Lee v. Berryhill

Filing 21

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 18 . (Illston, Susan) (Filed on 11/13/2017) (Additional attachment(s) added on 11/13/2017: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THEODORE LEE, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-03976-SI ORDER GRANTING DEFENDANT'S MOTION TO DISMISS v. NANCY A. BERRYHILL, Re: Dkt. No. 18 Defendant. 12 13 On July 14, 2017, plaintiff Theodore Lee filed this pro se action seeking judicial review of 14 the Social Security Administration’s decision. Dkt. No. 1. Because the complaint did not appear 15 to state a claim, the Court ordered that plaintiff file a new complaint, which he did on July 25, 16 2017. Dkt. Nos. 5, 7. 17 Defendant then moved to dismiss this case for lack of jurisdiction because plaintiff has not 18 yet exhausted his administrative remedies under the Social Security Act. Dkt. No. 18. In support 19 of the motion, defendant has submitted the declaration of Nancy Chung. The declaration states 20 that plaintiff applied for Supplemental Security Income (SSI) on March 31, 2016, that the claim 21 was denied initially and on reconsideration, and that plaintiff then requested a hearing before an 22 Administrative Law Judge, and that the request for a hearing is still pending. Chung Decl. ¶ 3. 23 Plaintiff missed his first deadline (October 2, 2017) to oppose defendant’s motion, and the 24 Court then issued an order extending plaintiff’s deadline to November 6, 2017. Dkt. No. 20. 25 Plaintiff has not filed an opposition to defendant’s motion. 26 Under 42 U.S.C. § 405(g), the Court only has jurisdiction to review “final” decisions of the 27 Social Security Administration. Here, because plaintiff is still awaiting a hearing before an 28 Administrative Law Judge, there is not a final decision for this Court to review. See 42 U.S.C. 1 § 405(g) (providing for judicial review of “final decision” of Commissioner of Social Security); 2 Califano v. Sanders, 430 U.S. 99, 108 (1977) (explaining that judicial review of social security 3 benefits claims is limited to the Secretary’s final decision made after a hearing). 4 Accordingly, the Court GRANTS defendant’s motion and DISMISSES THIS ACTION 5 WITHOUT PREJUDICE. If plaintiff receives a final decision on his appeal that is unfavorable, 6 plaintiff may file a new action seeking review of that final decision. 7 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: November 13, 2017 ______________________________________ SUSAN ILLSTON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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