Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge Virginia M. Kendall Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 11 C 7975 DATE 12/2/2011

CASE

TITLE

Wanda Butler vs. Social Security Administration

DOCKET ENTRY TEXT

Plaintiff’s motions for leave to proceed in forma pauperis [4] and for appointment of counsel [5] are granted. 

The Court further instructs the Clerk of Court to rename the defendant as Michael J. Astrue, the

Commissioner of the Social Security Administration, who is the only proper defendant in an action pursuant

to 42 U.S.C. § 405(g). 

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

 Plaintiff Wanda Butler (“Butler”) moves to proceed in forma pauperis without the full prepayment of

filing fees and for the appointment of counsel. Pursuant to 28 U.S.C. § 1915(a), the Court may authorize

Butler to proceed in forma pauperis if she is unable to pay the mandated court fees. Butler need not be

penniless to proceed in forma pauperis under § 1915(a)(1). See Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir.

1980). Instead, she is eligible to proceed in forma pauperis if payment of the filing fee will prevent her from

providing for life’s necessities. See id. According to her financial affidavit, Butler is currently unemployed

but was employed September 1988 to March 2005, earning $6.50 per hour. She receives $200 per month

from the Department of Human Services. Butler does not own any real estate, personal property, financial

instruments or savings. Based on these facts, Butler’s financial affidavit sets forth her inability to pay the

mandated court fees. 

 Section 1915 requires the Court to review an action of a plaintiff who seeks to proceed in forma

pauperis and dismiss the action if it is frivolous or malicious, if it fails to state a claim on which relief may be

granted, or if the plaintiff seeks damages from a defendant who is immune from such relief. See 28 U.S.C. §

1915(e)(2)(B)(i)-(iii); see also Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003). 

 An individual may challenge a review by the Appeals Council of the U.S. Social Security

Administration by bringing a civil action in a federal district court with sixty days of the adverse

determination. See 42 U.S.C. § 405(g); accord Sims v. Apfel, 530 U.S. 103, 106–07 (2000). In challenging the

review, a lawsuit will be considered frivolous if the petitioner “can make no rational argument in law or fact

to support [her] claims for relief.” Greathouse v. Comm’r of Soc. Sec., 2000 WL 1847613 (N.D. Ill. Dec. 14,

2000) (citing Jones v. Morris, 777 F.2d 1277, 1279 (7th Cir. 1985)). 

11C7975 Wanda Butler vs. Social Security Administration Page 1 of 2
STATEMENT

 In the present case, Butler was denied social security income on an administrative appeal, which she

now challenges in this Court. Butler received the Final Agency Decision on July 21, 2011, and received on

October 11, 2011, an extension from the Appeals Council to file her civil action by 30 days from the receipt

of the extension letter. (Doc. 1, p. 3). Her Complaint is therefore timely filed with this Court. Butler alleges

that her two physicians both diagnosed her with impairments of the spine and lower extremities, and that it

would not be medically recommended for her to sit, stand or walk continuously in a work setting. It is

unclear whether Butler is stating her own self-assessment, or her physician’s recommendations, when she

states in her Complaint that she “can only perform each activity for 0-1 hours in a normal competitive five

day a week work environment on a sustained basis” and that she should “never perform activities that involve

pulling, kneeling, stooping or lifting or carrying items over 20" pounds. (Doc. 1, ¶8). Butler states that the

Social Security Administration of Illinois failed to provide her with Disability Income despite having been

provided with adequate evidence of disability and her medical records. Consequently, the Court finds that

Butler has adequately stated facts which, if true, plausibly entitle her to relief. See Iqbal, 129 S.Ct. at 1949.

The Court finds that Butler's claim, as alleged, is not frivolous and that he is unable to pay the fees and costs

associated with filing a claim in federal court. 

 Butler has also filed a Motion for Appointment of Counsel. This Court is authorized to "request an

attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). Although this decision is

discretionary, the Seventh Circuit has directed the district court to follow a two-step approach, asking "(1)

has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from

doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it

[her]self?" Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). "The first step in this analysis . . . is a

threshold question the district court must ask before ruling on a § 1915(e)(1) motion." Id. at 655. If the

plaintiff has not made reasonable efforts to obtain counsel on her own, the court must "deny [the motion] out

of hand." Farmer v. Haas, 990 F.2d 319, 321 (7th Cir. 1993) (citing Jackson v. County of McLean, 953 F.2d

1070, 1072-73 (7th Cir. 1992)). Butler states in her motion that she sought representation from Binder &

Binder, and that both Binder & Binder and the Law Offices of Barry Schultz both refused to represent her in

Federal Court. Consequently the Court finds that Butler has made reasonable efforts to obtain counsel on her

own and grants her Motion for Appointment of Counsel. 

 The Court further instructs the Clerk of Court to rename the defendant as Michael J. Astrue, the

Commissioner of the Social Security Administration, who is the only proper defendant in an action pursuant

to 42 U.S.C. § 405(g). 

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