Ninth Circuit: ALJs Can Reverse Course on Remand

An affirmance from the Ninth Circuit arose out of a Social Security remand on May 19, 2025. Years earlier, Johnson’s mental health condition was deemed “severe.” But on remand, the same ALJ reversed that finding—now labeling it “nonsevere”—despite no new treatments or evidence.

Why the flip? A non-examining psychologist classified her 2013 diagnosis as “temporary,” expecting it to resolve within six months. Even a decade later, with no updated records, the court treated this as “new, highly probative” evidence.

How the RFC Came Out Clean

Johnson argued the ALJ should’ve imposed mental limitations in the RFC:

• Psychologist evidence: Dr. Brooks asserted any limitations expired after six months.

• Claimant testimony/older opinions: Both were discounted—but Johnson didn’t effectively challenge these points on appeal.

  
  

The Ninth Circuit held she forfeited those issues by failing to meaningfully object. The result? The ALJ was allowed to “freeze” her favorable finding and deny benefits without considering new limits.

Practitioner Takeaways

• ✅ Remands don’t lock in favorable findings.A supplemental remand hearing = a fresh factual record, not just a re-do.

• 🕵️‍♂️ “New” evidence just needs to be new to the record, not new in time.Even decade-old opinions can be “new” if the ALJ first relies on them during the remand.

• 📷 Preserve ALL arguments—and preserve them well.Weak or underdeveloped challenges? Consider them gone.

  
  

Q&A Section

Q: Does a remand bind the ALJ to prior favorable findings?

A: No. The ALJ can revisit and overturn prior findings—even without new medical records—so long as the change is supported by “new” evidence in the record.

Q: Can old medical opinions count as “new” evidence?

A: Yes. As long as they weren’t previously in the record, they still count.

Q: What happens if you fail to develop an argument on appeal?

A: You risk forfeiture. The Ninth Circuit treats undeveloped, unsupported challenges as abandoned.

For more information:

• Residual Functional Capacity (RFC) → A Lesson in Explaining Residual Functional Capacity

• Mental health documentation → A Deep Dive into Mental Disorder Evaluation in Disability Claims

• Remand strategy → Partial Remands and Finality: Fallon v. Dudek