Bowman v. Kijakazi

Filing 8

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk of Court must file the complaint (ECF No. 1-1). The Clerk of Court must serve the Commissioner of the Social Security Administration by sending a cop y of the summons and complaint by certified mail to the addresses listed on this order. 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. Signed by Magistrate Judge Brenda Weksler on 11/14/2023. (Copies have been distributed pursuant to the NEF - CT)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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AHMAD MALIK BOWMAN,

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Case No. 2:23-cv-1741-BNW

Plaintiff,

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ORDER
v.

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KILOLO KIJAKAZI,

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Defendant.

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Presently before the Court is pro se plaintiff Ahmad Malik Bowman’s application to

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proceed in forma pauperis. ECF No. 1.

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I.

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

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inability to prepay fees and costs or give security for them. ECF No. 1. Accordingly, Plaintiff’s

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request to proceed in forma pauperis will be granted. The Court will next screen the complaint.

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ECF No. 1-1.

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II.

Screening the Complaint

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A. Standard of Review

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

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under 28 U.S.C. § 1915(e)(2).1 In screening the complaint, a court must identify cognizable

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Although § 1915 largely concerns prisoner litigation, § 1915(e) applies to all in forma pauperis
proceedings. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners[.]”).

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claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).

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

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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009). In considering whether the complaint is sufficient to state a

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claim, all allegations of material fact are taken as true and construed in the light most favorable to

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the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998)

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(citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual

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allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is

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insufficient. Id. Unless it is clear that the complaint’s deficiencies could not be cured through

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amendment, a plaintiff should be given leave to amend the complaint with notice regarding the

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complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Even following the U.S. Supreme Court’s holdings in Twombly and Iqbal, the Court has

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an “obligation . . . where the petitioner is pro se . . . to construe the pleadings liberally and to

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afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (internal quotations and citation omitted). But “the liberal pleading standard . . . applies

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only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989); see

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also Bruns v. Nat’l Credit Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v.

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982)) (noting that a liberal construction may not

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be used to supply an essential element of the claim absent from the complaint).

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In the context of social security appeals, if a plaintiff’s complaint challenges a decision by

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the Social Security Administration, the plaintiff must exhaust administrative remedies before

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filing a lawsuit. See 42 U.S.C. § 405(g); see also Bass v. Social Sec. Admin., 872 F.2d 832, 833

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(9th Cir. 1989) (per curiam) (“Section 405(g) provides that a civil action may be brought only
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after (1) the claimant has been party to a hearing held by the Secretary, and (2) the Secretary has

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

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disability benefits, the claimant may request reconsideration of the decision. If the claim is denied

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at the reconsideration level, a claimant may request a hearing before an administrative law judge

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(“ALJ”). If the ALJ denies the claim, a claimant may request review of the decision by the

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

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then request judicial review. See generally 20 C.F.R. §§ 404, 416.
Once a plaintiff has exhausted administrative remedies, he may obtain judicial review of

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an SSA decision denying benefits by filing suit within 60 days after notice of a final decision. Id.

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An action for judicial review of a determination by the SSA must be brought “in the district court

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of the United States for the judicial district in which the plaintiff resides.” Id. The complaint

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should state the nature of plaintiff’s disability, when plaintiff claims he became disabled, and

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when and how he exhausted his administrative remedies. The complaint should also contain a

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plain, short, and concise statement identifying the nature of plaintiff’s disagreement with the

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determination made by the SSA and show that plaintiff is entitled to relief.
A district court can affirm, modify, reverse, or remand a decision if plaintiff has exhausted

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his 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

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substantial evidence in the record as a whole to support the findings of the Commissioner, and

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(b) whether the correct legal standards were applied. Morgan v. Commissioner of the Social

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

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B. Analysis

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Here, Bowman alleges that the Administrative Law Judge (“ALJ”) denied his application

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for supplemental security income on August 17, 2022. ECF No. 1-1 at 2. He further alleges that

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on September 14, 2023, the Appeals Council denied review of the ALJ’s decision. Id. at 3.

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Plaintiff then filed this action on October 26, 2023. Thus, liberally construing Plaintiff’s

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complaint, it appears that he exhausted the administrative remedies and timely commenced this

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action.
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Additionally, the complaint indicates the nature of Bowman’s disability and its alleged

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onset date. Id. at 2. It also indicates that Plaintiff resides within the District of Nevada. Id. at 1.

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Finally, the complaint includes sufficient facts to state a claim for relief, alleging that the

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ALJ did not “state clear and convincing reasons for rejecting the symptom and limitation

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testimony that Bowman could not engage in full-time competitive employment” and that the

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ALJ’s “finding of the ability to perform work is not supported by substantial evidence because the

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residual functional capacity is inconsistent with the record as a whole.” Id. at 2-3.

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Accordingly, Plaintiff appears to state a cognizable claim upon which relief can be
granted.
IT IS THEREFORE ORDERED that:
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Plaintiff’s request to proceed in forma pauperis (ECF No. 1) 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

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necessity of prepayment of any additional fees or costs or giving security for them. This Order

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granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at

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government expense.

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3.

The Clerk of Court must file the complaint (ECF No. 1-1).

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4.

The Clerk of 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

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of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite

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

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Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530.

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5.

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

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appearance has been entered by an attorney, on the attorney, a copy of every pleading, motion, or

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other document submitted for consideration by the Court. Plaintiff must include with the original

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paper submitted for filing a certificate stating the date that a true and correct copy of the
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document was personally served or sent by mail to Defendant or counsel for Defendant. The

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Court may disregard any paper received by a district judge or magistrate judge that has not been

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filed with the Clerk, and any paper received by a district judge, magistrate judge, or the Clerk that

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fails to include a certificate of service.

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DATED: November 13, 2023

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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