You're viewing Docket Item 4 from the case Weare v. Colvin. View the full docket and case details.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

Plaintiff-Claimant,



TONIA WEARE,
(also known as TONIA
JONES),





CAROLYN W. COLVIN,
Acting Commissioner of Social Security,




Defendant-Respondent.

v. Case No. 13-C-1401



DECISION AND ORDER



Pro se Plaintiff-Claimant Tonia Weare (“Weare”), also known as Tonia Jones,





seeks leave to proceed in forma pauperis on her appeal from the denial of her claim

for supplemental security income and social security disability insurance benefits. In

order to authorize a litigant to proceed in forma pauperis, the Court must make two

determinations: First, whether the litigant is unable to pay the costs of commencing

the action and, second, whether the action is frivolous or malicious. 28 U.S.C. §§

1915(a) and (e)(2)(B)(i).



By her petition and affidavit to proceed in forma pauperis, Weare avers that

she is unemployed, single, and has no legal dependents. She has no tangible or

intangible assets. She is homeless and finds shelter at parks or living from house to

house. Her sole expense is $200 per month for food. Weare easily satisfies the

Case 2:13-cv-01041-RTR Filed 09/19/13 Page 1 of 3 Document 4













requirements of 28 U.S.C. § 1915(a) and is unable to pay the $350 filing fee for this

action.



Weare must next demonstrate that her action has merit as required by 28

U.S.C. § 1915(e)(2)(B)(i). An action is frivolous if there is no arguable basis for

relief either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting

Neitzke v. Williams, 490 U.S. 319, 325 (1989)); Casteel v. Pieschek, 3 F.3d 1050,

1056 (7th Cir. 1993).

Under 42 U.S.C. § 405(g), a plaintiff may obtain review of the Social Security

Commissioner’s decision. An ALJ’s decision must be affirmed if the findings are

supported by substantial evidence and if there have been no errors of law. Roddy v.

Astrue, 705 F.3d 631, 636 (7th Cir. 2013). A plaintiff can request that the Court

remand the case to the Social Security Administration upon a showing that the

evidence was new and material and that there was good cause for the failure to

incorporate the evidence earlier. 42 U.S.C. § 405(g).



According to Weare’s Complaint, she is disabled and the conclusions and

findings of fact of the Commissioner are not supported by substantial evidence and are

contrary to the law and regulations. Also, any new evidence submitted to the Appeals

Council and/or this Court is new, material and good cause exists for not submitting the

evidence earlier and the Appeals Council should reopen the claim in the light of the

new evidence, and/or the Appeals Council’s refusal to consider the new evidence was

based on a mistake of law. While Weare’s Complaint is a stock Complaint and does

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not reflect her particular situation, at this preliminary stage of the proceedings, the

Court concludes that there may be a basis in law or in fact for Weare’s appeal of the

Commissioner’s decision and the appeal may have merit, as defined by 28 U.S.C. §

1915(e)(2)(B)(i). Therefore, the Court grants Weare’s request to proceed in forma

pauperis.



NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY

ORDERED THAT:



Weare’s petition for leave to proceed in forma pauperis (ECF No. 3) is

GRANTED.

Dated at Milwaukee, Wisconsin, this 19th day of September, 2013.














































BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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