ALJ Complaint Tracking System Established

March 10, 2010

Author: Catherine M. Callery (Kate) | Louise M. Tarantino

Complaining about Administrative Law Judge (ALJ) behavior can be a daunting task. Just peruse the many issues of this newsletter chronicling the Pronti litigation that took on one particular ALJ. Social Security Administration (SSA)’s lack of a meaningful complaint process has made it even harder. See, e.g., Pronti v. Barnhart, 339 F. Supp. 2d 480, 495 (W.D.N.Y. 2004), where Judge Larimer decried SSA’s so-called “interim complaint procedures”: “there are serious questions as to whether 20 C.F.R.§404.940 is an adequate mechanism when the bias alleged does not relate to a particular plaintiff, but is based on a claim that the ALJ is generally biased against all Social Security claimants.” 

So what has prompted SSA’s recent announcement of a Proposed System of Records and Routine Use Disclosures entitled Administrative Law Judge/Public Alleged Misconduct Complaints System, 60-0356 (the ALJ/PAMC systems of records).  Announced in the February 23, 2010 Federal Register, SSA will use the information covered by the system to manage and monitor complaints filed against ALJs. SSA acknowledged that:

At present, we do not have a good mechanism to track complaints about ALJs from initiation to resolution. This weakness makes it difficult for us to identify and resolve service delivery issues, and also impairs customer service.  This system of  records will help us improve service to the public by creating a centrally managed, electronic method to collect, monitor, and retrieve information concerning complaints about ALJs.

The new ALJ/PAMC system will allegedly provide information to SSA to allow it to better manage and respond to complaints; to process, review or investigate complaints filed; provide information related to the complaints filed, including the name of the ALJ accused of misconduct, the complainant and the complainant’s representative if any; and provide management information to document and track complaints, including identifying patterns of improper ALJ behavior that might require review or action.  SSA also hopes this information will assist in “deterring recurring incidences of ALJ bias or misconduct.”

The information collected will include demographics of the complainants, including gender, race or ethnic background “if readily available.”  Some advocates may recall that SSA had been criticized in the past by the Government Accountability Office (GAO) for failing to collect this information.  See GAO-02-831, SSA DISABILITY DECISION MAKING: Additional Measures Would Enhance Agency’s Ability to Determine Whether Racial Bias Exists. [That GAO report, along with other concerns about SSA’s complaint process, is discussed at length in the January 2003 edition of this newsletter.]

The Federal Register notice of the proposed system also sets forth “routine use disclosures” for the information collected.  Thirteen of the fourteen routine use disclosures are to the other branches of government, including federal courts under certain limited circumstances.  The final routine use involves releasing information not restricted under federal law to the General Services Administration (GSA) and National Archives and Records Administration (NARA) for use in conducting records management studies. The proposal also sets forth the safeguards that SSA will use to protect the privacy of the information collected, both electronically and in paper format.

Although not published as proposed regulations under the Administrative Procedure Act, the announcement does invite comments from the public, which will be made available for public inspection. According to the announcement, the tracking system goes into effect on March 14, 2010, “unless comments [are] receive[d] before that date that would result in a contrary determination.”  It is available at http://edocket.access.gpo.gov/2010/pdf/2010-3495.pdf. It remains to be seen if this effort by SSA to monitor complaints will make the complaint process any less futile.