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

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 he or she was biased against you. While these things happen only rarely, they do still 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 state that disability applicants are entitled to a full and fair hearing before an ALJ. Here are some examples of judges' actions that would likely prevent a full and fair hearing:

• refusing to consider evidence submitted just before or at the hearing
• failing to allow 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:

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 winning benefits from the Appeals council, you should find an experienced disability attorney to handle your case at the Appeals Council.

In 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. 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. This process is infinitely easier and more likely to succeed if you have a disability attorney representing you.

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

The Division of Quality Service (DQS), a part of Social Security's Office of Appellate Operations, is responsible for investigating allegations regarding ALJ conduct. Complaints arrive at DQS in one of two ways: on referral from the Appeals Council or submitted by individuals directly to DQS. 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.

Division of Quality Service
One Skyline Tower
5107 Leesburg Pike, Suite 1605
Falls Church, VA 22041

Include as many details as possible in your letter to aid DQS in its investigation. Note that filing a complaint with DQS does not constitute an appeal of your denial or partially favorable decision.

How to File a Complaint Based on Discrimination

If you feel 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 Social Security Administration's Office of General Counsel (OGC). Complete Form SSA-437-BK on SSA's website within 180 days of the incident, and mail it to the following address.

Social Security Administration
Civil Rights Complaint Adjudication Office
P.O. Box 17788
Baltimore, MD 21235-7788

You can also call (866) 574-0374 to file a complaint or to check on the status of one you've already filed.

The OGC will likely issue a decision on your complaint within 180 days. Note that filing a complaint with OGC will not affect the status of your disability case in any way. If you wish 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, as discussed above.