United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Lori Andino's
(“Plaintiff”) appeal from the Social Security
Commissioner's (the “Commissioner”) denial of
her application for a period of disability and Supplemental
Security Income (“SSI”) under the Social Security
Act. (Doc. 1 at 2).
preliminary matter, the Court notes that Plaintiff filed this
action pro se. (See Doc. 1). However, in
addition to filing motions for extension of time and
appointment of counsel on Plaintiff's behalf, (Doc. 18),
Plaintiff's mother, Joann Andino, filed Plaintiff's
Opening Brief, (Doc. 20). There is no indication that Joann
Andino is admitted to the State Bar of Arizona nor admitted
to practice before the United States District Court for the
District of Arizona. As Joann Andino is not an attorney, she
cannot represent Plaintiff's interests in this
litigation. See Pope Equity Trust v. U.S., 818 F.2d
696, 697-98 (9th Cir. 1987) (“Although a non-attorney
may appear in propria persona in his own behalf, . .
. he has no authority to appear as an attorney for others
than himself.”) (citations omitted). This is true even
though Joann Andino has received a power of attorney over
Plaintiff's affairs. See Johns v. Cty. of San
Diego, 114 F.3d 874, 876 (9th Cir. 1997); Ryan v.
Hyden, No. 12-CV-1489-MMA-BLM, 2012 WL 4793116, at *4
(S.D. Cal. Oct. 9, 2012), aff'd, 582 Fed.Appx.
699 (9th Cir. 2014). Accordingly, the Court may dismiss this
action for failure to prosecute pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
41(b) provides that “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it.” Although the language of Rule 41(b) appears to
require a motion to dismiss from the defendant, the Supreme
Court recognized in Link v. Wabash Railroad Co. that
a federal district court has the inherent power to dismiss a
case sua sponte for failure to prosecute. Link
v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962).
Moreover, in appropriate circumstances, the Court may dismiss
an action for failure to prosecute even without notice or
hearing. Id. at 633.
determining whether Plaintiff's failure to prosecute
warrants dismissal of her case, the Court must weigh the
following five factors: “(1) the public's interest
in expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986) (citation omitted).
“The first two of these factors favor the imposition of
sanctions in most cases, while the fourth cuts against a
default or dismissal sanction. Thus the key factors are
prejudice and availability of lesser sanctions.”
Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir.
the first, second, and third factors favor dismissal of the
case. In addition to neglecting to file an Opening Brief
herself, Plaintiff has repeatedly failed to actively
participate in this action, as demonstrated from her failure
to return the service packets per the Court's Order of
August 23, 2017, (Doc. 6), her failure to file her Opening
Brief by March 9, 2018 pursuant to the Court's Order of
August 17, 2017, (Doc. 15), and her failure to appear at the
Show Cause hearing held on April 5, 2018, (Doc. 17). The
fourth factor, as always, weighs against dismissal.
fifth factor requires the Court to consider whether a less
drastic alternative is available. Rule 41(b) provides that a
dismissal for failure to prosecute operates as an
adjudication on the merits “unless the dismissal order
states otherwise.” In the instant case, a dismissal
without prejudice will essentially operate the same as a
dismissal with prejudice because Plaintiff's sixty day
window from the date of the Commissioner's final decision
within which she must appeal has now closed. See 42
U.S.C. § 405(g) (“Any individual, after any final
decision of the Commissioner of Social Security made after a
hearing to which he was a party . . . may obtain a review of
such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within
such further time as the Commissioner of Social Security may
allow.”). Nonetheless, as a less drastic option the
Court will consider, in the alternative, Plaintiff's
Opening Brief on the merits, despite the fact that it was
prepared and filed by Joann Andino. Accordingly, the Court
dismisses this case with prejudice for failure to prosecute
pursuant to Rule 41(b).
alternative, it is possible that Plaintiff's mother,
Joann Andino, is Plaintiff's guardian ad litem
or other duly appointed representative with the authority to
file Plaintiff's Opening Brief on Plaintiff's behalf.
While the Court is unaware of any such arrangement, the Court
now rules, in the alternative, on Plaintiff's appeal on
parties are familiar with the background information in this
case, and it is summarized in the ALJ's decision.
(See Doc. 14-3 at 26-37). Accordingly, the Court
will reference the background only as necessary to the
ALJ's decision to deny disability benefits may be
overturned “only when the ALJ's findings are based
on legal error or not supported by substantial evidence in
the record.” Benton ex rel. Benton v.
Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003).
“‘Substantial evidence' means more than a
mere scintilla, but less than a preponderance, i.e., such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing
Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.
inquiry here is whether the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the
conclusions reached by the ALJ.” Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation
omitted). “Where evidence is susceptible of more than
one rational interpretation, it is the ALJ's conclusion
which must be upheld; and in reaching his findings, the ALJ
is entitled to draw inferences logically flowing from the
evidence.” Gallant, 753 F.2d at 1453
(citations omitted); see Batson v. Comm'r of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This
is because “[t]he trier of fact and not the reviewing
court must resolve conflicts in the evidence, and if the
evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.”
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992); see Benton, 331 F.3d at 1035 (“If the
evidence can support either outcome, the Commissioner's
decision must be upheld.”).
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities. See
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Thus, if on the whole record before the Court, substantial
evidence supports the ALJ's decision, the Court must
affirm it. See Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989); see also 42 U.S.C. § 405(g).
On the other hand, the Court “may not affirm simply by