Costandi v. Commissioner of Social Security

Filing 2

SCREENING ORDER. Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis is Granted. Plaintiff shall not be required to pay the $400 filing fee. The Clerk of Court shall file the Complaint but SHALL NOT issue Summons. The Complaint is DISMISSED WITH LEAVE TO AMEND. Amended Complaint deadline: 11/30/2017. Signed by Magistrate Judge Peggy A. Leen on 10/30/17. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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NAIM R. COSTANDI,

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Case No. 2:17-02019-JCM-PAL
Plaintiff,

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v.

SCREENING ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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(IFP App – ECF No. 1)
Defendant.

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Plaintiff Naim R. Costandi has submitted an Application to Proceed In Forma Pauperis

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(ECF No. 1) pursuant to 28 U.S.C. § 1915 along with a Complaint (ECF No. 1-1).

This

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Application and Complaint are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A)

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and LR IB 1-3 of the Local Rules of Practice.

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I.

IN FORMA PAUPERIS APPLICATION

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Plaintiff’s Application includes the affidavit required by § 1915(a) showing an inability to

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prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. The court will now review the Complaint.

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II.

SCREENING THE COMPLAINT

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After granting a request to proceed in forma pauperis, a court must screen the complaint

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and any amended complaints filed prior to a responsive pleading. Lopez v. Smith, 203 F.3d 1122,

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1129 (9th Cir. 2000) (en banc). The simplified pleading standard set forth in Rule 8(a) of the

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Federal Rules of Civil Procedure1 applies to all civil actions, with limited exceptions. Alvarez v.

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Hill, 518 F.3d 1152, 1159 (9th Cir. 2008). A properly pled complaint must therefore provide “a

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short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

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Any reference to a “Rule” or the “Rules” in this Order refer to the Federal Rules of Civil Procedure.

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P. 8(a)(2); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8

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does not require detailed factual allegations, it demands “more than labels and conclusions” or a

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“formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citation omitted). A complaint “must contain sufficient allegations of underlying facts to

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give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652

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F.3d 1202, 1216 (9th Cir. 2011).

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Federal courts are given the authority dismiss a case if the action is legally “frivolous or

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malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from

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a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2).

The standard for

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determining whether a plaintiff has failed to state a claim upon which relief can be granted under

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§ 1915 is the same as the Rule 12(b)(6) standard for failure to state a claim. Watison v. Carter,

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668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 12(b)(6) is essentially a ruling on a

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question of law. North Star Intern. v. Ariz. Corp. Comm’n, 720 F.2d 578, 580 (9th Cir. 1983).

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When a court dismisses a complaint pursuant to § 1915, a plaintiff is ordinarily given leave to

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amend with directions as to curing its deficiencies, unless it is clear from the face of the complaint

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that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106

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(9th Cir. 1995).

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Here, the Complaint challenges a decision by the Social Security Administration (“SSA”)

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denying Plaintiff disability insurance benefits under Title II of the Social Security Act. See Compl.

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(ECF No. 1-1) ¶ 3. To state a valid benefits claim, a complaint must give the defendant fair notice

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of what the plaintiff’s claim is and the grounds upon which it rests. Starr, 652 F.3d at 1216. To

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do so, a complaint should state when and how a plaintiff exhausted his administrative remedies

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with the SSA and the nature of his disability, including when he claims he became disabled. The

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complaint should also contain a short and concise statement identifying the nature of the plaintiff’s

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disagreement with the SSA’s determination and show that the plaintiff is entitled to relief. See,

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e.g., Sabbia v. Comm’r of Soc. Sec. Admin., 669 F. Supp. 2d 914, 918 (N.D. Ill. 2009) (when

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submitting a complaint for judicial review to the district court, social security appellants “must not

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treat the matter as a simple formality” by filing “extremely perfunctory” allegations), aff’d sub
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nom. Sabbia v. Astrue, 433 F. App’x 462 (7th Cir. 2011). Although this showing need not be made

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in great detail, it must be presented in sufficient detail for the court to understand the disputed

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issues so that it can meaningfully screen the complaint. See 4 Soc. Sec. Law & Prac. § 56:4 (2016);

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2 Soc. Sec. Disab. Claims Prac. & Proc. §§ 19:92–93 (2nd ed. 2015).

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A. Exhaustion of Administrative Remedies

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Before a plaintiff can sue the SSA in federal court, he must exhaust his administrative

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remedies. 42 U.S.C. § 405(g); Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989)

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(“Section 405(g) provides that a civil action may be brought only after (1) the claimant has been

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party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the

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claim”). Generally, if the SSA denies a claimant’s application for disability benefits, he or she can

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request reconsideration of the decision. If the claim is denied upon reconsideration, a claimant

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may request a hearing before an Administrative Law Judge (“ALJ”). If the ALJ denies the claim,

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a claimant may request review of the decision by the Appeals Council. If the Appeals Council

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declines to review the ALJ’s decision, a claimant may then request review by the United States

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District Court. See 20 C.F.R. §§ 404.981, 416.1481. A civil action for judicial review must be

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commenced within 60 days after receipt of the Appeals Council’s notice of a final decision. Id.

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See also 20 C.F.R. § 405.501. The SSA assumes that the notice of final decision will be received

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within five days of the date on the notice unless shown otherwise; thus, an action commenced

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within 65 days is presumed timely. The civil action must be filed in the judicial district in which

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the plaintiff resides. 42 U.S.C. § 405 (g).

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In this case, Plaintiff alleges that on May 27, 2017, the Appeals Council denied the request

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for review and the ALJ’s decision became the final decision of the Commissioner. See Compl.

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¶ 8. Thus, it appears Plaintiff has exhausted administrative remedies. Plaintiff timely commenced

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this action as the Complaint was filed on July 25, 2017, and the Complaint indicates that Plaintiff

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resides within the District of Nevada. See Compl. ¶ 1. Accordingly, Plaintiff has satisfied these

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prerequisites for judicial review.

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///
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B. Grounds for Plaintiff’s Appeal and the Nature of the Disability

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The Complaint seeks judicial review of the Commissioner’s decision denying benefits and

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asks the court to reverse that decision, or alternatively, to remand this matter for a new hearing. A

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district court can affirm, modify, reverse, or remand a decision if a plaintiff has exhausted his or

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her administrative remedies and timely filed a civil action. However, judicial review of the

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Commissioner’s decision to deny benefits is limited to determining: (a) whether there is substantial

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evidence in the record as a whole to support the findings of the Commissioner; and (b) whether

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the correct legal standards were applied. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599

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(9th Cir. 1999).

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In the Complaint, Plaintiff contends there is not substantial medical or vocational evidence

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in the record to support: (a) the legal conclusion that Plaintiff is not disabled within the meaning

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of the Social Security Act; or (b) the Commissioner’s finding that Plaintiff could perform

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substantial gainful activity. See Compl. ¶ 9. Plaintiff asserts that the record supports a finding

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that Plaintiff is disabled and has been continuously disabled at all relevant times. Id. ¶ 9(c).

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Plaintiff also alleges that new evidence exists and warrants a remand of this matter for further

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proceedings. Id. ¶ 9(d).

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However, Plaintiff has not stated the nature of the disability or alleged when it commenced,

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instead alleging only Plaintiff “is, and at all times relevant to this action, disabled as that term is

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defined in the Social Security Act.” See Compl. ¶ 5. Additionally, Plaintiff merely alleges that

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the Commissioner’s decision to deny benefits was wrong, but fails to indicate why the decision is

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wrong other than by reciting the general standards that govern the court’s review of the SSA’s

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decision. Id. at ¶ 9. Rule 8’s pleading standard requires more than a “formulaic recitation of the

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elements of a cause of action” and more than “labels and conclusions.” Iqbal, 556 U.S. at 678. A

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complaint merely stating that the SSA’s decision was wrong and failing to describe the underlying

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reasons why or identify plaintiff’s disability is insufficient to satisfy Rule 8’s pleading requirement

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because the complaint does not provide “fair notice of what the plaintiff’s claim is and the grounds

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upon which it rests.” Cf. Starr, 652 F.3d at 1216 (addressing post-Iqbal pleading standards and

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holding that a complaint “must contain sufficient allegations of underlying facts to give fair notice
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and to enable the opposing party to defend itself effectively”). Accordingly, the Complaint fails

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to state a claim upon which relief can be granted.

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Based on the foregoing,

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IT IS ORDERED:

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1. Plaintiff Naim R. Costandi’s Application to Proceed In Forma Pauperis (ECF No. 1)

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is GRANTED. Plaintiff shall not be required to pay the $400 filing fee.

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2. Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security therefor. This

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Order granting leave to proceed in forma pauperis shall not extend to the issuance

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and/or service of subpoenas at government expense.

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3. The Clerk of Court shall FILE the Complaint, but SHALL NOT issue summons.

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4. The Complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall have 30

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days from the date of this order, or until November 30, 2017, to file an amended

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complaint, if Plaintiff believes the noted deficiencies can be corrected.

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5. Failure to file an amended complaint in accordance with this order may result in a
recommendation to the district judge that this case be closed.
Dated this 30th day of October, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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