UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jason McDermott

v. Civil No. 08-cv-255-PB

Michael J. Astrue, Commissioner,

Social Security Administration

O R D E R

Jason McDermott has filed a complaint, pursuant to 42 U.S.C.

§ 405(g), seeking judicial review of the Commissioner’s decision

denying his application for Supplemental Security Income Benefits

(“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq.

(document no. 1). Construed liberally, the complaint alleges

that the factual findings of the Commissioner and the

Administrative Law Judge (“ALJ”) are not supported by substantial

evidence. 

Because McDermott is proceeding pro se and in forma

pauperis, the complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief might be granted. See 28 U.S.C. § 1915A; United

States District Court for the District of New Hampshire Local

Rule (“LR”) 4.3(d)(2). For the reasons stated below, I order the

complaint served on the defendant. 

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Factual Background

McDermott allegedly was convicted in November 2004. The

record is silent as to the nature of his conviction and the

precise dates of his incarceration. At the time this action was

filed, McDermott was an inmate at the Cumberland Federal

Correctional Institution in Cumberland, Maryland. He is

currently confined at CCM, Philadelphia, Pennsylvania. 

This action stems from McDermott’s application for SSI

benefits filed in early 2004, prior to his incarceration. He

alleged complaints of psychological disability, including

depression, bipolar disorder and attention deficit disorder, all

of which interfered with his activities of daily living and his

ability to maintain gainful employment. In addition, he alleged

complaints of physical disability, including a degenerative disk

disorder in the C-5 and C-6 areas of this spine that limited the

movement in his neck and prevented him from maintaining gainful

employment.

McDermott allegedly filed an application for SSI benefits in

Manchester, New Hampshire, which was denied at the initial level

of review. Subsequently, he sought de novo review before an

Administrative Law Judge (“ALJ”). The record is silent as to the

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issues presented to the ALJ, and McDermott has not provided this

court with a copy of the ALJ’s decision or any other portion of

the administrative record. It appears that McDermott sought

review of the ALJ’s decision before the Appeals Council. The

Appeals Council allegedly denied his request on March 27, 2008,

thereby rendering the ALJ’s decision a final decision of the

Commissioner subject to judicial review. The Appeals Council

allegedly informed McDermott of his right to commence a civil

action in federal court by May 26, 2008. McDermott filed the

instant federal complaint on June 26, 2008, alleging that the

ALJ’s decision is unsupported by substantial evidence and seeking

a judicial determination that he is disabled within the meaning

of the Act.

Standard of Review

Under this court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the court

liberally construes pro se pleadings, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). See also

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims). “The policy behind affording pro se plaintiffs liberal

interpretation is that if they present sufficient facts, the

court may intuit the correct cause of action, even if it was

imperfectly pled.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996)(stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration.

Discussion

Review of the Commissioner’s final decision is available

under 42 U.S.C. § 405(g), which provides:

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Any individual, after any final decision of the 

Commissioner of Social Security made after a 

hearing to which he was a party, irrespective of 

the amount in controversy, 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. 

Here, McDermott has complied with the requirements of the

statute that direct him to obtain a final decision from the

Commissioner of the Social Security Administration. Without

making a determination as to the timeliness of his complaint or

whether circumstances exist to warrant equitable tolling of the

sixty-day limitations period, see Bowen v. City of New York, 476

U.S. 467, 480 (1986) (holding that equitable tolling is

applicable to the sixty-day statute of limitations period

provided in Section 405(g)), I find that this matter is properly

before this court for purposes of preliminary review.

Conclusion

For the reasons stated above, I order the complaint to be

served upon the defendant. The Clerk’s office is directed to

issue the necessary summons form and forward to (I) the United

States Attorney for the District of New Hampshire, (ii) the

Attorney General of the United States, and (iii) the Social

Security Administration, by certified mail, return receipt

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requested, the summonses, copies of the complaint (document no.

1) and this order. See Fed. R. Civ. P. 4(c)(1) and 4(i)(1) and

(2). 

Defendant is instructed to answer or otherwise plead within

sixty days of service. See Fed. R. Civ. P. 12(a)(2). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendant by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 12, 2009

cc: Jason McDermott, pro se

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