United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
before the court is Plaintiff Desiree Nelson's amended
complaint (ECF No. 8), filed on June 21, 2017. Given that the
court has granted Plaintiff leave to proceed in forma
pauperis, the court now re-screens Plaintiff's
amended complaint under 28 U.S.C. § 1915(e)(2).
Screening the Amended Complaint
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” See Ashcroft v. Iqbal, 556 U.S. 662,
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
amended complaint challenges a decision by the Social
Security Administration (“SSA”) denying benefits.
Before filing suit, a plaintiff must exhaust administrative
remedies. See 42 U.S.C. § 405(g); see also
Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir.
1989) (per curiam) (“Section 405(g) provides that a
civil action may be brought only after (1) the claimant has
been party to a hearing held by the Secretary, and (2) the
Secretary has made a final decision on the claim”).
Generally, if the SSA denies a claimant's application for
disability benefits, he can request reconsideration of the
decision. If the claim is denied at the reconsideration
level, a claimant may request a hearing before an
Administrative Law Judge (“ALJ”). If the ALJ
denies the claim, a claimant may request review of the
decision by the Appeals Council. If the Appeals Council
declines to review the ALJ's decision, a claimant may
then request judicial review. See generally 20
C.F.R. §§ 404, 416.
plaintiff has exhausted administrative remedies, he can
obtain judicial review of an SSA decision denying benefits by
filing suit within sixty days after notice of a final
decision. 42 U.S.C. § 405(g). An action for judicial
review of a determination by the SSA must be brought
“in the district court of the United States for the
judicial district in which the plaintiff resides.”
Id. The complaint should state the nature of
plaintiff's disability, when plaintiff claims he became
disabled, and when and how he exhausted his administrative
remedies. The complaint should also contain a plain, short,
and concise statement identifying the nature of
plaintiff's disagreement with the SSA's determination
and show that plaintiff is entitled to relief. A district
court can affirm, modify, reverse, or remand a decision if
plaintiff has exhausted his administrative remedies and
timely filed a civil action. However, judicial review of the
Commissioner's decision to deny benefits is limited to
determining: (a) whether there is substantial evidence in the
record as a whole to support the findings of the
Commissioner; and (b) whether the correct legal standards
were applied. Morgan v. Commissioner of the Social
Security Adm., 169 F.3d 595, 599 (9th Cir. 1999).
Plaintiff alleges that on August 19, 2016, the Appeals
Council denied her request for review, and, at that time, the
ALJ's decision became the final decision of the
Commissioner. Thus, it appears Plaintiff has exhausted her
administrative remedies. This case was commenced on October
14, 2016, which was within sixty days. Additionally,
Plaintiffs amended complaint includes sufficient facts to
state a claim for relief.
on the foregoing and good cause appearing therefore, IT IS
Clerk of the Court must serve the Commissioner of the Social
Security Administration by sending a copy of the summons and
amended complaint (ECF No. 8) by certified mail to: (1)
Office of Regional Chief Counsel, Region IX, Social Security
Administration, 160 Spear St., Suite 899, San Francisco,
California 94105-1545; and (2) the Attorney General of the
United States, Department of Justice, 950 Pennsylvania
Avenue, N.W., Room 4400, Washington, D.C. 20530.
Clerk of Court must issue summons to the United States
Attorney for the District of Nevada and deliver the summons
and Complaint to the U.S. Marshal for service.
this point forward, Plaintiff must serve on Defendant or, if
appearance has been entered by an attorney, on the attorney,
a copy of every pleading, motion or other document submitted
for consideration by the court. Plaintiff must include with
the original paper submitted for filing a certificate stating
the date that a true and correct copy of the document was
personally served or sent by mail to the defendants or
counsel for the defendants. The court may disregard any paper
received by a district judge or magistrate judge that has not