Overcoming Gridlock: Campbell after a Quarter-Century and Bureaucratically Rational Gap-Filling in Mass Justice Adjudication in the Social Security Administration's Disability Programs

Abstract

The Social Security Administration's (SSA) disability benefit programs utilize the largest adjudicative system in the western world. Yale Law Professor Jerry Mashaw's two comprehensive studies of the SSA's processes have yielded a theory of bureaucratic rationality to advance accuracy, consistency and baseline fairness through hierarchical adherence to centrally formulated rules in "mass justice" SSA adjudication. The SSA promulgated its "grid" regulations in furtherance of Mashaw's thesis to systematize the process of determining disability claimants' abilities to make adjustments to other work. In 1983, the Supreme Court sustained the grid in Heckler v. Campbell in an opinion administrative law scholars have identified as one of the most influential in administrative law. While elucidating the principles supporting agencies' authority to resolve some factual issues in advance of case-by-case adjudication through rulemaking and rigid decisional rules notwithstanding the statutory requirement of individualized decisionmaking, the Campbell Court relied in part on the presence of gaps in the grid - exceptions requiring more flexible and individualized adjudicative treatment. This includes a common exception for claimants with non-exertional limitations.

However, the agency's ad hoc, adjudicative methodology where grid exceptions are present has undermined the consistency and bureaucratic rationality the grid system was intended to ensure, sanctioned discriminatory and disadvantaged treatment of claimants with non-exertional impairments and limitations, and deeply divided the circuits. Courts and agency adjudicators differ within and among themselves on such fundamental questions as: (1) what is the proper methodology for using the grid's administratively noticed occupational and job bases as a framework or guide on work adjustment questions in grid exception cases and whether such methodology is applicable when additional vocational or labor market evidence is procured; and (2) under what circumstances may adjudicators deny a claim without additional vocational or labor market evidence by presuming or taking administrative notice of the lack of sufficient diminution or erosion of the grid's job bases due to the presence of considerations not factored into the grid’s promulgation such as non-exertional limitations.

The article develops approaches for resolving both of these major grid "gap" issues. On the first issue, it argues that the courts should compel the agency to utilize non-promulgated interpretive guidance on the proper use of the grid's adjudicative framework in work adjustment assessments. This entails interpreting that guidance to mandate use of the grid's occupational and job base numbers, and not ad hoc, adjudicative gestalt, as the proper measure of the "significant" quantum of performable jobs below which a claimant is deemed unable to make a sufficient work adjustment in grid exception cases. In turn, this would ensure greater fairness, consistency and non-discriminatory treatment of similarly situated claimants and give proper effect to statutory vocational factors. On the second issue, it advocates that the Court compel compliance with settled official notice/administrative notice doctrine to ensure procedural fairness and prevent standardless intuitive decisionmaking. At a minimum, this requires constraining adjudicators from taking unrebuttable administrative notice that the grid's job bases have not been significantly eroded by the presence of non-trivial, non-exertional limitations in making work adjustment assessments.

Keywords: Administrative Law, Mass Justice, Social Security Disability, Administrative/Official Notice Doctrine, Grid Regulations