1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 David Morales-Sandoval, Case No. 2:22-cv-00934-BNW

5 Plaintiff, ORDER 6 v.

7 Kilolo Kijakazi,

8 Defendant.

9 10 Presently before the Court is Plaintiff David Morales-Sandoval’s application to proceed in 11 forma pauperis (ECF No. 1), filed on June 10, 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

(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

(a). See Rodriguez v. Cook,

(9th Cir. 1999). 17 Mr. Morales-Sandoval has submitted the declaration required by

(a) 18 showing an inability to prepay fees and costs or give security for them. ECF No. 1. Accordingly, 19 Plaintiff’s request to proceed in forma pauperis will be granted. 20 The Court will next screen Plaintiff’s complaint. ECF No. 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

(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,

(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

(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,

(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.,

, 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,

(2007). A formulaic recitation of the elements of a cause of action is 13 insufficient.

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, he may obtain judicial review of a 26 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 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 has exhausted 6 his 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, Mr. Morales-Sandoval alleges that his application for disability insurance benefits 13 was denied initially, upon reconsideration, and by the Administrative Law Judge (“ALJ”) 14 following a hearing. ECF No. 1-1 at 2. Plaintiff further alleges that on April 11, 2022, the 15 Appeals Council denied the request for review, and, at that time, the ALJ’s decision became the 16 Commissioner’s final decision. Id. at 3. Plaintiff filed this action on June 10, 2022, which is 17 within the allowable period. Thus, it appears that Mr. Morales-Sandoval has exhausted the 18 administrative remedies and timely commenced this action. 19 The complaint also indicates that Plaintiff resides within the District of Nevada, the nature 20 of his disability, and the alleged onset of his disability. Id. at 1–2. 21 Finally, the complaint includes sufficient facts to state a claim for relief, alleging that the 22 ALJ erred by failing to provide clear and convincing reasons for rejecting Plaintiff’s pain and 23 symptom testimony and by finding that Plaintiff could perform jobs that do not exist in 24 significant numbers. Id. at 3. 25 Accordingly, Plaintiff alleges a cognizable claim upon which relief can be granted. 26 IT IS THEREFORE ORDERED that 27 1. Plaintiff David Morales-Sandoval’s request to proceed in forma pauperis ] 2. Plaintiff is permitted to maintain this action to conclusion without the 2 || necessity of prepayment of any additional fees or costs or giving security for them. This Order 3 || granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at 4 || government expense. 5 3. The Clerk of Court must file the complaint (ECF No. 1-1). 6 4. The Clerk of Court must serve the Commissioner of the Social Security 7 || Administration by sending a copy of the summons and complaint by certified mail to: (1) Office 8 || of the Regional Chief Counsel, Region IX, Social Security Administration, 160 Spear St., Suite 9 || 800, San Francisco, California 94105-1545; and (2) the Attorney General of the United States, 10 || Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530. 11 5. The Clerk of Court must issue summons to the United States Attorney for 12 || the District of Nevada and deliver the summons and complaint to the U.S. Marshal for service. 13 6. From this point forward, Plaintiff must serve on Defendant or, if 14 || appearance has been entered by an attorney, on the attorney, a copy of every pleading, motion, or 15 || other document submitted for consideration by the Court. Plaintiff must include with the original 16 || paper submitted for filing a certificate stating the date that a true and correct copy of the 17 || document was personally served or sent by mail to Defendant or counsel for Defendant. The 18 || Court may disregard any paper received by a district judge or magistrate judge that has not been 19 || filed with the Clerk, and any paper received by a district judge, magistrate judge, or the Clerk that 20 || fails to include a certificate of service. 21 22 DATED: July 15, 2022. 23 Fanta BRENDA WEKSLER 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28