Ha v. Commissioner of Social Security

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge Larry Alan Burns on 6/3/13. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THO VAN HA,

CASE NO. 13-cv-1211-LAB-BLM

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Plaintiff,

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

v.
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COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Tho Van Ha filed this case on May 21, 2013. Now pending is his Motion to Proceed

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In Forma Pauperis (“IFP Motion”).

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I.

IFP Motion.

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All parties who institute a civil action in a district court of the United States, except for

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habeas petitioners, must pay a filing fee of $350. See 28 U.S.C. § 1913(a). A party is

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excused from paying the fee, however, if the Court grants leave to proceed In Forma

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Pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th

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Cir. 1999). To proceed IFP, a plaintiff does not need to prove that he’s absolutely destitute,

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but he does need to show that, because of his poverty, he cannot provide the filing fee and

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still provide his dependants with the necessities of life. See Adkins v. E.I. DuPont de

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Nemours & Co., 335 U.S. 331, 339-40 (1948).

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Plaintiff has met this standard. Plaintiff has been unemployed since 1991. His wife

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earns $900 per month, so paying the fee would consume nearly 39 percent of his monthly

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household income. His wife’s income pays for food, rent, and living expenses. His only

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valuable assets are a 23-year-old Honda Accord and $50 in the bank. Though Plaintiff does

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not support any children, the filing fee would consume a substantial portion of his household

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income, so that he and his wife would likely be unable to purchase the necessities of life.

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Ha’s IFP Motion is, therefore, GRANTED.

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II.

Initial Screening

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Under 28 U.S.C. § 1915(e), the Court must screen each civil action commenced

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pursuant to 28 U.S.C. § 1915(a) and dismiss if the Court finds it is frivolous or malicious, fails

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to state a claim upon which relief can be granted, or seeks monetary relief from an immune

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defendant. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 45 (9th Cir. 2001)

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(“[T]he provisions of 28 U.S.C. § 915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith,

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203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e) “not only permits but

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requires” the court to sua sponte dismiss an IFP complaint that fails to state a claim). The

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Court finds that Plaintiff’s claim is neither frivolous nor malicious, nor does it seek monetary

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relief from an immune defendant. The Court now turns to the sufficiency of the complaint to

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withstand a motion to dismiss.

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To survive a motion to dismiss, a complaint must contain facts that, taken as true,

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“state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 570 (2007). A claim is plausible if the facts alleged allow the court to “draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). Plausibility means that, given the allegations in the

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complaint, it is more than a “sheer possibility that a defendant has acted unlawfully.” Id.

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Further, in determining plausibility, the court should lean on its “experience and common

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sense” to assess the claim in its particular context. Id. at 663-64, Twombly, 550 U.S. at 556.

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Plaintiff appeals to the Court from an administrative ruling denying him supplemental

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security income (“SSI”) benefits. The complaint alleges generally that the plaintiff, a former
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refugee1, has been disabled since 2000 due to brain surgery, chronic leg and back pain,

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head pain, and severe mental illness, including depression and memory loss as symptoms

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of post-traumatic stress syndrome. The complaint provides the basis for the diagnosis, and

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states that the Administrative Law Judge (“ALJ”) improperly disregarded the plaintiff’s

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disabilities in denying SSI benefits. Plaintiff also claims the ALJ asked leading questions that

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affected the fairness of the hearing, and that the ALJ yelled at him and intimidated his then-

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attorney.

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On the basis of these facts, the plaintiff alleges that: (1) the ALJ violated the

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applicable Ninth Circuit standard, the Social Security Act, 42 U.S.C. § 405(g), and the

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appropriate implementing regulations, 20 C.F.R. § 416.929 (1992), by not considering

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medical evidence of plaintiff’s disability; (2) the ALJ violated the Commissioner’s

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implementing regulations, 20 C.F.R. § 416.923, by not considering the cumulative impact of

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the plaintiff’s impairments; (3) the ALJ did not give plaintiff a full and fair hearing, as required

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under the Social Security Act, 42 U.S.C. § 1381 et. seq., and the Commissioner’s

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implementing regulations, 20 C.F.R. § 416.927 (1992), because the ALJ did not give Ha’s

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treating physician’s opinion sufficient weight; (4) the defendant did not provide a full and fair

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hearing, violating the plaintiff’s Fifth Amendment due process rights; (5) the defendant did

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not provide a full and fair hearing, violating the Administrative Procedure Act, 5 U.S.C. §

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706(2)(A); (6) the ALJ did not base her decision on substantial evidence, violating the Social

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Security Act, 42 U.S.C. § 1382c and 42 U.S.C. § 405(g); and (7) the purported interference

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with plaintiff’s counsel violated the plaintiff’s Fifth Amendment due process rights.

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The Court is uncertain of the plaintiff’s background. The complaint states that the plaintiff “is a former
refugee from Iraq,” (Complaint, Doc. No. 1 at 2), while the plaintiff’s name and other documents filed with this
court indicate that the plaintiff is of Vietnamese ancestry, (Affidavit of Tho Van Ha, Doc. No. 1-1 at 4).

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Accepting the pleaded facts as true, the Court finds that plaintiff states facts that

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plausibly entitle him to relief. Therefore, the Court finds that plaintiff may proceed IFP and

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that his pleadings survive the initial screening as required under 28 U.S.C. § 1915(e).

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IT IS SO ORDERED.
DATED: June 3, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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