[00:00:00] Speaker 02: Case number 22-50-50 at out. [00:00:03] Speaker 02: Angela M. Cox, the balance, versus Kilolo Kichagazi, Acting Commissioner, Social Security Administration. [00:00:10] Speaker 02: Ms. [00:00:10] Speaker 02: Bena for the balance, Ms. [00:00:12] Speaker 02: Klein for the appellee. [00:00:14] Speaker 00: Good morning, Council. [00:00:15] Speaker 00: Ms. [00:00:15] Speaker 00: Bena, please proceed when you're ready. [00:00:23] Speaker 05: Good morning. [00:00:24] Speaker 05: May I place the court? [00:00:25] Speaker 05: I'm Tina Bena. [00:00:26] Speaker 05: I'm here today representing Miss Angela Cox, who is in the courtroom today. [00:00:35] Speaker 05: I wanted to make clear a particular point. [00:00:41] Speaker 05: Listings are special at the Social Security Administration. [00:00:46] Speaker 05: They are automatic if they are objective, as was Listing 1205C for intellectual disability. [00:00:57] Speaker 05: There's no discretion. [00:01:00] Speaker 05: The administrative law judge, the other adjudicating officers at the state agency, the doctors, have no discretion. [00:01:11] Speaker 05: And that matters because under the regulations for the CFR 416.501, 416.920 A&T, there is a regulatory guarantee [00:01:28] Speaker 05: We will find you disabled if you meet a list and file an application and of course meet the eligibility requirements. [00:01:49] Speaker 05: The eligibility requirements of income and resources or insurance either way. [00:01:57] Speaker 05: It's also consistent with the Supreme Court's ruling in Bowenville. [00:02:04] Speaker 05: This coxen medalist, she filed an application, and she was denied. [00:02:13] Speaker 05: It's the first level of adjudication in front of the doctor. [00:02:16] Speaker 05: They neglected their duty. [00:02:19] Speaker 05: They had in front of them the opinion of a consultative examiner, [00:02:26] Speaker 05: that she was disabled, not just had deficits, she was disabled. [00:02:32] Speaker 05: They ignored that. [00:02:33] Speaker 05: They ignored the findings of the IQ test, valid IQ testing, and simply made her wait for years until the agency changes. [00:02:54] Speaker 05: The agency has no retroactive rulemaking. [00:02:58] Speaker 05: That's quite clear. [00:03:01] Speaker 05: Nonetheless, it revised its little listings, and it applied those to pending cases or remain cases and continuing disability review cases. [00:03:20] Speaker 05: They violated the APA. [00:03:23] Speaker 05: They did not put any of that out for notice and comment. [00:03:26] Speaker 05: None of it. [00:03:27] Speaker 04: Can I ask you, there's a statutory definition of disability, which the agency obviously cannot depart. [00:03:35] Speaker 04: I'm sorry. [00:03:35] Speaker 04: There's a statutory definition of disability that the agency obviously is bound by. [00:03:41] Speaker 04: The claimant is considered disabled if she is unable to participate in any substantial gainful activity due to a medically determinable physical or mental impairment. [00:03:51] Speaker 04: And you don't dispute that that's the governing standard of disability. [00:03:55] Speaker 04: Yes, Your Honor. [00:03:58] Speaker 04: The listings are there. [00:04:00] Speaker 04: You know, I'm just saying, but you accept that that's the controlling definition of disability that everybody has to meet. [00:04:07] Speaker 04: And the listings have been a prior way of meeting that. [00:04:10] Speaker 05: Yes. [00:04:11] Speaker 05: They are an official statement of levels of medical severity, if you will. [00:04:21] Speaker 04: But everyone still has to meet the statute of a standard. [00:04:24] Speaker 04: It was a means of doing so. [00:04:28] Speaker 05: They stand, they are a presumption that they are a binding presumption that an individual, that individual cannot work. [00:04:41] Speaker 05: I can give you an example. [00:04:43] Speaker 04: I'm just trying to understand your legal position. [00:04:45] Speaker 04: So your legal position is you accept that that is the definition of disability that necessarily bound the agency because it was passed by Congress, right? [00:04:53] Speaker 04: That's the statute. [00:04:55] Speaker 04: Um, and, and you're not claiming that someone who doesn't meet the statutory definition of disability should still get benefits. [00:05:07] Speaker 04: Are you? [00:05:08] Speaker 04: At the bottom, everyone has to be found to meet that statutory definition of disability. [00:05:16] Speaker 04: I'm just trying to understand your position. [00:05:18] Speaker 04: Your position is that listings, sort of an agency predetermination that if you meet this, one of these criteria, you will necessarily meet the statutory definition. [00:05:33] Speaker 04: Exactly. [00:05:34] Speaker 04: But your client still must at bottom one way or the other meet the statutory definition. [00:05:39] Speaker 04: And that's part of the regulation is there that stating that perception, we will find you disabled. [00:05:47] Speaker 04: But as long as she can still show that she meets the statutory definition of disability, she will get. [00:05:52] Speaker 04: Your automatics, they don't go into work at all. [00:05:56] Speaker 04: People meet it without, there's other ways there, right? [00:05:58] Speaker 04: Some people meet it without going through the listings and they still, as long as they show, [00:06:03] Speaker 04: that they meet the statutory definition of disability, they get the benefits. [00:06:12] Speaker 04: The listings are the presumption. [00:06:14] Speaker 04: I understand, but some people don't fall within the listings, I assume. [00:06:18] Speaker 04: But they still can show that they meet the statutory definition of disability by going through the other factors. [00:06:24] Speaker 05: If they do not meet a listing, then yes, they proceed through the process. [00:06:32] Speaker 05: and appear before the administrator. [00:06:35] Speaker 05: So everybody at the end has to meet the statutory decision. [00:06:38] Speaker 05: The judicial evaluation process and makes the determination that given the symptoms of the various impairments, this person cannot work. [00:06:52] Speaker 05: In this case, of course, the administrative law judge discharacterized the evidence. [00:07:02] Speaker 05: the final determination was it. [00:07:05] Speaker 05: But yes, that's it. [00:07:07] Speaker 04: So your point is even with or without listings, she meets the definition. [00:07:12] Speaker 04: And to the extent the ALJ found otherwise here, it was because of error. [00:07:16] Speaker 05: If you meet a listing, you are disqualified. [00:07:19] Speaker 04: No, my question is a little different than that. [00:07:21] Speaker 04: My question is your argument, as I understand it, is she should be disqualified on two grounds. [00:07:26] Speaker 04: She met the listing. [00:07:29] Speaker 04: And even if you put the listings aside, [00:07:31] Speaker 04: she came in with the evidence that shows she meets the statutory definition of disability. [00:07:37] Speaker 04: And so it's just a question of how one goes about proving that you meet the statutory definition of disability. [00:07:44] Speaker 04: Listing or evidence, additional evidence or separate evidence. [00:07:51] Speaker 05: There's two paths. [00:07:58] Speaker 04: So they left, she still had the opportunity [00:08:02] Speaker 04: even under the new regulations to show that she met the statutory definition. [00:08:07] Speaker 04: That's why you have the arguments about the mistakes that the ALJ made, right? [00:08:13] Speaker 05: In theory, yes, ma'am. [00:08:15] Speaker 04: In theory, in reality, you have arguments that the ALJ also miswayed evidence and things like that. [00:08:19] Speaker 05: The ALJ who did not, and so I'm having some difficulty agreeing [00:08:29] Speaker 05: That's the opportunity. [00:08:31] Speaker 05: You have a radical opportunity, of course. [00:08:39] Speaker 05: But we have an ALJ here who disregarded the listing, disregarded this court's precedents in Butler. [00:08:53] Speaker 05: So that's my difficulty with agreeing. [00:08:57] Speaker 04: No, I'm just asking your position is she would, I'm only asking about your position is that she would meet it either way. [00:09:03] Speaker 04: Of course. [00:09:04] Speaker 04: Listing or evidence. [00:09:05] Speaker 04: Yeah. [00:09:05] Speaker 04: Without the listing with evidence, she would meet it. [00:09:08] Speaker 04: And so the question is the reason here was just errors by the LGA. [00:09:16] Speaker 03: And then talk to me about the, um, the noticing comment period. [00:09:20] Speaker 03: It was 105 days. [00:09:21] Speaker 03: There were, you know, [00:09:24] Speaker 03: several comments in that regard, but you're suggesting that there wasn't really noticing such that there could be a logical outgrowth. [00:09:31] Speaker 03: The noticing comment period was 105 days, several comments that came out, but you're suggesting that there wasn't sufficient notice such that there could be a logical outgrowth of this rule. [00:09:49] Speaker 03: I'm still having trouble hearing you, John. [00:09:52] Speaker 03: I'm asking you about your position with respect to notice with respect to this new listing rule. [00:09:58] Speaker 03: There was a 105-day comment period and several comments made, but you still suggest that this rule would not be a logical output. [00:10:13] Speaker 05: We do not know who made those comments. [00:10:15] Speaker 05: They could have come from within the agency. [00:10:17] Speaker 05: So that's problem number one from our perspective. [00:10:20] Speaker 05: However, the fact that somebody figured it out, actually, somebody made a different suggestion to the agency, that the agency had not here before proposed. [00:10:37] Speaker 05: In fact, they had proposed the opposite. [00:10:40] Speaker 05: And I believe the precedents in Alina [00:10:46] Speaker 05: make it clear that when an agency specifically proposes, as they did here, to keep a regulation, they cannot simply reverse. [00:10:56] Speaker 05: Here, they did not put that proposition out for notice of comment. [00:11:03] Speaker 05: It depended entirely on the possibility that somebody might notice. [00:11:09] Speaker 05: Somebody did. [00:11:09] Speaker 05: But that does not allow the agency [00:11:17] Speaker 05: who escaped its notice and opportunity for common obligations. [00:11:23] Speaker 05: Secondly, there's no explanation, no reason for explanation. [00:11:37] Speaker 05: It does not address how they considered various, or even if they did consider various alternatives, [00:11:47] Speaker 05: And that's only with respect to listing 1205C. [00:11:53] Speaker 05: The agency never mentioned that they were taking away the rights of this individual to rely on her possible uncontradicted testimony. [00:12:06] Speaker 05: No way. [00:12:07] Speaker 05: Does that mean they never mentioned taking away the presumption, clinical presumption? [00:12:16] Speaker 05: It is still used. [00:12:17] Speaker 05: Senate presumption that IQ levels are stable over a lifetime. [00:12:23] Speaker 05: Barring evidence to the contrary. [00:12:25] Speaker 05: Actual evidence to the contrary. [00:12:29] Speaker 00: Make sure there's no additional questions for you at this time. [00:12:31] Speaker 00: We'll give you a little bit of time for rebuttal and we'll hear from the government. [00:12:36] Speaker 00: Ms. [00:12:36] Speaker 00: Klein? [00:12:50] Speaker 01: May it please the court, Elisa Klein from the Social Security Administration. [00:12:54] Speaker 01: I'll be brief and I want to address the court's questions. [00:12:58] Speaker 01: Judge Millett, yes, as the Supreme Court in the Yuppert case that we cite emphasized, listings are not comprehensive and anyone who is not found disabled by virtue of meeting a listing, the inquiry at each stage, [00:13:15] Speaker 01: of the adjudication, whether it's the state level stage or the ALJ stage, and just proceeds to residual functional capacity and the vocational factors, steps four and five. [00:13:27] Speaker 01: And of course, the agency could not change the statutory standard that determines whether or not benefits will be awarded. [00:13:37] Speaker 01: This, again, very briefly, as Judge Nichols and Judge Easterbrook explained, the agency's long-standing policy is to instruct its adjudicators at every level to use the most up-to-date listings. [00:13:54] Speaker 01: These are the most up-to-date medical standards when they're adjudicating an application for benefits. [00:14:01] Speaker 01: And that's a permissible policy under the broad discretion that Congress gave to the administration to basically oversee this gigantic apparatus of processing applications for benefits. [00:14:14] Speaker 01: And it is not retroactive in the Landgraf sense for the reasons that were set out by Judge Nichols and in our brief. [00:14:24] Speaker 04: Lee, do you dispute that had the listings been applied? [00:14:33] Speaker 04: that she would have been entitled to benefits? [00:14:36] Speaker 04: We do dispute that. [00:14:36] Speaker 01: We've assumed we're not asking this court to decide that. [00:14:40] Speaker 01: But there's a chart in our district court brief on page seven that sets out side by side the central requirements under the prior listing 1205 and under the 2017 version. [00:14:55] Speaker 01: And as we explained in our brief, it was always a requirement to show deficits in adaptive function. [00:15:03] Speaker 01: requirement even as part of the listings yes as part of listing 1205 the same the name was different intellectual disorder at the time was called mental retardation and the name got changed but the the substantive showing of deficits and adaptive functioning was present under the you know she met the IQ range yes that would not automatically get her benefits exactly [00:15:31] Speaker 01: And I'm not suggesting there was no change. [00:15:34] Speaker 01: There's more specificity in the 2017 version of that listing, 12.05, that talks about the severity and has some more detail. [00:15:45] Speaker 01: But our point, and again, we're not asking this court to decide it. [00:15:48] Speaker 01: We're just making the point that the administrative law judge [00:15:52] Speaker 01: went through and found like address each of the areas of deficits and adaptive functioning and made findings with respect to those. [00:16:00] Speaker 01: So while we are assuming for purposes of the retroactivity analysis that this change made a difference, we're not conceding. [00:16:10] Speaker 04: So if we assume that though, at least in National Mining Congress, we had language that said, where a rule changes the law in a way that adversely affects the party's prospects for success on the merits of the claim, it may operate retroactively. [00:16:26] Speaker 04: So if you're assuming for purposes of this case that it definitely changed for success on the merits, not just your prospects, but actual success on the merits, how is that standard not met? [00:16:38] Speaker 01: Because that language from national mining, which is what the district court relied on in this case, has to be understood in the context of the statute, the particular program that was at issue there. [00:16:49] Speaker 01: This court did not and could not change [00:16:54] Speaker 01: the court's prior decisions in Chadmore and the line that we cite in our brief that said an applicant for government benefits has no vested right while the application is pending. [00:17:05] Speaker 01: And that's just the general principle also referenced by Judge Easterbrook in the McCabe case. [00:17:10] Speaker 01: National mining was different, potentially unique, because the benefits were being paid by the employer. [00:17:18] Speaker 01: So the whole issue in the case was [00:17:21] Speaker 01: could the Department of Labor apply, I'm using retroactive in a colloquial sense, retroactively apply new rules in a way that increased the liability of the employers, the coal mine operators and their insurance companies. [00:17:37] Speaker 01: So if you look back at the briefing, the whole fighting, there was no dispute that that would have implicated Landgraf and that the fighting was over whether there were or were not material changes to the regulations, but you can't, [00:17:51] Speaker 01: take that language and pull it out of the unusual context in which the benefits of issue were payable by the private employer. [00:18:02] Speaker 00: That's a question about the treating physician part of the challenge. [00:18:06] Speaker 00: So under the regulations, they presuppose that the treating physician's opinion can have greater weight than somebody else. [00:18:16] Speaker 00: And I just didn't see anything in the ALJs [00:18:21] Speaker 00: treatment of the treating physician that a acknowledged that it was a treating physician and then be wrestled with whether because it's the treating physician I guess it was a thorn whether Dr. Hawthorne was a treating physician. [00:18:36] Speaker 00: notwithstanding the fact of treating physician status, there still was going to be a discount of those views for the reasons that were set out. [00:18:46] Speaker 01: So I took it as implicit that the ALJ understood that Colleen Hawthorne was the treating physician because the ALJ then did go through and explain why she was being given partial weight rather than greater weight as would be expected of a treating physician. [00:19:05] Speaker 00: But wasn't there similar language about other opinions, too? [00:19:10] Speaker 00: The partial weight went to other physicians, too. [00:19:12] Speaker 00: It just didn't seem like there was a distinction based on treating physicians. [00:19:16] Speaker 01: Since I don't believe this was the focus of the appeal, and I don't recall the specifics, but as we understood it, yes, of course, the ALJ knew this was a treating physician, but said that this was, with respect to Hawthorne herself, there were contradictions in her own [00:19:33] Speaker 01: I don't remember if it was testimony or testimony in medical records, in addition to contradictions with other physicians and other evidence. [00:19:41] Speaker 01: But again, we would not be here if the only issue were the treating physician. [00:19:47] Speaker 01: So I want to make sure the court is satisfied as to retroactivity, which is why we appealed. [00:19:53] Speaker 01: And I also just want to make sure I address, Judge Childs, your question about logical outgrowth. [00:19:57] Speaker 01: And to just go back to this chart, the changes to this listing, they're certainly important. [00:20:03] Speaker 01: It is important to align the listings with the up-to-date categories that are used by the American Psychological Association, the outside experts. [00:20:16] Speaker 01: And those experts, their own treatment that informs what the clinical records look like. [00:20:22] Speaker 01: So this is important. [00:20:24] Speaker 01: But the changes were still comparatively modest. [00:20:27] Speaker 01: And what happened was, after the agency made various reorganization to this particular listing, 12.05, comments came in and said, paragraph C is now unnecessary. [00:20:41] Speaker 01: And you should streamline this listing to avoid complicating the process for the adjudicator. [00:20:49] Speaker 01: And that's why, I mean, it's certainly a logical outgrowth if the agency takes into account the fact that commentators who are being asked, you know, to comment on what do you think of this proposal, say, do this thing to simplify the work of the adjudicators, that it's reasonable for the agency. [00:21:05] Speaker 04: It's not a logical outgrowth of a notice that says we will not change 1205C except for minor editorial. [00:21:13] Speaker 04: It's language to that effect is what was used. [00:21:17] Speaker 04: We will not be changing it. [00:21:19] Speaker 04: And you are assuming for purposes of this argument, so I assume you're assuming it for purposes of the whole argument, that she would have won under this provision that's now been eliminated. [00:21:30] Speaker 04: That doesn't seem at all like a logical outgrowth of a we're not changing it. [00:21:36] Speaker 04: And it seems like a profoundly substantive change from the perspective of claimants. [00:21:42] Speaker 01: The premise is very wrong. [00:21:43] Speaker 01: Obviously, there was no statement. [00:21:46] Speaker 01: We will not change paragraph C. But also, again, what happened? [00:21:49] Speaker 04: It was only minor editorial? [00:21:52] Speaker 01: No, but this is going back to the other point. [00:21:55] Speaker 01: I think that the plaintiff is missing that all along, there was a requirement to show deficits and adaptive functioning. [00:22:01] Speaker 01: Things got moved around. [00:22:04] Speaker 01: And there was more specificity as to that showing, but that was always going to be a required showing, even if you applied the old version of the listing. [00:22:18] Speaker 00: But it wouldn't be enough under the new. [00:22:19] Speaker 00: You may need deficit adaptive functioning, but that wouldn't get you all the way home. [00:22:27] Speaker 00: under the listings, right? [00:22:28] Speaker 00: Because you still have to show more. [00:22:30] Speaker 01: As before you had to show the IQ testing, that's not a change. [00:22:33] Speaker 00: But I'm taking that as a given too. [00:22:35] Speaker 00: So the IQ range plus deficit adaptive functioning under the new provision, there's still, you have to show extreme limitation of one or mark limitation of two of the following areas of mental functioning. [00:22:49] Speaker 00: And then the list A, B, C or D. [00:22:52] Speaker 01: Yeah, to be clear, those are the deficits in adaptive functioning. [00:22:55] Speaker 01: The terminology has changed, and it is more specific. [00:22:58] Speaker 01: To describe the level of severity, it had to be extreme in one or mild in two. [00:23:05] Speaker 01: But this is all just deficits in adaptive functioning. [00:23:07] Speaker 01: I just want to make sure that the court understands, because I know it's complicated, that this was, in many ways, a reorganization that made C unnecessary. [00:23:17] Speaker 00: But I thought we're taking as a given that [00:23:20] Speaker 00: The change, I know there were some reorganization and some encapsulation, but I thought we're taking as a given that there's a delta between what existed pre-20, whatever year it is, 2017 listings. [00:23:35] Speaker 00: And now, and there were things that would have automatically qualified you as disabled under the listings previously, it wouldn't necessarily get you all the way home now. [00:23:44] Speaker 01: Yes, with the pause on automatically, there had to be a showing of deficits and adaptive functioning. [00:23:49] Speaker 01: And that's why in response to her argument that there should be a remand for our award of benefits, we said no. [00:23:57] Speaker 01: The ALJ addressed deficits and adaptive functioning and said... Right. [00:24:01] Speaker 00: I mean, we may not remand to get to automatically give benefits, but just in terms of whether somebody's worse off. [00:24:07] Speaker 00: I thought we're taking it as a given that somebody could be worse off under the new listings than the old ones. [00:24:15] Speaker 00: They might still be able to satisfy steps four and five, even if they don't automatically get in on the listings, I get that. [00:24:20] Speaker 00: But in terms of automatically getting in under the listings, somebody could be worse off with the new approach than the previous one. [00:24:27] Speaker 01: Yes, we're taking that as a given. [00:24:30] Speaker 01: It is, of course, also true that in general, there's nothing systematic about updating the medical listings that disadvantages claimants as a class. [00:24:38] Speaker 01: And so there may well be many claimants who say, wait, you added a listing. [00:24:42] Speaker 01: You should be adjudicating my application with the benefit. [00:24:47] Speaker 04: And then just finally, the broad point. [00:24:48] Speaker 04: Just to be clear, someone prior to 2017, if they showed [00:24:55] Speaker 04: And they met the, one of the listings of the IQ range plus deficits and adaptive functioning. [00:25:00] Speaker 04: They showed both of those, you know, go directly to benefits, right? [00:25:04] Speaker 01: Automatically we get benefits. [00:25:05] Speaker 01: There was another category. [00:25:07] Speaker 01: It's in the chart. [00:25:08] Speaker 01: It's an additional impairment that affects the ability to work. [00:25:11] Speaker 04: Right. [00:25:11] Speaker 04: And they also have to show us before 20 or 22 or whatever that was. [00:25:14] Speaker 04: But they do that. [00:25:15] Speaker 04: And then now someone can make that exact same showing. [00:25:19] Speaker 04: they wouldn't get benefits automatically, they still have to go through steps four and five, or at least step five. [00:25:25] Speaker 01: We're assuming that the additional specificity for the deficits and adaptive functioning category may actually make a difference for someone. [00:25:35] Speaker 04: Because they still have to go through steps four and five. [00:25:38] Speaker 01: Yes, we're assuming. [00:25:39] Speaker 01: Particularly the vocational step five. [00:25:40] Speaker 01: And then you go through steps four and five and can show that nonetheless. [00:25:44] Speaker 04: meet the statutory. [00:25:46] Speaker 04: So there's a group of people, in theory at least a group of people, who would have qualified before, will no longer qualify. [00:25:56] Speaker 01: Like the other courts, we are assuming, you know, for purposes of this appeal, yes, that that could happen. [00:26:01] Speaker 01: But we're also making the more general point that there's nothing about updating medical listings that [00:26:06] Speaker 01: systematically disadvantages claimants. [00:26:10] Speaker 01: And the final point, if I may, is that as the Supreme Court repeatedly admonish [00:26:18] Speaker 01: This is a gigantic and very complicated adjudicatory system. [00:26:22] Speaker 01: And so efficiency, maybe in some context, doesn't matter very much. [00:26:26] Speaker 01: But for the Social Security Administration, keeping things simple and fast for the adjudicators is very important because of how long people wait to get a decision, even at the first level, on their applications for benefits. [00:26:41] Speaker 01: So the recent statistics were five and a half months. [00:26:44] Speaker 01: at that first level where a very large percentage of grants. [00:26:49] Speaker 01: So this is part of the reason the Supreme Court has consistently emphasized that the Social Security Administration by statute has really broad discretion to figure out the [00:27:01] Speaker 01: mechanisms, the procedures by which its adjudicators determine whether someone meets the statutory requirement. [00:27:08] Speaker 04: But you don't argue that any different retroactivity analysis applies in this context, do you? [00:27:14] Speaker 04: Because it's actually really hard to figure out how to do it for exactly the reason you said the same change can help someone and hurt someone else. [00:27:24] Speaker 04: And so how do we decide [00:27:26] Speaker 04: under a land grab type analysis, whether. [00:27:28] Speaker 01: So the land grab analysis here should be straight forward for the reasons Judge Nichols set out. [00:27:34] Speaker 01: We're not increasing liability for any. [00:27:38] Speaker 01: We're not attaching new adverse consequences to primary conduct that happened in the past. [00:27:44] Speaker 01: And so the only issue is the one Judge Nichols walked through about vested rights. [00:27:49] Speaker 01: And under this court's decision in Chadmore and the cases at sites, [00:27:54] Speaker 01: there is no vested right when you just have an application for government benefits. [00:27:58] Speaker 04: Okay, the consequences of having performed some work before changed? [00:28:04] Speaker 01: No, so I'm glad the court asked this question, because this is where the distinction between Social Security Disability Insurance and SSI is potentially relevant, but I want to explain why it shouldn't be. [00:28:14] Speaker 01: So this case is Social Security SSI. [00:28:18] Speaker 01: This is sort of the pure welfare program that was added in the 70s. [00:28:23] Speaker 01: The Supreme Court, though, cautioned in Fleming versus Nestor, and in a way in Matthews versus Eldridge, that even when you're talking about the category of workers who paid into the system and for that reason became entitled to either retirement benefits with Fleming versus Nestor or disability insurance benefits with Matthews versus Eldridge, the court still cautioned about not importing, at least at a constitutional level, these accrued property rights notions that [00:28:53] Speaker 01: That's when the Supreme Court said this would freeze up a system that depends upon flexibility in a way that was not intended. [00:29:02] Speaker 01: So the issue is not before the court here, but I just want to caution the court. [00:29:08] Speaker 01: Should not accidentally suggest that there's nothing the social security administration could do to streamline what's what are called its continuing disability reviews that it's required to do by statute, which is once someone is a recipient, you know, it's been found entitled. [00:29:26] Speaker 01: There's nonetheless a periodic, you know, could be five year, seven year. [00:29:31] Speaker 01: shorter inquiry into whether that person should still be getting benefits. [00:29:36] Speaker 00: Is there anything the Social Security Administration could do with respect to changing the listings that would be retroactive? [00:29:43] Speaker 01: The Social Security Administration's policy is that at that continuing disability stage review, changes in the listings are not considered. [00:29:52] Speaker 01: So there's nothing, you know, barring a hypothetical change to that policy that could be done to the listings that would be retroactive. [00:30:00] Speaker 00: So no matter how much the listing is chained. [00:30:03] Speaker 01: Correct. [00:30:04] Speaker 01: Because the listing couldn't be retroactive. [00:30:05] Speaker 01: The way the Supreme Court put it is this is for initial applicants, it's a way of streamlining the adjudicators. [00:30:12] Speaker 00: Right. [00:30:13] Speaker 00: So to cut to the chase, there's nothing you could do. [00:30:15] Speaker 00: No matter how much more restrictive the listing's got in terms of automatically qualifying as disabled without having to go through steps four and five, it definitionally can't be retroactive. [00:30:26] Speaker 00: Correct. [00:30:26] Speaker 00: And just to understand, I want to follow up on Judge Millett's question. [00:30:31] Speaker 00: As I understand the assumptions on which we're resolving this case, it has nothing to do with steps four and five because step under step three, [00:30:44] Speaker 00: The assumption on which we're considering the case is that pre-2017, someone might have qualified as disabled. [00:30:52] Speaker 00: Post-2017, that same person won't automatically qualify as disabled per step three. [00:30:57] Speaker 00: They might still qualify as disabled under step four and five, but they're worse off in a way that could be outcome determinative, because if they don't qualify under four and five, they would have qualified pre-17 under step three. [00:31:10] Speaker 00: Post-2017, they don't qualify. [00:31:12] Speaker 01: Yeah, those are the assumptions. [00:31:15] Speaker 00: And your argument is it can't be retroactive because it's just the automatic qualification under the listings and definitionally that can never be. [00:31:26] Speaker 00: Thank you. [00:31:29] Speaker 00: Thank you, counsel. [00:31:31] Speaker 00: And I will give you two minutes for rebuttal. [00:31:37] Speaker 05: Okay. [00:31:40] Speaker 05: Streamlining [00:31:42] Speaker 05: has absolutely nothing to do with depriving my client of her right, her right to make her prima facie case on her uncontradicted plausible testimony. [00:31:59] Speaker 05: That is guaranteed by Goldberg and Kelly. [00:32:03] Speaker 05: She had a right the minute she filed that application. [00:32:07] Speaker 05: And her IQ scores were confirmed. [00:32:10] Speaker 05: She had a right [00:32:13] Speaker 05: to her finding of disability, they made her wait. [00:32:16] Speaker 05: People wait, but they don't wait because they don't get decisions they were supposed to get a lot of the time. [00:32:29] Speaker 05: Regulations guarantee if you are, if your impairment meets the listing, you are disabled and we will make that finding if they did not. [00:32:45] Speaker 05: The notice and comment. [00:32:48] Speaker 05: There are no reason for explanations. [00:32:50] Speaker 05: There's no reason for taking away her right to plausible and contradicted testimony. [00:32:56] Speaker 05: There's no reason for taking away the presumption of IQ. [00:33:00] Speaker 05: None of that was ever discussed by the agency. [00:33:03] Speaker 05: This had nothing to do with streamlining. [00:33:08] Speaker 05: This had to do with cutting the budget. [00:33:13] Speaker 05: That's what it is. [00:33:17] Speaker 05: Thank you. [00:33:19] Speaker 00: Thank you, counsel. [00:33:20] Speaker 00: Thank you to both counsel will take this case under submission.