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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 TORRANCE CARR, Case No. 2:20-cv-01009-BNW 6 Plaintiff, 7 ORDER v. 8 ANDREW SAUL, 9 Defendant. 10 11 12 Presently before the Court is plaintiff Torrance Carr’s application to proceed in forma 13 pauperis (ECF No. 1), filed on June 7, 2020. 14 I. In Forma Pauperis Application 15 Carr has submitted the declaration required by

(a) showing an inability to 16 prepay fees and costs or give security for them. ECF No. 1. Accordingly, Plaintiff’s request to 17 proceed in forma pauperis will be granted. The Court will next screen Carr’s complaint. ECF No. 18 1-1. 19 II. Screening the Complaint 20 A. Standard of Review 21 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 22 under

(e)(2).1 In screening the complaint, a court must identify cognizable 23 claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may 24 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). 26

27 1 Although § 1915 largely concerns prisoner litigation, § 1915(e) applies to all in forma pauperis proceedings. Calhoun v. Stahl,

(9th Cir. 2001) (“[T]he provisions of 1 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 2 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668

(9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 4 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 5 v. Iqbal,

(2009). In considering whether the complaint is sufficient to state a 6 claim, all allegations of material fact are taken as true and construed in the light most favorable to 7 the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc.,

, 661 (9th Cir. 1998) 8 (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual 9 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 10 Twombly,

(2007). A formulaic recitation of the elements of a cause of action is 11 insufficient.

Unless it is clear that the complaint’s deficiencies could not be cured through 12 amendment, a plaintiff should be given leave to amend the complaint with notice regarding the 13 complaint’s deficiencies. Cato v. United States,

(9th Cir. 1995). 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.,

(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

, 416. 25 Once a plaintiff has exhausted administrative remedies, she may obtain judicial review of 26 a SSA decision denying benefits by filing suit within 60 days after notice of a final decision.

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 she became disabled, and 2 when and how she exhausted her 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 has exhausted 6 her 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 as a whole to support the findings of the Commissioner; and (b) 9 whether the correct legal standards were applied. Morgan v. Commissioner of the Social Security 10 Adm.,

(9th Cir. 1999). 11 B. Analysis 12 Here, Carr alleges that Plaintiff’s applications for disability insurance benefits and 13 supplemental security income were denied initially, upon reconsideration, and by the ALJ 14 following a hearing. ECF No. 1-1 at 2. Plaintiff further alleges that on April 20, 2020, the 15 Appeals Council denied the request for review, and, at that time, the ALJ’s decision became the 16 final decision of the Commissioner.

Plaintiff filed this action within the allowable period. 17 Thus, it appears that Carr has exhausted the administrative remedies and timely commenced this 18 action. 19 The Complaint also indicates the nature of Carr’s disability and that Plaintiff resides 20 within the District of Nevada.2

at 1–3. 21 Finally, the Complaint includes sufficient facts to state a claim for relief, alleging, in part, 22 that the ALJ impermissibly rejected the opinions of Dr. Carullo and Mr. Conner, and the ALJ 23 impermissibly rejected Plaintiff’s subjective symptom testimony. Id. at 3. Accordingly, the Court 24

25 2 The Court is aware of district courts in the Ninth Circuit that require a plaintiff who 26 proceeds in forma pauperis on social security appeals to include the onset date of her alleged disability in the complaint. See, e.g., Montoya v. Colvin, No. 216CV00454RFBNJK,

890922, at *2 (D. Nev. Mar. 8, 2016). While the Court believes that it is best practice to include this information and advises Plaintiff’s counsel to do so when filing future complaints, the Court 1 || holds that Carr has met the burden for judicial review of the SSA decision denying Plaintiff 2 || disability benefits. 3 IT IS THEREFORE ORDERED that: 4 1. Plaintiff Torrance Carr’s request to proceed in forma pauperis (ECF No. 1) 5 || is GRANTED. Carr will not be required to pay the filing fee of $400.00. 6 2. Plaintiff is permitted to maintain this action to conclusion without the 7 || necessity of prepayment of any additional fees or costs or giving security for them. This Order 8 || granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at 9 || government expense. 10 3. The Clerk of Court must file the Complaint. 11 4. The Clerk of Court must serve the Commissioner of the Social Security 12 |} Administration by sending a copy of the summons and Complaint by certified mail to: (1) Office 13 || of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 14 || 800, San Francisco, California 94105-1545; and (2) the Attorney General of the United States, 15 || Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530. 16 5. The Clerk of Court must issue summons to the United States Attorney for 17 || the District of Nevada and deliver the summons and Complaint to the U.S. Marshal for service. 18 6. From this point forward, Plaintiff must serve on Defendant or, if 19 || appearance has been entered by an attorney, on the attorney, a copy of every pleading, motion, or 20 || other document submitted for consideration by the Court. Plaintiff must include with the original 21 || paper submitted for filing a certificate stating the date that a true and correct copy of the 22 || document was personally served or sent by mail to the defendants or counsel for the defendants. 23 || The Court may disregard any paper received by a district judge or magistrate judge that has not 24 || been filed with the Clerk, and any paper received by a district judge, magistrate judge, or the 25 || Clerk that fails to include a certificate of service. . 26 DATED: June 26, 2020 Lx nm Lea WEA BRENDA WEKSLER 28 UNITED STATES MAGISTRATE JUDGE