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6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 DUMONTRAE M. BUTLER, Case No. 2:20-cv-00948-BNW 10 Plaintiff, 11 ORDER v. 12 ANDREW SAUL, COMMISSIONER OF 13 SOCIAL SECURITY,

14 Defendant.

15 16 Presently before the Court is plaintiff Dumontrae M. Butler’s application to proceed in 17 forma pauperis (ECF No. 1), filed on May 26, 2020. 18 I. In Forma Pauperis Application 19 Butler has submitted the declaration required by

(a) showing an inability 20 to prepay fees and costs or give security for them. ECF No. 1. Accordingly, Plaintiff’s request to 21 proceed in forma pauperis will be granted. The Court will next screen Plaintiff’s complaint. ECF 22 No. 1-1. 23 II. Screening the Complaint 24 A. Standard of Review 25 26 27 1 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 2 under

(e)(2).1 In screening the complaint, a court must identify cognizable 3 claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may 4 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 5 § 1915(e)(2). 6 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 7 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 9 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 10 v. Iqbal,

(2009). In considering whether the complaint is sufficient to state a 11 claim, all allegations of material fact are taken as true and construed in the light most favorable to 12 the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc.,

, 661 (9th Cir. 1998) 13 (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual 14 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 15 Twombly,

(2007). A formulaic recitation of the elements of a cause of action is 16 insufficient.

Unless it is clear that the complaint’s deficiencies could not be cured through 17 amendment, a plaintiff should be given leave to amend the complaint with notice regarding the 18 complaint’s deficiencies. Cato v. United States,

(9th Cir. 1995). 19 If a plaintiff’s complaint challenges a decision by the Social Security Administration, 20 before filing a lawsuit, the plaintiff must exhaust administrative remedies. See 42 U.S.C. 21 § 405(g); see also Bass v. Social Sec. Admin.,

(9th Cir. 1989) (per curiam) 22 (“Section 405(g) provides that a civil action may be brought only after (1) the claimant has been 23 party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the 24 claim”). Generally, if the SSA denies a claimant’s application for disability benefits, the claimant 25 may request reconsideration of the decision. If the claim is denied at the reconsideration level, a 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 claimant may request a hearing before an administrative law judge. If the ALJ denies the claim, a 2 claimant may request review of the decision by the Appeals Council. If the Appeals Council 3 declines to review the ALJ’s decision, a claimant may then request judicial review. See generally 4

, 416. 5 Once a plaintiff has exhausted administrative remedies, he may obtain judicial review of a 6 SSA decision denying benefits by filing suit within 60 days after notice of a final decision.

7 An action for judicial review of a determination by the SSA must be brought “in the district court 8 of the United States for the judicial district in which the plaintiff resides.”

The complaint 9 should state the nature of plaintiff’s disability, when plaintiff claims he became disabled, and 10 when and how he exhausted his administrative remedies. The complaint should also contain a 11 plain, short, and concise statement identifying the nature of plaintiff’s disagreement with the 12 determination made by the SSA and show that plaintiff is entitled to relief. 13 A district court can affirm, modify, reverse, or remand a decision if plaintiff has exhausted 14 his administrative remedies and timely filed a civil action. However, judicial review of the 15 Commissioner’s decision to deny benefits is limited to determining: (a) whether there is 16 substantial evidence in the record as a whole to support the findings of the Commissioner, and (b) 17 whether the correct legal standards were applied. Morgan v. Commissioner of the Social Security 18 Adm.,

(9th Cir. 1999). 19 B. Analysis 20 Here, Butler alleges that Plaintiff’s applications for disability insurance benefits and 21 supplemental security income were denied initially, upon reconsideration, and by the ALJ 22 following a hearing. ECF No. 1-1 at 2. Plaintiff further alleges that on March 31, 2020, the 23 Appeals Council denied the request for review, and, at that time, the ALJ’s decision became the 24 final decision of the Commissioner.

Plaintiff filed this action within the allowable period. 25 Thus, it appears that Butler has exhausted the administrative remedies and timely commenced this 26 action. 27 1 The Complaint also indicates the nature of Butler’s disability and that Plaintiff resides 2 within the District of Nevada.2

at 2–3. 3 Finally, the Complaint includes sufficient facts to state a claim for relief, alleging that the 4 ALJ “failed to properly evaluate the medical evidence in assessing [Plaintiff’s] residual functional 5 capacity; failed to properly evaluate [Plaintiff’s] subjective complaints[;] and failed to sustain his 6 burden at step five of the sequential evaluation.” Id. at 3. Accordingly, the Court holds that Butler 7 has met the burden for judicial review of the SSA decision denying Plaintiff disability benefits. 8 IT IS THEREFORE ORDERED that: 9 1. Plaintiff Dumontrae M. Butler’s request to proceed in forma pauperis 10 (ECF No. 1) is GRANTED. Butler will not be required to pay the filing fee of $400.00. 11 2. Plaintiff is permitted to maintain this action to conclusion without the 12 necessity of prepayment of any additional fees or costs or giving security for them. This Order 13 granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at 14 government expense. 15 3. The Clerk of Court must file the Complaint. 16 4. The Clerk of Court must serve the Commissioner of the Social Security 17 Administration by sending a copy of the summons and Complaint by certified mail to: (1) Office 18 of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 19 800, San Francisco, California 94105-1545; and (2) the Attorney General of the United States, 20 Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530. 21 5. The Clerk of Court must issue summons to the United States Attorney for 22 the District of Nevada and deliver the summons and Complaint to the U.S. Marshal for service. 23 6. From this point forward, Plaintiff must serve on Defendant or, if 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 his 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 || appearance has been entered by an attorney, on the attorney, a copy of every pleading, motion, or 2 || other document submitted for consideration by the Court. Plaintiff must include with the original 3 || paper submitted for filing a certificate stating the date that a true and correct copy of the 4 || document was personally served or sent by mail to Defendant or counsel for Defendant. The 5 || Court may disregard any paper received by a district judge or magistrate judge that has not been 6 || filed with the Clerk, and any paper received by a district judge, magistrate judge, or the Clerk that 7 || fails to include a certificate of service. 8 9 DATED: August 11, 2020 10 LZ gw la WERK BRENDA WEKSLER 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28