Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Andino v. Commissioner of Social Security Administration

United States District Court, D. Arizona

October 19, 2018

Lori Andino, Plaintiff,
Commissioner of Social Security Administration, Defendant.



         Pending 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).

         As a 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.[1] 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.

         Rule 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.

         In 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. 1990).

         Here, 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.

         The 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).

         In the 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 the merits.

         I. BACKGROUND

         The 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 analysis below.


         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. 1990)).

         “The 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.”).

         The ALJ 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.