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Tyler v. Commissioner of Social Security Administration

United States District Court, W.D. Oklahoma

February 28, 2019

KELLEE TYLER, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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 work.”

(ECF No. 1). Plaintiff also seeks leave to proceed in forma pauperis (IFP). (ECF No. 2).

         The 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.

         ANALYSIS

         “Under § 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.

         “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)). “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.

         Here, 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).[1] Accordingly, the Court concludes that the Complaint is deficient.

         RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

         For the 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).

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Notes:

[1] 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, see ...


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