McDannel v. Berryhill

Filing 6

ORDER signed by Judge Pamela Pepper on 11/7/2017 GRANTING 2 plaintiff's motion for leave to proceed without prepayment of the filing fee. (cc: all counsel) (cb)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN KAELYN ANN MCDANNEL, Plaintiff, v. Case No. 17-cv-1504-pp NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) On November 1, 2017, the plaintiff filed a complaint seeking judicial review of a final administrative decision denying her claim for disability insurance benefits under the Social Security Act. Dkt. No. 1. The plaintiff also filed a motion for leave to proceed without prepayment of the filing fee, or in forma pauperis. Dkt. No. 2. In order to allow a plaintiff to proceed without paying the filing fee, the court must first decide whether the plaintiff has the ability to pay the filing fee, and if not, must determine whether the lawsuit is frivolous. 28 U.S.C. §§1915(a) and (e)(2)(B)(i). Based on the facts presented in the affidavit, the court concludes that the plaintiff does not have the ability to pay the filing fee. The plaintiff has a car worth approximately $800.00, and $1.00 in cash or in a checking/savings account. Her stated monthly expenses of $839.00 are more than her stated 1 monthly income of $620.00. Some of the difference may be made up by monthly support payments of $666.00 that she receives for each of her minor children (six and seven years old), but the court concludes from the information provided that the plaintiff has demonstrated she cannot pay the $350 filing fee and $50 administrative fee. The next step is to determine whether the case is frivolous. A case is frivolous if there is no arguable basis for relief either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989); Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir. 1993)). A person may obtain district court review of a final decision of the Commissioner of Social Security. 42 U.S.C. §405(g). The district court must uphold the Commissioner’s final decision as long as the Commissioner used the correct legal standards and the decision is supported by substantial evidence. See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). The plaintiff’s appeal of the Commissioner’s adverse decision alleges that the Commissioner’s conclusions and findings are not supported by substantial evidence, and/or are contrary to Social Security regulation and law. At this early stage in the case, the court concludes that there may be a basis in law or fact for the plaintiff’s appeal of the Commissioner’s decision, and that the 2 appeal may have merit, as defined by 28 U.S.C. §1915(e)(2)(B)(i). The court GRANTS the plaintiff’s motion for leave to appeal in forma pauperis (Dkt. No. 2). Dated in Milwaukee, Wisconsin this 7th day of November, 2017. BY THE COURT: ____________________________________ HON. PAMELA PEPPER United States District Judge 3

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