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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 ) ) ) Plaintiff, ) ) vs. ) Michael J. Astrue, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) Mark Joseph Rhodes, 9 10 11 12 13 No. CV-12-1762-PHX-LOA ORDER 14 This case arises on the Court’s review of pro se Plaintiff’s timely-filed Amended 15 Complaint. (Doc. 6) 16 As explained in the Court’s September 4, 2012 Order, a complaint appealing a 17 Social Security ruling to a district court must provide, among others, “a short and plain 18 statement of the claim showing that the pleader is entitled to relief.” (Doc. 5 at 3) (citing, 19 among others, Rule 8(a)(2), Fed.R. Civ.P.). A “complaint must contain sufficient factual 20 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 21 v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 22 570 (2007); see also Sheppard v. David Evans and Assoc., F.3d , 2012 WL 23 3983909 (9th Cir. Sept. 12, 2012). In the context of a Social Security appeal, a claimant 24 may set aside the Commissioner’s denial of disability benefits only “when the ALJ’s 25 findings are based on legal error or are not supported by substantial evidence in the record 26 as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). If 27 the evidence can support either outcome, the Commissioner’s decision must be upheld.” 28 1 Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003) (citation omitted). (“Although 2 this standard requires that a claim be plausible on its face, it does not require that a 3 complaint contain detailed factual allegations.”) (quoting Iqbal, 556 U.S. at 678) (internal 4 quotation marks omitted). 5 Fairly reading the pro se Amended Complaint, Plaintiff raises two issues of error 6 on appeal: 1) the Administrative Law Judge (“ALJ”) based his decision to deny disability 7 benefits to Plaintiff on someone else’s medical records, not Plaintiff’s, doc. 6 at 2; and 2) 8 the ALJ failed to allow Plaintiff to make a closing statement, contrary to “[20] CFR § 9 405.351,” doc. 6 at 3. Nevertheless there is a major, potentially case-dispositive, 10 11 deficiency in the Amended Complaint. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a 12 claim for relief must contain a “a short plain statement of the grounds for the court’s 13 jurisdiction.” See Fed.R.Civ.P. 8(a)(1). Under the Social Security Act, the only avenue for 14 judicial review is 42 U.S.C. § 405(g), which requires exhaustion of administrative 15 remedies “as a jurisdictional prerequisite” before a district court may consider a Social 16 Security appeal. Medeiros v. U.S. Social Sec. Admin., 2012 WL 629152, at *3 (D. Haw. 17 Jan. 3, 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 327–30 (1976)). Judicial 18 review is only available after “any final decision of the Commissioner of Social Security 19 made after a hearing.” Id. (quoting Bass v. Soc. Sec. Admin, 872 F.2d 832, 833 (9th Cir. 20 1989)). An ALJ’s “[d]ecision does not become final until the plaintiff requests review 21 before an Appeals Council, and the Appeals Council either grants or denies review.” Id. 22 (citing 20 C.F.R. § 404.900). 23 Title 42 U.S.C. § 405(g) mandates that a claimant seeking judicial review of the 24 Secretary’s final administrative decision is required to file such action with the court 25 “within sixty (60) days after the mailing to him of notice of such decision or within such 26 further time as the Secretary may allow.” 42 U.S.C. § 405(g); see also Lawson v. Astrue, 27 2010 WL 2594938, at *1 (W.D. Wash. June 24, 2010). “By regulation, the Secretary has 28 required that any civil action be filed within sixty (60) days of receipt of the notice.” -2- 1 Lawson, 2010 WL 2594938, at *1 (citing 20 C.F.R. § 422.210(c)). “The date of receipt is 2 presumed to be five days after the date of notice, unless there is a reasonable showing to 3 the contrary.” Id. (citing 20 C.F.R. § 422.210(c)). “Any action seeking review of a final 4 decision of the Commissioner of Social Security must be commenced within sixty days 5 after the mailing of the notice of such decision.”Anthes v. U.S., 214 Fed.Appx. 694 (9th 6 Cir. 2006) (42 U.S.C. § 405(g)). 7 There is no reference in the Amended Complaint when the Secretary’s final 8 administrative decision became final nor is there attached to the Amended Complaint the 9 Appeals Council’s mailed notice of its final decision to Plaintiff for the Court to deter- 10 mine whether the District Court of Arizona has jurisdiction over Plaintiff’s appeal. The 11 Court is unable to independently determine whether it has jurisdiction over this appeal. 12 District courts have a duty to determine the existence of subject matter jurisdiction 13 over an action sua sponte. United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 14 F.3d 960, 966-67 (9th Cir. 2004). Lack of federal jurisdiction cannot be waived or be 15 over-come by agreement of the parties. Id. However, because Plaintiff is appearing pro 16 se in this action and is entitled to notice of the Amended Complaint’s deficiency 17 regarding jurisdiction, the Court will give Plaintiff one last opportunity to amend his 18 complaint prior to dismissal of this action to set forth “a short plain statement of the 19 grounds for the court’s jurisdiction.” See Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 20 2000); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995); Fed.R.Civ.P. 8(a)(1). 21 Accordingly, 22 IT IS ORDERED that on or before Friday, October 5, 2012, Plaintiff shall file a 23 Second Amended Complaint, setting forth a short plain statement of the grounds for the 24 court’s jurisdiction. Absent a showing of good cause, the failure to timely file a Second 25 26 /// 27 /// 28 /// -3- 1 Amended Complaint, establishing the District Court of Arizona has jurisdiction over this 2 appeal, this action will be dismissed with prejudice. 3 Dated this 21st day of September, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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