Morrell v. Berryhill

• Court: District Court, D. Nevada
• Decided: November 18, 2019
• Docket: 2:19-cv-00765
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CHRISTI MORRELL, Case No. 2:19-cv-00765-JCM-BNW

7 Plaintiff, v. ORDER 8 COMMISSIONER OF SOCIAL SECURITY 9 ADMINISTRATION, Defendant. 10 11 Presently before the court is plaintiff’s application to proceed in forma pauperis (ECF No. 12 1). Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to 13 prepay fees and costs or give security for them. Accordingly, Plaintiff’s request to proceed in 14 forma pauperis will be granted. 15 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable 17 claims and dismiss claims that are frivolous, malicious, file to state a claim on which relief may 18 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 19 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 20 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 21 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain 22 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 23 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 24 In considering whether the complaint is sufficient to state a claim, all allegations of 25 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 26 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 27 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 1 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 2 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a plaintiff 3 should be given leave to amend the complaint with notice regarding the complaint’s deficiencies. 4 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 5 If a plaintiff’s complaint challenges a decision by the Social Security Administration 6 (“SSA”), before filing a lawsuit, the plaintiff must exhaust administrative remedies. See 42 7 U.S.C. § 405(g); see also Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per 8 curiam) (“Section 405(g) provides that a civil action may be brought only after (1) the claimant 9 has been party to a hearing held by the Secretary, and (2) the Secretary has made a final decision 10 on the claim”). Generally, if the SSA denies a claimant’s application for disability benefits, the 11 claimant may request reconsideration of the decision. If the claim is denied at the reconsideration 12 level, a claimant may request a hearing before an administrative law judge (“ALJ”). If the ALJ 13 denies the claim, a claimant may request review of the decision by the Appeals Council. If the 14 Appeals Council declines to review the ALJ’s decision, a claimant may then request judicial 15 review. See generally 20 C.F.R. §§ 404, 416. 16 Once a plaintiff has exhausted administrative remedies, he may obtain judicial review of a 17 SSA decision denying benefits by filing suit within 60 days after notice of a final decision. Id. 18 An action for judicial review of a determination by the SSA must be brought “in the district court 19 of the United States for the judicial district in which the plaintiff resides.” Id. The complaint 20 should state the nature of plaintiff’s disability, when plaintiff claims he became disabled, and 21 when and how he exhausted his administrative remedies. The complaint should also contain a 22 plain, short, and concise statement identifying the nature of plaintiff’s disagreement with the 23 determination made by the Social Security Administration and show that plaintiff is entitled to 24 relief. A district court can affirm, modify, reverse, or remand a decision if plaintiff has exhausted 25 his administrative remedies and timely filed a civil action. However, judicial review of the 26 Commissioner’s decision to deny benefits is limited to determining: (a) whether there is 27 substantial evidence in the record as a whole to support the findings of the Commissioner; and (b) 1 whether the correct legal standards were applied. Morgan v. Commissioner of the Social Security 2 Adm., 169 F.3d 595, 599 (9th Cir. 1999). 3 Here, Plaintiff alleges that on August 9, 2018, after a hearing, the Administrative Law 4 Judge (ALJ) denied Plaintiff’s claim for disability benefits. Plaintiff further alleges that on 5 August 14, 2018, she requested that the Appeals Council review the decision of the ALJ. Finally, 6 Plaintiff alleges that on February 28, 2018, the Appeals Council denied her request for review, 7 and, at that time, the ALJ’s decision became the Commissioner’s final decision. There appears to 8 be a typographical error in the date that the Appeals Council denied Plaintiff’s request for review, 9 as the date that the Appeals Council denied Plaintiff’s request for review could not be before 10 Plaintiff filed her request for review (and before the ALJ hearing). Assuming Plaintiff intended to 11 write February 28, 2019, the complaint in this case was filed 64 days later (on May 3, 2019) and 12 is timely. See 42 U.S.C. § 405(g) (civil action may be commenced within 60 days after the 13 Appeals Council’s decision is mailed); 20 C.F.R. § 422.210(c) (“mailing” is construed as the date 14 on which the notice “is received by the individual,” which is “presumed to be five days after the 15 date of such notice, unless there is a reasonable showing to the contrary.”). Further, it appears that 16 Plaintiff exhausted her administrative remedies, and the complaint includes facts sufficient to 17 state a claim for relief. 18 Based on the foregoing and good cause appearing therefore, 19 IT IS ORDERED that: 20 1. Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff will not 21 be required to pay the filing fee of $400.00. 22 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 23 prepayment of any additional fees or costs or giving security for them. This order granting leave 24 to proceed in forma pauperis does not extend to the issuance of subpoenas at government 25 expense. 26 3. The Clerk of Court must file the complaint. 27 4. The Clerk of the Court must serve the Commissioner of the Social Security 1 of Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 899, 2 || San Francisco, California 94105-1545; and (2) the Attorney General of the United States, 3 || Department of Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, D.C. 20530. 4 5. The Clerk of Court must issue summons to the United States Attorney for the 5 || District of Nevada and deliver the summons and complaint to the U.S. Marshal for service. 6 6. By December 13, 2019, Plaintiff must file an amended complaint stating the 7 || correct date upon which the Appeals Council denied her request for review. If this date is more 8 || than 65 days before Plaintiff filed this action, Plaintiff must also file a notice with the court so 9 || stating. 10 11 DATED: November 18, 2019 12 Ls Li gma what 13 B DA WEKSLER □ 4 UNITED STATES MAGISTRATE JUDGE

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