Residents of some states are subject to different standards of review if their first Social Security Disability hearing was denied.

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Often, individuals whose Social Security Disability benefits case was denied at a hearing with an Administrative Law Judge choose to file a brand new initial claim for benefits. This can sometimes be a more successful approach to receiving benefits than appealing, as the Appeals Council will only send the case back for a new hearing if the council finds that the judge made a mistake in applying the law or if there is new and material evidence available that was not presented at the hearing. If the second claim for benefits reaches the hearing phase, the judge will make a new decision at the hearing without needing to account for the findings at the first hearing. However, claimants who are residents of the 9th circuit of the U.S. Court of Appeals are subject to a different standard of review if their second claim reaches the hearing phase.


The 9th Circuit is comprised of the following states and U.S. territories: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington. Administrative Law Judges who oversee hearings for claimants living within these states must follow AR 97-4(9) if the claimant has a previous case that was denied at the hearing level. Unlike other jurisdictions, the administrative law judge must (1) apply a presumption of continuing non-disability; and (2) if the presumption is rebutted, adopt certain findings required under the applicable sequential evaluation process for determining disability, made in the final decision of the ALJ or Appeals Council on the prior disability claim.


This ruling is based on Chavez v. Bowen. In this case, the claimant was found at the first hearing to be disabled from March 3, 1981, until May 1982. The judge found that after May 1982, Mr. Chavez could not return to his previous work, but was capable of doing other work which required lifting 20 lbs. occasionally, 10 lbs. frequently, and standing or walking at least 6 hours of an 8 hour day, and therefore was no longer disabled. Mr. Chavez filed a new claim for benefits and a hearing was held. The judge found that Mr. Chavez could perform work that does not require constant standing, walking, lifting, and carrying more than 20 lbs. However, the judge also found that Mr. Chavez’s past work as a backhoe operator does not require excessive standing and lifting and he could therefore return to his past work. Mr. Chavez appealed this decision. The 9th Circuit ultimately found that Mr. Chavez must prove “changed circumstances” indicating a greater disability than in the first decision. Examples of “changed circumstances” include changing age categories (for example, Mr. Chavez turned 55, moving him into a different age category under the Medical-Vocational Rules), a worsening of the severity of the impairment, or a change in which jobs will be considered within the past relevant work period.


If you live in the states of California, Arizona, Idaho, Montana, Nevada, Oregon, or Washington, and are filing a new claim or facing a new hearing after already having been denied at the hearing phase, the attorneys at LaBovick Law Group can assist you with ensuring that your new case is in the best possible position to overcome the requirements of this regulation.


When hiring an attorney to represent you in your claim for Social Security Disability benefits, you want to ensure that your attorney has a strong understanding of the sequential evaluation process that Social Security follows when evaluating disability claims. The attorneys in the Social Security Disability division at LaBovick Law Group focus their practices in this area and have a wealth of experience in handling hearings. Social Security will first determine whether you are engaging in what is deemed substantial gainful activity. The Social Security Act considers one to be under a disability when he or she has a condition that lasts or is expected to last for at least one year or result in death which prevents the person from engaging in substantial gainful activity. Substantial gainful activity is defined as earnings from work activity that exceed Social Security’s defined threshold (in 2022, that amount is $1350 gross per month). Social Security will then determine whether you have a severe impairment. Next, Social Security will determine whether your impairment meets the criteria of one of the conditions in its Listing of Impairments; if it does not, Social Security will determine your residual functional capacity. The residual functional capacity is a finding of your ability to perform certain work-related activities such as standing, walking, lifting, ability to withstand exposure to certain environmental or hazard exposures, ability to interact with others, and ability to maintain attention and concentration. Social Security will then review your past work – jobs which you have performed over the past fifteen years at a substantial gainful activity level long enough to have learned them. Social Security will determine whether your residual functional capacity allows you to return to your past work – for example, if you can now only lift 20 lbs. occasionally, but your past work required you to lift 50 lbs. occasionally, you would not be able to return to that past work. If you cannot return to your past work, Social Security will determine whether there is other work that you can perform. Once you have reached age 50, SSA must consider the transferability of skills from your past work under certain circumstances. An experienced attorney will understand when these rules apply and can develop your case accordingly.


If you reside in the 9th circuit, have a prior hearing denial, and are seeking attorney assistance, you must provide your attorney with a copy of your hearing denial letter so that she can review the previous judge’s findings and ensure that your case meets the “changed circumstances” requirement. You will also want to ensure you provide your attorney will a complete medical update. For example, if you have developed new conditions or have undergone new surgeries since the previous decision, your attorney will be able to provide that information to the judge. Also, if the previous judge stated you were able to return to a previous job that has now fallen outside of the 15 year period for review, your attorney may present this at your hearing as proof of changed circumstances.


The Social Security Disability attorneys at LaBovick Law Group are available for a free case evaluation to discuss the specifics of your claim. Give us a call at (561) 625-8400.

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