I-2-8-35.Decision When Evidence Contains Derogatory, Harmful or Provocative Language
Last Update: 9/2/05 (Transmittal I-2-63)
Privacy Act, 5 USC § 552a.
20 CFR §§ 401.5 et seq.
If the evidence contains language that might be derogatory, harmful or offensive to the claimant, the Administrative Law Judge (ALJ) must write the decision with special care. While the ALJ must give the claimant a clear and complete explanation of the reasons for reaching the ultimate conclusion regarding entitlement, the ALJ must write the decision so as to avoid, as much as possible, harming the claimant. For example, when writing the decision, the ALJ must:
Avoid using emotionally charged words, pejorative terms, and personal judgments or opinions, even if the harmful language appears in evidence or testimony. If the ALJ wishes to cite such evidence, it should be paraphrased.
Exercise discretion in delicate situations. For example, the evidence indicates that the claimant may be suicidal, denies the presence of a mental impairment, or has a terminal illness but has not been informed of that fact.
B. Transmittal of Decision Which Might Have Detrimental Effect — Claimant Is Represented
If there is information in the decision which might be harmful, and the claimant is represented, the ALJ will:
send a copy of the decision to the representative only;
send an abbreviated/short-form decision to the claimant; and
enter the following or similar language on the bottom right side of the form transmitting the decision to the representative:
I have furnished an abbreviated copy of this decision to the claimant because the complete decision contains information which may be harmful to the claimant's health. Therefore, I suggest that you discuss only the general content of the decision with the claimant.
C. Transmittal of Decision Which Might Have Detrimental Effect — Claimant Is Not Represented
If there is information in the decision which might be harmful, and the claimant is not represented, the ALJ must contact the claimant's spouse, other family member, or treating physician for guidance. As a rule, the ALJ will send the claimant an abbreviated decision, and send the full decision to one of the individuals mentioned above.