Soleiman v. Kijakazi ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Yasser Soleiman, Case No. 2:22-cv-02062-BNW 5 Plaintiff, ORDER 6 v. 7 Kilolo Kijakazi, 8 Defendant. 9 10 Before the Court is plaintiff Yasser Soleiman’s application to proceed in forma pauperis 11 (ECF No. 1), filed on December 13, 2022. 12 I. In Forma Pauperis Application 13 All parties instituting any civil action, suit, or proceeding in a district court of the United 14 States must pay a filing fee. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s 15 failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis 16 pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 17 Plaintiff submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to 18 prepay fees and costs or give security for them. ECF No. 1. Accordingly, Plaintiff’s request to 19 proceed in forma pauperis will be granted. The Court now screens Plaintiff’s complaint. ECF No. 20 1-1. 21 II. Screening the Complaint 22 A. Standard of Review 23 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 24 under 28 U.S.C. § 1915(e)(2).1 In screening the complaint, a court must identify cognizable 25 claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may 26 27 1 Although § 1915 largely concerns prisoner litigation, § 1915(e) applies to all in forma pauperis proceedings. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. 1 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915(e)(2). 3 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 4 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 5 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 6 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 7 v. Iqbal, 556 U.S. 662, 678 (2009). In considering whether the complaint is sufficient to state a 8 claim, all allegations of material fact are taken as true and construed in the light most favorable to 9 the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) 10 (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual 11 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 12 Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 13 insufficient. Id. 14 If a plaintiff’s complaint challenges a decision by the Social Security Administration, 15 before filing a lawsuit, the plaintiff must exhaust administrative remedies. See 42 U.S.C. 16 § 405(g); see also Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) 17 (“Section 405(g) provides that a civil action may be brought only after (1) the claimant has been 18 party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the 19 claim”). Generally, if the SSA denies a claimant’s application for disability benefits, the claimant 20 may request reconsideration of the decision. If the claim is denied at the reconsideration level, a 21 claimant may request a hearing before an administrative law judge. If the ALJ denies the claim, a 22 claimant may request review of the decision by the Appeals Council. If the Appeals Council 23 declines to review the ALJ’s decision, a claimant may then request judicial review. See generally 24 20 C.F.R. §§ 404, 416. 25 Once a plaintiff has exhausted administrative remedies, he may obtain judicial review of a 26 SSA decision denying benefits by filing suit within 60 days after notice of a final decision. Id. 27 An action for judicial review of a determination by the SSA must be brought “in the district court 1 should state the nature of plaintiff’s disability, when plaintiff claims he became disabled, and 2 when and how he exhausted his administrative remedies. The complaint should also contain a 3 plain, short, and concise statement identifying the nature of plaintiff’s disagreement with the 4 determination made by the SSA and show that plaintiff is entitled to relief. 5 A district court can affirm, modify, reverse, or remand a decision if plaintiff exhausted his 6 administrative remedies and timely filed a civil action. However, judicial review of the 7 Commissioner’s decision to deny benefits is limited to determining: (a) whether there is 8 substantial evidence in the record to support the findings of the Commissioner, and (b) whether 9 the correct legal standards were applied. Morgan v. Commissioner of the Social Security Adm., 10 169 F.3d 595, 599 (9th Cir. 1999). 11 B. Analysis 12 Here, Mr. Soleiman alleges that his applications for disability insurance benefits and 13 supplemental Social Security income were denied initially, upon reconsideration, and by the ALJ 14 following a hearing. ECF No. 1-1. Plaintiff further alleges that on November 7, 2022, the Appeals 15 Council denied the request for review, and, at that time, the ALJ’s decision became the 16 Commissioner’s final decision. Id. Plaintiff filed this action on December 13, 2022, which is 17 within the allowable period. Thus, it appears that Mr. Soleiman exhausted the administrative 18 remedies and timely commenced this action. 19 The complaint also indicates that Plaintiff resides within the District of Nevada and the 20 nature of his disability. Id. 21 Finally, the complaint includes sufficient facts to state a claim for relief, alleging that (a) 22 the ALJ did not state clear and convincing reasons for rejecting the symptom and limitation 23 testimony that Soleiman could not engage in full-time employment on a consistent basis; (b) the 24 ALJ did not properly weigh the medical evidence that Soleiman had more limitations as 25 expressed by Dr. Kaur; and (c) the ALJ’s finding regarding Soleiman’s ability to perform work is 26 not supported by substantial evidence. Id. 27 Accordingly, Plaintiff alleges a cognizable claim upon which relief can be granted. 1 1. Plaintiff Yasser Soleiman’s request to proceed in forma pauperis (ECF No. 2 1) is GRANTED. Plaintiff will not be required to pay the filing fee of $402.00. 3 2. Plaintiff is permitted to maintain this action to conclusion without the 4 necessity of prepayment of any additional fees or costs or giving security for them. This Order 5 granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at the 6 government’s expense. 7 3. The Clerk of Court must file the complaint (ECF No. 1-1). 8 4. The Clerk of Court must serve the Commissioner of the Social Security 9 Administration by sending a copy of the summons and complaint by certified mail to: (1) Office 10 of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 11 800, San Francisco, California 94105-1545; and (2) the Attorney General of the United States, 12 Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530. 13 5. The Clerk of Court must issue summons to the United States Attorney for 14 the District of Nevada and deliver the summons and complaint to the U.S. Marshal for service. 15 6. From this point forward, Plaintiff must serve on Defendant or, if 16 appearance has been entered by an attorney, on the attorney, a copy of every pleading, motion, or 17 other document submitted for consideration by the Court. Plaintiff must include with the original 18 paper submitted for filing a certificate stating the date that a true and correct copy of the 19 document was personally served or sent by mail to Defendant or counsel for Defendant. The 20 Court may disregard any paper received by a district judge or magistrate judge that has not been 21 filed with the Clerk, and any paper received by a district judge, magistrate judge, or the Clerk that 22 fails to include a certificate of service. 23 24 DATED: February 21, 2023 25 BRENDA WEKSLER 26 UNITED STATES MAGISTRATE JUDGE 27