FEDERAL COURT REVIEW FOR YOUR SSD CASE
CAN YOU APPEAL YOUR SSD CASE TO FEDERAL COURT?
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 date on the SSA’s final decision in your case. To file a case in Federal Court, you can to do it yourself. Or, you can hire an attorney that is admitted to the Federal Court where you live. We do not recommend filing a Federal Court 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 blog 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.
SCOPE OF JUDICIAL REVIEW 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 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.
APPEALABLE ISSUES IN FEDERAL 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 effects of your symptoms. The SSA should also use the factors below:
- (1) your daily activities;
- (2) the location, duration, frequency, and intensity of pain or other symptoms;
- (3) factors that make your symptoms worse;
- (4) the type, dosage, effectiveness, and side effects of any medication that you take to control pain or other symptoms;
- (5) treatment, other than medication, that you receive for relief of pain or other symptoms;
- (6) any measure other than treatment that you use to relieve pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
- (7) any other factors concerning functional restrictions due to pain or other symptoms.
THE ALJ CAN NO LONGER ASSESS YOUR CREDIBILITY
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.
Therefore, 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. Or, mental conditions such as conversion disorder.
Additionally, 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 after medical testing. Nevertheless, because it is a mental illness, the judge can accept the findings. The judge can do so, even without concrete proof that explains your symptoms of 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 type of assessment.
FEDERAL COURT APPEALS ARE USUALLY BASED ON A LACK OF SUBSTANTIAL EVIDENCE
Most appeals to Federal Court are due to the ALJ’s failure to base their opinion on substantial evidence. The ALJ’s review of the evidence is written in the ALJ decision. It is rare for the Appeals Council to issue a denial and include any written review of the evidence.
What this means is your Federal Court appeal will argue errors in the ALJ’s decision. For example, you could argue that the ALJ did not consider all of the medical evidence in the record. Or, the ALJ ignored your hearing testimony about your pain and limitations. If the ALJ’s decision contains these errors, then you can appeal to Federal Court.
CONSTITUTIONAL ERRORS CAN SERVE AS GROUNDS FOR APPEAL TO FEDERAL COURT
Of course, there are many other errors that can form the basis for a good argument to the Federal court. For example, constitutional errors can serve as grounds for appeal. Here are the primary constitutional errors that can form a basis for appeal:
1. Due Process Violations (Fifth Amendment)
- Lack of a Fair Hearing: If you were not given a fair hearing. Or, if the judge at your hearing showed bias, then this could be a due process violation.
- Inadequate Notice: If you did not receive notice of the hearing or of any decisions affecting your case, then this might be a constitutional violation.
- Right to be Heard: If you were denied the opportunity to present evidence, question witnesses, or make arguments, then it could be a due process issue.
2. Equal Protection Violations (Fourteenth Amendment)
- Discriminatory Practices: If you can demonstrate that you were treated differently based on race, gender, or disability, then you could argue a violation of equal protection.
3. Violation of the Appointments Clause (Article II, Section 2)
- Improper Appointment of ALJs: Following the Supreme Court decision in Lucia v. SEC (2018), if the ALJ who decided your case was not properly appointed, then this could be grounds for an appeal.
4. Separation of Powers
- Interference with Judicial Independence: If the SSA’s actions interfere with the independence of the judge or the proper role of the courts, then this could be a constitutional issue.
ON FEDERAL COURT REMAND GET A SECOND BITE AT THE APPLE
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. You only get a new judge if it is your third remand. Or, if your judge retires.
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. Follow the advice of your attorney and make sure you collect all of your medical evidence.
OUR LAW FIRM APPEALS SSA DENIALS
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 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.
ONLY TAKE A CASE TO FEDERAL COURT IF YOU THINK YOU CAN WIN
It is not smart to 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 disability benefits in mind when they 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. Learn about Utah SSDI benefits and Nevada SSDI benefit cases. We also have information regarding Idaho SSDI benefits and California SSDI and SSI benefits.
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 is no longer part of the 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.
WHAT DOES IT COST TO HIRE AN SSD ATTORNEY?
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? At the lower levels of your SSD case, it is 25% of your back benefit. Therefore, at the hearing and prior to the hearing he fee is capped at $7200. The fee goes up to $9200 in November 2024. You do not pay more than the cap. If you win, you will pay either 25% of the back benefit or the attorney fee 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.
At the Appeals Council and in Federal Court, your attorney can charge up to 25% of the full past due disability benefit. However, those fees must meet the approval of the judge in your case. Additionally, your attorney can also file for Equal Access to Justice Act (EAJA) 406(b) fees.
FREE CASE REVIEW FOR FEDERAL COURT
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.
WHAT WE DO TO HELP YOU WIN YOUR SSD BENEFITS
You do not need to try to win 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:
- Help you file your application for SSD and SSI benefits
- Request an appeal if you receive an initial denial
- Help you confirm your free SSA doctor exam
- Request a Hearing with an Administrative Law Judge
- Prepare you to testify at your ALJ hearing
- Represent you at your hearing
- Question the expert witnesses
- Read about job expert testimony at the hearing
- Learn about the medical expert
- Request review of an SSA decision with the Appeals Council
- Request review of an Appeals Council denial in Federal Court
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 about our experience on our About Us page. Hire us to help you win your benefits in Federal Court.
