United States District Court, W.D. Oklahoma
DAVID F. MARTIN, Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
F. Martin (Plaintiff), appearing pro se and naming the
Commissioner of Social Security as Defendant, complains-in
My complaint is that I do not agree with the decision of the
onset date of April 07, 2017 and should be restored to August
Doc. 1. The signature block includes
Plaintiff's address in Oklahoma City, Oklahoma.
Id. Plaintiff also seeks leave to proceed in forma
pauperis (IFP). Doc. 2.
matter has been assigned to the undersigned Magistrate Judge
consistent with General Order 16-4. On review of the
complaint, the undersigned concludes it is deficient and
recommends summary dismissal of the action, without prejudice
and with leave granted to amend because it may be possible
for Plaintiff to cure the deficiency.
§ 1915(a), a district court ‘may authorize the
commencement . . . of any suit [or] action . . . without
prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets
such prisoner possesses, that the person is unable to pay
such fees or give security therefor.'” Lister
v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir.
2005) (quoting 28 U.S.C. § 1915(a)). “Section
1915(a) applies to all persons applying for IFP status, and
not just to prisoners.” Id. But, “in
order to succeed on a motion to proceed IFP, the movant must
show a financial inability to pay the required filing fees,
as well as the existence of a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised in the
action.” Id. So, “[b]ecause [P]laintiff
seeks to proceed IFP, the litigation process begins with the
court screening his complaint” under 28 U.S.C. §
1915(e)(2)(B). Hardaway v. Kansas, No. 11-3059-SAC,
2011 WL 1466467, at *2 (D. Kan. Apr. 18, 2011) (citing
Lister, 408 F.3d at 1312).
Plaintiff's complaint fails to state facts necessary to
show that the jurisdictional requirements for review in this
Court are satisfied in this case. The Social Security Act
[a]ny individual, after any final decision of the
Commissioner of Social Security made after a hearing to which
he was a party [to] obtain a review of such decision by a
civil action commenced within sixty days after the
mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may
allow. Such action shall be brought in the district court
of the United States for the judicial district in which the
plaintiff resides . . . .
42 U.S.C. § 405(g) (emphasis added). “Under the
Social Security Act, federal district courts have
jurisdiction to review “any final decision of
the Commissioner of Social Security made after a
hearing.” Gibbs v. Colvin, 529 Fed.Appx. 950,
953 (10th Cir. 2013) (quoting 42 U.S.C. § 405(g)
(emphasis added in Gibbs)).
the Act does not define “final decision, ”
instead leaving it to the [Social Security Administration] to
give meaning to that term through regulations.”
Sims v. Apfel, 530 U.S. 103, 106 (2000). Under the
applicable regulations, 20 C.F.R §§ 404.900(a)(5),
416.1400(a)(5), “[a] final decision exists
only after a claimant has completed . . . four steps.”
Gibbs, 529 Fed.Appx. at 953 (emphasis added). Those
steps include: (1) initial determination, (2)
reconsideration, (3) a hearing before an ALJ, and (4) a
request for review by the Appeals Council. Id.
§§ 404.900(a), 416.1400(a); Gibbs, 529
Fed.Appx. at 953. Failure to complete these steps would mean
he would “not [be] entitled to judicial review.”
Gibbs, 529 Fed.Appx. at 953; see also Sims,
530 U.S. at 107.
Plaintiff's complaint shows his address in Oklahoma City,
Oklahoma. Doc. 1. The undersigned takes judicial notice that
Oklahoma City is located within the territorial jurisdiction
of the Western District of Oklahoma, see 28 U.S.C.
§ 116(c), so Plaintiff has alleged the facts necessary
to address one § 405(g) requirement for judicial review
by this Court. However, Plaintiff fails to state whether the
ALJ has rendered an opinion, and whether he requested Appeals
Council review of the ALJ's decision, and the date he
received notice of the Appeal Council's decision.
See 42 U.S.C. § 405(g).
Recommendation and notice ...