Previous blog posts have discussed the lengthy wait times disability claimants face for a hearing before an Administrative Law Judge (ALJ), but many times the wait times for a decision to be issued after the hearing can also be lengthy, and sometimes this occurs because of a judge’s availability.
For multiple reasons an ALJ could be available to issue a decision after conducting a hearing. It seems to be occurring more often and Social Security recently added the new protocol below to its manual to provide guidance when the hearing ALJ is unable to issue a decision in the matter.
Administrative Law Judge Conducts Hearing but Is Unavailable to Issue Decision
- Determining Whether an Administrative Law Judge (ALJ) Is “Unavailable”
Occasionally, an ALJ may have conducted a hearing but is “unavailable” to issue a decision for any of the following reasons:
- Death;
- Retirement;
- Resignation; or
- Illness or other cause resulting in prolonged absence from work of 20 calendar days or more.
When any of these circumstances are present, and the unavailable ALJ approved a draft decision, the Hearing Office Chief Administrative Law Judge (HOCALJ) will follow the procedures outlined in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-8-40 B below.
- HOCALJ Signs a Previously Approved Decision
When an ALJ approved a final draft decision but is unavailable to sign the decision, the HOCALJ has the authority to sign the final decision and any associated orders if the ALJ gave the HOCALJ written authorization to sign the decision on the ALJ’s behalf. Any such written authorization must be associated with the claim(s) file and must include the following affirmative statements:
- The ALJ has read the decision and any associated order;
- The ALJ concurs with the decision (and any associated order) as written or concurs with the decision (and any associated order) with specified changes previously reviewed and approved by the ALJ before authorization; and
- “HOCALJ [NAME]” is authorized to sign the decision and any associated order on the ALJ’s behalf.
The ALJ may give written authorization via email, fax, or any other writing. However, unless the authorization is provided through an official agency email, the ALJ must sign the written authorization with his or her “wet” signature (facsimile transmission is accepted). The ALJ may not use a rubber stamp or other mechanical signature. A HOCALJ may not use this procedure on his or her own initiative without specific written authorization from the ALJ.
If all of the requirements are met, the HOCALJ may sign the decision and any accompanying order.
NOTE:
Subject to agreement with his or her HOCALJ, when an ALJ anticipates that he or she will be unavailable due to absence from work (even if the absence from work is less than 20 calendar days), the ALJ may choose to use this procedure so long as all of the requirements described above are met.
If the HOCALJ determines, for any reason, that it is not appropriate to sign a decision on the ALJ’s behalf, the HOCALJ is not required to do so. If the ALJ is unavailable due to death, retirement, or resignation, and the HOCALJ disagrees with the ALJ’s proposed decision, the HOCALJ will discuss the case with the Regional Chief Administrative Law Judge before determining the next appropriate steps. In any event, public service will be the primary consideration when arriving at a resolution.
