Opinion
Case No. 2:18-00310-JAD-PAL
03-01-2018
JOSEPHINE A. FULKERSON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER
(IFP App - ECF No. 1)
Plaintiff Josephine A. Fulkerson has submitted an Application to Proceed In Forma Pauperis (ECF No. 1) along with a proposed Complaint (ECF No. 1-1). The Application and Complaint are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice. I. APPLICATION TO PROCEED IN FORMA PAUPERIS
Ms. Fulkerson's Application includes the affidavit required by § 1915(a) showing an inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis ("IFP") will be granted. The court will now review the Complaint.
II. SCREENING THE COMPLAINT
A. Legal Standards
After granting a request to proceed IFP, federal courts must screen a complaint and any amended complaints before allowing a case to move forward, issuing summonses, and requiring a responsive pleading. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Courts are required to dismiss an IFP action if the complaint fails to state a claim upon which relief may be granted, is legally "frivolous or malicious," or seeks money from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915 is the same as the standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). A screening under Rule 12(b)(6) is essentially a ruling on a question of law. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (noting that the purpose of Rule 12(b)(6) is to test the legal sufficiency of a complaint).
All references to a "Rule" or the "Rules in this Order refer to the Federal Rules of Civil Procedure.
A properly pled complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To avoid dismissal, a plaintiff must allege enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when a plaintiff alleges factual content that allows the court to make a reasonable inference that a defendant is liable for the claim alleged. Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This plausibility standard is not a " 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). Although Rule 8(a) does not require detailed factual allegations, it demands "more than labels and conclusions." Iqbal, 556 U.S. at 678.
Here, Ms. Fulkerson's Complaint challenges a decision by the Social Security Administration ("SSA") denying her disability insurance benefits under Titles II of the Social Security Act. See Compl. (ECF No. 1-1) at ¶ 3. To state a valid benefits claim, a complaint must give a defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (noting that a complaint must contain sufficient factual allegations "to enable the opposing party to defend itself effectively"). A plaintiff must present sufficient detail for the court to understand the disputed issues so that it can meaningfully screen the complaint. See 4 Soc. Sec. Law & Prac. § 56:4 (2016); 2 Soc. Sec. Disab. Claims Prac. & Proc. §§ 19:92-93 (2nd ed. 2015). To do so, a complaint should state when and how a plaintiff exhausted her administrative remedies with the SSA and the nature of her disability, including the date she claims she became disabled. The complaint should also contain a short and concise / / / statement identifying why the SSA's decision was wrong and showing that the plaintiff is entitled to relief. See Sabbia v. Comm'r Soc. Sec. Admin., 669 F. Supp. 2d 914, 918 (N.D. Ill. 2009).
B. Exhaustion of Administrative Remedies
Before a plaintiff can sue the SSA in federal court, she must exhaust her administrative remedies. 42 U.S.C. § 405(g); Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) ("Section 405(g) provides that a civil action may be brought only after (1) the claimant has been party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the claim"). Generally, if the SSA denies an application for disability benefits, a claimant can request reconsideration of the decision. If the claim is denied upon reconsideration, a claimant may request a hearing before an Administrative Law Judge ("ALJ"). If the ALJ denies the claim, a claimant may request review of the decision by the Appeals Council. If the Appeals Council declines to review the ALJ's decision, a claimant may then request review by the United States District Court. See 20 C.F.R. §§ 404.981, 416.1481. A civil action for judicial review must be commenced within 60 days after receipt of the Appeals Council's notice of a final decision. Id . See also 20 C.F.R. § 405.501. The SSA assumes that the notice of final decision will be received within five days of the date on the notice unless shown otherwise; thus, an action commenced within 65 days is presumed timely. The civil action must be filed in the judicial district in which the plaintiff resides. 42 U.S.C. § 405 (g).
In this case, Ms. Fulkerson alleges that on December 21, 2017, the Appeals Council denied the request for review and the ALJ's decision became the final decision of the Commissioner. See Compl. ¶ 8. Thus, it appears she has exhausted her administrative remedies. Fulkerson timely commenced this action as the Complaint was filed on February 20, 2018, and the Complaint indicates that she resides within the District of Nevada. See Compl. ¶ 1. Accordingly, she has satisfied these prerequisites for judicial review.
C. Grounds for Ms. Fulkerson's Appeal
The Complaint seeks judicial review of the Commissioner's decision benefits and asks the court to reverse that decision, or alternatively, to remand this matter for a new hearing. A district court can affirm, modify, reverse, or remand a decision if plaintiff has exhausted his administrative remedies and timely filed a civil action. However, judicial review of the Commissioner's final decision is limited to determining whether: (1) there is substantial evidence in the record as a whole to support the Commissioner's findings; and (2) the correct legal standards were applied. Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
In her Complaint, Ms. Fulkerson alleges that she has been disabled from May 30, 2014, through the decision date of January 10, 2017. See Compl. (ECF No. ) ¶ 5. The ALJ found Fulkerson to have the severe impairment of rheumatoid arthritis. Id . ¶ 9(a). Despite her severe impairment, the ALJ found that Fulkerson had the residual functional capacity to perform light work with certain exceptions and restrictions, and could perform her past relevant work as a supervisor of food cashier/checkers. Id . ¶ 9(b), (c). Ms. Fulkerson alleges that the ALJ's decision lacks the support of substantial evidence because it relies on the testimony of a vocational expert who misclassified Fulkerson's past relevant work. Id . ¶ 9(d). If her past relevant work was properly classified, Fulkerson's residual functional capacity would preclude her from performing the past relevant work. Id . ¶ 9(h). Fulkerson further asserts the ALJ erred by failing to make any specific finding regarding Fulkerson's reported side effects from medication. Id . ¶ 9(i). The court finds that the Complaint contains sufficient allegations of underlying facts to give the Defendant fair notice of Fulkerson's disagreement with the SSA's final determination. Accordingly, Ms. Fulkerson has stated a claim for initial screening purposes under 28 U.S.C. § 1915.
Based on the foregoing,
IT IS ORDERED:
1. Plaintiff Josephine A. Fulkerson's Application to Proceed In Forma Pauperis (ECF No. 1) is GRANTED. She shall not be required to pay the $400 filing fee./ / /
2. Ms. Fulkerson is permitted to maintain this action to conclusion without the necessity of prepayment of any additional fees or costs or the giving of a security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the issuance and/or service of subpoenas at government expense.
3. The Clerk of the Court SHALL FILE the Complaint.
4. The Clerk of the Court shall 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.
5. The Clerk of Court shall also issue summons to the Commissioner of the Social Security Administration and Attorney General of the United States.
6. Ms. Fulkerson shall serve the Commissioner of the Social Security Administration by sending a copy of the summons and Complaint by certified mail to: (1) Office of Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 899, San Francisco, California 94105-1545; and (2) the Attorney General of the United States, Department of Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, D.C. 20530.
7. Following the Defendant's filing of an answer, the court will issue a scheduling order setting a briefing schedule.
8. From this point forward, Ms. Fulkerson shall serve upon Defendant or, if appearance has been entered by counsel, upon the attorney, a copy of every pleading, motion, or other document filed with the Clerk of the Court pursuant to LR IC 1-1 and 4-1 of the Local Rules of Practice. In accordance with LR IC 4-1(d), the parties shall include with each filing a certificate of service stating that a true and correct copy of the document was served on an opposing party or counsel for an opposing party and indicating how service was accomplished. The court may disregard any paper received by a district judge or magistrate judge that has not been filed with the Clerk of the Court, and any paper received by a district judge, magistrate judge, or the Clerk of the Court that fails to include a certificate of service.
Dated this 1st day of March, 2018.
/s/_________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE