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)

Effective Date: February 28, 2013 Publication Date: January 29, 2013 Federal Register Vol. 78, No. 19, page 6168 Correction Notice: February 12, 2013 Federal Register Vol. 78, No. 29, page 9987 Correction Notice: April 15, 2013 Federal Register Vol.

78, No. 72, page 22361

POLICY INTERPRETATION RULING

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

ve 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:

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:

- 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.

- 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.

- 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.

istrative or disciplinary action against an ALJ.

- 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.

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.

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.

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

nary action against an ALJ.

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.

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.

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 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

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 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

ndard, 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.”

ty 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.”

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.

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.

gency 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.

e 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.

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

omplaint.

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.

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

spect 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:

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.

lity 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 60 * 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.

[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 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.

rsonnel 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 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.

[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.

[*] Changed from 30 to 60 days by Federal Register Vol. 78, No. 72, page 22361, April 15, 2013.