Judges Must Be Fair And Impartial.

Judge London Steverson, USALJ(Ret.)

All Social Security Administration (SSA) Admin Law Judges must fulfill their duties with fairness and impartiality. Statements and actions by any Judge that displays unfairness, prejudice, partiality, bias, misconduct, or discrimination undermine public trust and confidence in the administrative process. All SSA ALJs perform an essential role in ensuring that our administrative process is fair to claimants by conducting fair and unbiased hearings and issuing decisions for claimants who are dissatisfied with Agency determinations in claims arising under the Social Security Act.

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.


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).

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.

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.

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 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"
Copyright:
(c) 2013 Federal Information & News Dispatch, Inc.

A Female Veteran Differs With The Secretary Of Defense About Women In The Military

(Army Veteran, Cheryl K. Chumley)

In February 1991, for economic reasons, I joined the Army for an eight-year term of service (two years plus training time on active duty; the remainder on inactive status) as a “63H” — track vehicle repairer. In August 1993, I wrapped my active-duty service with an honorable discharge from Fort Stewart, Ga. A few years later, I wrote an opinion piece for a local Georgia newspaper. The headline: “Why Most G.I. Janes Should Go Home.”
With the Pentagon’s push to let women serve in combat roles as a backdrop, here’s a recap of my military experience:
When I joined, Michael Dukakis was governor of my native state, the Massachusetts unemployment rate was sky-high, jobs were few and far between. The Army looked like a good deal for my student-loan debt, and with the right MOS — military occupational skill — selection, I could keep active-duty service to just two years — a definite selling point for those with something less that a complete love of discipline. Still, I wanted to succeed, so I started a fitness program that targeted my weak areas — pushups, long-distance running — before entering the service.
I needn’t have bothered.
There were about 10 of us female recruits who went through the military intake physical process in Boston together. The break-the-ice question, of course: Why are you joining? Top answer, given by at least half: to meet guys.
Not that my economic reasons were the most patriotic or honorable — but really? To meet men?
Moving on. … Basic training, Fort Dix, N.J. This is where I thought things would get tough — military tough. Running-miles-upon-miles tough, pushups-to-exhaustion tough. Nonstop physical and mental tests that stressed the body and mind. We already had been warned by our male drill sergeants about a 12-mile road march with full gear that was set for a month into training. The reality of basic?
I actually lost all the fitness gains I had made while training to enter the Army. Our daily physical fitness workouts were sporadic in terms of toughness; some days, our runs were about a mile — barely — as drill sergeants were forced to accommodate the weaker fitness level of an all-female company of varying ages and maturity levels. New military rules prohibited bare-handed pushups on the pavement; the drill sergeants also said females were no longer required to pass the obstacle course as a condition of basic training graduation because it was perceived as too difficult. Women didn’t have the upper-body strength to succeed, they said. We did visit the obstacle course — for stress-free play.
And that much-anticipated 12-mile road march?
We walked for about an hour, before the drill sergeants rounded up the stragglers — many of whom were in tears — and drove us all back to base in company trucks. A similar fate awaited our winter bivouac, a supposedly mandatory three-day campout to expose us to the rigors of Army life in the field. We abandoned camp halfway through. It was bitterly cold and female recruits from Southern states were in tears and threatening to quit.
That was just basic training. In the months to follow, here’s what I learned about women in the Army: We don’t have to carry our own tool boxes. We don’t have to do certain war-game training required of males. We don’t have to do as many pushups, or run as fast, as males. We don’t have to carry full-weight rucksacks on required long marches; rather, we can stuff them with pillows. We don’t have to stay in the field for longer than three days without a shower, in contrast to male soldiers, who didn’t have such shower requirements.
The military may have balanced out its male-female discrepancies in the years since I was discharged. But if not — my own experience leaves me wondering if the gender-neutral fighting force being pushed by the Pentagon and politicos is really fully prepped for battle.
(Cheryl K. Chumley is a writer for the Continuous News Desk)

Women In Combat

The Pentagon is pushing ahead with its campaign to move women closer to the battlefield, despite a series of sex scandals involving senior officers and a report showing an increase in sexual assaults among the troops.
At the dawn of the all-volunteer military force in 1973, women accounted for less than 3 percent of active-duty and reserve members. Today, 310,000 women make up about 15 percent of the force. In and around the Afghanistan War are nearly 17,000 women in uniform.
With the influx has come increasingly close contact between men and women — and a sharp rise in sexual misconduct. Military-wide, sexual assaults are up 22 percent since 2007, according to a Pentagon report.

“The problem is getting worse. It’s not getting better,” said Elaine Donnelly, who heads the Center for Military Readiness. “Part of the reason is people don’t want to admit what everyone knows to be true.
“Men and women are human beings. They react to each other. The do things they are not proud of. Rank has nothing to do with it. It’s not solely a gender issue. Both sexes are involved. All ranks.”
In recent months, an Army general in Afghanistan was accused of forcing a female captain to engage in sex acts, and the Navy has fired commanding officers for sexual misconduct.
Even four-star officers are not immune. Marine Gen. John Allen, commander of all NATO forces in Afghanistan, is under a Pentagon investigation for an exchange of flirtatious emails with a married Florida socialite.

The Iraq and Afghanistan wars have pushed the sexes closer together than ever before in shared living quarters in isolated bases, as well as the close quarters of Navy ships and, now, submarines.
A Department of Veterans Affairs research panel survey found that about half of all women sent to Iraq and Afghanistan say they were sexually harassed, and 1 in 4 say they were sexually assaulted. The findings were based on surveys mailed to 1,100 women who had served in or near the two war zones, according to USA Today.
Meanwhile, most recruits begin military life in sex-integrated barracks.
“The only thing the military can do is try to encourage discipline instead of indiscipline, and try to avoid the kind of hazardous situations that just make it worse,” Mrs. Donnelly said.
One of the trends Mrs. Donnelly said is making things worse is the Army’s drive to put women closer to combat and, perhaps one day, in direct land combat.
Early last year, the Army began opening 14,000 combat support jobs below the brigade level, down to smaller units close to front lines.
In a more revolutionary move, Gen. Raymond T. Odierno, Army chief of staff, ordered a study to learn whether women can be assigned to direct land combat occupations as infantry and armor soldiers.

The Air Force and Navy removed most combat barriers in the 1990s. Since then, it has ballyhooed the methodical promotions of female generals and admirals to key commands.
The Army suffered through its worst known sex scandal in 1996 when 12 officers and enlisted leaders were charged with sexually abusing female trainees at the Aberdeen Proving Ground in Maryland.
Sixteen years later, the Air Force discovered the same type of widespread sexual abuse at Lackland Air Force Base near San Antonio.

At Lackland, all enlisted recruits undergo an 8?-week boot camp under the wing of a mostly male staff.
More than 30 female trainees complained of sexual harassment, and even in-barracks rapes, by instructors. The Air Force fired scores of instructors.

The scandal involving former Gen. David H. Petraeus, who formed a close relationship with his biographer in Afghanistan while in Army uniform and then began an extramarital affair while CIA director, has garnered the most attention.

But the military branches have suffered through much more disturbing cases of misconduct.
The Army has charged a deputy commander of its storied 82nd Airborne Division with forcing a female captain to perform oral sex. Brig. Gen. Jeffrey Sinclair’s sexual relations with his subordinate went on for three years in the U.S. and on deployments to Germany, Iraq and Afghanistan.
Another former commander, Army Col. James H. Johnson III of the 173rd Airborne Brigade Combat Team, was convicted in June of having an affair with an Iraqi woman, aided by government cars and travel vouchers. A military judge fined him $300,000. His wife had turned him in.
Army Col. Avanulus Smiley was relieved of his command for committing adultery.
A ‘chilling trend’
Former sailors cannot remember an era when so many Navy commanding officers are being punished for improprieties with female shipmates.
Navy Times, an independent newspaper, has taken to publishing a running tally. As 2012 came to a close, the Navy had punished 40 commanding and executive officers, as well as senior enlisted personnel in command-type positions.
Several cases involved inappropriate sexual conduct. The Navy relieved Capt. Robert Martin, a ship commander, for having an affair with a fellow captain’s wife. Adultery is a punishable offense under the Uniform Code of Military Justice.
“The Martin case is the latest evidence that a small but significant number of the Navy’s best officers continue to engage in improper relationships,” Navy Times said. “At least seven other [commanding officers] have been relieved for adultery and inappropriate personal relationships since 2010.”
Not all cases are about men behaving badly.
The Navy fired Cmdr. Sheryl Tannahill as head of a Navy support center because she carried on an “unduly familiar” relationship — sometimes called fraternization — with an enlisted man.
Neal Puckett, a lawyer who specializes in defending military clients, has witnessed officers who grow so senior in rank that they think they are above the law. Mr. Puckett has taken an advisory role with the Navy in anticipation that the military will launch more sex-abuse prosecutions.
“Hubris, I think, is the word that best describes the condition,” he said. “Sometimes those very senior positions give men a greater sense of power and belief that they are indeed, and finally, masters of their own destiny. Not above reproach, but rather above scrutiny. The system promoted them to where they are, thus they are justified in all of their actions, even when they are abusing that rank and position to satisfy some of their more primitive needs.”
Sexual assaults have become such unwanted occurrences in military life that the Pentagon set up the Sexual Assault Prevention and Response office. It reports that sexual assaults have increased 22 percent since 2007.
The Army has issued a report that talks of a “chilling trend” of violent sex crimes growing at a rate of 14.6 percent a year.
Army figures show that reports of such crimes have nearly doubled, from 665 in 2006 to 1,313 last year.

The storyline got worse Dec. 21, when the Defense Department released a report saying sex assaults at the three service academies increased by 23 percent in the 2011-2012 academic year. They grew to 80 cases, from 65 in 2010-2011. The alarming numbers were contained in the Annual Report on Sexual Harassment and Violence at the Military Service Academies.
“Sexual assault has no place in this department,” Pentagon spokeswoman Cynthia Smith said. “We take care of our people on the battlefield better than anyone else.
“We must extend that same ethos of care to combating sexual assault within our ranks. We have made progress in preventing and responding to sexual assault, but we are not satisfied and recognize there is much more work to do,” she said. “Our aim is to reduce, with a goal to eliminate, the crime of sexual assault from the armed forces.”
(By Rowan Scarborough)

Sex Assault Reports At Academy Up 60 Percent

Sex Assault Reports At Academy Up 60 Percent

Sexual assault reports at the Air Force Academy jumped nearly 60 percent during the last academic year while the prevalence of the crime remained about the same, according to a new Defense Department study.
The results, which mirror the two other service institutions — the Military Academy and the Naval Academy — signal greater victim confidence but show that efforts to reduce sexual assaults among future military leaders have been unsuccessful.
Air Force cadets made 52 sexual assault reports during the 2011-2012 year, up 58 percent from 33 in 2010-2011. They also accounted for 65 percent of the 80 reports made at all three academies, despite sim­ilar student populations.
In 44 of the 80 reports, victims said they were victimized by a fel­low cadet or midshipman, the study said. Twenty-five incidents occurred on academy grounds.
Since sex assault is one of the most under-reported crimes, the military has long relied on an anonymous survey to measure the rate of such incidents, director of the DoD Sexual Assault Preven­tion and Response Office Maj. Gen. Gary Patton said in a news conference with reporters before the release of the report Dec. 21.
Fewer than 15 percent of sexual assault victims in a college envi­ronment report the crime, accord­ing to the study. That number stands at around 11 percent at the service academies.
At the Air Force Academy, far more are making reports — about 28 percent of victims, Col. Stella Renner, vice commandant of cul­ture and climate, said in a tele­phone interview.
“While we hate to see we have sexual assaults, we are very proud we have a strong reporting cli­mate,” Renner said.
That shows cadets feel more comfortable asking for help after they are victimized and that there is increased trust in the system, she insisted.
“We’re seeing cases where vic­tims who have come forward in the past are bringing in other people they know of who may have had a situation they haven’t reported yet. Nobody’s going to tell on you. It’s private. You can start healing and moving on,” Renner said.
Reporting has been on the uptick at all three academies since 2008 and increased by 23 percent overall from the last academic year, Patton said.
“Any sexual assault is bad, and our goal is always to eliminate sexual assault,” he said. “The more we know about the incidents that do happen, the more we can help victims become survivors, [gain] insight into what’s going on” and prosecute perpetrators.
But both Patton and Defense Secretary Leon Panetta expressed concern at what they described as a persistent problem and a lack of progress in combating it.
“There is not enough progress in preventing sexual harassment and assaults,” Patton said.
In a memo, Panetta directed the institutions to find new ways to “integrate sexual assault and harassment prevention into the full spectrum of academy life and learning” and ordered them to report back March 29.
The DoD report followed a year of high-profile sex scandals in the military, from the resignation of CIA director and retired Army Gen. David Petraeus to the inves­tigation of more than two dozen military training instructors at Joint Base San Antonio-Lackland.

There was no statistical increase in incidents of sexual assault at the Air Force Academy from 2010-2011, Renner said. Sexual harass­ment decreased significantly there but remained unchanged at the Military and Naval academies, the study showed.
Victims who did not make a report indicated in the anonymous survey that they took care of the incident themselves, that they did not want anyone to know about it and did not want people gossiping about what had happened to them.
Those who chose to make a report said they needed help deal­ing with an emotional event, that they wanted to stop the offender from hurting others and that they wanted to see justice served.
Reports of sexual assaults fall into two categories: restricted and unrestricted. Unrestricted reports involve law enforcement and the chain of command of the victim and the accused. Restricted reports afford victims privacy while making support services available to them.
Twenty-one of the 52 reports at the Air Force Academy were unre­stricted, Renner said.
She said the academy plans to study each of the reports. “We’ll continue to work and see if there are other things we need to consid­er. We look for trending informa­tion to see if there might be some­thing we can do from a police [change], lights, locks on doors.” Next year, the academy plans to begin bystander intervention train­ing. The training teaches cadets how to identify potentially danger­ous situations and intervene safely.
Teresa Beasley, sexual assault response coordinator at the Air Force Academy, called it “a good way ahead. I think they want to help each other,” she said of cadets. “This will give them the skills to do that.” Beasley said the academy has worked hard to raise awareness around campus. “Whenever you raise awareness, reports go up,” she said. “I consider anyone that walks in a victory.”                   (By Kristin Davis)

Air Force Times
January 7, 2013
Pg. 25