How to Handle ALJ Bias or Misconduct at a Disability Appeal Hearing

Here's what to do if a Social Security judge behaves improperly at your disability hearing.

By , J.D., University of Missouri School of Law
Updated by Diana Chaikin, Attorney (Seattle University School of Law)

The vast majority of administrative law judges (ALJs) who hear Social Security disability cases are fair-minded and respectful of the disability applicants who appear before them. But if you catch the wrong ALJ at the wrong time, you may feel like you didn't get a full and fair opportunity to present your case. Perhaps the ALJ's aggressive questioning crossed a line into outright rudeness or disrespect, or maybe the judge made comments to you that clearly demonstrated bias.

While these things happen only rarely, they do happen. It's important to know what to do at the hearing and afterward if the ALJ in your case acts improperly.

What to Do if the ALJ Exhibits Bias or Hostility

Social Security regulations (20 C.F.R. § 498.204) state that the ALJ will conduct a full and fair hearing. Here are some examples of judges' actions that would get in the way of a full and fair hearing:

  • refusing to consider evidence submitted more than 5 business days before the hearing
  • not allowing the applicant to testify or to cross-examine witnesses
  • speaking to the applicant in an offensive or hostile manner, or
  • failing to recuse himself or herself despite a conflict of interest.

What to Do During the Hearing

What should you do at your hearing if you believe the ALJ is showing bias or hostility? First of all, try to stay calm and avoid escalating the situation by behaving appropriately. Then focus on doing what lawyers call "preserving the record" for appeal. While the audio of your hearing will be recorded, most hearings are not videotaped. If the judge says or does something that isn't captured by the recording equipment, you should try to state for the record what has happened.

Most attorneys would also recommend that you remain at the hearing until it's over, even if you feel you're being treated unfairly. If you storm out of the hearing, you could be held partially responsible for your failure to receive a full and fair hearing.

What to Do After the Hearing

Although there isn't much you can do at the hearing if the ALJ is acting improperly, you have a few more options after the hearing:

  • file an appeal with the Appeals Council, pointing out the ALJ's conduct
  • file a complaint with the Division of Quality Service, or
  • file a discrimination complaint to Social Security's legal department.

Filing an Appeal With the Appeals Council

If you receive a denial of benefits (or only a partially favorable decision), you have 60 days to file a request for review with the Appeals Council.

Before you file your appeal, you should request a copy of the hearing audio and listen to it carefully. Write a letter to the Appeals Council stating why you believe the ALJ engaged in improper conduct, and cite examples from the hearing audio (for instance, "the ALJ stated at 12:35:11 that he didn't believe in awarding benefits to people under 35"). To increase your chances of success, you should find an experienced disability attorney to handle your case at the Appeals Council.

After reviewing your case, the Appeals Council will remand (send back) your case to the ALJ or award you benefits if it finds that there has been an abuse of discretion by the ALJ. "Abuse of discretion" means the ALJ acted in a manner that was irrational or without clear justification. Examples include:

  • not letting a claimant submit evidence necessary to support their case
  • not postponing a scheduled hearing when a claimant is unavailable for health reasons, or
  • coercing a claimant into amending their disability onset date.

If the Appeals Council denies your request for review or upholds the ALJ's decision, you may file a lawsuit against the Commissioner of Social Security in federal court. At this point in the process, if you haven't hired a disability attorney yet, you really should.

Filing a Complaint With the Division of Quality Service (DQS)

The Division of Quality Service (DQS), a part of Social Security's Office of Hearings Operations, is responsible for investigating allegations regarding ALJ conduct. Complaints arrive at DQS in one of two ways—they're referred from the Appeals Council or directly submitted by disability claimants. Unlike the Appeals Council, DQS can look beyond the scope of one individual case to assess whether an ALJ has a pattern of bias or inappropriate behavior.

To file a complaint with DQS, write a letter to the following address within 180 days of the alleged misconduct:

Social Security Administration
Office of Hearings Operations
Office of Executive Operations and Strategic Management
Attn: Division of Quality Service
6401 Security Boulevard
Baltimore, MD 21235

You can also fax your complaint to the DQS at 833-769-0252 or email your complaint to [email protected].

Additionally, you can call 800-772-1213 (if you're deaf or hard of hearing, the TTY number is 800-325-0778) from 8:00 a.m. to 7:00 p.m., Monday through Friday, and tell a representative about your complaint. The representative will write it down for you and send it to the appropriate office. Or, you can visit your local Social Security field office to help make your complaint.

Make sure to include as many details as possible in your letter to aid DQS in its investigation. Keep in mind that filing a complaint with DQS isn't the same as appealing your denial or partially favorable decision. You can file a complaint with DQS even if you received a fully favorable decision if you think the judge treated you unfairly. But you'll have to go through the normal appeals process in addition to filing a complaint if you disagree with your denial decision.

How to File a Complaint Based on Discrimination

If you think the ALJ has discriminated against you based on your race, national origin, religion, gender, sexual orientation, or age, you should consider filing a complaint with the Office of General Counsel (OGC). The OGC is the legal department for Social Security. Complete Form SSA-437-BK, Civil Rights Complaint Form for Allegations of Program Discrimination by the Social Security Administration, within 180 days of the incident and mail it to the following address:

Social Security Administration
Program Discrimination Complaint Adjudication Office Room
617 Altmeyer Building
6401 Security Boulevard
Baltimore, MD 21235

You can also call (866) 574-0374 to file a complaint or to check on the status of one you've already filed. Or, you can email your complaint as an attachment to [email protected], but be aware that the email address isn't "secured".

The OGC will likely issue a decision on your complaint within 180 days. As with a DQS complaint, filing a complaint with the OGC won't affect the status of your disability case in any way—if you want to appeal an unfavorable decision in your disability case, you must request a review from the Appeals Council within 60 days of receiving your decision (discussed above).

Updated February 12, 2024

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