:29:28 is going to be the administrative burden, then
00:29:28 --> 00:29:30 eventually at a sufficient scale, that factor
00:29:30 --> 00:29:33 will tend to outweigh or almost outweigh everything
00:29:33 --> 00:29:35 on the other side. Not because the test is being
00:29:35 --> 00:29:37 misapplied, but because this is the way it was
00:29:37 --> 00:29:40 built. The court accepted scale as a legitimate
00:29:40 --> 00:29:42 counterweight from the beginning. And the test
00:29:42 --> 00:29:45 doesn't have a built -in floor. Right. It tells
00:29:45 --> 00:29:47 you you need to balance. It doesn't tell you
00:29:47 --> 00:29:50 that some minimum amount of process is required
00:29:50 --> 00:29:52 regardless of what the balance produces. There's
00:29:52 --> 00:29:55 no real doctrinal limit on how thin process can
00:29:55 --> 00:29:57 become if the system is big enough to make the
00:29:57 --> 00:30:00 burden factor dominant. And let's be clear, what
00:30:00 --> 00:30:02 we've been talking about so far this episode
00:30:02 --> 00:30:05 is the largest administrative adjudication system
00:30:05 --> 00:30:08 in this country. It is. It is big, but it is
00:30:08 --> 00:30:11 not the only big one. So next episode, the last
00:30:11 --> 00:30:14 official episode of the season until slaughter
00:30:14 --> 00:30:17 comes out, is the other major deep dive we're
00:30:17 --> 00:30:20 doing on immigration adjudication. And specifically,
00:30:20 --> 00:30:22 we're talking about asylum. It's a different
00:30:22 --> 00:30:24 system, a different structure, and the constitutional
00:30:24 --> 00:30:27 stakes are higher. Social security is about income.
00:30:27 --> 00:30:29 Immigration is about whether you get to stay
00:30:29 --> 00:30:31 in the country. You might accept the procedural
00:30:31 --> 00:30:34 protections would be stronger there, but. Surprise,
00:30:34 --> 00:30:36 they are not. They are weaker, and the volume
00:30:36 --> 00:30:40 problems get worse, not better. So that does
00:30:40 --> 00:30:42 it for today's episode on administrative remedies.
00:30:42 --> 00:30:45 Thank you for joining us today. Please, if you
00:30:45 --> 00:30:47 enjoy this podcast and enjoy this episode, give
00:30:47 --> 00:30:51 us a like on Spotify, iTunes, or whatever platform
00:30:51 --> 00:30:54 you're listening on. And be sure to tune in next
00:30:54 --> 00:30:56 time where we'll continue to dive into the contours
00:30:56 --> 00:30:58 of administrative law, because remember, you
00:30:58 --> 00:31:00 can't fix what you don't understand.