Kuhn v. Kijakazi

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA MEDINA K., Case No.: 3:21-cv-0472-AHG 12 Plaintiff, ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS v. ANDREW SAUL, Commissioner of [ECF No. 6] Social Security, Defendant.

I. BACKGROUND On March 17, 2021, Plaintiff filed a Complaint seeking judicial review of the administrative decision denying her application for Social Security Benefits. ECF No. 1.

Along with the Complaint, Plaintiff filed a Motion for Leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. ECF No. 6.1 II. LEGAL STANDARD A motion to proceed IFP presents two issues for the Court’s consideration. First, the Court must determine whether the applicant has properly shown an inability to pay the Plaintiff originally filed a Motion to Proceed IFP at ECF No. 2. She later withdrew that $400 filing fee under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). To that end, each applicant seeking to proceed IFP must provide the Court a signed affidavit including a statement of all the applicant’s assets. CivLR 3.2(a). Second, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the Court must evaluate whether the Complaint sufficiently states a claim upon which relief may be granted before the Complaint is served.

6 See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”).

9 III. DISCUSSION 10 A. Motion to Proceed IFP 11 A person need not be destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). To meet the requirements of 28 U.S.C. § 1915(a), “[] an affidavit is sufficient which states that one cannot because of his poverty ‘pay or give security for the costs . . . and still be able to provide’ himself and dependents ‘with the necessities of life.’” Atkins, 355 U.S. at 339 (internal quotations omitted). To establish poverty, the facts must be stated “with some particularity, definiteness, and certainty.”

17 United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). District courts must exercise their discretion and evaluate a person’s poverty based upon available facts. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) rev'd on other grounds, 17 506 U.S. 20 194 (1993).

21 Plaintiff’s IFP Motion (ECF No. 6) contains a sworn statement consisting of her income and assets. According to her sworn statement, Plaintiff’s income consists of $204.00 in public welfare per month. Id. at 1-2. Her assets include $10.00 in a checking account and a 1998 Toyota Avalon estimated to be worth $1,800. Id. at 2-3. Her monthly expenses average a total of $304.00. Id. at 5. Based on this information, the Court finds that Plaintiff has shown an inability to pay the $400 filing fee under § 1915(a).

27 B. Screening under 28 U.S.C. § 1915(e) 28 Having reviewed Plaintiff’s Complaint, the Court finds Plaintiff has sufficiently stated a claim upon which relief may be granted. Specifically, Plaintiff appeals the |{Commissioner’s denial of her benefits application pursuant to 42 U.S.C. || § 405(g) on the grounds that: (1) the Administrative Law Judge (“ALJ”) erred by using the || wrong legal standard to evaluate Plaintiff's pain; (2) the ALJ erred by failing to incorporate Plaintiff's moderate limitation in concentration in the Residual Functional Capacity || (“RFC”) determination; (3) the ALJ erred by failing to reconcile how Plaintiff is limited to ||“simple and routine work that is unskilled in nature” while finding her capable of || performing a job that requires a Reasoning Level of 3; and (4) the ALJ erred by failing to |}account for limitations resulting from Plaintiffs bilateral carpal tunnel syndrome in ||determining Plaintiffs RFC. See ECF No. 1 at 2. The Court finds these allegations 11 sufficiently specific to state a claim for reversal or remand of the Commissioner’s decision.

12 IV. CONCLUSION 13 Based on the foregoing considerations, the Court GRANTS the IFP Motion (ECF || No. 6). In accordance with Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), the Court ||}DIRECTS the Clerk to issue the summons and to send Plaintiff a blank United States || Marshal Service (“USMS”) Form 285 along with certified copies of this Order and her || Complaint (ECF No. 1). Once Plaintiff receives this “IFP Package,” the Court ORDERS 18 to complete the Form 285 and forward all documents in the package to the USMS.

19 || Upon receipt, the USMS will serve a copy of the Amended Complaint and summons on || Defendant as directed by Plaintiff on the USMS Form 285. The United States will advance |/all costs of service.

22 IT IS SO ORDERED.

24 || Dated: March 25, 2021 _ArwiorwH. Xyolard Honorable Allison H. Goddard 26 United States Magistrate Judge