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When a Social Security administrative law judge issues an unfavorable decision, and that decision is later vacated upon appeal to the Appeals Council or to federal court, the SSA has a policy of sending the claim back the very same ALJ that denied the claim the first time around. Strange, but true. A HALLEX provision sets the policy. See HALLEX I-2-1-5 section D.11. After two hearings with the same judge, if the claim is remanded to the hearing level again, it is assigned to a different ALJ.

Some judges, the second time around, see the error in the earlier decision, and issue a favorable decision after a fairly brief hearing. But many judges have already made up their minds, and the purpose of the second hearing is to strengthen the reasons supporting a denial of benefits.

These second hearings can be gems. Typically, the ALJ is instructed by the Appeals Council to obtain expert testimony upon remand, so it is not unusual to have a doctor, a psychologist, and a vocational expert for a second hearing, where none of those characters were present at the first hearing.

I have one of these hearings coming up. While the hope for every Social Security hearing is to persuade the judge that your client is entitled to benefits, in this situation the principal task often becomes to make a record supporting the next appeal. I will keep in mind the top reasons for Appeals Council remands as I prepare the claim for the second hearing.

I have suggested that Social Security change the policy of assigning the same ALJ to "second time around" claims. See A Modest Proposal. But until the policy changes, these second hearings will continue to be challenging.