Diu v. Social Security and Committe

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN KONG DIU, Case No.: 22cv1233-MDD 12 Plaintiff, ORDER DISMISSING 13 v. COMPLAINT WITHOUT 14 PREJUDICE SOCIAL SECURITY AND 15 COMMITTEE [SIC], 16 Defendants. 17 18 On August 22, 2022, Plaintiff John D.,1 proceeding pro se, commenced 19 this action against Defendant “Social Security and Committee [sic]” for 20 judicial review under 42 U.S.C. § 405(g) based on the alleged miscalculation 21 of his disability insurance benefits. (ECF No. 1-1 at 1). At the time he filed 22 his Complaint, Plaintiff also filed a Motion for Leave to Proceed In Forma 23 Pauperis (“IFP”). (ECF No. 2). The case was randomly assigned to this Court 24 pursuant to General Order No. 707, which governs the assignment of a 25 26 1 The Court refers to Plaintiff using only his first name and last initial 1 magistrate judge to review social security cases. 2 For the following reasons, Plaintiff’s Complaint is DISMISSED 3 WITHOUT PREJUDICE, and his Motion to Proceed IFP is denied as moot. 4 I. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 5 A. Standard of Review 6 The Court must screen every in forma pauperis proceeding brought 7 pursuant to 28 U.S.C. § 1915(a) and dismiss any case it finds “frivolous or 8 malicious,” “fails to state a claim on which relief may be granted,” or “seeks 9 monetary relief against a defendant who is immune from such relief.” 28 10 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 11 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 12 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) 13 (noting that “section 1915(e) not only permits but requires a district court to 14 dismiss an in forma pauperis complaint that fails to state a claim”) (citation 15 omitted). Because John D. is appearing pro se, the Court liberally construes 16 his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 17 Exclusive jurisdiction over Social Security benefits cases arises from 42 18 U.S.C. § 405(g)[.]”). Malcolm v. Astrue, 735 F. Supp. 2d 118, 120 (D. Del. 19 Aug. 25, 2010). With respect to social security appeals, district courts in the 20 Ninth Circuit have outlined the basic requirements for complaints to satisfy 21 the Court’s § 1915(e) screening. First, the plaintiff must establish that he 22 has exhausted his administrative remedies pursuant to § 405(g), and that the 23 civil action was commenced within sixty days after notice of a final 24 decision. Second, the complaint must indicate the judicial district in which 25 the plaintiff resides. Third, the complaint must state the nature of the 26 plaintiff's disability and when the plaintiff claims he became disabled. 1 identifying the nature of the plaintiff's disagreement with the determination 2 made by the SSA and show that the plaintiff is entitled to relief. See, e.g., 3 Montoya v. Colvin, Case No. 2:16-cv-00454-RFB-NJK, 2016 WL 890922, at *2 4 (D. Nev. Mar. 8, 2016); Roberta N. v. Kijakazi, Case No. 21-cv-01504-JLB, 5 2021 WL 4358178, at *2 (S.D. Cal. Sept. 24, 2021). 6 B. Plaintiff’s Complaint 7 According to the Complaint and exhibits attached thereto, Plaintiff was 8 arguably awarded social security disability benefits of an unstated amount, 9 on an uncertain date, but sometime after October 14, 2010. (ECF No. 1-2 at 10 6). Plaintiff attaches a social security statement describing his anticipated 11 benefits, but he does not include pages with the details of his benefits. (Id.). 12 The complaint is difficult to comprehend, but it generally conveys that 13 the SSA has failed to increase Plaintiff’s benefit amount by 6.2 percent 14 annually as required, and that he is currently entitled to relief under either 15 the Fourth Amendment, or pursuant to his social security income benefits. 16 (ECF No. 1 at 2). 17 The specific relief Plaintiff requests states as follows: 18 I want Certificate OF BANK for 6.2% increase and interests Conversion Table taxes which show my records to social security 19 number 9 digits. I wants the federal deposits insurance Corporation 20 (FDIC) according to the law of bank, to insures my money in bank account in case of bank Fraud or Failure of 6.2% increases and 21 interests on trade in U.S.. I want 6.2% increase and interests 22 conversion table taxes. 23 (Id.) [sic]. He provides no further details or documentation, with the 24 exception of portions of his social security statement dated October 14, 2010. 25 (ECF No. 1-1 and 1-2). The page in his complaint entitled “Relief You 26 Request,” is blank. (ECF No. 1 at 3). 1 C. Discussion 2 Section 405(g) provides, “Any individual, after any final decision of the 3 Commissioner of Social Security made after a hearing to which he was a 4 party . . . may obtain a review of such decision by a civil action commenced 5 within sixty days after the mailing to him of notice of such decision[.]” 42 6 U.S.C. § 405(g). To obtain a final SSA decision, a claimant must complete the 7 process of administrative review. See 20 C.F.R. § 404.900(a) (2017). 8 First, SSA makes its initial determination as to a claimant’s 9 entitlement to benefits, continuing entitlement to benefits, benefit amount, or 10 any other matter, and so notifies the claimant in writing. Id. §§ 11 404.900(a)(1), 404.902, 404.904. An initial determination is binding unless 12 the claimant timely requests reconsideration or the SSA revises the initial 13 determination. Id. § 404.905. If a claimant is dissatisfied with the SSA’s 14 initial determination, he may request reconsideration. Id. § 404.907. 15 Generally, a claimant who is dissatisfied with a reconsidered decision 16 may request a hearing before an administrative law judge (“ALJ”). Id. §§ 17 404.907, 404.930. The ALJ issues a decision based on the preponderance of 18 the evidence in the hearing record. Id. § 404.929. A claimant dissatisfied 19 with the hearing decision may request review by the Appeals Council, which 20 may deny or dismiss the request for review, or may grant the request and 21 either issue a decision or remand the case to the ALJ. Id. § 404.967. 22 “The Appeals Council's decision, or the decision of the [ALJ] if the 23 request for review is denied, is binding unless [the claimant files] an action in 24 Federal district court, or the decision is revised.” Id. § 404.981. An action 25 must be filed in federal court within sixty days after the date the claimant 26 receives notice of the Appeals Council’s action. Id.; see also 42 U.S.C. § 1 Here, the complaint filed by Plaintiff provides no basis for the Court to 2 find that he has presented his claim to the SSA in a manner that entitled him 3 to a “final decision,” (see 42 U.S.C. § 405(g)), and thereby permitted him to 4 proceed to federal court. If he filed a claim with the SSA, it is not clear to the 5 Court when this occurred. There is also no indication that he received a 6 decision by an ALJ regarding any current allegations, timely requested 7 review of the decision by the Appeals Council, and/or received notice of the 8 Appeals Council’s action. 9 The Court accordingly concludes that Plaintiff failed to exhaust his 10 administrative remedies before filing this action, and, thus, there is no final 11 SSA determination for this Court to consider. Until John D. exhausts the 12 administrative review process before the SSA, this Court lacks subject-matter 13 jurisdiction for any claims subject to that process. 14 Accordingly, the complaint must be dismissed without prejudice. If 15 Plaintiff contends that he has exhausted his administrative remedies 16 pursuant to § 405(g) and this action was commenced within sixty days after 17 notice of a final decision, he must file an Amended Complaint that includes 18 the final decision of the Social Security Administration. 19 II. Conclusion 20 For the reasons set forth above, Plaintiff’s Complaint is DISMISSED 21 WITHOUT PREJUDICE, and his Motion to Proceed IFP is denied as moot. If 22 Plaintiff contends that he has exhausted his administrative remedies 23 pursuant to § 405(g) and his action was commenced within sixty days after 24 notice of a final decision, he must file an Amended Complaint that includes 25 the final decision of the Social Security Administration on or before 26 September 23, 2022. Plaintiff’s Amended Complaint must be complete by 1 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 9 ||amended pleading supersedes the original.”). Should Plaintiff fail to file an 3 || Amended Complaint within the time provided, the Court will enter a final 4 ||order dismissing this civil action with prejudice. 5 IT IS SO ORDERED. Dated: August 24, 2022 My, + uu s | [ Hon. Mitchell D. Dembin 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27