Social Security Ruling, SSR 13-1p; Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality, Bias,…

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)

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 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</org> 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.

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.

--This is a summary of a Federal Register article originally published on the page number listed below--

Notice of Social Security Ruling (SSR).

Citation: "78 FR 6168"

Document Number: "Docket No. SSA 2012-0071"

Federal Register Page Number: "6168"

"Notices"