United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Kellee Tyler, appearing pro se has filed a Complaint
naming the Social Security Administration as Defendant. (ECF
No. 1). The Complaint states, in full:
“I have recently been denied for Social Security. I am
complaining because of this decision [sic]. My health has not
improved enough were [sic] I can return to work. My arm is
shorter than the other, which proves lack of range of motion.
Also, I am not pyschologectly [sic] ready to turn to work due
to my PTSD. Please consider these actions, as I can not
(ECF No. 1). Plaintiff also seeks leave to proceed in
forma pauperis (IFP). (ECF No. 2).
matter has been assigned to the undersigned magistrate judge
consistent with General Order 16-4. Upon 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.” Lister, 408 F.3d at
1312. “Because [P]laintiff seeks to proceed IFP, the
litigation process begins with the court screening [her]
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). Also, “in order to
succeed on a motion to proceed IFP, the movant must
show… the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised
in the action.” Lister, 408 F.3d at 1312.
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)). “But 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.
Ms. Tyler's Complaint fails to state whether the ALJ has
rendered an opinion, and/or whether Plaintiff had requested
Appeals Council review of an administrative decision, and if
so, the date she received notice of the Appeal Council's
decision. See 42 U.S.C. § 405(g). Accordingly, the
Court concludes that the Complaint is deficient.
AND NOTICE OF RIGHT TO OBJECT
stated reasons, the undersigned recommends summary dismissal
of this action under 28 U.S.C. § 1915(e)(2)(B)(ii),
without prejudice and with leave to amend. Plaintiff is
advised that any objections to this Report and Recommendation
must be filed with the Clerk of this Court on or before
March 18, 2019 in accordance with 28 U.S.C
§ 636 and Federal Rule of Civil Procedure 72. Failure to
make timely objection to this Report and Recommendation
waives the right to appellate review of both the factual
findings and the legal issues decided herein. Casanova v.
Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
 42 U.S.C. § 405(g) also requires
that any review of a “final decision” of the
Commissioner be “brought in the district court of the
United States for the judicial district in which the
plaintiff resides….” (emphasis added).
Plaintiff's Complaint shows her address in Oklahoma City,
Oklahoma. (ECF No. 1). The undersigned takes judicial notice
that Oklahoma City is located within the territorial
jurisdiction of the Western District of Oklahoma,