Swindon v. Kijakazi
| Melissa Lynn Swindon |
| Kilolo Kijakazi |
| Social Security Administration |
| 3:2023cv00859 |
| June 29, 2023 |
| US District Court for the District of Connecticut |
| Maria E Garcia |
| Jeffrey A Meyer |
| Michael P Shea |
| Social Security: SSID Tit. XVI |
| 42 U.S.C. § 0405 dc Review of SSA Decision SSDC - Concurrent Title II and Title XVI Claims |
| None |
Docket Report
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This docket was last retrieved on August 21, 2023. A more recent docket listing may be available from PACER.
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Filing 16
ORDER ADOPTING RECOMMENDED RULING (Doc. #13 ) AND DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Doc. #2 ). Plaintiff has moved for leave to proceed in forma pauperis (Doc. #2 ). Magistrate Judge Garcia has issued a recommended ruling to deny the motion on the ground that requiring the plaintiff to pay the $402 filing fee will not require plaintiff to choose between abandoning a potential meritorious claim or foregoing the necessities of life. Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam). Plaintiff has timely objected to the recommended ruling, stating as follows: Ms. Swindon has been unable to work for many years, and her highly degenerative illness means that she will never be able to return to work. Ms. Swindon's spouse is also disabled as a result of a work-related accident. The family's only savings is from the settlement related to this accident and it is meant for her husbands long term care, which is continuing. Doc. #14 at 1. With respect to plaintiff's claim that she will never be able to return to work, the Court cannot draw this conclusion at this time in light of the Commissioner's determination on administrative review that she is not disabled and entitled to Social Security benefits. The Court makes no assumption at this time concerning plaintiff's future ability to work and instead evaluates the motion for leave to proceed in forma pauperis on the basis of plaintiff's financial affidavit. As the affidavit reflects, plaintiff's household income is more than $50,000 per year, which includes $4,424.45 per month from her spouses disability income. The affidavit notes that plaintiff's spouse occasionally does a small side job for cash but does not report how much income is received from such employment. The affidavit reflects monthly obligations of $4,991 per month, which includes more than $653 per month for payments on two late model automobiles of substantial value. The affidavit also reflects bank savings accounts of $18,000 as well as a checking account in the amount of $2,126. Beyond these bank accounts, the affidavit additionally reflects debt-free ownership of a motorcycle worth $10,000 and stock/security investments of nearly $20,000 ($8,000 in Ameritrade and $11,000 in Bitcoin). It is readily apparent that plaintiff could pay the $402 filing fee without being deprived of lifes necessities by selling the motorcycle, selling investments, or selling one of the household's two automobiles. If neither plaintiff nor her spouse are working, it is not apparent why two automobiles are necessary (in addition to a motorcycle). Although plaintiff's motion for reconsideration claims that the family's only savings is from the settlement related to [her spouse's] accident, plaintiff does not adduce any evidence to support this claim or to explain why the source or reason for these savings is significant to whether plaintiff has an ability to pay. Moreover, it is far from self-evident that savings includes the motorcycle and securities accounts (collectively worth $29,000), much less that these assets are related to the settlement from plaintiff's spouse's accident. Nor does plaintiff adduce any evidence of payments needed for her spouse's future medical care (other than the modest medical co-pays reported in the financial affidavit). Accordingly, the Court ADOPTS the recommended ruling of Judge Garcia and DENIES the motion for leave to proceed in forma pauperis. Plaintiff shall pay the filing fee by September 20, 2023 or the Court shall dismiss this action. It is so ordered. Signed by Judge Jeffrey A. Meyer on 8/21/2023. (Lewis, D)
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Filing 15
ORDER OF TRANSFER. Absent consent to a Magistrate Judge, this case is reassigned to Judge Jeffrey A. Meyer for all further proceedings. Signed by Judge Michael P. Shea on 8/17/2023.(Anastasio, F.)
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| Filing 14 OBJECTION to #13 Recommended Ruling filed by Melissa Lynn Swindon. (Yelner, Olia) |
| Filing 13 RECOMMENDED RULING Denying #2 MOTION for Leave to Proceed in forma pauperis filed by Melissa Lynn Swindon. Objections due by 8/16/2023. Signed by Judge Maria E. Garcia on 8/2/23. (Cabral, Donald) |
| Filing 12 COMPLAINT against Kilolo Kijakazi, Social Security Administration, filed by Melissa Lynn Swindon.(Yelner, Olia) |
| Filing 11 RESPONSE TO by Melissa Lynn Swindon filed by Melissa Lynn Swindon. (Attachments: #1 Appendix Notice of Action)(Yelner, Olia) |
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Filing 10
ORDER TO SHOW CAUSE why Plaintiff's complaint should not be dismissed as untimely. Plaintiff filed a complaint seeking review of a final decision of the Commissioner of Social Security. A plaintiff must file any civil action seeking review of a final decision of the Commissioner within 60 days "after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow." 42 U.S.C. 405(g). A plaintiff is assumed to receive notice five days after the notice date. See 20 C.F.R. 404.1703; 20 C.F.R. 416.1503. In sum, a plaintiff must file an action in District Court within 65 days of the date of the Appeals Council's decision. Plaintiff alleges that the Appeals Council denied his request for review on April 10, 2023. See ECF No. 1, at 2. Any appeal to this Court was required to be filed within 65 days of that date, that is, on or before June 14, 2023. Plaintiff filed the complaint on June 29, 2023, over two weeks late. Accordingly, it appears that Plaintiff's complaint was not timely filed. Additionally, Plaintiffs complaint does not include Plaintiff's Social Security Number, as required by the December 19, 2022 Standing Order for Social Security cases. ("The complaint must state either the Plaintiff's full Social Security Number or the Beneficiary Notice Control Number provided by the Commissioner.") Without Plaintiff's Social Security Number, the Commissioner is unable to prepare the Administrative Record. Therefore, Plaintiff is ORDERED, by July 28, 2023, (1) to show cause why the Court should not dismiss the complaint as untimely and (2) to file an amended complaint or a supplement to the complaint providing Plaintiffs Social Security Number. Plaintiff should attach a copy of the notice she received from the Appeals Council to her response. Failure to respond to this Order may result in dismissal of this action. It is so ordered. Signed by Judge Maria E. Garcia on 7/7/23. (Cabral, Donald)
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Filing 9
REMINDER: Standing ORDER on Social Security Appeals Signed by Judge Michael P. Shea on 7/5/2023. (Attachments: #1 Consent Form)(Anastasio, F.)
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| Filing 8 NOTICE of Appearance by John Molinaro on behalf of Kilolo Kijakazi (Molinaro, John) |
| Filing 7 Notice of New SSA Action: Electronic service of the complaint was made by the Clerk's Office upon the Social Security Office of General Counsel and the US Attorney's Office for the District of Connecticut. (Chartier, AnnMarie) |
| Filing 6 NOTICE to Counsel: Due to privacy restrictions on social security cases, absent both a consent to electronic notice and an approved motion for efiling privileges, counsel must mail paper copies to self-represented litigants. Signed by Clerk on 6/29/2023.(Chartier, AnnMarie) |
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Filing 5
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Michael P. Shea on 6/29/2023.(Chartier, AnnMarie)
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Filing 4
Standing ORDER Re: Social Security Cases. Signed by Judge Michael P. Shea on 6/29/2023.(Chartier, AnnMarie)
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Filing 3
Standing ORDER on Social Security Appeals. Signed by Judge Michael P. Shea on 6/29/2023. (Attachments: #1 Consent Form)(Chartier, AnnMarie)
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| Answer deadline updated for Kilolo Kijakazi to 8/29/2023. (Chartier, AnnMarie) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Melissa Swindon. (Attachments: #1 Affidavit)(Yelner, Olia) |
| Filing 1 COMPLAINT against Kilolo Kijakazi, Social Security Administration, filed by Melissa Swindon.(Yelner, Olia) |
| Judge Michael P. Shea and Judge Maria E. Garcia added. (Freberg, B) |
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