Jenkins v. Berryhill, No. 2:2018cv01463 - Document 3 (D. Nev. 2018)
Court Description: ORDER Granting 1 Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that the Clerk of the Court shall FILE the Complaint and shall ISSUE SUMMONS. Signed by Magistrate Judge Peggy A. Leen on 10/4/2018. (Copies have been distributed pursuant to the NEF - cc: USM - ADR)
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Jenkins v. Berryhill Doc. 3 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 EMILE JENKINS, 9 10 11 12 Case No. 2:18-cv-01463-JAD-PAL Plaintiff, ORDER v. (IFP App. – ECF No. 1) NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 13 14 Plaintiff Emile Jenkins has submitted an Application to Proceed In Forma Pauperis (ECF 15 No. 1) along with a proposed Complaint (ECF No. 1-1). The Application and Complaint are 16 referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules 17 of Practice. 18 A. APPLICATION TO PROCEED IN FORMA PAUPERIS 19 Mr. Jenkins’s Application includes the affidavit required by § 1915(a) showing an inability 20 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 21 pauperis (“IFP”) will be granted. The court will now review the proposed complaint. 22 23 B. SCREENING THE COMPLAINT A. Legal Standards 24 After granting a request to proceed IFP, federal courts must screen a complaint and any 25 amended complaints before allowing a case to move forward, issuing summonses, and requiring a 26 responsive pleading. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Courts are 27 required to dismiss an IFP action if the complaint fails to state a claim upon which relief may be 28 granted, is legally “frivolous or malicious,” or seeks money from a defendant who is immune from 1 Dockets.Justia.com 1 such relief. 28 U.S.C. § 1915(e)(2). The standard for determining whether a plaintiff has failed 2 to state a claim upon which relief can be granted under § 1915 is the same as the standard under 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure1 for failure to state a claim. Watison v. 4 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). A screening under Rule 12(b)(6) is essentially a 5 ruling on a question of law. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 6 A properly pled complaint must provide “a short and plain statement of the claim showing 7 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid dismissal, a plaintiff must 8 allege enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. 9 Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when a plaintiff alleges factual 10 content that allows the court to make a reasonable inference that a defendant is liable for the claim 11 alleged. Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (quoting Ashcroft v. 12 Iqbal, 556 U.S. 662, 678 (2009)). This plausibility standard is not a “ ‘probability requirement,’ 13 but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 14 U.S. at 678 (quoting Twombly, 550 U.S. at 556). Although Rule 8(a) does not require detailed 15 factual allegations, it demands “more than labels and conclusions.” Iqbal, 556 U.S. at 678. 16 Here, Mr. Jenkins challenges a decision by the Social Security Administration (“SSA”) 17 denying him disability insurance benefits and supplemental security income under Titles II and 18 XVI of the Social Security Act. Compl. (ECF No. 1-1) at ¶ 3. To state a valid benefits claim, a 19 complaint must give the Commissioner fair notice of what the plaintiff’s claim is and the grounds 20 upon which it rests. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (noting that a complaint 21 must contain sufficient factual allegations “to enable the opposing party to defend itself 22 effectively”). A plaintiff must present sufficient detail for the court to understand the disputed 23 issues so that it can meaningfully screen the complaint. See 4 Soc. Sec. Law & Prac. § 56:4 (2016); 24 2 Soc. Sec. Disab. Claims Prac. & Proc. §§ 19:92–93 (2nd ed. 2015). To do so, a complaint should 25 state when and how a plaintiff exhausted her administrative remedies with the SSA and the nature 26 of her disability, including the date she claims she became disabled. The complaint should also 27 contain a short and concise statement identifying why the SSA’s decision was wrong and showing 28 1 All references to a “Rule” or the “Rules in this Order refer to the Federal Rules of Civil Procedure. 2 1 that the plaintiff is entitled to relief. Sabbia v. Comm’r Soc. Sec. Admin., 669 F. Supp. 2d 914, 2 918 (N.D. Ill. 2009), aff’d by 433 F. App’x 462 (7th Cir. 2011). 3 B. Exhaustion of Administrative Remedies 4 Before a plaintiff can sue the SSA in federal court, he must exhaust his administrative 5 remedies. 42 U.S.C. § 405(g); Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) 6 (“Section 405(g) provides that a civil action may be brought only after (1) the claimant has been 7 party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the 8 claim”). Generally, if the SSA denies an application for disability benefits, a claimant can request 9 reconsideration of the decision. If the claim is denied upon reconsideration, a claimant may request 10 a hearing before an administrative law judge (“ALJ”). If the ALJ denies the claim, a claimant may 11 request review of the decision by the Appeals Council. If the Appeals Council declines review, a 12 claimant may then request review by the United States District Court. See 20 C.F.R. §§ 404.981, 13 416.1481. A civil action for judicial review must be commenced within 60 days after receipt of 14 the Appeals Council’s notice of a final decision. Id.; 20 C.F.R. § 405.501. The SSA assumes that 15 the notice of final decision will be received within five days of the date on the notice unless shown 16 otherwise; thus, an action commenced within 65 days is presumed timely. The civil action must 17 be filed in the judicial district in which the plaintiff resides. 42 U.S.C. § 405(g). 18 In this case, Mr. Jenkins alleges that on June 22, 2018, the Appeals Council denied the 19 request for review and the ALJ’s decision became the final decision of the Commissioner. Compl. 20 ¶ 9. Thus, it appears he has exhausted his administrative remedies. He timely commenced this 21 action as the Complaint was filed on August 8, 2018, and the Complaint indicates that he resides 22 within the District of Nevada. Id. ¶ 1. Accordingly, Mr. Jenkins has satisfied these prerequisites 23 for judicial review. 24 C. Grounds for Mr. Jenkins’s Appeal 25 The Complaint seeks judicial review of the Commissioner’s decision benefits and asks the 26 court to reverse that decision, or alternatively, to remand this matter for a new hearing. A district 27 court can affirm, modify, reverse, or remand a decision if plaintiff has exhausted his administrative 28 remedies and timely filed a civil action. However, judicial review of the Commissioner’s final 3 1 decision is limited to determining whether: (1) there is substantial evidence in the record as a whole 2 to support the Commissioner’s findings; and (2) the correct legal standards were applied. Morgan 3 v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 4 In his Complaint, Mr. Jenkins alleges he has been disabled since the application date of 5 July 31, 2014, through the decision date of July 18, 2017. Compl. ¶ 5. In a prior determination, 6 the SSA determined that Jenkins was disabled as of September 17, 2007. Id. ¶ 6. However, the 7 Commissioner reviewed his claim and determined that Jenkins was no longer disabled as of July 8 31, 2014. Id. ¶ 7. Mr. Jenkins requested and participated in an administrative hearing, and an ALJ 9 subsequently issued a decision finding that Jenkins’ disability ended on July 31, 2014. Id. ¶ 8. 10 The ALJ found that as of July 31, 2014, Jenkins had the severe impairments of: status-post 11 gunshot wound, degenerative disc disease of the lumbar spine, peripheral neuropathy, degenerative 12 changes in the claimant’s toes, and arthritis in the bilateral feet. Id. ¶ 9(a). Despite his severe 13 impairments, the ALJ found that Jenkins had the residual functional capacity to perform sedentary 14 work as follows: 17 he could lift and/or carry ten pounds occasionally and five pounds frequently; he could stand and/or walk for two hours in an eight-hour workday, and sit up to six hours in an eight-hour workday; he should not climb ladders, ropes, and scaffolds; he could occasionally do all other postural activities; he could have a sit/stand option. 18 Id. ¶ 9(b). Although he had no past relevant work, the ALJ determined that Mr. Jenkins could 19 perform other work as an order clerk, mail clerk, and document preparer. Id. ¶ 9(c), (d). 15 16 20 Mr. Jenkins alleges that the ALJ erred in finding that the treating pain management 21 specialist’s opinion, which indicates an inability to perform the requirements of a full-time work 22 schedule, was unsupported by the medical evidence. Id. ¶ 9(e). Mr. Jenkins asserts the ALJ further 23 erred by finding that Jenkins could work as an order clerk, mail clerk, and document preparer when 24 Department of Labor publications indicate these occupations typically require a level of education 25 that exceeds what Jenkins has attained. Id. ¶ 9(f). The Complaint contains sufficient allegations 26 of underlying facts to give the Commissioner fair notice of Mr. Jenkins’s disagreement with the 27 SSA’s final determination. Accordingly, Mr. Jenkins has stated a claim for initial screening 28 purposes under 28 U.S.C. § 1915. 4 1 Based on the foregoing, 2 IT IS ORDERED: 3 1. Plaintiff Emile Jenkins’s Application to Proceed In Forma Pauperis (ECF No. 1) is 4 GRANTED. He will not be required to pay the $400 filing fee. 5 2. Mr. Jenkins is permitted to maintain this action to conclusion without prepaying any 6 fees or costs or giving security therefor. However, this Order granting IFP status does 7 not extend to the issuance and/or service of subpoenas at government expense. 8 3. The Clerk of the Court shall FILE the Complaint. 9 4. The Clerk of the Court shall ISSUE SUMMONS to the United States Attorney for the 10 District of Nevada and DELIVER the summons and Complaint to the U.S. Marshal 11 for service. 12 13 5. The Clerk of Court shall also ISSUE SUMMONS to the Commissioner of Social Security and Attorney General of the United States. 14 6. Mr. Jenkins shall SERVE the Commissioner of Social Security by sending a copy of 15 the summons and Complaint by certified mail to: (1) Office of the Regional Chief 16 Counsel, Region IX, Social Security Administration, 160 Spear Street, Suite 800, San 17 Francisco, California 94105-1545; and (2) Attorney General of the United States, 18 Department of Justice, 950 Pennsylvania Avenue, N.W., Room 4400, Washington, 19 D.C. 20530. 20 21 7. Following the Commissioner’s filing of an answer, the court will issue a scheduling order setting a briefing schedule. 22 8. From this point forward, Mr. Jenkins shall serve upon Commissioner or, if appearance 23 has been entered by counsel, upon the attorney, a copy of every pleading, motion, or 24 other document filed with the Clerk of the Court pursuant to LR IC 1-1 and 4-1 of the 25 Local Rules of Practice. In accordance with LR IC 4-1(d), the parties shall include 26 with each filing a certificate of service stating that a true and correct copy of the 27 document was served on an opposing party or counsel for an opposing party and 28 indicating how service was accomplished. The court may disregard any paper received 5 1 by a district judge or magistrate judge that has not been filed with the Clerk of the 2 Court, and any paper received by a district judge, magistrate judge, or the Clerk of the 3 Court that fails to include a certificate of service. 4 Dated this 4th day of October, 2018. 5 ___________________________________ PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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