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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THEODORE LEE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-03976-SI
ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS

v.
NANCY A. BERRYHILL,

Re: Dkt. No. 18

Defendant.

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On July 14, 2017, plaintiff Theodore Lee filed this pro se action seeking judicial review of

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the Social Security Administration’s decision. Dkt. No. 1. Because the complaint did not appear

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to state a claim, the Court ordered that plaintiff file a new complaint, which he did on July 25,

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2017. Dkt. Nos. 5, 7.

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Defendant then moved to dismiss this case for lack of jurisdiction because plaintiff has not

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yet exhausted his administrative remedies under the Social Security Act. Dkt. No. 18. In support

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of the motion, defendant has submitted the declaration of Nancy Chung. The declaration states

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that plaintiff applied for Supplemental Security Income (SSI) on March 31, 2016, that the claim

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was denied initially and on reconsideration, and that plaintiff then requested a hearing before an

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Administrative Law Judge, and that the request for a hearing is still pending. Chung Decl. ¶ 3.

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Plaintiff missed his first deadline (October 2, 2017) to oppose defendant’s motion, and the

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Court then issued an order extending plaintiff’s deadline to November 6, 2017. Dkt. No. 20.

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Plaintiff has not filed an opposition to defendant’s motion.

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Under 42 U.S.C. § 405(g), the Court only has jurisdiction to review “final” decisions of the

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Social Security Administration. Here, because plaintiff is still awaiting a hearing before an

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Administrative Law Judge, there is not a final decision for this Court to review. See 42 U.S.C.

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§ 405(g) (providing for judicial review of “final decision” of Commissioner of Social Security);

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Califano v. Sanders, 430 U.S. 99, 108 (1977) (explaining that judicial review of social security

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benefits claims is limited to the Secretary’s final decision made after a hearing).

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Accordingly, the Court GRANTS defendant’s motion and DISMISSES THIS ACTION

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WITHOUT PREJUDICE. If plaintiff receives a final decision on his appeal that is unfavorable,

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plaintiff may file a new action seeking review of that final decision.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: November 13, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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