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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 AHMAD MALIK BOWMAN, 9 Case No. 2:23-cv-1741-BNW Plaintiff, 10 ORDER v. 11 KILOLO KIJAKAZI, 12 Defendant. 13 14 Presently before the Court is pro se plaintiff Ahmad Malik Bowman’s application to 15 16 proceed in forma pauperis. ECF No. 1. 17 I. In Forma Pauperis Application Bowman has submitted the declaration required by 28 U.S.C. § 1915(a) showing an 18 19 inability to prepay fees and costs or give security for them. ECF No. 1. Accordingly, Plaintiff’s 20 request to proceed in forma pauperis will be granted. The Court will next screen the complaint. 21 ECF No. 1-1. 22 II. Screening the Complaint 23 A. Standard of Review 24 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 25 under 28 U.S.C. § 1915(e)(2).1 In screening the complaint, a court must identify cognizable 26 27 28 1 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[.]”). 1 claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may 2 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 3 § 1915(e)(2). 4 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 5 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 6 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 7 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 8 v. Iqbal, 556 U.S. 662, 678 (2009). In considering whether the complaint is sufficient to state a 9 claim, all allegations of material fact are taken as true and construed in the light most favorable to 10 the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) 11 (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual 12 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 13 Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 14 insufficient. Id. Unless it is clear that the complaint’s deficiencies could not be cured through 15 amendment, a plaintiff should be given leave to amend the complaint with notice regarding the 16 complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 17 Even following the U.S. Supreme Court’s holdings in Twombly and Iqbal, the Court has 18 an “obligation . . . where the petitioner is pro se . . . to construe the pleadings liberally and to 19 afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 20 2010) (internal quotations and citation omitted). But “the liberal pleading standard . . . applies 21 only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989); see 22 also Bruns v. Nat’l Credit Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. 23 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982)) (noting that a liberal construction may not 24 be used to supply an essential element of the claim absent from the complaint). 25 In the context of social security appeals, if a plaintiff’s complaint challenges a decision by 26 the Social Security Administration, the plaintiff must exhaust administrative remedies before 27 filing a lawsuit. See 42 U.S.C. § 405(g); see also Bass v. Social Sec. Admin., 872 F.2d 832, 833 28 (9th Cir. 1989) (per curiam) (“Section 405(g) provides that a civil action may be brought only Page 2 of 5 1 after (1) the claimant has been party to a hearing held by the Secretary, and (2) the Secretary has 2 made a final decision on the claim”). Generally, if the SSA denies a claimant’s application for 3 disability benefits, the claimant may request reconsideration of the decision. If the claim is denied 4 at the reconsideration level, a claimant may request a hearing before an administrative law judge 5 (“ALJ”). If the ALJ denies the claim, a claimant may request review of the decision by the 6 Appeals Council. If the Appeals Council declines to review the ALJ’s decision, a claimant may 7 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 8 9 an SSA decision denying benefits by filing suit within 60 days after notice of a final decision. Id. 10 An action for judicial review of a determination by the SSA must be brought “in the district court 11 of the United States for the judicial district in which the plaintiff resides.” Id. The complaint 12 should state the nature of plaintiff’s disability, when plaintiff claims he became disabled, and 13 when and how he exhausted his administrative remedies. The complaint should also contain a 14 plain, short, and concise statement identifying the nature of plaintiff’s disagreement with the 15 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 16 17 his administrative remedies and timely filed a civil action. However, judicial review of the 18 Commissioner’s decision to deny benefits is limited to determining: (a) whether there is 19 substantial evidence in the record as a whole to support the findings of the Commissioner, and 20 (b) whether the correct legal standards were applied. Morgan v. Commissioner of the Social 21 Security Adm., 169 F.3d 595, 599 (9th Cir. 1999). 22 B. Analysis 23 Here, Bowman alleges that the Administrative Law Judge (“ALJ”) denied his application 24 for supplemental security income on August 17, 2022. ECF No. 1-1 at 2. He further alleges that 25 on September 14, 2023, the Appeals Council denied review of the ALJ’s decision. Id. at 3. 26 Plaintiff then filed this action on October 26, 2023. Thus, liberally construing Plaintiff’s 27 complaint, it appears that he exhausted the administrative remedies and timely commenced this 28 action. Page 3 of 5 1 Additionally, the complaint indicates the nature of Bowman’s disability and its alleged 2 onset date. Id. at 2. It also indicates that Plaintiff resides within the District of Nevada. Id. at 1. 3 Finally, the complaint includes sufficient facts to state a claim for relief, alleging that the 4 ALJ did not “state clear and convincing reasons for rejecting the symptom and limitation 5 testimony that Bowman could not engage in full-time competitive employment” and that the 6 ALJ’s “finding of the ability to perform work is not supported by substantial evidence because the 7 residual functional capacity is inconsistent with the record as a whole.” Id. at 2-3. 8 9 10 11 12 13 Accordingly, Plaintiff appears to state a cognizable claim upon which relief can be granted. IT IS THEREFORE ORDERED that: 1. 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. 2. Plaintiff is permitted to maintain this action to conclusion without the 14 necessity of prepayment of any additional fees or costs or giving security for them. This Order 15 granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at 16 government expense. 17 3. The Clerk of Court must file the complaint (ECF No. 1-1). 18 4. The Clerk of Court must serve the Commissioner of the Social Security 19 Administration by sending a copy of the summons and complaint by certified mail to: (1) Office 20 of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 21 800, San Francisco, California 94105-1545; and (2) the Attorney General of the United States, 22 Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530. 23 24 25 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. 6. From this point forward, Plaintiff must serve on Defendant or, if 26 appearance has been entered by an attorney, on the attorney, a copy of every pleading, motion, or 27 other document submitted for consideration by the Court. Plaintiff must include with the original 28 paper submitted for filing a certificate stating the date that a true and correct copy of the Page 4 of 5 1 document was personally served or sent by mail to Defendant or counsel for Defendant. The 2 Court may disregard any paper received by a district judge or magistrate judge that has not been 3 filed with the Clerk, and any paper received by a district judge, magistrate judge, or the Clerk that 4 fails to include a certificate of service. 5 6 DATED: November 13, 2023 7 8 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 5 of 5

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