(SS) Johnson v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHANE STEVEN JOHNSON, et al., Case No. 1:21-cv-01066-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF 13 v. SHANE STEVEN JOHNSON’S SUPPLEMENTAL SECURITY INCOME 14 COMMISSIONER OF SOCIAL CLAIM BE DISMISSED SECURITY, 15 OBJECTIONS, IF ANY, DUE WITHIN Defendant. FOURTEEN (14) DAYS 16 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 18 19 Plaintiff Shane Steven Johnson (“Plaintiff Johnson”), proceeding through counsel, 20 initiated this action on July 7, 2021, seeking review of the Commissioner of Social Security’s 21 decision denying his application for disability insurance benefits and supplemental security 22 income benefits. (ECF No. 1.) Plaintiff Johnson died on August 16, 2021, and Tanya Arrasmith 23 (“Plaintiff Arrasmith”) has been substituted as plaintiff for Plaintiff Johnson’s disability insurance 24 benefits claim. For the following reasons, the Court recommends that Plaintiff Johnson’s 25 supplemental security income claim be dismissed. 26 /// 27 /// 28 /// 1 I. LEGAL STANDARDS 2 Rule 25(a)(1) provides: 3 If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any 4 party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by 5 or against the decedent must be dismissed. 6 Fed. R. Civ. P. 25(a)(1). 7 II. DISCUSSION 8 Plaintiff’s counsel filed a notice of Plaintiff’s death with the Court on September 17, 9 2021, and served it on the Commissioner on September 22, 2021. (ECF Nos. 7, 9.) On September 10 28, 2021, Plaintiff Arrasmith filed a motion seeking to substitute her as the plaintiff in this action 11 pursuant to Federal Rule of Civil Procedure 25(a). (ECF No. 10.) 12 On January 25, 2022, the Court entered an order granting Plaintiff Arrasmith’s motion as 13 to Plaintiff Johnson’s claim for disability insurance benefits but denying the motion as to 14 Plaintiff’s supplemental security income claim. (ECF No. 16.) Specifically, Plaintiff Arrasmith’s 15 motion was denied as to the supplemental security income claim because those payments may 16 only be paid to an eligible surviving spouse, and Plaintiff Johnson was unmarried at the time of 17 his death. (ECF No. 16 at 2-3.) Maseda v. Saul, 2021 WL 2268871, at *1 (E.D. Cal. June 3, 2021) 18 (citing 20 C.F.R. § 416.542(b)). 19 As more than 90 days has elapsed since the date of service of the statement noting 20 Plaintiff Johnson’s death and a motion for substitution of the proper party for Plaintiff Johnson’s 21 supplemental security income claim has not been filed, the Court recommends dismissing the 22 supplemental security income claim. 23 III. RECOMMENDATION AND ORDER 24 For the foregoing reasons, IT IS HEREBY RECOMMENDED that Plaintiff Shane Steven 25 Johnson’s claim for supplemental security income benefits be dismissed. 26 These findings and recommendations will be submitted to the United States district judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 28 (14) days after being served with these findings and recommendations, Plaintiff may file written 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 4 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 Additionally, IT IS HEREBY ORDERED that the Clerk of Court is directed to assign a 6 | district judge to this case. 7 g IT IS SO ORDERED. Dated: _ January 25, 2022 [Je ey □□ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28