Williams v. Berryhill

Filing 9

ORDER that the Clerk shall issue summons to the US Attorney for the District of Nevada and deliver the summons and 8 Amended Complaint to the USM for service. The Clerk shall also issue summons to the Commissioner of the SocialSecurity Administration and Attorney General of the United States and serve a copy of the summons and 8 Amended Complaint via certified mail. Signed by Magistrate Judge Peggy A. Leen on 11/27/2017. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 *** TASHEONA WILLIAMS, 8 Plaintiff, 9 10 Case No. 2:17-cv-02221-JCM-PAL v. SCREENING ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, 11 (Am. Compl. – ECF No. 8) Defendant. 12 13 This matter involves Plaintiff Tasheona Williams’ appeal and request for judicial review 14 of the Acting Commissioner of Social Security, Defendant Nancy A. Berryhill’s final decision 15 denying her claim for disability insurance benefits under Title II of the Social Security Act (the 16 “Act”), 42 U.S.C. §§ 401–33, and claim for supplemental security income under Title XVI of the 17 Act, 42 U.S.C. §§ 1381–83. Ms. Williams has submitted an Amended Complaint (ECF No. 8) in 18 accordance with the court’s Order (ECF No. 7) extending the deadline to file the amended 19 pleading. The Amended Complaint is referred to the undersigned for re-screening pursuant to 28 20 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice. 21 I. RE-SCREENING THE AMENDED COMPLAINT 22 After granting a request to proceed in forma pauperis (“IFP”), a federal court must 23 additionally screen the complaint and any amended complaints filed prior to a responsive pleading. 24 Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (noting that § 1915(e) applies to all 25 IFP complaints). Here, Ms. Williams challenges a decision by the Social Security Administration 26 (“SSA”) denying her disability insurance benefits and supplemental security income under Titles 27 II and XVI of the Act. See Am. Compl. (ECF No. 8) ¶ II. The court will review the Amended 28 Complaint. -1- 1 A. Exhaustion of Administrative Remedies and Timing of Appeal 2 Before a plaintiff can sue the SSA in federal court, she must have exhausted her 3 administrative remedies. 42 U.S.C. § 405(g); Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th 4 Cir. 1989) (per curium) (“Section 405(g) provides that a civil action may be brought only after 5 (1) the claimant has been party to a hearing held by the Secretary, and (2) the Secretary has made 6 a final decision on the claim”). Generally, if the SSA denies a claimant’s application for disability 7 benefits, she can request reconsideration of the decision. 8 reconsideration, a claimant may request a hearing before an Administrative Law Judge (“ALJ”). 9 If the ALJ denies the claim, a claimant may request review of the decision by the Appeals Council. 10 If the Appeals Council declines to review the ALJ’s decision, a claimant may then request review 11 by the United States District Court. 20 C.F.R. §§ 404.981, 416.1481. A civil action for judicial 12 review must be commenced within 60 days after receipt of the Appeals Council’s notice of a final 13 decision. 42 U.S.C. § 405(g); 20 C.F.R. § 405.501. The SSA assumes that the notice of final 14 decision will be received within five days of the date on the notice unless shown otherwise; thus, 15 an action commenced within 65 days is presumed timely. If a claimant does not file a civil action 16 within the prescribed time frame, the claimant loses the right to judicial review. 20 C.F.R. 17 § 404.900(b). If the claim is denied upon 18 In this case, Ms. Williams filed her IFP application (ECF No. 1) and original complaint 19 (ECF No. 1-1) on August 21, 2017. In dismissing the original complaint for various pleading 20 deficiencies, the court noted that it was unable to determine whether she had timely commenced 21 this action because the complaint did not state whether she requested review by the Appeals 22 Council or whether the Appeals Council denied such request. See Aug. 25, 2017 Screening Order 23 (ECF No. 3) at 3. Ms. Williams now alleges the Appeals Council denied her request for review 24 on February 2, 2017. Am. Compl. (ECF No. 8) ¶ 2 n.1; see also Notice of Appeals Council Action 25 (ECF No. 8-1) at 22. Thus, it appears she has exhausted her administrative remedies, but she did 26 not timely commence this action within 65 days. For her complaint to be timely, Williams needed 27 to file it by April 8, 2017, which was 65 days after she received notice of the Appeals Council’s 28 decision. The complaint was filed more than four months later in August 2017. Ms. Williams -2- 1 asserts the original complaint was timely filed but was dismissed without prejudice to file an 2 amended complaint. Am. Compl. ¶ 2 n.1. The court then granted an extension of time to file the 3 amended complaint by November 13, 2017. Id. 4 The 60-day time limitation provided in § 405(g) may be extended by either: (a) the 5 Commissioner pursuant to 20 C.F.R. §§ 404.1482 or 404.1411; or (b) the courts applying equitable 6 tolling principles. See Johnson v. Shalala, 2 F.3d 918, 923 (9th Cir. 1993) (citing Bowen v. City 7 of New York, 476 U.S. 467, 479 (1986)). The 60-day filing requirement provided for in 42 U.S.C. 8 § 405(g) is treated as a statute of limitations period, is not jurisdictional, and is subject to equitable 9 tolling. Bowen, 476 U.S. at 479. 10 Ms. Williams has not alleged that she requested or received an extension of time from the 11 Commissioner to file a civil action in federal court. The order dismissing the original complaint 12 without prejudice did not extend the 65-day statutory deadline. See Screening Order (ECF No. 3). 13 That order was entered well after the 65-day deadline had expired, although the court was unaware 14 at that time because the complaint did not state that the Appeals Council denied Ms. Williams’ 15 request for review on February 2, 2017. The court gave her until September 27, 2017, to correct 16 the noted deficiencies and file an amended complaint. The deadline was extended into mid- 17 November at Williams’s request. See Order (ECF No. 7). Because the 60-day limitations period 18 is not a jurisdictional bar, the court will screen the Amended Complaint. However, this screening 19 for the purposes of § 1915 is not a finding that the action was timely commenced or that equitable 20 tolling applies. 21 B. Grounds for Ms. Williams’ Appeal 22 The Amended Complaint seeks judicial review of the Commissioner’s decision denying 23 benefits and asks the court to reverse that decision, or alternatively, to remand this matter for a 24 new hearing. A district court can affirm, modify, reverse, or remand a decision if a plaintiff has 25 exhausted his administrative remedies and timely filed a civil action. However, judicial review of 26 the Commissioner’s decision to deny benefits is limited to determining: (a) whether there is 27 substantial evidence in the record as a whole to support the findings of the Commissioner; and (b) 28 /// -3- 1 whether the correct legal standards were applied. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 2 595, 599 (9th Cir. 1999). 3 Upon review of the original complaint, the court determined that Ms. Williams failed to 4 state a claim upon which relief can be granted. See Screening Order (ECF No. 3). Williams 5 alleged that she has been mentally disabled since 1997, and physically disabled since 2012 or 2013. 6 However, an administrative law judge (“ALJ”) held that her impairments were not severe and 7 denied her benefits claim. She asserted that her case was not handled nor reviewed properly. The 8 court found that Ms. Williams’ complaint merely alleged that the ALJ’s decision to deny benefits 9 was wrong but failed to indicate why the decision was wrong. Id. 10 The Amended Complaint (ECF No. 8) alleges that the medical record does not support the 11 ALJ’s finding that Williams can perform light work but instead is based upon misinterpretations 12 and mischaracterizations of the medical evidence. Id. 2 ¶ 2. Ms. Williams alleges the ALJ made 13 numerous reversible errors, including: making improper credibility findings, failing to consider or 14 properly assess SSA regulatory factors for evaluating subjective complaints, failing to present 15 complete hypotheticals to the vocational expert, failing to fully develop the medical record and 16 seek additional medical evidence. Ms. Williams also contends that the Commissioner failed to 17 establish there were sufficient jobs in the economy for Williams to perform because the vocational 18 expert’s testimony was in conflict with the Dictionary of Occupational Titles. Id. 3 ¶ 5. 19 The Amended Complaint contains sufficient allegations of underlying facts to give the 20 Defendant fair notice of Ms. Williams’s disagreement with the SSA’s final determination. The 21 court therefore finds that her Amended Complaint states a claim for initial screening purposes. 22 Accordingly, 23 IT IS ORDERED: 24 1. The Clerk of Court shall ISSUE SUMMONS to the United States Attorney for the 25 District of Nevada and deliver the summons and Amended Complaint (ECF No. 8) to 26 the U.S. Marshal for service. 27 28 2. The Clerk of the Court shall also ISSUE SUMMONS to the Commissioner of the Social Security Administration and Attorney General of the United States. -4- 1 3. The Clerk of the Court shall SEND BY CERTIFIED MAIL a copy of the summons 2 and Amended Complaint to the Commissioner of the Social Security Administration 3 at: (1) Office of Regional Chief Counsel, Region IX, Social Security Administration, 4 160 Spear St., Suite 899, San Francisco, California 94105-1545; and (2) the Attorney 5 General of the United States, Department of Justice, 950 Pennsylvania Avenue, N.W., 6 Room 4400, Washington, D.C. 20530. 7 8 4. Following the Defendant’s filing of an answer, the court will issue a scheduling order setting a briefing schedule. 9 5. From this point forward, Ms. Williams shall serve upon Defendant or, if appearance 10 has been entered by counsel, upon the attorney, a copy of every pleading, motion, or 11 other document filed with the Clerk of the Court pursuant to LR IC 1-1 and 4-1 of the 12 Local Rules of Practice. In accordance with LR IC 4-1(d), the parties shall include 13 with each filing a certificate of service stating that a true and correct copy of the 14 document was served on an opposing party or counsel for an opposing party and 15 indicating how service was accomplished. The court may disregard any paper received 16 by a district judge or magistrate judge that has not been filed with the Clerk of the 17 Court, and any paper received by a district judge, magistrate judge, or the Clerk of the 18 Court that fails to include a certificate of service. 19 Dated this 27th day of November, 2017. 20 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 -5-

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