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It is possible to appeal a denial from the Appeals Council to Federal Court. However, in order to have access to judicial review under the Social Security Act, the decision of the SSA must be final. Also, you must file a Complaint in Federal Court within 60 days of the mailing of the Commissioner’s final decision in your case.

In order for a decision to be final, normally you must exhaust all procedural process. This means, in order to appeal your case to Federal Court, you must have gone through the various stages of appeal. For further information about exhaustion of procedural process, please review our note on Smith v. Berryhill.

In other words, your case must have already been through the initial decision. And, through reconsideration and the hearing stage. You must also timely appeal each denial. Finally, you must also have a final decision by the Appeals Council.

An Appeals Council decision is not final and therefore, not subject to Federal Court review if it affirms an ALJ’s application of res judicata. The majority of the time, an ALJ dismisses a case on the grounds of an untimely appeal.

Subsequently, the Appeals Council also dismisses due to an untimely appeal. When this occurs, the dismissal is not a “final decision.” Because it is not a final decision, normally a dismissal due to failing to file within the SSA’s time limit cannot be reviewed in Federal Court.


Other than Constitutional issues, in Social Security cases in Federal Court, the scope of judicial review is narrowly confined to two questions:

  • (1) Does substantial evidence support the Commissioner’s decision?
  • (2) Did the Commissioner apply the correct legal standard in making the decision?

First, the Federal Court will determine if the ALJ’s decision is supported by substantial evidence. Substantial evidence is “more than a scintilla.” It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Federal Court must scrutinize the ALJ’s findings to determine if they have a foundation in substantial evidence.

Next, the Court will determine if the ALJ applied the correct legal standard in making a decision. Most circuits have found that the substantial evidence test and the legal standard test are intertwined. Therefore,  the ALJ’s  findings are insulated by the substantial evidence standard only where the ALJ applied the correct legal standard.

Supreme Court


The Federal Court examines the ALJ decision to see if the medical evidence supports the ALJ’s final decision. The law no longer requires the ALJ to make specific credibility findings. Instead, the ALJ must consider all of the evidence.

First, she must find the claimant has a medically determinable impairment. Then, she must also find that the medical condition is likely to produce claimant’s symptoms.

In addition to using all of the evidence in the record to evaluate the intensity, persistence, and limiting effects of a claimant’s symptoms. The SSA should also use the factors set forth in 20 C.F.R. §§404.1529(c)(3) and 416.929(c)(3).

These factors include claimant’s:

  • (1) daily activities;
  • (2) the location, duration, frequency, and intensity of pain or other symptoms;
  • (3) factors that precipitate and aggravate the symptoms;
  • (4) the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms;
  • (5) treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
  • (6) any measure other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
  • (7) any other factors concerning an individual’s functional limitations and restrictions due to pain or other symptoms.


Under Social Security Ruling 16-3p, the ALJ is no longer able to assess the claimant’s credibility or truthfulness. Instead, the ALJ must focus on whether the medical evidence supports the claimant’s testimony. If so, then the ALJ can find that the medical symptoms limit her ability to work.

The ALJ must consider pain and the side-effects of pain medication. Also, the ALJ must consider the combined effects of physical and mental conditions. Even subjective complaints of pain may be the basis of a benefits case.

Also, subjective pain complaints must be considered. Even if  there exists no “objective” evidence supporting such complaints. This allows mental illness to be taken into account.

For example, there are people who have Somatic Disorder. In that instance, they may complain of severe physical disability, but have no objective findings in the medical record. Nevertheless, because it is a mental illness, the judge can accept the findings, even without concrete proof on claimant’s pain.

ALJ’s no longer have the ability to deny a claim solely on credibility of the claimant. This is good news. However, there is still a “credibility” analysis happening. The analysis occurs when the ALJ examines the evidence as a whole. And then, compares it to claimant’s testimony.

Once that is done, the ALJ still decides what testimony to accept. The judge’s decision is based upon the evidence. This is still a credibility assessment. Just not the old credibility assessment.


The attorneys at Cannon Disability Law have years of experience in Federal Court. Typically, however, we do not take cases that other attorneys have lost into Federal Court. However, if possible, we will file a new application for the client’s of other law firms.

Taking a case to Federal Court is a serious undertaking. It can take many years to see a case to conclusion. This can create problems with your date last insured. Learn more here about your date last insured.

Also, taking a case to Federal Court can result in case review at the Supreme Court. In that instance, a decision from the Supreme Court can make new rules for everyone who applies for benefits.

As attorneys, we are always thinking about how the decisions the Federal Court makes can impact all SSD cases. It is the job of the attorney to have all of the people who file for benefits in mind when making an appeal to Federal Court. We take cases that we know will make good law for everyone.

If you need help with your SSD case, then contact us. We offer a free review of your case, even if you have lost your SSD case at the hearing level. Our attorneys practice at the United States District Court in Utah, Nevada, Idaho and California.

Our attorneys appeal unfavorable ALJ decisions to the Appeals Council. If we win a remand, we consider it a victory. We will look at your case if your attorney has withdrawn from your case. In order to appeal your case to Federal Court, you should have an attorney who has Federal Court litigation experience. Contact Cannon Disability Law today.


It doesn’t cost anything to call us. We offer a free review of your case. It also doesn’t cost you any money to hire us. Why? Because you only pay us an attorney fee if we win your case. This is a contingency fee. It means if we win, you pay out of your back benefits. If you do not win, there is no attorney fee to pay.

If there are costs in your case, then you pay those. But the costs in most cases is less than $100. You will need to pay the federal court filing fee. Once we win your case, we are paid from your back benefit. But, to hire most lawyers, you have to pay upfront. We don’t work like that. You don’t have a job. So, the only for us to be paid is to win your case. That is our goal. Call today. See what we can do for you in Federal Court.

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