United States District Court, D. Nevada
WEKSLER UNITED STATES MAGISTRATE JUDGE
before the court is plaintiff's application to proceed
in forma pauperis (ECF No. 1). Plaintiff has
submitted the declaration required by 28 U.S.C. §
1915(a) showing an inability to prepay fees and costs or give
security for them. Accordingly, Plaintiff's request to
proceed in forma pauperis will be granted.
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
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a 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 August 9, 2018, after a hearing,
the Administrative Law Judge (ALJ) denied Plaintiff's
claim for disability benefits. Plaintiff further alleges that
on August 14, 2018, she requested that the Appeals Council
review the decision of the ALJ. Finally, Plaintiff alleges
that on February 28, 2018, the Appeals Council
denied her request for review, and, at that time, the
ALJ's decision became the Commissioner's final
decision. There appears to be a typographical error in the
date that the Appeals Council denied Plaintiff's request
for review, as the date that the Appeals Council denied
Plaintiff's request for review could not be before
Plaintiff filed her request for review (and before the ALJ
hearing). Assuming Plaintiff intended to write February 28,
2019, the complaint in this case was filed 64 days
later (on May 3, 2019) and is timely. See 42 U.S.C.
§ 405(g) (civil action may be commenced within 60 days
after the Appeals Council's decision is mailed); 20
C.F.R. § 422.210(c) (“mailing” is construed
as the date on which the notice “is received by the
individual, ” which is “presumed to be five days
after the date of such notice, unless there is a reasonable
showing to the contrary.”). Further, it appears that
Plaintiff exhausted her administrative remedies, and the
complaint includes facts sufficient to state a claim for
on the foregoing and good cause appearing therefore, IT IS
Plaintiff's request to proceed in forma pauperis
is GRANTED. Plaintiff will not be required to pay the filing
fee of $400.00.
Plaintiff is permitted to maintain this action to conclusion
without the necessity of prepayment of any additional fees or
costs or giving security for them. This order granting leave
to proceed in forma pauperis does not extend to the
issuance of subpoenas at government expense.
Clerk of Court must file the complaint.
Clerk of the Court must serve the Commissioner of the Social
Security Administration by sending a copy of the summons and
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 complaint to the U.S. Marshal for service.
December 13, 2019, Plaintiff must file an amended complaint
stating the correct date upon which the Appeals Council
denied her request for review. If this date is more than 65
days before Plaintiff filed this ...