After More Than 20 Years, the Social Security Administration Publishes Final Procedures for Addressing ALJ Bias and Unfairness

Back in October 1992, the Social Security Administration (SSA) published a “Notice” instructing individuals how to proceed if they feel that an ALJ (Administrative Law Judge) handled their complaint did so with bias, unfairness, and prejudice.  Just this year, the SSA released the “final” procedure by way of a Social Security Ruling (SSR 13-1p Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges). The ruling came after a class action suit was filed, Padro v. Astrue, that alleged bias of five ALJs from the Queens, New York, Office of Disability Adjudication and Review office.

SSR 13-1p offers three different ways individuals can address their concerns if they feel they have been subjected to bias, prejudice, or unfairness. The first option outlined in SSR 13-1p is a review by the Appeals Council. The claimant may request a review of the allegations before the Appeals Council, who may consider reasons why the claimant should be entitled to a new hearing before a different ALJ.  If prejudice is found, the Appeals Council can grant the new hearing pursuant to 20 C.F.R. §§ 404.940 and 416.1440, which deals with recusal of an ALJ based on prejudice or bias.

The second option stated in SSR 13-1p is the ODAR Division Quality Service (DQS) process. This procedure addresses allegations of improper ALJ conduct that goes beyond the scope of the Appeals Council.  It is not a substitute for the first option, but the DQS will track and monitor the complaints it receives, and in some instances, conduct investigations.  This option can be used in cases where the claimant received a favorable decision but some type of misconduct on the ALJ’s has been alleged.

The third option is the Civil Rights Complaint Process.  This process allows a party to a hearing to file a complaint with the SSA if they feel they have been discriminated against on the basis of 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. The SSA Office of General Counsel then investigates these complaints.  Generally, a complaint alleging discrimination must be filed within 180 days of the discrimination, and although not required, there is a form for the civil rights complaint on the SSA website.  An individual filing a complaint under the Civil Rights Complaint Process can still file under one of the other processes, depending on the nature of their complaint.