1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 NEVA F., Case No.: 23-cv-01921-JLB

13 Plaintiff, ORDER REQUIRING PLAINTIFF 14 v. SUPPLEMENT 15 MARTIN O’MALLEY, Commissioner of the Social Security Administration,1 16 Defendant. 17 18 19 On October 19, 2023, plaintiff Neva F. (“Plaintiff”) filed a complaint pursuant to 42

(g) seeking judicial review of a decision by the Commissioner of Social 21 Security (the “Commissioner”) denying her application for disability insurance benefits 22 (“DIB”) and supplemental security income benefits (“SSI”). (ECF No. 1, (“Compl.”).) On 23 February 20, 2024, Plaintiff filed a merits brief pertaining only to Plaintiff’s application 24 for SSI. (ECF No. 16.) Having reviewed the Certified Administrative Record 25

26 27 1 Martin O’Malley, the current Acting Commissioner of Social Security, is automatically substituted as the defendant for Kilolo Kijakazi, the former Acting 28 1 (ECF Nos. 11, 12 (“AR”)), the Court requires supplementation from Plaintiff to address 2 discrepancies between the record, the complaint, and her merits brief. 3 I. PROCEDURAL BACKGROUND

Applications for DIB and SSI 5 In April 2013, Plaintiff filed applications for DIB and SSI, alleging disability 6 beginning March 18, 2013. (See AR 100.) After Plaintiff’s application was denied initially 7 and upon reconsideration, Plaintiff requested an administrative hearing before an 8 Administrative Law Judge (“ALJ”). (See AR 100.) An administrative hearing was held 9 on February 22, 2016. (See AR 100.) In his April 26, 2016, hearing decision, the ALJ 10 found that Plaintiff had not been under a disability, as defined in the Social Security Act, 11 from March 18, 2013, through the date of decision. (AR 95–122.)

Applications for DIB and SSI 13 On July 25, 2017, Plaintiff filed applications for both DIB and SSI, alleging 14 disability beginning March 18, 2013. (AR 199.) After Plaintiff’s applications were denied 15 initially (AR 123–139 (DIB), 140–157 (SSI)) and upon reconsideration (AR 158–176 16 (DIB), 177–195 (SSI)), Plaintiff requested an administrative hearing before an ALJ (see 17 AR 199). An administrative hearing was held on March 14, 2019. (See AR 199.) In his 18 April 1, 2019, hearing decision, the ALJ found that Plaintiff had not been under a disability, 19 as defined in the Social Security Act, from March 18, 2013, through the date of decision. 20 (AR 196–217.) The ALJ’s decision became the final decision of the Commissioner on 21 June 16, 2019, when the Appeals Council denied Plaintiff’s request for review. (AR 218– 22 223.)

Application for SSI 24 On or around September 25, 2019, Plaintiff filed an application for SSI, alleging a 25 disability onset date of March 19, 2013. (AR 356–365.) After Plaintiff’s application was 26 denied initially (AR 224–243) and upon reconsideration (AR 244–263), Plaintiff requested 27 an administrative hearing before an ALJ (AR 280–282). An administrative hearing was 28 held on April 28, 2021. (AR 64–94.) Plaintiff appeared at the hearing with counsel, and 1 testimony was taken from her, as well as from a vocational expert (“VE”). (AR 64–94.) 2 At the hearing, the ALJ addressed both the type of application at issue and the onset date 3 in the following exchange: 4 ALJ: All right and I note this is a Title XVI only case, the onset date is in 2013, however we have a prior ALJ decision in April of 2019. Any issue with 5 amending the onset date to match [the] protective filing date? 6 Attorney: No, we would absolutely like to amend to the filing date. 7 ALJ: All right, I’ll make that note here. Motion is granted. 8 9 (AR 67.) After Plaintiff submitted additional outstanding records (see AR 470–472), 10 Plaintiff requested a supplemental hearing before an ALJ to further develop the record 11 (AR 476). A supplemental administrative hearing was held on April 6, 2022. (AR 34–63.) 12 Plaintiff appeared at the hearing with counsel, and testimony was taken from her, as well 13 as from a VE and Plaintiff’s father. (AR 34–63.) At the hearing, the ALJ again addressed 14 both the type of application at issue and the onset date: 15 ALJ: All right. And Ms. Ferman, I know at the previous hearing, you amended the onset date to match that of the protective filing date in this case, 16 which is September 25, 2019; is that still the case? 17 Attorney: You know, Your Honor, if we could amend to the day after the prior 18 decision, which I have as 4/27/16. 19 ALJ: All right. But you recognize this is a Title XVI only case, so the claimant 20 is not entitled to anything until her protective filing date? Do you understand that? 21 Attorney: I see. I’m sorry. I have it as a Title II and a Title XVI. 22 ALJ: My understanding is this is a Title XVI only case. I don’t see an 23 application for Title II. 24 Attorney: Got it. Okay. On a XVI only, then the protective filing date is fine. 25 ALJ: All right. Thank you. I’ll go ahead and amend your onset date to match 26 the protective filing date, which is September 25, 2019, as was the case with 27 the—with the original hearing. 28 (AR 37–38.) 1 As reflected in his August 25, 2022, hearing decision, the ALJ found that Plaintiff 2 not been under a disability, as defined in the Social Security Act, from September 25, 3 ||2019, through the date of decision. (AR 7-33.) The ALJ’s decision became the final 4 decision of the Commissioner on August 18, 2023, when the Appeals Council denied 5 || Plaintiff's request for review. (AR 1-6.) 6 If. DISCREPANCIES IN COMPLAINT 7 The Court has identified the following discrepancies” between Plaintiff's complaint 8 || and her merits brief: Complaint Merits Brief 10 ||| “This action for judicial review of the ll Commissioner’s final administrative decision challenges the denial of 12 ||| [Plaintiff]’s application for Supplemental B Security Income (Title XVI) and Social Security Disability Insurance (Title I) 14 ||| benefits under the Social Security Act, 42 15 ||| U-S-C. § 405(g) and 42 USC. § 1383(c)(3).” (Compl. § 1.) 16 “On July 25, 2017, [Plaintiff] filed an | “On September 25, 2019, Plaintiff filed an 17 ||| application for Supplemental Security | application for Supplemental Security 18 Income and Social Security Disability | Income benefits under Title 16 of the Insurance under Title XVI and Title II | Social Security Act.” (ECF No. 16 at 4.) 19 ||| of the Social Security Act.” (Compl. § 6.) 20 ||| [Plaintiff] alleges her disability began | Plaintiff's application alleged a disability 4] September 25, 2019. [Plaintiff] originally | onset date of March 18, 2013.... At her alleged a disability onset date of March 18, | hearing, Plaintiff amended her onset date to 22 ||| 2013; this date was amended to September | the date of her SSI application: September 3 25, 2019, at the hearing.” (Compl. § 7, n.1.) | 25, 2019.” (ECF No. 16 at 4.) “On April 28, 2021, an administrative law | “Plaintiff had a telephone hearing on April hearing was held in San Diego, California, | 28, 2021, and a supplemental hearing on 25 ||| presided over by Kevin Messer, an| November 23, 2021.” (ECF No. 16 at 4.) 6 administrative law judge. A supplemental 27 28 Emphasis added to identify discrepancies, and internal citations omitted for clarity.

1 hearing was held on April 6, 2022.” (Compl. ¶ 8.) 2 “On August 12, 2022, the ALJ issued an “Following Plaintiff’s administrative 3 unfavorable hearing decision finding that hearings, the Administrative Law Judge 4 [Plaintiff] was not disabled.” (Compl. ¶ 9.) issued an unfavorable hearing decision on August 12, 2022.” (ECF No. 16 at 4.) 5 “On October 14, 2022, [Plaintiff] filed a “Plaintiff timely appealed that decision to 6 timely request for review with the Appeals the Appeals Council of the Social Security 7 Council of the Social Security Administration.” (ECF No. 16 at 4.) Administration’s Office of Disability 8 Adjudication and Review.” (Compl. ¶ 10.) 9 “On August 18, 2023, the Appeals Council “On August 18, 2023, the Appeals Council 10 denied [Plaintiff’s] request for review, denied Plaintiff’s appeal, making the ALJ’s making the ALJ decision the final decision decision the final determination of the 11 of the Commissioner of Social Security.” Commissioner of Social Security.” 12 (Comp. ¶ 11.) (ECF No. 16 at 4.) 13 “[Plaintiff] has exhausted her “The Plaintiff [sic] has exhausted her administrative remedies with respect to her administrative remedies with respect to her 14 July 25, 2017, application for September 25, 2019, application for 15 Supplemental Security Income and Supplemental Security Income benefits.” Social Security Disability Insurance (ECF No. 16 at 4.) 16 benefits.” (Comp. ¶ 12.) 17 18 Based on the Court’s review, it appears that Plaintiff’s complaint incorrectly cites to 19 her 2017 applications for DIB and SSI as the denials at issue in the underlying appeal, 20 while in fact challenging the denial of her 2019 application for SSI only. However, despite 21 addressing the incorrect applications, Plaintiff’s complaint sets forth the correct procedural 22 history for her 2019 SSI application, including the date upon which the denial became a 23 final decision—August 18, 2023. 24 /// 25 /// 26 /// 27 /// 28 /// 1 “Any individual, after any final decision of the Commissioner of Social Security 2 made after a hearing to which he was a party, irrespective of the amount in controversy, 3 may obtain a review of such decision by a civil action commenced within sixty days after 4 the mailing to him of notice of such decision or within such further time as the 5 Commissioner of Social Security may allow.”

(g); see also Bowen v. City 6 of New York,

(1986) (“[T]he 60-day requirement is not jurisdictional, 7 but rather constitutes a period of limitations.”). 8 Pursuant to Rule 2 of the Federal Rules of Civil Procedure’s Supplemental Rules for 9 Social Security Actions, a complaint seeking judicial review under

(g) 10 must, inter alia, “identify the final decision to be reviewed, including any identifying 11 designation provided by the Commissioner with the final decision” and “state the type of 12 benefits claimed.” Fed. R. Civ. P. Suppl. R. Soc. Sec. Actions 2(b)(1)(B), 2(b)(1)(E). 13 “Failure to plead all the matters described in Rule 2(b)(1)(B), (C), (D), and (E), moreover, 14 should be cured by leave to amend, not dismissal.” Fed. R. Civ. P. Suppl. R. Soc. Sec. 15 Actions 2 advisory committee’s note to 2022 enactment. 16 Here, it is clear based on Plaintiff’s merits brief that the complaint’s inconsistencies 17 with the record were identified; however, Plaintiff has not sought leave to amend the 18 complaint. 19 III. CONCLUSION 20 In order to remedy the discrepancies before the Court, IT IS HEREBY ORDERED 21 that no later than June 21, 2024, Plaintiff shall file a supplement to her merits brief: 22 1. Affirmatively declaring the instant action seeks only review of the 23 denial of Plaintiff’s September 25, 2019, application for supplemental security 24 income benefits under Title XVI of the Social Security Act or, if Plaintiff is seeking 25 review of a denial of an application for disability insurance benefits under Title II of 26 the Social Security Act, identifying a 2019 application for DIB in the record; AND 27 2. Addressing whether Plaintiff will seek leave to file an amended 28 complaint to remedy the identified discrepancies, and specifically to accurately l identify “the final decision to be reviewed, including any identifying designation 2 provided by the Commissioner with the final decision” and “state the type of benefits 3 claimed,” or how Plaintiff otherwise proposes these discrepancies can be addressed 4 in a procedurally appropriate way. 5 IT IS SO ORDERED. 6 Dated: June 10, 2024 -

n. Jill L. Burkhardt 8 ited States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28