Rhodes v. Social Security Administration Commissioner

Filing 7

ORDER that on or before Friday, October 5, 2012, Plaintiff shall file a Second Amended Complaint, setting forth a short plain statement of the grounds for the court's jurisdiction. If Plaintiff fails to comply, this action will be dismissed with prejudice. Signed by Magistrate Judge Lawrence O Anderson on 9/21/2012. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of the)
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Social Security Administration,
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Defendant.
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Mark Joseph Rhodes,
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No. CV-12-1762-PHX-LOA
ORDER

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This case arises on the Court’s review of pro se Plaintiff’s timely-filed Amended
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Complaint. (Doc. 6)
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As explained in the Court’s September 4, 2012 Order, a complaint appealing a
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Social Security ruling to a district court must provide, among others, “a short and plain
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statement of the claim showing that the pleader is entitled to relief.” (Doc. 5 at 3) (citing,
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among others, Rule 8(a)(2), Fed.R. Civ.P.). A “complaint must contain sufficient factual
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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
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v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007); see also Sheppard v. David Evans and Assoc.,

F.3d

, 2012 WL

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3983909 (9th Cir. Sept. 12, 2012). In the context of a Social Security appeal, a claimant
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may set aside the Commissioner’s denial of disability benefits only “when the ALJ’s
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findings are based on legal error or are not supported by substantial evidence in the record
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as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). If
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the evidence can support either outcome, the Commissioner’s decision must be upheld.”
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Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003) (citation omitted). (“Although

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this standard requires that a claim be plausible on its face, it does not require that a

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complaint contain detailed factual allegations.”) (quoting Iqbal, 556 U.S. at 678) (internal

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quotation marks omitted).

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Fairly reading the pro se Amended Complaint, Plaintiff raises two issues of error

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on appeal: 1) the Administrative Law Judge (“ALJ”) based his decision to deny disability

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benefits to Plaintiff on someone else’s medical records, not Plaintiff’s, doc. 6 at 2; and 2)

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the ALJ failed to allow Plaintiff to make a closing statement, contrary to “[20] CFR §

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405.351,” doc. 6 at 3. Nevertheless there is a major, potentially case-dispositive,

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deficiency in the Amended Complaint.
Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a

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claim for relief must contain a “a short plain statement of the grounds for the court’s

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jurisdiction.” See Fed.R.Civ.P. 8(a)(1). Under the Social Security Act, the only avenue for

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judicial review is 42 U.S.C. § 405(g), which requires exhaustion of administrative

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remedies “as a jurisdictional prerequisite” before a district court may consider a Social

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Security appeal. Medeiros v. U.S. Social Sec. Admin., 2012 WL 629152, at *3 (D. Haw.

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Jan. 3, 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 327–30 (1976)). Judicial

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review is only available after “any final decision of the Commissioner of Social Security

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made after a hearing.” Id. (quoting Bass v. Soc. Sec. Admin, 872 F.2d 832, 833 (9th Cir.

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1989)). An ALJ’s “[d]ecision does not become final until the plaintiff requests review

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before an Appeals Council, and the Appeals Council either grants or denies review.” Id.

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(citing 20 C.F.R. § 404.900).

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Title 42 U.S.C. § 405(g) mandates that a claimant seeking judicial review of the

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Secretary’s final administrative decision is required to file such action with the court

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“within sixty (60) days after the mailing to him of notice of such decision or within such

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further time as the Secretary may allow.” 42 U.S.C. § 405(g); see also Lawson v. Astrue,

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2010 WL 2594938, at *1 (W.D. Wash. June 24, 2010). “By regulation, the Secretary has

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required that any civil action be filed within sixty (60) days of receipt of the notice.”
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Lawson, 2010 WL 2594938, at *1 (citing 20 C.F.R. § 422.210(c)). “The date of receipt is

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presumed to be five days after the date of notice, unless there is a reasonable showing to

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the contrary.” Id. (citing 20 C.F.R. § 422.210(c)). “Any action seeking review of a final

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decision of the Commissioner of Social Security must be commenced within sixty days

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after the mailing of the notice of such decision.”Anthes v. U.S., 214 Fed.Appx. 694 (9th

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Cir. 2006) (42 U.S.C. § 405(g)).

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There is no reference in the Amended Complaint when the Secretary’s final

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administrative decision became final nor is there attached to the Amended Complaint the

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Appeals Council’s mailed notice of its final decision to Plaintiff for the Court to deter-

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mine whether the District Court of Arizona has jurisdiction over Plaintiff’s appeal. The

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Court is unable to independently determine whether it has jurisdiction over this appeal.

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District courts have a duty to determine the existence of subject matter jurisdiction

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over an action sua sponte. United Investors Life Ins. Co. v. Waddell & Reed Inc., 360

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F.3d 960, 966-67 (9th Cir. 2004). Lack of federal jurisdiction cannot be waived or be

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over-come by agreement of the parties. Id. However, because Plaintiff is appearing pro

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se in this action and is entitled to notice of the Amended Complaint’s deficiency

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regarding jurisdiction, the Court will give Plaintiff one last opportunity to amend his

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complaint prior to dismissal of this action to set forth “a short plain statement of the

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grounds for the court’s jurisdiction.” See Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir.

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2000); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995); Fed.R.Civ.P. 8(a)(1).

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Accordingly,

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IT IS ORDERED that on or before Friday, October 5, 2012, Plaintiff shall file a

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Second Amended Complaint, setting forth a short plain statement of the grounds for the

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court’s jurisdiction. Absent a showing of good cause, the failure to timely file a Second

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Amended Complaint, establishing the District Court of Arizona has jurisdiction over this

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appeal, this action will be dismissed with prejudice.

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Dated this 21st day of September, 2012.

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