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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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 NAIM R. COSTANDI, 8 Case No. 2:17-02019-JCM-PAL Plaintiff, 9 v. SCREENING ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, 10 11 (IFP App – ECF No. 1) Defendant. 12 Plaintiff Naim R. Costandi has submitted an Application to Proceed In Forma Pauperis 13 14 (ECF No. 1) pursuant to 28 U.S.C. § 1915 along with a Complaint (ECF No. 1-1). This 15 Application and Complaint are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) 16 and LR IB 1-3 of the Local Rules of Practice. 17 I. IN FORMA PAUPERIS APPLICATION 18 Plaintiff’s Application includes the affidavit required by § 1915(a) showing an inability to 19 prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 20 pauperis will be granted. The court will now review the Complaint. 21 II. SCREENING THE COMPLAINT 22 After granting a request to proceed in forma pauperis, a court must screen the complaint 23 and any amended complaints filed prior to a responsive pleading. Lopez v. Smith, 203 F.3d 1122, 24 1129 (9th Cir. 2000) (en banc). The simplified pleading standard set forth in Rule 8(a) of the 25 Federal Rules of Civil Procedure1 applies to all civil actions, with limited exceptions. Alvarez v. 26 Hill, 518 F.3d 1152, 1159 (9th Cir. 2008). A properly pled complaint must therefore provide “a 27 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 28 1 Any reference to a “Rule” or the “Rules” in this Order refer to the Federal Rules of Civil Procedure. -1- 1 P. 8(a)(2); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 2 does not require detailed factual allegations, it demands “more than labels and conclusions” or a 3 “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 4 (2009) (citation omitted). A complaint “must contain sufficient allegations of underlying facts to 5 give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 6 F.3d 1202, 1216 (9th Cir. 2011). 7 Federal courts are given the authority dismiss a case if the action is legally “frivolous or 8 malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from 9 a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). The standard for 10 determining whether a plaintiff has failed to state a claim upon which relief can be granted under 11 § 1915 is the same as the Rule 12(b)(6) standard for failure to state a claim. Watison v. Carter, 12 668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 12(b)(6) is essentially a ruling on a 13 question of law. North Star Intern. v. Ariz. Corp. Comm’n, 720 F.2d 578, 580 (9th Cir. 1983). 14 When a court dismisses a complaint pursuant to § 1915, a plaintiff is ordinarily given leave to 15 amend with directions as to curing its deficiencies, unless it is clear from the face of the complaint 16 that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 17 (9th Cir. 1995). 18 Here, the Complaint challenges a decision by the Social Security Administration (“SSA”) 19 denying Plaintiff disability insurance benefits under Title II of the Social Security Act. See Compl. 20 (ECF No. 1-1) ¶ 3. To state a valid benefits claim, a complaint must give the defendant fair notice 21 of what the plaintiff’s claim is and the grounds upon which it rests. Starr, 652 F.3d at 1216. To 22 do so, a complaint should state when and how a plaintiff exhausted his administrative remedies 23 with the SSA and the nature of his disability, including when he claims he became disabled. The 24 complaint should also contain a short and concise statement identifying the nature of the plaintiff’s 25 disagreement with the SSA’s determination and show that the plaintiff is entitled to relief. See, 26 e.g., Sabbia v. Comm’r of Soc. Sec. Admin., 669 F. Supp. 2d 914, 918 (N.D. Ill. 2009) (when 27 submitting a complaint for judicial review to the district court, social security appellants “must not 28 treat the matter as a simple formality” by filing “extremely perfunctory” allegations), aff’d sub -2- 1 nom. Sabbia v. Astrue, 433 F. App’x 462 (7th Cir. 2011). Although this showing need not be made 2 in great detail, it must be presented in sufficient detail for the court to understand the disputed 3 issues so that it can meaningfully screen the complaint. See 4 Soc. Sec. Law & Prac. § 56:4 (2016); 4 2 Soc. Sec. Disab. Claims Prac. & Proc. §§ 19:92–93 (2nd ed. 2015). 5 A. Exhaustion of Administrative Remedies 6 Before a plaintiff can sue the SSA in federal court, he must exhaust his administrative 7 remedies. 42 U.S.C. § 405(g); Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) 8 (“Section 405(g) provides that a civil action may be brought only after (1) the claimant has been 9 party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the 10 claim”). Generally, if the SSA denies a claimant’s application for disability benefits, he or she can 11 request reconsideration of the decision. If the claim is denied upon reconsideration, a claimant 12 may request a hearing before an Administrative Law Judge (“ALJ”). If the ALJ denies the claim, 13 a claimant may request review of the decision by the Appeals Council. If the Appeals Council 14 declines to review the ALJ’s decision, a claimant may then request review by the United States 15 District Court. See 20 C.F.R. §§ 404.981, 416.1481. A civil action for judicial review must be 16 commenced within 60 days after receipt of the Appeals Council’s notice of a final decision. Id. 17 See also 20 C.F.R. § 405.501. The SSA assumes that the notice of final decision will be received 18 within five days of the date on the notice unless shown otherwise; thus, an action commenced 19 within 65 days is presumed timely. The civil action must be filed in the judicial district in which 20 the plaintiff resides. 42 U.S.C. § 405 (g). 21 In this case, Plaintiff alleges that on May 27, 2017, the Appeals Council denied the request 22 for review and the ALJ’s decision became the final decision of the Commissioner. See Compl. 23 ¶ 8. Thus, it appears Plaintiff has exhausted administrative remedies. Plaintiff timely commenced 24 this action as the Complaint was filed on July 25, 2017, and the Complaint indicates that Plaintiff 25 resides within the District of Nevada. See Compl. ¶ 1. Accordingly, Plaintiff has satisfied these 26 prerequisites for judicial review. 27 /// 28 /// -3- 1 B. Grounds for Plaintiff’s Appeal and the Nature of the Disability 2 The Complaint seeks judicial review of the Commissioner’s decision denying benefits and 3 asks the court to reverse that decision, or alternatively, to remand this matter for a new hearing. A 4 district court can affirm, modify, reverse, or remand a decision if a plaintiff has exhausted his or 5 her administrative remedies and timely filed a civil action. However, judicial review of the 6 Commissioner’s decision to deny benefits is limited to determining: (a) whether there is substantial 7 evidence in the record as a whole to support the findings of the Commissioner; and (b) whether 8 the correct legal standards were applied. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599 9 (9th Cir. 1999). 10 In the Complaint, Plaintiff contends there is not substantial medical or vocational evidence 11 in the record to support: (a) the legal conclusion that Plaintiff is not disabled within the meaning 12 of the Social Security Act; or (b) the Commissioner’s finding that Plaintiff could perform 13 substantial gainful activity. See Compl. ¶ 9. Plaintiff asserts that the record supports a finding 14 that Plaintiff is disabled and has been continuously disabled at all relevant times. Id. ¶ 9(c). 15 Plaintiff also alleges that new evidence exists and warrants a remand of this matter for further 16 proceedings. Id. ¶ 9(d). 17 However, Plaintiff has not stated the nature of the disability or alleged when it commenced, 18 instead alleging only Plaintiff “is, and at all times relevant to this action, disabled as that term is 19 defined in the Social Security Act.” See Compl. ¶ 5. Additionally, Plaintiff merely alleges that 20 the Commissioner’s decision to deny benefits was wrong, but fails to indicate why the decision is 21 wrong other than by reciting the general standards that govern the court’s review of the SSA’s 22 decision. Id. at ¶ 9. Rule 8’s pleading standard requires more than a “formulaic recitation of the 23 elements of a cause of action” and more than “labels and conclusions.” Iqbal, 556 U.S. at 678. A 24 complaint merely stating that the SSA’s decision was wrong and failing to describe the underlying 25 reasons why or identify plaintiff’s disability is insufficient to satisfy Rule 8’s pleading requirement 26 because the complaint does not provide “fair notice of what the plaintiff’s claim is and the grounds 27 upon which it rests.” Cf. Starr, 652 F.3d at 1216 (addressing post-Iqbal pleading standards and 28 holding that a complaint “must contain sufficient allegations of underlying facts to give fair notice -4- 1 and to enable the opposing party to defend itself effectively”). Accordingly, the Complaint fails 2 to state a claim upon which relief can be granted. 3 Based on the foregoing, 4 IT IS ORDERED: 5 1. Plaintiff Naim R. Costandi’s Application to Proceed In Forma Pauperis (ECF No. 1) 6 is GRANTED. Plaintiff shall not be required to pay the $400 filing fee. 7 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 8 prepayment of any additional fees or costs or the giving of a security therefor. This 9 Order granting leave to proceed in forma pauperis shall not extend to the issuance 10 and/or service of subpoenas at government expense. 11 3. The Clerk of Court shall FILE the Complaint, but SHALL NOT issue summons. 12 4. The Complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall have 30 13 days from the date of this order, or until November 30, 2017, to file an amended 14 complaint, if Plaintiff believes the noted deficiencies can be corrected. 15 16 17 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. 18 19 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 -5-

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