Plenzio v. Commissioner of Social Security
| Cynthia Rose Plenzio |
| Commissioner of Social Security |
| Social Security Administration |
| 3:2021cv00181 |
| February 12, 2021 |
| US District Court for the District of Connecticut |
| Kari A Dooley |
| Sarah A L Merriam |
| Stefan R Underhill |
| Social Security: SSID Tit. XVI |
| 42 U.S.C. § 1383 |
| None |
Docket Report
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Filing 22
ORDER granting on consent #21 Motion for Extension of Time. The Commissioner shall file the administrative record on or before June 12, 2021. Signed by Judge Kari A. Dooley on 4/12/2021. (D'Amato, Joseph)
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| Filing 21 Consent MOTION for Extension of Time until June 12, 2021to file the ECAR by Commissioner of Social Security. (Attachments: #1 Affidavit of the Executive Director of the Social Security Administration's Office of Appellate Operations)(Everhart, Kristin) |
| Filing 20 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Status Conference set for 4/29/2021 at 02:00 PM before Judge Kari A. Dooley. Telephonic Conference Line: 888-278-0296; Access Code: 8077899#. (D'Amato, Joseph) |
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Filing 19
ORDER. The parties shall appear for a telephonic status conference on April 29, 2021 at 2:00 PM. Telephonic Conference Line: 888-278-0296; Access Code: 8077899#. However, if a copy of the Appeals Council decision is filed on or before April 29, 2021 at 2:00 PM, then the telephonic status conference will be cancelled. A calendar entry for this telephonic status conference will be separately docketed. Signed by Judge Kari A. Dooley on 4/2/2021. (D'Amato, Joseph)
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Filing 18
ORDER OF TRANSFER: Absent consent to a Magistrate Judge, the case is reassigned to Judge Kari A. Dooley for all further proceedings. Signed by Clerk on 3/23/2021.(Anastasio, F.)
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Filing 17
ORDER denying, without prejudice to re-filing, #16 Letter Motion to Appoint Counsel. The self-represented plaintiff, who is proceeding in forma pauperis, see Doc. #12, has filed a motion seeking the appointment of counsel based on her belief that she has "a good case." Doc. #16 at 1. The Second Circuit has "held that in determining whether to appoint counsel for an indigent litigant a district court judge should first consider whether the indigent's position seems likely to be of substance, then assess the litigant's competence to proceed pro se, the complexity of the issues, and additionally any special reason in that case why appointment of counsel would be more likely to lead to a just determination." Machadio v. Apfel, 276 F.3d 103, 10708 (2d Cir. 2002) (citation and quotation marks omitted). "The threshold consideration in ruling on such an application is a showing of some likelihood of merit." Thomas v. Sec'y, Dep't of Health & Human Servs., No. 95CV02313(PKL), 1995 WL 234663, at *1 (S.D.N.Y. Apr. 20, 1995). Here, because the administrative transcript has not yet been filed, and where the #1 Complaint provides little detail, plaintiff has failed to make a threshold showing of likelihood of merit. See Maldonado ex rel. Maldonado v. Apfel, 55 F. Supp. 2d 296, 307 (S.D.N.Y. 1999) ("Without a record, the merits cannot be evaluated. Private counsel cannot be expected to become interested in a case of unknown merit. And under Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), there is not even a proper basis for the Court to appoint pro bono counsel because a court cannot determine whether the case seems likely to be of substance." (citation and quotation marks omitted)). Further, the Court previously ordered plaintiff to file a copy of the Appeals Council decision so that the Court could "ascertain whether plaintiff has fully exhausted her administrative remedies and/or timely filed this action." Doc. #9. Plaintiff was to have filed a copy of the Appeals Council decision by March 12, 2021, see Doc. #10, but has failed to do so. Without that information, the Court is unable to assess the merits of this case. If plaintiff wishes to proceed with this matter, she must file a copy of the Appeals Council decision on or before March 30, 2021. Failure to comply with this deadline may result in the dismissal of plaintiff's case.Finally, the Second Circuit has made clear that before an appointment of counsel may be considered, the movant must demonstrate that she is unable to obtain counsel. See Saviano v. Local 32B-32J, 75 F. App'x 58, 59 (2d Cir. 2003). Plaintiff has not demonstrated that she has made any effort to obtain counsel on her own.Accordingly, plaintiff's #16 Letter Motion to Appoint Counsel is DENIED, without prejudice to re-filing. Plaintiff may re-file her motion: (1) after she files a copy of the Appeals Council decision; (2) after defendant has filed the administrative transcript; and (3) upon a showing that she is unable to obtain counsel. It is so ordered. Signed by Judge Sarah A. L. Merriam on 3/17/2021. (Katz, S.)
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| Filing 16 LETTER MOTION to Appoint Counsel by Cynthia Rose Plenzio. (Oliver, T.) |
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Filing 15
REMINDER: STANDING ORDER ON SOCIAL SECURITY APPEALS Signed by Judge Stefan R. Underhill on 3/3/2021. (Attachments: #1 Consent Form)(Anastasio, F.)
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| Filing 14 NOTICE of Appearance by Everhart Kristin on behalf of Commissioner of Social Security (Kristin, Everhart) |
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Filing 13
ORDER. Plaintiff's #2 Motion for Leave to Proceed in forma pauperis is hereby TERMINATED, as moot, in light of the Court having granted plaintiff's later filed motion (Doc. #11 ) seeking the same relief. See Doc. #12. It is so ordered. Signed by Judge Sarah A. L. Merriam on 2/24/2021. (Katz, S.)
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Filing 12
ORDER granting #11 Motion for Leave to Proceed in forma pauperis. Plaintiff has filed a motion seeking to proceed without payment of fees and costs, which motion includes a sworn statement as to plaintiff's current financial circumstances. See Doc. #11 . Plaintiff has completed the required information. Plaintiff asserts that she is unable to afford to pay fees and costs, having no employment income and no assets. See generally id. at 3-4. Plaintiff also states her monthly government cash benefits just cover her monthly obligations. See id. at 3-4. At this stage, such allegations are sufficient to establish that plaintiff is unable to pay the ordinary filing fees required by the Court. See 28 U.S.C. 1915(a)(1). Accordingly, plaintiff's #11 Motion for Leave to Proceed in forma pauperis is GRANTED. It is so ordered. Signed by Judge Sarah A. L. Merriam on 2/24/2021. (Katz, S.)
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| Filing 11 MOTION for Leave to Proceed in forma pauperis by Cynthia Rose Plenzio. (Oliver, T.) |
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Filing 10
ORDER. On February 17, 2021, the Court entered two Orders. See Docs. #8, #9. The first Order requires plaintiff to pay the filing fee or re-file her motion for leave to proceed in forma pauperis by March 5, 2021. See Doc. #8. The second Order requires plaintiff to file a copy of the Appeals Council decision, also by March 5, 2021. See Doc. #9. On February 17, 2021, the Court mailed copies of these Orders to plaintiff's then-address of record, 12 Church Hill Road, Pomfret, CT, 06259.On February 23, 2021, the Clerk's Office advised the undersigned's staff that plaintiff's address had been docketed incorrectly. On that same date, the Clerk's Office re-mailed copies of the Court's Orders, and other court filings, to plaintiff at her corrected address, 12 Cherry Hill Road, Pomfret, CT, 06259.Given that the February 17, 2021, Orders were mailed to the incorrect address, the Court hereby extends the deadlines set forth in those Orders. Accordingly, plaintiff shall pay the required filing fee or re-file her motion for leave to proceed in forma pauperis on or before March 12, 2021. Plaintiff shall file a copy of the Appeals Council decision on or before March 12, 2021.Plaintiff is reminded that failure to comply with these deadlines may result in the undersigned recommending that the Complaint be dismissed.It is so ordered. Signed by Judge Sarah A. L. Merriam on 2/23/2021. (Katz, S.)
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Filing 9
ORDER. The self-represented plaintiff has filed a form Complaint for Review of Social Security Administration Decision. (Doc. #1 ). Plaintiff has not fully completed the form Complaint, including the date on which the Appeals Council issued its decision. See id. at 2. Without that information, the Court is unable to ascertain whether plaintiff has fully exhausted her administrative remedies and/or timely filed this action.Accordingly, on or before March 5, 2021, plaintiff shall file a copy of the Appeals Council decision with the Court.Failure to comply with this Order may result in the undersigned recommending that the Complaint be dismissed. It is so ordered. Signed by Judge Sarah A. L. Merriam on 2/17/2021. (Katz, S.)
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Filing 8
ORDER. Plaintiff has filed a Motion to Proceed in forma pauperis, seeking to proceed without payment of fees and costs, which motion includes a sworn statement as to plaintiff's current financial circumstances. See Doc. #2 . That sworn statement, however, is largely incomplete, leaving the Court unable to assess plaintiff's financial circumstances. "The court may deny an application to proceed in forma pauperis if [the applicant] fails to submit the required financial information[.]" Whatley v. Astrue, No. 5:11CV1009(NAM)(ATB), 2011 WL 5222908, at *1 (N.D.N.Y. Oct. 14, 2011), report and recommendation adopted, 2011 WL 5196716 (Oct. 31, 2011); Schwarz v. I.R.S., 998 F. Supp. 201, 202 (N.D.N.Y. 1998) (denying application to proceed in forma pauperis as incomplete where plaintiff failed to complete application).Accordingly, plaintiff shall re-file her motion or pay the required filing fee on or before March 5, 2021, or the undersigned may recommend that this case be dismissed. If plaintiff chooses to re-file her motion she must complete all of the required information, including any monthly obligations, any other sources of financial support (including how any monthly obligations are paid for), or any other information that is pertinent to her financial status. Plaintiff may indicate that her obligations are "$0" or that a particular question does not apply to her situation, but she may not leave significant sections of the affidavit form entirely blank.It is so ordered. Signed by Judge Sarah A. L. Merriam on 2/17/2021. (Katz, S.)
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| Filing 7 NOTICE TO SELF-REPRESENTED PARTIES Signed by Clerk on 02/17/2021.(Fazekas, J.) |
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Filing 6
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Stefan R. Underhill on 02/12/2021.(Fazekas, J.)
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Filing 5
STANDING SCHEDULING ORDER Signed by Judge Stefan R. Underhill on 02/12/2021.(Fazekas, J.)
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Filing 4
STANDING ORDER ON SOCIAL SECURITY APPEALS Signed by Judge Stefan R. Underhill on 02/12/2021. (Attachments: #1 Consent Form)(Fazekas, J.)
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| Filing 2 MOTION for Leave to Proceed in forma pauperis by Cynthia Rose Plenzio. (Fazekas, J.) |
| Filing 1 COMPLAINT against Commissioner of Social Security, filed by Cynthia Rose Plenzio.(Fazekas, J.) |
| Answer deadline updated for Commissioner of Social Security to 4/13/2021. (Fazekas, J.) |
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