[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Notices]
[Pages 6168-6171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01833]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA 2012-0071]


Social Security Ruling, SSR 13-1p; Titles II and XVI: Agency 
Processes for Addressing Allegations of Unfairness, Prejudice, 
Partiality, Bias, Misconduct, or Discrimination by Administrative Law 
Judges (ALJs)

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of 
Social Security gives notice of Social Security Ruling, SSR-13-Xp. This 
Ruling explains the three separate vehicles we have for addressing 
complaints of unfairness, prejudice, partiality, bias, misconduct, or 
discrimination by an administrative law judge (ALJ). First, the Ruling 
describes the procedures that the Office of Disability Adjudication and 
Review's (ODAR) Appeals Council follows when it receives such 
allegations in the context of claim adjudication. Next, the Ruling 
describes how ODAR's Division of Quality Service reviews or 
investigates such complaints outside of the claim adjudication process 
to determine whether ODAR should take any administrative or 
disciplinary action with respect to the ALJ. Finally, the Ruling 
describes how the public may file with us complaints of discrimination 
based on race, color, national origin (including English language 
ability), religion, sex, sexual orientation, age, disability, or in 
retaliation for having previously filed a civil rights complaint 
against the agency. This Ruling supersedes our prior Notice of 
Procedures: Social Security Administration Procedures Concerning 
Allegations of Bias or Misconduct by Administrative Law Judges, 57 FR 
49186 (October 30, 1992).

DATES: Effective Date: January 29, 2013.

FOR FURTHER INFORMATION CONTACT: Rainbow Forbes, Appeals Officer, 
Office of Disability Adjudication and Review, 5107 Leesburg Pike, Suite 
1400, Falls Church, VA 22041, 703-605-7100.

SUPPLEMENTARY INFORMATION: Although we are not required to do so 
pursuant to 5 U.S.C. 552(a)(1) and (a)(2), we are publishing this SSR 
in accordance with 20 CFR 402.35(b)(1).
    Through SSRs, we make available to the public precedential 
decisions relating to the Federal old-age, survivors, disability, 
supplemental security income, special veterans benefits, and black lung 
benefits programs. SSRs may be based on determinations or decisions 
made at all

[[Page 6169]]

levels of administrative adjudication, Federal court decisions, 
Commissioner's decisions, opinions of the Office of the General 
Counsel, or other interpretations of the law and regulations.
    Although SSRs do not have the same force and effect as statutes or 
regulations, they are binding on all of our components. 20 CFR 
402.35(b)(1).
    This SSR will be in effect until we publish a notice in the Federal 
Register that rescinds it, or publish a new SSR that replaces or 
modifies it.

(Catalog of Federal Domestic Assistance, Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006--
Supplemental Security Income)

    Dated: January 23, 2013.
Michael J. Astrue,
Commissioner of Social Security.

Policy Interpretation Ruling

    Titles II and XVI: Agency Processes for Addressing Allegations of 
Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination 
by Administrative Law Judges (ALJs).
    Purpose: This Ruling clarifies the three separate processes we have 
for addressing allegations of unfairness, prejudice, partiality, bias, 
misconduct, or discrimination by an ALJ.
    Citations (Authority): Sections 205(b), 809(a), and 1631(c) of the 
Social Security Act, as amended; Regulations No. 4, subpart J, sections 
404.940, 404.967, 404.969, and 404.970, Regulations No. 5, subpart A, 
sections 405.25 and 405.30, and Regulations No. 16, subpart P, sections 
416.1440, 416.1440, 416.1467, 416.1469, and 416.1470.
    Background: Statements and actions by our adjudicators that display 
unfairness, prejudice, partiality, bias, misconduct, or discrimination 
undermine public trust and confidence in our administrative process. 
Our ALJs perform an essential role in ensuring that our administrative 
process is fair to claimants by conducting de novo, informal, non-
adversarial hearings and issuing decisions for claimants who are 
dissatisfied with our determinations in claims arising under the Social 
Security Act. All adjudicators, including our ALJs, must fulfill their 
duties with fairness and impartiality. We have three separate processes 
to guard against unfairness in our hearing process: (1) The Appeals 
Council review process, under which we review hearing decisions in 
accordance with 20 CFR 404.969, 404.970, 416.1469 and 416.1470, to 
ensure that ALJs fairly and impartially consider claims for benefits; 
(2) the Division of Quality Service's ALJ complaint investigation 
process; and (3) the civil rights investigation process for allegations 
of discrimination involving unfairness, prejudice, partiality, or bias 
based on race, color, national origin (including English language 
ability), religion, sex, sexual orientation, age, disability, or in 
retaliation for having previously filed a civil rights complaint. These 
three processes operate separately from one another and have different 
focuses. Claimants, parties, and the public may avail themselves of any 
or all three of the processes, as applicable, and all three processes 
may occur concurrently.
    In this Ruling, we explain these three different processes and 
emphasize that:
    1. The Appeals Council has authority under 20 CFR 404.970 and 
416.1470 to act when a party is dissatisfied with a hearing decision or 
dismissal of a hearing request. Even when a party does not request 
review, the Appeals Council may initiate review under 20 CFR 404.969 
and 416.1469. The Appeals Council considers allegations of unfairness, 
prejudice, partiality, or bias by ALJs under the standards for review 
in 20 CFR 404.970 and 416.1470. The Appeals Council may also consider 
objections from a party stating why a new hearing should be held before 
another ALJ pursuant to 20 CFR 404.940 and 416.1440. In evaluating such 
allegations, the Appeals Council considers only the evidence contained 
in the claimant's administrative record. The Appeals Council's process 
is the only process set forth herein that allows a claimant to obtain a 
remedy on the claim for benefits.
    2. The Division of Quality Service may review and, if warranted, 
investigate any complaints against an ALJ, including allegations of 
unfairness, prejudice, partiality, bias, or misconduct. Under this 
process, the Division of Quality Service evaluates allegations to 
determine whether it is necessary to recommend administrative or 
disciplinary action against an ALJ.
    3. Individuals who allege discrimination based on their race, 
color, national origin (including English language ability), religion, 
sex, sexual orientation, age, disability, or in retaliation for having 
previously filed a civil rights complaint, may also file a separate 
discrimination complaint with us using our civil rights complaint 
process.

Policy Interpretation

Allegations of Unfairness, Prejudice, Partiality, Bias, or Misconduct 
Evaluated in the Appeals Council Claims Review Process

    The ALJ's decision is subject to Appeals Council review under 20 
CFR 404.970 and 416.1470 if the claimant or other party or his or her 
representative timely requests review of the ALJ's decision. The 
Appeals Council may also review the ALJ's decision on its own motion 
under 20 CFR 404.969 and 416.1469.
    The Appeals Council will grant a party's request for review and 
issue a decision or remand a case when:
     There appears to be an abuse of discretion by the ALJ;
     There is an error of law;
     The action, findings or conclusions of the ALJ are not 
supported by substantial evidence;
     There is a broad policy or procedural issue that may 
affect the general public interest; or
     There is new and material evidence submitted that relates 
to the period on or before the ALJ's hearing decision, and review of 
the case shows that the ALJ's actions, findings or conclusions are 
contrary to the weight of the evidence currently of record.
    Under our regulations, an ALJ must not conduct a hearing if he or 
she is prejudiced or partial with respect to any party or has any 
interest in the matter pending for decision. A claimant or other party 
to the hearing who objects to the ALJ who will conduct the hearing must 
notify the ALJ at his or her earliest opportunity. The ALJ will then 
decide whether to proceed with the hearing or to withdraw. If the ALJ 
does not withdraw, the claimant or other party to the hearing may, 
after the hearing, present objections to the Appeals Council as to 
reasons why the hearing decision should be revised or a new hearing 
should be held before another ALJ.
    If, in conjunction with a request for review, the Appeals Council 
receives an allegation of ALJ unfairness, prejudice, partiality, or 
bias, the Appeals Council will review the claimant's allegations and 
hearing decision under the abuse of discretion standard. We will find 
an abuse of discretion when an ALJ's action is erroneous and without 
any rational basis, or is clearly not justified under the particular 
circumstances of the case, such as where there has been an improper 
exercise, or a failure to exercise, administrative authority. For 
example, if the record shows that the ALJ failed to conduct a full and 
fair hearing by refusing to allow the

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claimant to testify or cross-examine witnesses, we will find that an 
abuse of discretion has occurred. An abuse of discretion may also occur 
where there is a failure to follow procedures required by law.
    An ALJ also abuses his or her discretion if the evidence in the 
record shows that the ALJ failed to recuse himself or herself from a 
case in which he or she was prejudiced or partial with respect to a 
particular claim or claimant, or had an interest in the matter pending 
for decision. In this instance, we will remand the case to another ALJ 
for a new hearing or revise the ALJ's decision pursuant to 20 CFR 
404.940 and 416.1440.
    In considering allegations of unfairness, prejudice, partiality, or 
bias by the ALJ, the Appeals Council reviews information in the 
claimant's administrative record to determine whether to consider the 
alleged actions an abuse of discretion. The Appeals Council relies 
solely on information in the administrative record in determining this 
issue. The Appeals Council does not otherwise investigate the 
allegations or consider information or evidence that is not a part of 
the administrative record.
    After reviewing the administrative record to evaluate the 
allegation of unfairness, prejudice, partiality, or bias by the ALJ 
under the abuse of discretion standard, the Appeals Council will send 
the claimant a notice, order, or decision explaining that it has 
considered the allegation under the abuse of discretion standard and 
stating whether it found an abuse of discretion. The sole remedy the 
Appeals Council may provide to the claimant is a decision or a remand 
for further administrative action on the particular claim for benefits 
under review. When the Appeals Council issues its notice, order, or 
decision describing its action on the request for review, this 
concludes its role in the appellate review process. Such action does 
not involve a referral to the Division of Quality Services, nor does it 
constitute disciplinary action against an ALJ.
    If the Appeals Council receives an allegation that falls outside 
its jurisdiction, such as an allegation that an ALJ violated personnel 
regulations or policies, the Appeals Council will process the request 
for review and acknowledge the allegation.\1\ The Appeals Council will 
then refer the allegation to the Division of Quality Service. 
Similarly, if the Appeals Council receives an allegation about another 
issue that is beyond the scope of its authority, such as an allegation 
that an ALJ shows ``general bias'' or a pattern of bias or misconduct 
against a group or particular category of claimants, the Appeals 
Council will process the request for review and acknowledge the 
allegation in the notice, order, or decision. The Appeals Council will 
refer the allegation to the Division of Quality Service. Possible 
examples of allegations that the Appeals Council will not refer to the 
Division of Quality Service include, ``the ALJ is biased against me 
[individually]'' and ``the ALJ is prejudiced because she did not find 
me disabled.'' Possible examples of allegations that the Appeals 
Council will refer to the Division of Quality Service include, ``the 
ALJ is biased against claimants who receive workers compensation 
benefits or unemployment benefits'' and ``the ALJ shows prejudice 
toward women.''
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    \1\ For example, the Appeals Council does not use ethics or 
personnel rules to determine whether an ALJ abused his or her 
discretion. All employees, including our ALJs, must comply with the 
Standards of Ethical Conduct for Employees of the Executive Branch 
(5 CFR part 2635) and SSA's Standards of Conduct and Annual 
Personnel Reminders, but these rules are not considered during the 
Appeals Council's review of an ALJ's decision on a disability 
benefits claim.
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    Additionally, the Appeals Council may identify ALJ conduct that it 
determines warrants referral to the Division of Quality Service even if 
a claimant has not alleged it or filed a request for review with the 
Appeals Council. If the Appeals Council makes such a referral, it will 
clearly identify and refer the conduct to the Division of Quality 
Service. The Appeals Council will not reference any referral to the 
Division of Quality Service in a notice, order, or decision.

ALJ Complaint Investigation Process Through the Division of Quality 
Service

    We also may receive allegations and complaints about ALJ conduct 
directly from claimants and other sources, outside of the scope of 
Appeals Council review. For example, in addition to receiving 
complaints from individual claimants, we may also receive complaints 
from witnesses at a hearing, claimant representatives, agency personnel 
such as those in our Office of the Inspector General (OIG), Members of 
Congress, and the Federal courts. Within the Office of Disability 
Adjudication Review (ODAR), the Division of Quality Service collects, 
reviews, and if warranted, investigates all allegations and complaints, 
including allegations referred by the Appeals Council under the process 
described above. The Division of Quality Service is responsible for 
receiving, tracking, and monitoring complaints that it receives.
    This ALJ complaint investigation process is not an additional or 
alternative way to appeal the decision or dismissal on a claim for 
benefits. Filing a complaint using this process does not substitute for 
requesting review by the Appeals Council within the time frames set out 
in our regulations. If an individual wants to make a formal complaint 
about a particular ALJ (whether or not that complaint is associated 
with a particular claim for benefits) and request that management 
officials investigate the ALJ's conduct, the individual must file the 
complaint with the Division of Quality Service.
    When the Division of Quality Service receives a complaint about an 
ALJ from a claimant or member of the public, it will acknowledge 
receipt of the complaint in writing and make reasonable efforts to do 
so within 60 days from the date it receives the complaint. However, the 
Division of Quality Service will not acknowledge complaints referred by 
the Appeals Council or other agency components. If an ODAR Regional 
Office receives a complaint from a claimant or member of the public 
about an ALJ, the Regional Office will acknowledge receipt of the 
complaint in writing and make reasonable efforts to do so within 60 
days from the date it receives the complaint. The ODAR Regional Offices 
will also notify the Division of Quality Service that they received the 
complaint.
    In order for the Division of Quality Service to review or 
investigate a complaint, the complaint must be filed in writing by the 
claimant, another party to the hearing, the claimant's representative, 
someone authorized to act on the claimant's or other party's behalf, or 
another individual who was present at the claimant's hearing 
(collectively, the complainant). If we receive the complaint from 
someone other than the individuals listed above, we will notify that 
individual that we will not review it. To ensure that we can obtain any 
necessary information in a timely manner, we must receive the complaint 
within 180 days of either the date of the action complained of, or the 
date the complainant became aware of such conduct. The complaint should 
contain specific information about the conduct, including where and 
when it occurred, and whether there were any witnesses. If we do not 
receive this information, we will inform the complainant of the 
insufficiency of information, and give him or her 30 days from the date 
of the notice to supply additional information.

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    The Division of Quality Service (or its designee) will review all 
complaints that it receives. A review includes an audit of the hearing 
recording if available, and an examination of the complaint, the 
hearing decision, and any other relevant documentation. If the Division 
of Quality Service's review indicates an investigation is unnecessary, 
we will close out the complaint and forward it to the appropriate ODAR 
Regional Office.\2\ If the Division of Quality Service determines that 
an investigation is necessary, the Division of Quality Service will 
forward the complaint to the appropriate Regional Chief Administrative 
Law Judge (RCALJ). At the beginning of the investigation, the RCALJ (or 
his or her designee) will notify the ALJ, give him or her a copy of the 
complaint, and provide him or her with an opportunity to respond to the 
complaint. In addition to auditing the hearing recording and examining 
the complaint, the hearing decision, and any other relevant 
documentation, an investigation may include contacting any witnesses 
who have information related to the complaint. Following the 
investigation, the appropriate RCALJ will prepare a report for the 
Division of Quality Service's review containing findings and 
recommending any necessary action regarding the ALJ. Such action could 
include counseling, training, mentoring, or disciplinary action. Once a 
review or investigation is complete, we will notify the complainant 
that we processed the complaint. However, we will also explain that the 
Privacy Act prevents us from disclosing whether there was an 
investigation and whether we took any action against the ALJ who is the 
subject of the complaint.
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    \2\ The ODAR Regional Office or DQS will notify the ALJ pursuant 
to our contractual obligations. Our current contract governing 
notification with the Association of Administrative Law Judges, 
International Federation of Professional and Technical Engineers, 
AFL-CIO became effective on August 31, 2001.
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    The Division of Quality Service will use the same process described 
above to review or investigate complaints alleging ``general bias'' as 
well as those alleging a pattern of ALJ bias or misconduct against a 
group of claimants, or a particular category of claimants. In addition, 
the Division of Quality Service will monitor individual complaints that 
it receives to identify any patterns of alleged ALJ bias or misconduct 
against a group of claimants, or a particular category of claimants, 
for further investigation. If we substantiate these complaints, we will 
take appropriate action as described in this Ruling.
    We may also find after a review or investigation the complaint is 
unsubstantiated, and we will take no action with respect to the ALJ. 
Our findings or actions in the Division of Quality Service ALJ 
complaint investigation process do not constitute findings on a claim 
for benefits under the Social Security Act. Rather, they represent an 
action committed to agency discretion by law and are not subject to 
judicial review.

Investigation of Allegations of Discrimination Under Our Civil Rights 
Complaint Process

    A person who was a party to a hearing may file a discrimination 
complaint with us alleging discrimination in our hearing process based 
on race, color, national origin (including English language ability), 
religion, sex, sexual orientation, age, disability or in retaliation 
for having previously filed a civil rights complaint. Currently, our 
Office of the General Counsel has the responsibility to investigate and 
decide complaints that individuals file under this process. A person 
who was a party to a hearing may file a discrimination complaint under 
our civil rights investigation process in addition to filing a request 
for Appeals Council review or filing a complaint with the Division of 
Quality Service.
    An individual may file a discrimination complaint alleging 
discrimination by an ALJ by using Form SSA-437-BK (available at http://www.socialsecurity.gov/online/ssa-437.pdf); however, an individual is 
not required to use this form and may make a complaint with a letter 
that contains the same information. The discrimination complaint must 
be filed within 180 days of the alleged discriminatory action unless we 
find there is good cause for late filing. Form SSA-437-BK provides:

    ``If you disagree with a decision that was made on a claim you 
filed for benefits, you must appeal that decision according to the 
procedure described in the notice of appeal rights that accompanied 
the decision. If you believe the decision was based on 
discrimination, you may file a complaint of discrimination using 
this form, but even if we find that you were discriminated against, 
that would not mean that the decision on your claim for benefits 
would change. A decision can still be a correct application of the 
law even if the decision-maker was biased. The only way to get the 
benefits decision changed is to file an appeal of that decision.''

    After we receive an allegation of discrimination involving an ALJ 
based on the categories discussed above, the Division of Quality 
Service (or its designee) will assist the Office of the General Counsel 
or its designee in its review of the allegation of discrimination. The 
Division of Quality Service will prepare a copy of its findings and 
supporting documents. We will use the facts and documents stemming from 
the Division of Quality Service's investigation to make a finding of 
discrimination or non-discrimination.
    We should issue a decision within 180 days of receiving the 
complaint. We may dismiss complaints for a lack of jurisdiction, such 
as those that allege discrimination based solely on a denial of 
benefits under SSA's program law and not on race, color, national 
origin (including English language ability), religion, sex, sexual 
orientation, age, disability or in retaliation for having previously 
filed a civil rights complaint. We will also dismiss complaints 
alleging discrimination on bases other than those identified in the 
complaint form or letter.
    Within 30 days after a complainant receives our decision, he or she 
may request reconsideration of our decision on or dismissal of his or 
her civil rights complaint, and we should issue a reconsideration 
decision within 60 days of receiving a request for reconsideration.
    Effective Date: This SSR is effective on February 28, 2013.

[FR Doc. 2013-01833 Filed 1-28-13; 8:45 am]
BILLING CODE 4191-02-P