An insurance adjuster spends thirty minutes on your roof, photographs what they photograph, and writes "minor cosmetic damage" instead of "structural compromise." That characterization is now in the record — and every reviewer after that is seeing the damage through that adjuster's eyes.
Gwen and Marc follow a single person — Kathleen, a warehouse supervisor with degenerative disc disease — through every stage of the Social Security disability system, from the field office application to federal court review. Along the way, every doctrine from Season 2 shows up on the timeline: the Roth property interest gap that leaves initial applicants without constitutional protection, the Mathews balancing test that said live hearings weren't required, the inquisitorial model that makes the ALJ simultaneously investigator and judge, and the substantial evidence standard that makes the record nearly untouchable on appeal.
The episode then contrasts Kathleen's years-long journey with the enforcement side — what happens when the government comes after a company — where constitutional protections, legal counsel, and procedural leverage appear from day one.
The hearing matters. But the case was shaped long before anyone walked into the room.
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 --> 00:00:51 this series. Mark, last year, one of Jeremy's
00:00:51 --> 00:00:54 friends had a tree fall on their house and they
00:00:54 --> 00:00:56 went back and forth with the insurance company
00:00:56 --> 00:00:58 for months. It was an absolute nightmare. Yeah,
00:00:58 --> 00:01:01 they can be terrible, even when things are really
00:01:01 --> 00:01:04 much smaller. Hale hits the roof. You call the
00:01:04 --> 00:01:06 insurance company. Then you wait for the adjuster.
00:01:06 --> 00:01:09 The adjuster shows up. He spends maybe 30 minutes
00:01:09 --> 00:01:12 at your house, walks on the roof. And even if
00:01:12 --> 00:01:14 they get on the roof and they take some photos,
00:01:14 --> 00:01:17 poke a few shingles, looks at the gutters. Yeah.
00:01:17 --> 00:01:19 And then they just go back to the truck and write
00:01:19 --> 00:01:22 the report. And what do you get? You get a number.
00:01:23 --> 00:01:26 We estimate 8 in covered damage. And you're
00:01:26 --> 00:01:28 standing in the kitchen looking at water stains
00:01:28 --> 00:01:30 on the ceiling thinking, that doesn't even come
00:01:30 --> 00:01:33 close to all of the costs that this is going
00:01:33 --> 00:01:37 to have. So here's what's important. The report
00:01:37 --> 00:01:39 the adjuster is creating isn't just a number.
00:01:39 --> 00:01:42 It's an inventory of what the adjuster saw and,
00:01:42 --> 00:01:45 importantly, what they didn't see or at least
00:01:45 --> 00:01:47 didn't document. If they didn't photograph the
00:01:47 --> 00:01:49 damage in the back bedroom, it's not in the report.
00:01:50 --> 00:01:52 If they wrote minor cosmetic damage instead of
00:01:52 --> 00:01:55 structural compromise to decking, that characterization
00:01:55 --> 00:01:57 of minor cosmetic damage is now permanently in
00:01:57 --> 00:02:01 the record. So you can dispute it. You can call
00:02:01 --> 00:02:04 the insurance company. They can send a second
00:02:04 --> 00:02:07 adjuster out, or sometimes they just have a desk
00:02:07 --> 00:02:09 reviewer look at the first adjuster's photos
00:02:09 --> 00:02:11 and report, and they make a determination from
00:02:11 --> 00:02:14 there. So then that desk reviewer is reading
00:02:14 --> 00:02:16 the first adjuster's report. They're seeing the
00:02:16 --> 00:02:18 damage through that adjuster's eyes. They're
00:02:18 --> 00:02:21 seeing the photos that that adjuster took. And
00:02:21 --> 00:02:23 they're seeing how that adjuster described it.
00:02:24 --> 00:02:26 Again, if the first adjuster didn't document
00:02:26 --> 00:02:28 it, the desk reviewer certainly won't know it's
00:02:28 --> 00:02:30 there. So the second review then comes back about
00:02:30 --> 00:02:34 the same, maybe a few hundred dollars more. Now
00:02:34 --> 00:02:36 you can hire a public adjuster or a contractor
00:02:36 --> 00:02:39 to do their own inspection. And they say the
00:02:39 --> 00:02:42 real damage is $24 . So then you evoke the
00:02:42 --> 00:02:45 appraisal clause in your policy. And that process,
00:02:45 --> 00:02:48 that can feel like. The moment you finally have
00:02:48 --> 00:02:51 your own expert, there's a neutral umpire. This
00:02:51 --> 00:02:53 should be a fair, independent evaluation of the
00:02:53 --> 00:02:55 actual damage. OK, but what's on the table when
00:02:55 --> 00:02:57 the umpire sits down? Then they're looking at
00:02:57 --> 00:02:59 two competing estimates. And one of them, the
00:02:59 --> 00:03:02 insurance companies, was built on a visit immediately
00:03:02 --> 00:03:05 after the incident happened. What the first adjuster
00:03:05 --> 00:03:07 saw, what they photographed, how they characterized
00:03:07 --> 00:03:10 it. Your side is trying to overcome that initial
00:03:10 --> 00:03:13 framing. And this can feel like the main event,
00:03:13 --> 00:03:15 but the initial 30 -minute visit shaped everything
00:03:15 --> 00:03:19 that then came after. Exactly. Everything after
00:03:19 --> 00:03:21 it, the desk review, your dispute, the appraisal,
00:03:21 --> 00:03:23 it's all shaped by what that one person documented
00:03:23 --> 00:03:26 in half an hour months earlier. And by the time
00:03:26 --> 00:03:28 you get your independent evaluation and get to
00:03:28 --> 00:03:30 this point, you've been living with a tarp on
00:03:30 --> 00:03:32 your roof, water damage that's getting worse,
00:03:32 --> 00:03:34 and you're fighting a record that was written
00:03:34 --> 00:03:36 before you even understood what was happening.
00:03:36 --> 00:03:38 So I'm guessing this isn't really about roofs
00:03:38 --> 00:03:41 then. It is not. It's about what happens every
00:03:41 --> 00:03:44 time a bureaucratic system processes a claim.
00:03:44 --> 00:03:46 There's a stage everyone thinks of as their hearing,
00:03:46 --> 00:03:48 the moment in front of a real decision maker.
00:03:48 --> 00:03:50 And it matters. But by the time you get there,
00:03:50 --> 00:03:52 critical parts of the record have been built.
00:03:52 --> 00:03:55 The claim has been framed and the most consequential
00:03:55 --> 00:03:57 decisions were already made at stages where you
00:03:57 --> 00:03:58 had the least help and the least protection.
00:03:59 --> 00:04:02 Today, we follow a case through that whole process.
00:04:02 --> 00:04:05 One person, one system, start to finish. We're
00:04:05 --> 00:04:07 using social security disability because it touches
00:04:07 --> 00:04:09 more people than almost any other adjudication
00:04:09 --> 00:04:11 system in the country, and because the stakes
00:04:11 --> 00:04:14 there are about as personal as it gets. We'll
00:04:14 --> 00:04:16 come back for a deeper dive into social security
00:04:16 --> 00:04:18 itself later in the season. Today is about mapping
00:04:18 --> 00:04:21 the path, seeing where power gets exercised,
00:04:21 --> 00:04:22 where the doctrines we've been studying actually
00:04:22 --> 00:04:24 bite, and where the gaps are. We're going to
00:04:24 --> 00:04:28 start out with a hypothetical person called Kathleen.
00:04:29 --> 00:04:32 She's 54. She lives in Oklahoma. She's worked
00:04:32 --> 00:04:34 as a warehouse supervisor for 22 years. And now
00:04:34 --> 00:04:37 she's developed degenerative disc disease that's
00:04:37 --> 00:04:39 been getting progressively worse. She has chronic
00:04:39 --> 00:04:42 pain, limited mobility, numbness in her legs.
00:04:42 --> 00:04:45 She tried doing lighter duty. Then she used up
00:04:45 --> 00:04:48 her Family Medical Leave Act leave. And eventually
00:04:48 --> 00:04:49 her employer let her go because she couldn't
00:04:49 --> 00:04:51 perform the essential functions of her job anymore.
00:04:52 --> 00:04:54 So she needs to apply for disability benefits.
00:04:54 --> 00:04:57 Exactly. This is where the journey starts. She
00:04:57 --> 00:04:59 goes to her local Social Security field office.
00:04:59 --> 00:05:01 She sits down with someone and fills out an application.
00:05:02 --> 00:05:04 And this is the first place power gets exercised
00:05:04 --> 00:05:07 in ways Kathleen won't even notice. At the application
00:05:07 --> 00:05:12 stage, what power is there to exercise? So the
00:05:12 --> 00:05:14 field officer is helping Kathleen fill out her
00:05:14 --> 00:05:16 forms. They're not making a medical determination.
00:05:16 --> 00:05:18 That'll happen later. But they're shaping how
00:05:18 --> 00:05:21 her claim gets framed. What conditions does she
00:05:21 --> 00:05:23 list? How does she describe her limitation? If
00:05:23 --> 00:05:25 the employee asks, can you walk to the mailbox?
00:05:25 --> 00:05:28 And Kathleen says, yes, on a good day, that gets
00:05:28 --> 00:05:31 written down. It may end up in her file as claimant
00:05:31 --> 00:05:33 reports ability to walk to the mailbox. Without
00:05:33 --> 00:05:36 the qualifier. Exactly. A lot of the context
00:05:36 --> 00:05:38 can get lost. And Kathleen has no lawyer at this
00:05:38 --> 00:05:40 point. Almost nobody has a lawyer at the initial
00:05:40 --> 00:05:43 application stage. She's describing her worst
00:05:43 --> 00:05:45 medical condition to a non -medical government
00:05:45 --> 00:05:47 employee. And that description becomes the first
00:05:47 --> 00:05:50 draft of her case. And first drafts do have a
00:05:50 --> 00:05:53 way of sticking around. They do. This application
00:05:53 --> 00:05:55 will also ask Kathleen about daily activities.
00:05:55 --> 00:05:59 Can she cook, drive, shop? These might seem like
00:05:59 --> 00:06:01 friendly questions, but every answer becomes
00:06:01 --> 00:06:03 evidence. If Kathleen says she can drive to the
00:06:03 --> 00:06:05 grocery store once a week, that shows up later
00:06:05 --> 00:06:07 when someone is deciding whether she can sustain
00:06:07 --> 00:06:10 full -time work. And she doesn't even know that
00:06:10 --> 00:06:12 she's building a record. Right. Not really. And
00:06:12 --> 00:06:14 that's the first exercise of power, this framing.
00:06:14 --> 00:06:17 The application stage determines what the government
00:06:17 --> 00:06:19 knows about Kathleen's claim, and she has little
00:06:19 --> 00:06:21 practical ability to control the narrative here.
00:06:21 --> 00:06:24 Her application next goes to the State Disability
00:06:24 --> 00:06:26 Determination Service. This is the agency that
00:06:26 --> 00:06:29 will actually decide whether she's disabled for
00:06:29 --> 00:06:32 the first time in our progression here. So it's
00:06:32 --> 00:06:34 not Social Security that decides. Right. Not
00:06:34 --> 00:06:37 at this stage. Social Security contracts with
00:06:37 --> 00:06:39 state agencies to make the initial determination.
00:06:39 --> 00:06:41 In Oklahoma, they do it with the Department of
00:06:41 --> 00:06:44 Rehabilitation Services. The department has its
00:06:44 --> 00:06:47 own doctors, its own analysts, and they're the
00:06:47 --> 00:06:50 ones reviewing the medical records. And has Kathleen
00:06:50 --> 00:06:52 met any of these people? No, and she probably
00:06:52 --> 00:06:56 never will. Their analyst is reviewing Kathleen's
00:06:56 --> 00:06:58 medical records, maybe ordering a consultative
00:06:58 --> 00:07:01 examination, a one -time visit with a doctor
00:07:01 --> 00:07:03 who's never treated Kathleen previously, and
00:07:03 --> 00:07:06 then makes a determination. This is the investigator
00:07:06 --> 00:07:09 -adjudicator overlap we talked about in our inquisitorial
00:07:09 --> 00:07:12 model episode. Except here, it's not even an
00:07:12 --> 00:07:15 ALJ doing it. It's a state employee Kathleen
00:07:15 --> 00:07:17 will never meet. Right. And one of the biggest
00:07:17 --> 00:07:19 problems at this stage is incomplete medical
00:07:19 --> 00:07:22 evidence. The DDS is supposed to develop the
00:07:22 --> 00:07:24 record, but they're processing enormous volumes.
00:07:24 --> 00:07:27 If her doctor's office is slow to respond to
00:07:27 --> 00:07:29 record requests, they might just decide the case
00:07:29 --> 00:07:31 based on whatever they have. Which could be almost
00:07:31 --> 00:07:34 nothing. Yes, and the initial denial rate is
00:07:34 --> 00:07:37 about 60%. And many of those denials are based
00:07:37 --> 00:07:40 on incomplete records or cursory medical examinations
00:07:40 --> 00:07:42 or function reports filled out by claimants who
00:07:42 --> 00:07:44 didn't understand what they were really being
00:07:44 --> 00:07:47 asked. Kathleen never met her decision maker,
00:07:47 --> 00:07:50 in fact. Never had the chance to explain her
00:07:50 --> 00:07:52 situation. Never saw the evidence against her
00:07:52 --> 00:07:55 until after the decision was made. That seems
00:07:55 --> 00:07:57 like it should raise some due process concerns.
00:07:57 --> 00:08:00 And it doesn't, at least not constitutionally.
00:08:00 --> 00:08:02 So remember, when we were talking about Roth,
00:08:02 --> 00:08:05 due process protects against deprivation of an
00:08:05 --> 00:08:07 existing property interest. Matthews tells you
00:08:07 --> 00:08:09 how much process is due when the government is
00:08:09 --> 00:08:12 taking something away. But Kathleen isn't having
00:08:12 --> 00:08:14 anything taken away. She's an initial applicant.
00:08:14 --> 00:08:17 She's never received disability benefits. So
00:08:17 --> 00:08:19 she's asking for something and the government
00:08:19 --> 00:08:21 is saying no. So the constitutional framework
00:08:21 --> 00:08:24 doesn't even reach her. Right. Not in that way.
00:08:24 --> 00:08:26 Matthews, that was about Social Security disability,
00:08:26 --> 00:08:28 but it was somebody who was already receiving
00:08:28 --> 00:08:30 benefits. He had a property interest because
00:08:30 --> 00:08:32 the government was taking away something he had.
00:08:33 --> 00:08:36 But Kathleen doesn't have the same thing. So
00:08:36 --> 00:08:39 the people who need the most protection end up
00:08:39 --> 00:08:41 getting the least. Someone who's already receiving
00:08:41 --> 00:08:45 benefits has constitutional rights if the government
00:08:45 --> 00:08:47 tries to cut them off. But someone who's never
00:08:47 --> 00:08:50 received anything, who might be destitute or
00:08:50 --> 00:08:53 who might be sicker. has no constitutional right
00:08:53 --> 00:08:55 to the process before the initial denial. Yes,
00:08:56 --> 00:08:58 this is the structural consequence of tying due
00:08:58 --> 00:09:00 process to deprivation of an existing interest.
00:09:00 --> 00:09:04 The 60 % initial denial rate, the invisible decision
00:09:04 --> 00:09:06 maker, the incomplete records, this can feel
00:09:06 --> 00:09:09 wrong. But the constitutional framework isn't
00:09:09 --> 00:09:11 designed to reach it. Whatever process Kathleen
00:09:11 --> 00:09:13 gets at this stage is what Congress and Social
00:09:13 --> 00:09:16 Security chose to provide, not what the Constitution
00:09:16 --> 00:09:19 requires. And the numbers suggest that what they
00:09:19 --> 00:09:23 chose to provide isn't working. 60 % denied initially.
00:09:23 --> 00:09:25 Right. But because there's no constitutional
00:09:25 --> 00:09:27 right to a hearing for these people, the only
00:09:27 --> 00:09:29 pressure to fix this would come from Congress,
00:09:29 --> 00:09:32 not from courts. So Kathleen got denied at that
00:09:32 --> 00:09:35 initial denial stage. She has 60 days to ask
00:09:35 --> 00:09:37 for reconsideration. Walk us through what happens
00:09:37 --> 00:09:39 on consideration. In most states, it's basically
00:09:39 --> 00:09:42 the same thing. A different DDS analyst reviews
00:09:42 --> 00:09:44 the file, the same type of employee, the same
00:09:44 --> 00:09:47 agency, the same process. She can submit new
00:09:47 --> 00:09:49 evidence, but she probably still doesn't have
00:09:49 --> 00:09:51 a lawyer, still doesn't know exactly why she
00:09:51 --> 00:09:53 was denied, and still doesn't get to appear in
00:09:53 --> 00:09:56 person. So it's the same process, but with a
00:09:56 --> 00:10:00 different analyst. Yes. And on reconsideration,
00:10:00 --> 00:10:02 and remember, these are people who were already
00:10:02 --> 00:10:05 denied once. The denial rate on the second round
00:10:05 --> 00:10:08 runs 80 to 85 percent. Most denials are denied
00:10:08 --> 00:10:11 again. So the second analyst is looking at basically
00:10:11 --> 00:10:13 the same file and reaching the same conclusion.
00:10:14 --> 00:10:16 Yes. Given the initial denials and the similar
00:10:16 --> 00:10:18 record, it's actually almost surprising some
00:10:18 --> 00:10:21 of the appeals are granted. That's the insurance
00:10:21 --> 00:10:23 analogy again. The desk reviewer reading the
00:10:23 --> 00:10:26 first adjuster's report, same framing, same photos,
00:10:26 --> 00:10:28 same characterizations. The record was built
00:10:28 --> 00:10:30 at the first stage, and now everyone downstream
00:10:30 --> 00:10:33 is working from it. Yes. And by now, Kathleen
00:10:33 --> 00:10:36 has been waiting for a while. That initial determination
00:10:36 --> 00:10:40 might have taken three to six months. Reconsideration
00:10:40 --> 00:10:42 is adding another two to four months. So we're
00:10:42 --> 00:10:44 potentially 10 months in and Kathleen has been
00:10:44 --> 00:10:46 denied twice by people who've never met her.
00:10:47 --> 00:10:50 So no disability income that entire time. Right.
00:10:50 --> 00:10:53 So if she has savings, they are draining. If
00:10:53 --> 00:10:55 she has family support, it's being strained.
00:10:55 --> 00:10:57 And remember, the Constitution doesn't require
00:10:57 --> 00:11:00 any of this process for initial applicants. Whatever
00:11:00 --> 00:11:02 she gets is statutory, not constitutional. The
00:11:02 --> 00:11:04 system could give her less and still be legally
00:11:04 --> 00:11:07 compliant. All right. After the second denial,
00:11:07 --> 00:11:09 now she can request a hearing before an administrative
00:11:09 --> 00:11:12 law judge. So she does that and then she waits.
00:11:13 --> 00:11:16 Okay. How long? potentially like 12 to 18 months
00:11:16 --> 00:11:19 in a lot of hearing offices. Some are even longer
00:11:19 --> 00:11:22 than that. So now from her initial application
00:11:22 --> 00:11:25 to this hearing, she might be waiting two and
00:11:25 --> 00:11:28 a half to three years. Does anything happen during
00:11:28 --> 00:11:31 the wait? This is one of the most consequential
00:11:31 --> 00:11:34 periods of the entire life cycle because this
00:11:34 --> 00:11:36 is when Kathleen needs to build her case. How
00:11:36 --> 00:11:39 exactly does she build a case? This is when she
00:11:39 --> 00:11:41 should be getting a representative, someone who
00:11:41 --> 00:11:43 specializes in disability claims. They don't
00:11:43 --> 00:11:46 have to be an attorney. And what that representative
00:11:46 --> 00:11:48 does during the waiting period shapes the hearing
00:11:48 --> 00:11:50 more than almost anything that happens in the
00:11:50 --> 00:11:53 hearing room itself. What do you mean? The representative
00:11:53 --> 00:11:56 needs to be able to collect updated medical records,
00:11:56 --> 00:11:59 get detailed opinions from her treating physicians,
00:11:59 --> 00:12:01 potentially commission a functional capacity
00:12:01 --> 00:12:04 evaluation, identify medical experts, review
00:12:04 --> 00:12:07 the vocational evidence, anticipate what the
00:12:07 --> 00:12:09 vocational expert will say. All of this is happening
00:12:09 --> 00:12:12 before the hearing because by the time the hearing
00:12:12 --> 00:12:14 starts, the documentary record is largely built.
00:12:15 --> 00:12:17 So the hearing is where the evidence that was
00:12:17 --> 00:12:19 gathered during the wait gets tested. Yes. So
00:12:19 --> 00:12:21 someone who spent 18 months with a good representative
00:12:21 --> 00:12:24 could gather strong medical evidence and be in
00:12:24 --> 00:12:26 a completely different position than someone
00:12:26 --> 00:12:28 who spent the 18 months doing nothing because
00:12:28 --> 00:12:30 they didn't know anything was needed and they
00:12:30 --> 00:12:32 were waiting for their opportunity to present
00:12:32 --> 00:12:34 their case. And two people with the exact same
00:12:34 --> 00:12:37 medical condition could have very different outcomes
00:12:37 --> 00:12:40 based on what happened during that wait. Yes,
00:12:40 --> 00:12:42 that's the reality. And it's another place where
00:12:42 --> 00:12:44 power is exercised invisibly. The hearing looks
00:12:44 --> 00:12:46 like the main event, but the wait is where the
00:12:46 --> 00:12:50 case is actually built or lost. So Kathleen finally
00:12:50 --> 00:12:53 has her hearing date. It has arrived. So two
00:12:53 --> 00:12:55 and a half years later, this is the day. She
00:12:55 --> 00:12:57 walks into a small hearing office, not a courtroom.
00:12:57 --> 00:13:00 It might be a dedicated hearing room at the agency
00:13:00 --> 00:13:03 or potentially rented conference space in a random
00:13:03 --> 00:13:05 office building. There's no jury box. There's
00:13:05 --> 00:13:07 no spectator gallery. There's just a table for
00:13:07 --> 00:13:10 Kathleen and her representative if she has one.
00:13:10 --> 00:13:14 And the ALJ's bench and some recording equipment
00:13:14 --> 00:13:16 and a couple of chairs for witnesses. That's
00:13:16 --> 00:13:18 the whole setting for this decision that can
00:13:18 --> 00:13:20 determine whether she has income for the rest
00:13:20 --> 00:13:22 of her working life. And that's much, much less
00:13:22 --> 00:13:25 formal than people expect when they hear the
00:13:25 --> 00:13:28 word hearing. Yes. So the ALJ walks in and the
00:13:28 --> 00:13:31 first thing that happens is you're going on the
00:13:31 --> 00:13:34 record. Recording starts. And from that moment,
00:13:34 --> 00:13:36 everything said is part of the official record.
00:13:36 --> 00:13:38 And on appeal, the reviewing court only sees
00:13:38 --> 00:13:41 what's in this record. If something doesn't get
00:13:41 --> 00:13:43 said here, if a critical document doesn't get
00:13:43 --> 00:13:45 admitted, it's hard, if not impossible, to get
00:13:45 --> 00:13:48 it admitted later. This is Kathleen's last real
00:13:48 --> 00:13:50 chance to shape the facts of her case. So everything
00:13:50 --> 00:13:53 we've been saying about how the record gets built,
00:13:53 --> 00:13:56 this is where it freezes. Yes, it almost totally
00:13:56 --> 00:13:58 freezes for everything that comes after. And
00:13:58 --> 00:14:00 this is also the first time in over two years
00:14:00 --> 00:14:02 that Kathleen is going to be looking any decision
00:14:02 --> 00:14:05 maker in the eye. All the prior denials came
00:14:05 --> 00:14:06 from people she'd never met who were just working
00:14:06 --> 00:14:09 from paper. The ALJ is the first person who will
00:14:09 --> 00:14:11 actually hear her, watch her, and assess her
00:14:11 --> 00:14:13 credibility directly. Two and a half years of
00:14:13 --> 00:14:16 paper, and now she's finally being judged partly
00:14:16 --> 00:14:19 on how she sits in a chair. Yes, that's what
00:14:19 --> 00:14:21 happens. She takes an oath, and from that moment,
00:14:21 --> 00:14:23 the ALJ is watching everything. Does she shift
00:14:23 --> 00:14:26 in her chair during the hearing? Does she wince
00:14:26 --> 00:14:28 when she stands up? Can she sit through the full
00:14:28 --> 00:14:31 45 minutes without needing to stand? These observations
00:14:31 --> 00:14:33 become part of the decision. They're evidence
00:14:33 --> 00:14:35 that doesn't exist anywhere else in the paper
00:14:35 --> 00:14:38 file. And this is exactly the kind of evidence
00:14:38 --> 00:14:39 that the Matthews Court said disability cases
00:14:39 --> 00:14:43 didn't really need. And the ALJ isn't a neutral
00:14:43 --> 00:14:45 referee watching these two sides fight. Right.
00:14:45 --> 00:14:48 There's no government attorney arguing that Kathleen
00:14:48 --> 00:14:50 isn't disabled. The ALJ is supposed to independently
00:14:50 --> 00:14:53 develop the record. They're supposed to ask questions,
00:14:53 --> 00:14:56 probe inconsistencies, elicit testimony. They
00:14:56 --> 00:14:58 are the investigator, the questioner, and the
00:14:58 --> 00:15:00 judge all in the same proceeding. That's the
00:15:00 --> 00:15:03 inquisitorial model we covered earlier. And so
00:15:03 --> 00:15:05 when the ALJ asks Kathleen a tough question,
00:15:05 --> 00:15:09 that's the role, not hostility. Right. They might
00:15:09 --> 00:15:11 not be asking in a very friendly manner, but
00:15:11 --> 00:15:14 their job is to be asking questions of her. So
00:15:14 --> 00:15:16 they might say something like, your medical records
00:15:16 --> 00:15:18 mention you went fishing in June. Can you explain
00:15:18 --> 00:15:21 that? She might feel like she's being cross -examined,
00:15:21 --> 00:15:24 but the ALJ is testing the evidence. They're
00:15:24 --> 00:15:27 not advocating against her. Whoa. But that sounds
00:15:27 --> 00:15:30 like a dangerous position for Kathleen. Yeah,
00:15:30 --> 00:15:33 it potentially can be. If she says she can't
00:15:33 --> 00:15:35 sit for more than 30 minutes, but she mentions
00:15:35 --> 00:15:38 taking a fishing trip. The ALJ has to decide
00:15:38 --> 00:15:40 whether those things are consistent. Maybe she
00:15:40 --> 00:15:42 sat on a chair on a dock for 10 minutes and went
00:15:42 --> 00:15:44 home. Maybe she went on a boat for six hours.
00:15:45 --> 00:15:47 The record probably doesn't say, but the ALJ
00:15:47 --> 00:15:49 has to reconcile the documented activity with
00:15:49 --> 00:15:53 the claimed limitations. And her explanation
00:15:53 --> 00:15:55 in that moment may determine whether the ALJ
00:15:55 --> 00:15:58 believes anything else she says. And then the
00:15:58 --> 00:16:02 vocational expert testifies. Yes. So the vocational
00:16:02 --> 00:16:05 expert tells the ALJ what jobs exist in the national
00:16:05 --> 00:16:07 economy that someone with Kathleen's limitations
00:16:07 --> 00:16:10 could theoretically perform. The ALJ poses hypothetical
00:16:10 --> 00:16:13 questions. If a person can sit for six hours
00:16:13 --> 00:16:16 but needs to change positions every 30 minutes,
00:16:16 --> 00:16:18 can stand for two hours total, and can occasionally
00:16:18 --> 00:16:21 lift 10 pounds, what jobs are available? And
00:16:21 --> 00:16:23 how much depends on how that hypothetical gets
00:16:23 --> 00:16:26 framed? Almost everything, because if the vocational
00:16:26 --> 00:16:28 expert says there are enough jobs, the ALJ can
00:16:28 --> 00:16:31 deny the claim. And that framing depends on what's
00:16:31 --> 00:16:34 in the record. If her representative got a detailed
00:16:34 --> 00:16:37 functional capacity evaluation showing she needs
00:16:37 --> 00:16:39 to lie down for an hour during the workday, that
00:16:39 --> 00:16:41 limitation is potentially getting built into
00:16:41 --> 00:16:43 the hypothetical. If there's nothing documenting
00:16:43 --> 00:16:46 it, it probably isn't. Okay. Can the representative
00:16:46 --> 00:16:48 then push back on the vocational expert's answers?
00:16:49 --> 00:16:51 So potentially, yes. The vocational expert could
00:16:51 --> 00:16:54 say there are 50 jobs nationally as a document
00:16:54 --> 00:16:57 preparer. The representative could add Kathleen's
00:16:57 --> 00:17:00 actual limitations one at a time. Extra breaks,
00:17:00 --> 00:17:03 expected absences, off -task time, and ask whether
00:17:03 --> 00:17:06 the job survived. If no jobs survived, the ALJ
00:17:06 --> 00:17:08 has to find her disabled. So the hearing isn't
00:17:08 --> 00:17:11 really theater. Yes, but the claimant is more
00:17:11 --> 00:17:14 likely to be successful if they've had competent
00:17:14 --> 00:17:16 representation so that the record could be properly
00:17:16 --> 00:17:19 built. If the hearing goes great, but the record
00:17:19 --> 00:17:22 is weak, does Kathleen's credibility alone carry
00:17:22 --> 00:17:25 the case? Usually not, if the documentary evidence
00:17:25 --> 00:17:27 doesn't support the limitations she's describing.
00:17:28 --> 00:17:30 Credibility findings get deference, but they
00:17:30 --> 00:17:33 can't manufacture medical evidence. A strong
00:17:33 --> 00:17:36 record can survive a mediocre hearing. A weak
00:17:36 --> 00:17:38 record is hard to save with testimony alone.
00:17:38 --> 00:17:41 And the empirical model shows how much the live
00:17:41 --> 00:17:44 hearing matters. We have roughly 60 % denied
00:17:44 --> 00:17:48 at that first round, roughly 50 % approved when
00:17:48 --> 00:17:50 they finally get in front of a human being. The
00:17:50 --> 00:17:52 system eventually gives claimants exactly the
00:17:52 --> 00:17:54 kind of process Matthews said wasn't necessary.
00:17:55 --> 00:17:57 So the ALJ issues a written decision at this
00:17:57 --> 00:18:00 point. If Kathleen wins, she gets benefits, and
00:18:00 --> 00:18:03 they're usually done with back pay to the date
00:18:03 --> 00:18:05 of the application or some set period before
00:18:05 --> 00:18:09 that. And what if she loses? Then she can appeal
00:18:09 --> 00:18:11 to the Appeals Council. That's a body within
00:18:11 --> 00:18:14 Social Security. It's not a court, and that reviews
00:18:14 --> 00:18:17 the ALJ's decisions. The Appeals Council grants
00:18:17 --> 00:18:20 review in only a small percentage of cases. Most
00:18:20 --> 00:18:22 requests are denied, which means the ALJ's decision
00:18:22 --> 00:18:25 becomes the final agency decision. And final
00:18:25 --> 00:18:29 agency action is the trigger for now the courts
00:18:29 --> 00:18:31 to get involved. Right. That's what we need for
00:18:31 --> 00:18:33 judicial review. She can't go to federal court
00:18:33 --> 00:18:35 until she's exhausted her administrative remedies.
00:18:35 --> 00:18:38 That's the initial determination, the reconsideration,
00:18:38 --> 00:18:41 the ALJ hearing, requesting appeals counsel review,
00:18:41 --> 00:18:44 four levels of agency process before she can
00:18:44 --> 00:18:48 see a federal judge. And so now when she does
00:18:48 --> 00:18:50 finally get to go to federal court. Here, the
00:18:50 --> 00:18:52 standard of review is really deferential. The
00:18:52 --> 00:18:54 court is asking whether the agency's decision
00:18:54 --> 00:18:57 is supported by substantial evidence. This is
00:18:57 --> 00:19:00 more than a mere scintilla, but less than a preponderance.
00:19:00 --> 00:19:03 The court isn't re -deciding the case. It's asking
00:19:03 --> 00:19:05 whether a reasonable person could have reached
00:19:05 --> 00:19:07 the same conclusion. So even at judicial review,
00:19:08 --> 00:19:11 the ALJ's factual findings are largely untouchable.
00:19:11 --> 00:19:13 Right. So this brings us full circle. Those factual
00:19:13 --> 00:19:15 findings are built on the record. The record
00:19:15 --> 00:19:17 was built during the wait. And realistically,
00:19:18 --> 00:19:19 it was shaped by whether Kathleen had representation.
00:19:20 --> 00:19:22 That initial framing was shaped by the field
00:19:22 --> 00:19:25 office interview. By the time the federal court
00:19:25 --> 00:19:27 reviews the case, it's reviewing a record that
00:19:27 --> 00:19:29 was constructed years earlier at stages where
00:19:29 --> 00:19:31 Kathleen had the least power and the least help.
00:19:31 --> 00:19:33 OK, I want to take a step back and see where
00:19:33 --> 00:19:35 everything we've studied this season actually
00:19:35 --> 00:19:37 shows up on this timeline. At the application
00:19:37 --> 00:19:41 stage, the constitutional gap. Kathleen is an
00:19:41 --> 00:19:44 initial applicant. Under Roth, she doesn't have
00:19:44 --> 00:19:46 a property interest yet. She has an application.
00:19:46 --> 00:19:50 Whatever process she gets is statutory, not constitutional.
00:19:50 --> 00:19:53 So that's why the initial and reconsideration
00:19:53 --> 00:19:56 stages can be paper only with no hearing and
00:19:56 --> 00:19:58 no constitutional violation. Right. The Constitution
00:19:58 --> 00:20:02 is totally silent here. OK, now, if Kathleen
00:20:02 --> 00:20:04 had been receiving benefits and the government
00:20:04 --> 00:20:07 tried to cut her off, Matthews would apply. She'd
00:20:07 --> 00:20:09 have a property interest. And the question would
00:20:09 --> 00:20:12 be how much process before termination. But because
00:20:12 --> 00:20:15 she's applying rather than losing, the constitutional
00:20:15 --> 00:20:18 framework barely touches her. So now she's at
00:20:18 --> 00:20:20 the hearing and the inquisitorial model from
00:20:20 --> 00:20:23 our episode on neutral versus investigative decision
00:20:23 --> 00:20:27 makers comes into play. The AOJ is simultaneously
00:20:27 --> 00:20:29 developing the record and deciding the case.
00:20:29 --> 00:20:32 And all of the cognitive risks we talked about,
00:20:32 --> 00:20:34 like confirmation bias and the ownership effect,
00:20:35 --> 00:20:38 they are operating here. Yes. And with review,
00:20:38 --> 00:20:39 Larkin says that's completely constitutional.
00:20:40 --> 00:20:44 OK. At the Appeals Council, which is the internal
00:20:44 --> 00:20:48 agency review, quality control mechanisms are
00:20:48 --> 00:20:51 at play. The question of whether the agency is
00:20:51 --> 00:20:53 genuinely checking its own work or is it just
00:20:53 --> 00:20:56 merely checking the box and affirming it? Right.
00:20:56 --> 00:20:58 And at federal court, we have judicial review
00:20:58 --> 00:21:02 based on substantial evidence and the question
00:21:02 --> 00:21:03 of how much deference courts are going to give
00:21:03 --> 00:21:06 to agency fact finding. Okay. And none of those
00:21:06 --> 00:21:08 doctrines live in isolation. They're all operating
00:21:08 --> 00:21:11 at different stages of the same journey. Yes.
00:21:11 --> 00:21:13 When we teach administrative law, we teach each
00:21:13 --> 00:21:15 doctrine as its own unit. Due process is one
00:21:15 --> 00:21:18 week. ALJs are another. Judicial review is done
00:21:18 --> 00:21:20 separately. But in Kathleen's life, they're all
00:21:20 --> 00:21:23 happening on this timeline. And the gaps between
00:21:23 --> 00:21:25 them, the stages where no doctrine clearly applies,
00:21:25 --> 00:21:27 where she's just waiting, where the record is
00:21:27 --> 00:21:30 being shaped by people she may never meet, those
00:21:30 --> 00:21:32 gaps matter just like the doctrines themselves.
00:21:32 --> 00:21:35 Okay. So that's what the timeline looks like
00:21:35 --> 00:21:37 when you're the one asking for benefits. What
00:21:37 --> 00:21:39 does it look like when the government is the
00:21:39 --> 00:21:41 one with something to say? What we've talked
00:21:41 --> 00:21:43 about to this point is benefits adjudication.
00:21:43 --> 00:21:46 She is asking the government for something. Enforcement
00:21:46 --> 00:21:48 adjudication, where the government is coming
00:21:48 --> 00:21:50 after you, looks really different. That's what
00:21:50 --> 00:21:53 we were talking about with jarcasy. So now the
00:21:53 --> 00:21:55 government is saying, you did something wrong.
00:21:55 --> 00:21:57 Right. We'll run through this really briefly.
00:21:57 --> 00:21:59 Let's imagine a company, we'll call them Titan
00:21:59 --> 00:22:02 Chemical. And say they get an OSHA citation for
00:22:02 --> 00:22:04 a workplace safety violation. Their proposed
00:22:04 --> 00:22:08 penalty is potentially $150 . And they're
00:22:08 --> 00:22:10 going to go after the CEO, too, and say that
00:22:10 --> 00:22:12 the CEO was personally responsible for the violation.
00:22:12 --> 00:22:15 And so now the government is the one that's initiating
00:22:15 --> 00:22:17 this process. Right. So now the power dynamics
00:22:17 --> 00:22:20 are different. In Kathleen's case, she was the
00:22:20 --> 00:22:22 one trying to prove she deserved benefits. Here,
00:22:23 --> 00:22:25 the government has to prove the violation. Titan
00:22:25 --> 00:22:27 Chemical has lawyers from day one, probably.
00:22:27 --> 00:22:30 It has resources to fight. It has due process
00:22:30 --> 00:22:32 rights that kick in immediately because the government
00:22:32 --> 00:22:34 is trying to take something away from a private
00:22:34 --> 00:22:37 party. So the full machinery of due process is
00:22:37 --> 00:22:41 engaged from the start. Right. And here's where
00:22:41 --> 00:22:43 jargony batters. If the enforcement action involves
00:22:43 --> 00:22:46 civil penalties, or as we saw in the last episode,
00:22:46 --> 00:22:49 potentially even if it just looks like some sort
00:22:49 --> 00:22:51 of traditional claim, they might need to be doing
00:22:51 --> 00:22:53 this in federal court, potentially with a jury.
00:22:54 --> 00:22:56 So in the enforcement context, the constitutional
00:22:56 --> 00:22:59 stakes appear at the very beginning of the timeline,
00:22:59 --> 00:23:03 not at the end. Right. For Titan Chemicals' CEO,
00:23:03 --> 00:23:05 constitutional rights are the first thing their
00:23:05 --> 00:23:07 lawyers raise. You can't impose this penalty
00:23:07 --> 00:23:09 without a jury. This proceeding requires an Article
00:23:09 --> 00:23:12 III court. The same doctrines, but completely
00:23:12 --> 00:23:15 different timing. Titan Chemicals' case might
00:23:15 --> 00:23:17 be resolved in months, whereas Kathleen's might
00:23:17 --> 00:23:20 take years. Titan has sophisticated counsel from
00:23:20 --> 00:23:22 the start. Kathleen might not have any help until
00:23:22 --> 00:23:24 she's already been denied twice, and potentially
00:23:24 --> 00:23:27 not even then. The enforcement respondent can
00:23:27 --> 00:23:30 often negotiate before any hearings happen, whereas
00:23:30 --> 00:23:32 the benefits claimant has to grind through every
00:23:32 --> 00:23:35 level. And is that just because enforcement targets
00:23:35 --> 00:23:38 tend to have more money? So it's part of it,
00:23:38 --> 00:23:40 but this is also structural. The government designed
00:23:40 --> 00:23:42 these benefit systems to process millions of
00:23:42 --> 00:23:45 claims efficiently. Volume is the constraint
00:23:45 --> 00:23:47 here. In enforcement, the government is choosing
00:23:47 --> 00:23:50 its cases. It has the resources for each case
00:23:50 --> 00:23:52 it chooses to take, even if it doesn't have the
00:23:52 --> 00:23:54 resources for every case it might want to take.
00:23:54 --> 00:23:56 Two very different versions of administrative
00:23:56 --> 00:24:00 adjudication. Yes, both are legitimate, but the
00:24:00 --> 00:24:02 timeline, the power dynamics, and the practical
00:24:02 --> 00:24:04 experience are almost unrecognizable from one
00:24:04 --> 00:24:08 to another. Okay, so here's what stays with me.
00:24:08 --> 00:24:11 Kathleen's case was shaped long before she sat
00:24:11 --> 00:24:14 down in front of an ALJ. Which field office processed
00:24:14 --> 00:24:17 her application? Which doctor did the consultative
00:24:17 --> 00:24:20 exam? Which vocational expert was on the calendar
00:24:20 --> 00:24:23 that day? By the time she gets her hearing, most
00:24:23 --> 00:24:25 of the evidence already exists and most of the
00:24:25 --> 00:24:27 institutional judgments have already been made.
00:24:27 --> 00:24:30 Yes, and that's true across the system, not just
00:24:30 --> 00:24:33 in Social Security. In enforcement cases, by
00:24:33 --> 00:24:35 the time you reach the ALJ, the initial denial
00:24:35 --> 00:24:37 and the reconsideration are already in the file.
00:24:37 --> 00:24:40 So this hearing is important, but it's not operating
00:24:40 --> 00:24:43 on a blank slate. OK, so what actually determines
00:24:43 --> 00:24:46 the outcome once you're in that room? Obviously,
00:24:46 --> 00:24:47 there's going to be a lot of different things
00:24:47 --> 00:24:50 here. We have the evidence in the record. We
00:24:50 --> 00:24:51 have the legal standard the judge is applying.
00:24:52 --> 00:24:54 We have the quality of the applicant's representation.
00:24:55 --> 00:24:58 But including all of that, there are two threshold
00:24:58 --> 00:25:00 questions. Does the judge believe the person
00:25:00 --> 00:25:02 in front of them? And who has to prove what?
00:25:03 --> 00:25:05 Credibility and burden of proof. They're not
00:25:05 --> 00:25:07 the whole story, but they're where the analysis
00:25:07 --> 00:25:13 starts. And that is next up. So that does it
00:25:13 --> 00:25:14 for today's episode on administrative remedies.
00:25:15 --> 00:25:17 Thank you for joining us today. Please, if you
00:25:17 --> 00:25:20 enjoy this podcast, enjoy this episode, give
00:25:20 --> 00:25:24 us a like on Spotify, iTunes, or whatever platform
00:25:24 --> 00:25:26 you're listening on. And be sure to tune in next
00:25:26 --> 00:25:29 time where we'll continue to dive into the contours
00:25:29 --> 00:25:31 of administrative law, because remember, you
00:25:31 --> 00:25:32 can't fix what you don't understand.