United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
before the Court is Plaintiff's First Amended Complaint
(ECF No. 5), filed on October 25, 2017. Plaintiff was
previously granted in formpa pauperis status (ECF
No. 3), and given leave to file an amended complaint to be
screened by the Court.
Screening the 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,
678 (2009). The court liberally construes pro se complaints
and may only dismiss them “if it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th
Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
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
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave to amend
the complaint with notice regarding the complaint's
deficiencies. Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995).
plaintiff's complaint challenges a decision by the Social
Security Administration (“SSA”), before filing a
lawsuit, the 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, the claimant may 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 may
obtain judicial review of a SSA decision denying benefits by
filing suit within 60 days after notice of a final decision.
Id. 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 determination made by the Social Security Administration
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 September 6, 2017, 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. Additionally, Plaintiff's
complaint alleges that she has been disabled since August 20,
2013, and that she has degenerative disc disease. Her
complaint also includes a concise statement of the nature of
her disagreement with the findings of the Social Security
Administration. Plaintiff has therefore stated a claim for
relief, and may proceed with her complaint against the Social
THEREFORE ORDERED that:
Clerk of the Court must serve the Commissioner of the Social
Security Administration by sending a copy of the summons and
the Amended Complaint 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 Amended Complaint to the U.S. Marshal for service.
this point forward, Plaintiff must serve on Defendant, or on
Defendant's attorney if an appearance has been entered by
an 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 ...