(SS) Lopez-Frausto v. Commissioner of Social Security

Filing 3

ORDER GRANTING #2 Motion to Proceed In Forma Pauperis; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 11/16/2020. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AMANDA LOPEZ-FRAUSTO,
Plaintiff,

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v.

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ANDREW M. SAUL,
Commissioner of Social Security,

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Defendant.

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Case No.: 1:20-cv-1611 JLT
ORDER GRANTING PLAINTIFF’S MOTION
TO PROCEED IN FORMA PAUPERIS
(Doc. 2)
ORDER DISMISSING PLAINTIFF’S
COMPLAINT WITH LEAVE TO AMEND

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Amanda Lopez- Fausto seeks to proceed in forma pauperis with an action for judicial review of

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the administrative decision denying an application for Social Security benefits. Pending before the

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Court are the complaint and the motion to proceed in forma pauperis. (Docs. 1, 2) For the following

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reasons, Plaintiff’s motion to procced in forma pauperis is GRANTED and the complaint is

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DISMISSED with leave to amend.

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I.

Proceeding in forma pauperis
The Court may authorize the commencement of an action without prepayment of fees “by a

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person who submits an affidavit that includes a statement of all assets such person … possesses [and]

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that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). The Court

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reviewed the financial status affidavit (Doc. 2) and finds the requirements of 28 U.S.C. § 1915(a) are

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satisfied. Therefore, Plaintiff’s request to proceed in forma pauperis is GRANTED.

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II.

Screening Requirement
When an individual seeks to proceed in forma pauperis, the Court is required to review the

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complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or

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fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant

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who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A plaintiff’s claim is

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frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or

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not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S.

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25, 32-33 (1992).

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III.

Pleading Standards

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General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A

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pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the

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claim showing the pleader is entitled to relief; and … a demand for the relief sought, which may

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include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a). The purpose of the

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complaint is to give the defendant fair notice of the claims, and the grounds upon which the complaint

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stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

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Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do. Nor does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.

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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague

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and conclusory allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982). The Court clarified further,

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[A] complaint must contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.” [Citation]. A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. [Citation]. The
plausibility standard is not akin to a “probability requirement,” but it asks for more
than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a
complaint pleads facts that are “merely consistent with” a defendant’s liability, it
“stops short of the line between possibility and plausibility of ‘entitlement to relief.’

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Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should

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assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal
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conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a

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complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith,

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203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

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IV.

Plaintiff seeks review of a decision by the Commissioner of Social Security denying disability

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Judicial Review and Administrative Remedies

benefits. (Doc. 1) The Court may have jurisdiction pursuant to 42 U.S.C. § 405(g), which provides:
Any individual, after any final decision of the Commissioner made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him of
such decision or within such further time as the Commissioner may allow. Such action
shall be brought in the district court of the United States for the judicial district in
which the plaintiff resides, or has his principal place of business . . . The court shall
have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.

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Id. Except as provided by statute, “[n]o findings of fact or decision of the Commissioner shall be

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reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h).
The Supreme Court interpreted the requirement that there be a final decision to obtain judicial

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review under section 405(g) as including two elements: (1) a waivable requirement that the

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administrative remedies required by the Social Security Act be exhausted; and (2) a non-waivable

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requirement that a claim for benefits was presented to the Commissioner. Mathews v. Eldridge, 424

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U.S. 319, 328 (1976); see also Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003) (“A final

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decision has two elements: (1) presentment of the claim to the Commissioner, and (2) complete

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exhaustion of administrative remedies”). If these elements are not satisfied and “a claimant fails to

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request review from the [Appeals] Council, there is no final decision and, as a result, no judicial

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review in most cases. Sims v. Apfel, 530 U.S. 103, 107 (2000). The Supreme Court explained, a

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claimant who has not requested review by the Appeals Council “may not obtain judicial review

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because he has failed to exhaust administrative remedies.” Id.

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V.

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Discussion and Analysis
Plaintiff seeks to appeal the final administrative decision denying her applications for disability

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insurance benefits and supplemental security income. (Doc. 1) She reports, “The ALJ issued a

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decision denying plaintiff's claim for benefits on September 21, 2020.” (Id. at 2) According to
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Plaintiff, “The United District Court remanded Amanda Lopez-Frausto’s claim for benefits [in] Lopez-

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Frausto v. Berryhill, 1:17-cv-01106-JLT.” (Id. at 2, ¶ 8) Thus, Plaintiff asserts the ALJ’s “decision

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on remand became the final decision of the Commissioner after remand 60 days after September 21,

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2020, because neither Amanda Lopez-Frausto filed exceptions nor did the Appeals Council initiate

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own motion review.” (Id.)
When a federal court remands a case for further consideration, the ALJ’s new decision

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becomes the final decision of the Commissioner after remand unless the Appeals Council assumes

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jurisdiction of the case. 20 C.F.R. §§ 404.983, 404.984(a). A claimant who disagrees with the ALJ’s

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decision in whole or in part may but is not required to file written exceptions with the Appeals Council

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within 30 days of the decision. 20 C.F.R. § 404.984(b)(1). If no exceptions are filed and the Appeals

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Council does not assume jurisdiction within 60 days of the decision, the ALJ’s new decision becomes

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the final decision of the Commissioner after remand. 20 C.F.R. § 404.984(c), (d).
Significantly, however, this Court did not remand Plaintiff’s claim for benefits in Case No.

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1:17-cv-1106-JLT.1 To the contrary, the Court affirmed the administrative decision denying

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Plaintiff’s applications for benefits and directed entry of judgment in favor of Nancy A. Berryhill,

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Acting Commissioner of Social Security on February 4, 2019. (Doc. 17) Thus, Plaintiff did not

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receive a favorable determination from the Court, and it does not appear the matter was before the ALJ

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on remand from the Court. Consequently, it is not clear whether Plaintiff properly exhausted her

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administrative remedies for the decision issued by the ALJ on September 21, 2020.

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VI.

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Leave to Amend the Complaint
If the Court determines that a complaint fails to state a claim, leave to amend should be granted

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to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203

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F.3d 1122, 1130 (9th Cir. 2000) (en banc). A complaint, or a portion thereof, should only be dismissed

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for failure to state a claim upon which relief may be granted if it appears beyond doubt that the plaintiff

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can prove no set of facts, consistent with the allegations, in support of the claim or claims that would

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The Court may take judicial notice of a fact that “is not subject to reasonable dispute because it (1) is generally
known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see also United States v. Bernal-Obeso, 989 F.2d 331, 333
(9th Cir. 1993). Judicial notice may be taken of court records. Mullis v. U.S. Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir.
1987). Accordingly, the Court takes judicial notice of its docket and orders issued in Case No. 1:17-cv-1106-JLT.

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entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson,

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355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners’ Assoc., Inc., 651 F.2d

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1289, 1294 (9th Cir. 1981).

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The Court cannot find with certainty that Plaintiff cannot allege facts supporting a

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determination that she exhausted her administrative remedies and the Court has jurisdiction over the

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matter. Thus, the Court will grant Plaintiff leave to amend the complaint to cure the deficiencies of this

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complaint and clarifying whether she exhausted her administrative remedies. Failure to cure the

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deficiencies will result in a recommendation that the matter be dismissed. The amended complaint must

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bear the docket number assigned this case and must be labeled “First Amended Complaint.”

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Accordingly, the Court ORDERS:

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1.

Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is GRANTED;

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2.

Plaintiff’s complaint is DISMISSED with leave to amend; and

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3.

Plaintiff is GRANTED fourteen days from the date of service of this order to file an

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amended complaint that complies with the requirements of the pertinent substantive law,

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the Federal Rules of Civil Procedure, and the Local Rules of Practice.

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IT IS SO ORDERED.
Dated:

November 16, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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