McKenzie v. Berryhill

Filing 2

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis; The Clerk must file the Complaint and serve parties summons. Signed by Magistrate Judge Carl W. Hoffman on 11/16/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JIM O. MCKENZIE, JR.,
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Plaintiff,
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vs.
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NANCY A. BERRYHILL,
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ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
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Defendant.
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____________________________________)

Case No. 2:17-cv-02752-RFB-CWH
ORDER

Presently before the court is Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 1),

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filed on October 31, 2017.

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I.

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In Forma Pauperis Application
Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to

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

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pauperis will be granted.

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II.

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Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must screen the complaint under

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28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims and

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dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal

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for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To

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survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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In considering whether the complaint is sufficient to state a claim, all allegations of material fact

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are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship v.

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Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard

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under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than

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mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic

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recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint’s

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deficiencies could not be cured through amendment, a plaintiff should be given leave to amend the

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complaint with notice regarding the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103,

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1106 (9th Cir. 1995).

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If a plaintiff’s complaint challenges a decision by the Social Security Administration (“SSA”),

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before filing a lawsuit, the plaintiff must exhaust administrative remedies. See 42 U.S.C. § 405(g); see

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also Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (“Section 405(g)

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provides that a civil action may be brought only after (1) the claimant has been party to a hearing held

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by the Secretary, and (2) the Secretary has made a final decision on the claim”). Generally, if the SSA

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denies a claimant’s application for disability benefits, the claimant may request reconsideration of the

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decision. If the claim is denied at the reconsideration level, a claimant may request a hearing before an

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administrative law judge (“ALJ”). If the ALJ denies the claim, a claimant may request review of the

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decision by the Appeals Council. If the Appeals Council declines to review the ALJ’s decision, a

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claimant may then request judicial review. See generally 20 C.F.R. §§ 404, 416.

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Once a plaintiff has exhausted administrative remedies, he may obtain judicial review of a SSA

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decision denying benefits by filing suit within 60 days after notice of a final decision. Id. An action for

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judicial review of a determination by the SSA must be brought “in the district court of the United States

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for the judicial district in which the plaintiff resides.” Id. The complaint should state the nature of

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Plaintiff’s disability, when Plaintiff claims he became disabled, and when and how he exhausted his

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administrative remedies. The complaint should also contain a plain, short, and concise statement

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identifying the nature of Plaintiff’s disagreement with the determination made by the Social Security

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Administration and show that Plaintiff is entitled to relief. A district court can affirm, modify, reverse,

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or remand a decision if Plaintiff has exhausted his administrative remedies and timely filed a civil
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action. However, judicial review of the Commissioner’s decision to deny benefits is limited to

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determining: (a) whether there is substantial evidence in the record as a whole to support the findings of

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the Commissioner; and (b) whether the correct legal standards were applied. Morgan v. Commissioner

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of the Social Security Adm., 169 F.3d 595, 599 (9th Cir. 1999).

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Here, Plaintiff alleges that on September 1, 2017, the Appeals Council denied his request for

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review, and, at that time, the ALJ’s decision became the final decision of the Commissioner. Thus, it

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appears Plaintiff has exhausted her administrative remedies. Additionally, Plaintiff’s complaint

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includes sufficient facts to state a claim for relief.

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Based on the foregoing and good cause appearing therefore,

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IT IS ORDERED that:

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1.

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Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff will not
be required to pay the filing fee of $400.00.

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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 giving security for them. This Order granting leave to

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proceed in forma pauperis does not extend to the issuance of subpoenas at government expense.

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3.

The Clerk of Court must file the Complaint.

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4.

The Clerk of the Court must serve the Commissioner of the Social Security

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Administration by sending a copy of the summons and Complaint by certified mail to: (1) Office of

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Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 899, San

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Francisco, California 94105-1545; and (2) the Attorney General of the United States, Department of

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Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, D.C. 20530.

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The Clerk of Court must issue summons to the United States Attorney for the District of

Nevada and deliver the summons and Complaint to the U.S. Marshal for service.
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From this point forward, Plaintiff must serve on Defendant or, if appearance has been

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entered by an attorney, on the attorney, a copy of every pleading, motion or other document submitted

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for consideration by the court. Plaintiff must include with the original paper submitted for filing a

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certificate stating the date that a true and correct copy of the document was personally served or sent by

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mail to the defendants or counsel for the defendants. The court may disregard any paper received by a
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district judge or magistrate judge that has not been filed with the Clerk, and any paper received by a

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district judge, magistrate judge or the Clerk that fails to include a certificate of service.

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DATED: November 16, 2017

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______________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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