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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. To file a case in Federal Court, you will need to do it yourself or hire an attorney that has been admitted to the Federal Court. We do not recommend filing your appeal on your own.

In order for a decision to be final, normally you must exhaust all procedural appeals. 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 from 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. For example, an ALJ may dismiss a case on the grounds of an untimely appeal.

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


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 review 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 that you have a medically determinable impairment. Then, she must also find that your medical condition is likely to produce your symptoms.

In addition to using all of the evidence in the record to evaluate the intensity, persistence, and limiting effects of a your 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 looking at:

  • (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 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 functional limitations and restrictions due to pain or other symptoms.


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

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

Also, the ALJ must consider your complaints of pain. Even if there is no “objective” evidence that support your complaints. This allows mental illness to be taken into account.

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

ALJ’s no longer have the ability to deny a claim solely based on credibility. 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 your testimony.

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


Most appeals to Federal Court are based upon the ALJ’s failure to base their opinion on substantial evidence. What this means is the the ALJ did not consider all of the medical evidence in the record. Or, the ALJ completely ignored your hearing testimony about your pain and limitations. If the ALJ’s decision makes these errors, then you can appeal.

Before you appeal to the Federal Court, make sure that you have a good chance of winning your case. Winning, in this instance, usually means a remand of the case back to the original judge you had at your hearing. The reason the Court remands the case is so the judge can fix their mistakes. It is unusual for the Court to remand a case to another judge. In fact, it is the SSA’s policy to have the same judge hold another hearing if you get a remand from Federal Court.

At your second hearing, you should have new and better medical evidence. Now is the chance to fix whatever went wrong in the first hearing. If you didn’t have enough medical evidence or if you had the wrong medical evidence, then you can get better evidence for the second hearing. Also, if you weren’t a good witness during your first hearing, then you have a chance to correct any mistakes. Finally, your attorney has the chance to change the outcome of your case if you cooperate.


The attorneys at our law firm have years of experience in Federal Court. Typically, however, we do not take cases that other attorneys have lost at the hearing to Federal Court. You should ask the attorney who helped you at your hearing and the Appeals Council to take your case to Federal Court.

Although it is rare, after we review your ALJ decision, we might consider making an appeal in your case if there is clear SSA error.

Taking a case to Federal Court is serious. It can take many years to see a case to conclusion. For example, most Federal Court cases take three to five years to resolve. This can create problems with your date last insured. Learn more about your date last insured.

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


It is not smart to take appeal every loss to Federal Court. 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 ALJ decisions to the Appeals Council. If we win a remand, then we consider it a victory. We will only look at your case if your prior attorney has withdrawn from your case. Also, if your case is only an SSI case, then it is usually better to simply apply again. In order to appeal your case to Federal Court, you should have an attorney who has legal experience trying cases in Federal Court. We have that experience. So, contact our law firm today.


Another important factor to consider is what it costs to hire an attorney. Our law firm does not get paid until you win benefits. The attorney fee comes out of your back benefit. If we do not win your case, then there is no back benefit. Therefore, you will not owe an attorney fee.

How much is the attorney fee? It is 25% of your back benefit. But, the fee is capped at $7200. You do not pay more than the cap of $7200. If you win, you will pay either 25% of the back benefit or the $7200 cap. You pay whatever is amount is less. For example, if your back benefit is $100,000, our attorney fee would be $7200, not $25,000. Or, if your benefit is $10,000, then you would pay 25% of the back benefit. That would be $2500.


We offer a free review of your case. It also doesn’t cost you any upfront money to hire us. Why? Because you only pay us an attorney fee if we win your case. This means if we win your benefits, then you pay us out of your back benefits.

If you call us and state that you need to file a Federal Court case, then we probably will refer you to another attorney. Or, we will refer you back to your prior attorney. Most of the time, the only time we are willing to file an appeal in Federal Court is if we have been helping the client all along. The best person to help you is your prior attorney, because they were there during the hearing. They are also familiar with the mistakes the judge may have made and your medical records.

Whether you win or lose benefits, you will have to pay costs. The costs in most cases are less than $100. However, in federal court cases, you will also need to pay the court filing fee. Once your attorney wins your case, they are paid from your back benefit.


You do not need to obtain SSD benefits on your own. Our law firm can help file your SSD application. Also, we can help you file an appeal after every SSA denial. That way, you can focus on your health and living your life. Our attorneys and staff can:

Our law firm brings over 60 years of legal experience to your SSD and SSI case. For instance, Dianna Cannon has been helping people win SSD benefits since 1992. Our other advocates, Brett Bunkall and Andria Summers also have years of legal experience. Together, we have won thousands of SSD cases. You can learn more on our About Us page. Hire us to help you win your benefits in Federal Court.

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