Opinion
Civil Action No. 13-cv-02972-BNB
12-30-2013
MARGARITA ANDERSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT
This matter is before the Court on the amended Complaint (ECF No. 5) that Plaintiff, Margarita Anderson, filed pro se on December 2, 2013. The Court must construe Ms. Anderson's amended Complaint liberally because she is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Ms. Anderson will be ordered to file a second amended Complaint if she wishes to pursue her claims in this action.
The amended Complaint only complies in part with the order of November 1, 2013. Ms. Anderson has named the Commissioner of Social Security as defendant and asserts jurisdiction pursuant to 42 U.S.C. § 405(g). However, Ms. Anderson fails to assert claims seeking judicial review of what appears to be a decision by the Commissioner of Social Security denying her claim for social security disability benefits under the Social Security Act. Instead, she complains about the ineffectiveness of her attorney during the Social Security proceedings and attaches medical reports the Court has not requested. She also fails to include information to assist the Court in reviewing the Commissioner's decision, including the date when the Commissioner denied Plaintiff's claim, the reason her claim was denied, why she believes the decision was erroneous, and a copy of the Commissioner's decision denying Plaintiff's claim for benefits.
The Court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.2009); see also Maiorano v. Astrue, 930 F. Supp. 2d. 1240, 1244 (D. Colo. 2013). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wall, 561 F.3d at 1052. In reviewing the Commissioner's decision, the Court may neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir.2006). "On the other hand, if the [Administrative Law Judge (ALJ)] failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.1993).
Ms. Anderson will be afforded a final opportunity to assist the Court in reviewing the Commissioner's decision by providing a short and plain statement of her claims showing that she is entitled to relief and by attaching to the second amended Complaint a copy of the Commissioner's decision denying Plaintiff's claim for benefits, if available. Ms. Anderson will be ordered to file a second amended Complaint that complies with this order, the November 1 order for an amended Complaint, and the pleading requirements of Rule 8 if she wishes to pursue her claims in this action.
Ms. Anderson may suffer unforeseen consequences if she fails within the time allowed to file a second amended Complaint as directed. See Rodriguez v. Colorado, 521 F. App'x 670, 671-72 (10th Cir. 2013). Even if the Court dismisses the instant action without prejudice for failure to comply with this order, the dismissal may bar recovery if Ms. Anderson seeks to refile in this Court because the period for filing a Social Security action may have expired. Pursuant to Section 205(g) of the Social Security Act, a civil action must be commenced "within sixty days after the mailing to him of notice of [any final decision of the Commission of Social Security] or within such further time as the Commissioner may allow." 42 U.S.C. § 405(g).
Accordingly, it is
ORDERED that Plaintiff, Margarita Anderson, file within thirty (30) days from the date of this order a second amended Complaint that complies with this order, the order of November 1, 2013, and the pleading requirements of Fed. R. Civ. P. 8. It is
FURTHER ORDERED that Ms. Anderson shall obtain the appropriate Court-approved Complaint form, along with the applicable instructions, at www.cod.uscourts.gov, and use that form in submitting the second amended Complaint. It is
FURTHER ORDERED that, if Ms. Anderson fails within the time allowed to file a second amended Complaint that complies with this order, the action may be dismissed without further notice.
DATED December 30, 2013, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge