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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TASHEONA WILLIAMS,

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Plaintiff,

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Case No. 2:17-cv-02221-JCM-PAL

v.

SCREENING ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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(Am. Compl. – ECF No. 8)
Defendant.

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This matter involves Plaintiff Tasheona Williams’ appeal and request for judicial review

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of the Acting Commissioner of Social Security, Defendant Nancy A. Berryhill’s final decision

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denying her claim for disability insurance benefits under Title II of the Social Security Act (the

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“Act”), 42 U.S.C. §§ 401–33, and claim for supplemental security income under Title XVI of the

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Act, 42 U.S.C. §§ 1381–83. Ms. Williams has submitted an Amended Complaint (ECF No. 8) in

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accordance with the court’s Order (ECF No. 7) extending the deadline to file the amended

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pleading. The Amended Complaint is referred to the undersigned for re-screening pursuant to 28

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U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

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I.

RE-SCREENING THE AMENDED COMPLAINT

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After granting a request to proceed in forma pauperis (“IFP”), a federal court must

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additionally screen the complaint and any amended complaints filed prior to a responsive pleading.

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Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (noting that § 1915(e) applies to all

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IFP complaints). Here, Ms. Williams challenges a decision by the Social Security Administration

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(“SSA”) denying her disability insurance benefits and supplemental security income under Titles

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II and XVI of the Act. See Am. Compl. (ECF No. 8) ¶ II. The court will review the Amended

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Complaint.
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A.

Exhaustion of Administrative Remedies and Timing of Appeal

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Before a plaintiff can sue the SSA in federal court, she must have exhausted her

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

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Cir. 1989) (per curium) (“Section 405(g) provides that a civil action may be brought only after

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(1) the claimant has been party to a hearing held by the Secretary, and (2) the Secretary has made

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a final decision on the claim”). Generally, if the SSA denies a claimant’s application for disability

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benefits, she can request reconsideration of the decision.

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reconsideration, a claimant may request a hearing before an Administrative Law Judge (“ALJ”).

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If the ALJ denies the claim, a claimant may request review of the decision by the Appeals Council.

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If the Appeals Council declines to review the ALJ’s decision, a claimant may then request review

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by the United States District Court. 20 C.F.R. §§ 404.981, 416.1481. A civil action for judicial

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review must be commenced within 60 days after receipt of the Appeals Council’s notice of a final

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decision. 42 U.S.C. § 405(g); 20 C.F.R. § 405.501. The SSA assumes that the notice of final

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decision will be received within five days of the date on the notice unless shown otherwise; thus,

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an action commenced within 65 days is presumed timely. If a claimant does not file a civil action

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within the prescribed time frame, the claimant loses the right to judicial review. 20 C.F.R.

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§ 404.900(b).

If the claim is denied upon

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In this case, Ms. Williams filed her IFP application (ECF No. 1) and original complaint

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(ECF No. 1-1) on August 21, 2017. In dismissing the original complaint for various pleading

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deficiencies, the court noted that it was unable to determine whether she had timely commenced

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this action because the complaint did not state whether she requested review by the Appeals

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Council or whether the Appeals Council denied such request. See Aug. 25, 2017 Screening Order

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(ECF No. 3) at 3. Ms. Williams now alleges the Appeals Council denied her request for review

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on February 2, 2017. Am. Compl. (ECF No. 8) ¶ 2 n.1; see also Notice of Appeals Council Action

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(ECF No. 8-1) at 22. Thus, it appears she has exhausted her administrative remedies, but she did

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not timely commence this action within 65 days. For her complaint to be timely, Williams needed

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to file it by April 8, 2017, which was 65 days after she received notice of the Appeals Council’s

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decision. The complaint was filed more than four months later in August 2017. Ms. Williams
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asserts the original complaint was timely filed but was dismissed without prejudice to file an

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amended complaint. Am. Compl. ¶ 2 n.1. The court then granted an extension of time to file the

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amended complaint by November 13, 2017. Id.

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The 60-day time limitation provided in § 405(g) may be extended by either: (a) the

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Commissioner pursuant to 20 C.F.R. §§ 404.1482 or 404.1411; or (b) the courts applying equitable

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tolling principles. See Johnson v. Shalala, 2 F.3d 918, 923 (9th Cir. 1993) (citing Bowen v. City

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of New York, 476 U.S. 467, 479 (1986)). The 60-day filing requirement provided for in 42 U.S.C.

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§ 405(g) is treated as a statute of limitations period, is not jurisdictional, and is subject to equitable

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tolling. Bowen, 476 U.S. at 479.

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Ms. Williams has not alleged that she requested or received an extension of time from the

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Commissioner to file a civil action in federal court. The order dismissing the original complaint

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without prejudice did not extend the 65-day statutory deadline. See Screening Order (ECF No. 3).

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That order was entered well after the 65-day deadline had expired, although the court was unaware

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at that time because the complaint did not state that the Appeals Council denied Ms. Williams’

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request for review on February 2, 2017. The court gave her until September 27, 2017, to correct

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the noted deficiencies and file an amended complaint. The deadline was extended into mid-

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November at Williams’s request. See Order (ECF No. 7). Because the 60-day limitations period

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is not a jurisdictional bar, the court will screen the Amended Complaint. However, this screening

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for the purposes of § 1915 is not a finding that the action was timely commenced or that equitable

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tolling applies.

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B.

Grounds for Ms. Williams’ Appeal

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

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benefits and asks the court to reverse that decision, or alternatively, to remand this matter for a

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new hearing. A district court can affirm, modify, reverse, or remand a decision if a plaintiff has

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exhausted his administrative remedies and timely filed a civil action. However, judicial review of

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

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

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

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595, 599 (9th Cir. 1999).

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Upon review of the original complaint, the court determined that Ms. Williams failed to

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state a claim upon which relief can be granted. See Screening Order (ECF No. 3). Williams

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alleged that she has been mentally disabled since 1997, and physically disabled since 2012 or 2013.

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However, an administrative law judge (“ALJ”) held that her impairments were not severe and

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denied her benefits claim. She asserted that her case was not handled nor reviewed properly. The

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court found that Ms. Williams’ complaint merely alleged that the ALJ’s decision to deny benefits

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was wrong but failed to indicate why the decision was wrong. Id.

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The Amended Complaint (ECF No. 8) alleges that the medical record does not support the

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ALJ’s finding that Williams can perform light work but instead is based upon misinterpretations

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and mischaracterizations of the medical evidence. Id. 2 ¶ 2. Ms. Williams alleges the ALJ made

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numerous reversible errors, including: making improper credibility findings, failing to consider or

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properly assess SSA regulatory factors for evaluating subjective complaints, failing to present

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complete hypotheticals to the vocational expert, failing to fully develop the medical record and

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seek additional medical evidence. Ms. Williams also contends that the Commissioner failed to

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establish there were sufficient jobs in the economy for Williams to perform because the vocational

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expert’s testimony was in conflict with the Dictionary of Occupational Titles. Id. 3 ¶ 5.

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The Amended Complaint contains sufficient allegations of underlying facts to give the

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Defendant fair notice of Ms. Williams’s disagreement with the SSA’s final determination. The

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court therefore finds that her Amended Complaint states a claim for initial screening purposes.

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Accordingly,

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IT IS ORDERED:

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1. The Clerk of Court shall ISSUE SUMMONS to the United States Attorney for the

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District of Nevada and deliver the summons and Amended Complaint (ECF No. 8) to

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the U.S. Marshal for service.

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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.
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3. The Clerk of the Court shall SEND BY CERTIFIED MAIL a copy of the summons

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and Amended Complaint to the Commissioner of the Social Security Administration

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at: (1) Office of Regional Chief Counsel, Region IX, Social Security Administration,

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160 Spear St., Suite 899, San Francisco, California 94105-1545; and (2) the Attorney

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General of the United States, Department of Justice, 950 Pennsylvania Avenue, N.W.,

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Room 4400, Washington, D.C. 20530.

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4. Following the Defendant’s filing of an answer, the court will issue a scheduling order
setting a briefing schedule.

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5. From this point forward, Ms. Williams shall serve upon Defendant or, if appearance

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has been entered by counsel, upon the attorney, a copy of every pleading, motion, or

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other document filed with the Clerk of the Court pursuant to LR IC 1-1 and 4-1 of the

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Local Rules of Practice. In accordance with LR IC 4-1(d), the parties shall include

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with each filing a certificate of service stating that a true and correct copy of the

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document was served on an opposing party or counsel for an opposing party and

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indicating how service was accomplished. The court may disregard any paper received

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by a district judge or magistrate judge that has not been filed with the Clerk of the

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Court, and any paper received by a district judge, magistrate judge, or the Clerk of the

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Court that fails to include a certificate of service.

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Dated this 27th day of November, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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