ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT
KAREN L. STROMBOM, Magistrate Judge.
Plaintiff has brought this matter for judicial review of defendant's dismissal of his claim for spousal retirement benefits on behalf of his deceased spouse. This matter is currently before the Court on defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(1). See ECF #6. Pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. After reviewing defendant's motion, plaintiff's response to that motion, defendant's reply thereto and the remaining record, the Court hereby finds that for the reasons set forth below defendant's motion should be granted.
STANDARD OF REVIEW
A motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(1) "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir. 1989); see also Corrie v. Caterpillar, Inc. , 503 F.3d 974, 980 (9th Cir. 2007). The party opposing the motion then must "present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." St. Clair , 880 F.2d at 201. As such, it is not an abuse of the Court's discretion to consider such "extra-pleading material, " even when "necessary to resolve factual disputes." Id . "[A]ll disputed facts, " however, are to be "resolved in favor of the non-moving party." Costco v. United States , 248 F.3d 863, 865-66 (9th Cir. 2001); see also Murphy v. Schneider National, Inc. , 362 F.3d 1133, 1139 (9th Cir. 2004); McNatt v. Apfel , 201 F.3d 1084, 1087 (9th Cir. 2000) (court favorably views facts alleged to support jurisdiction).
FACTUAL AND PROCEDURAL HISTORY
On April 28, 1997, plaintiff's spouse, Karen R. Holcomb, filed a claim for disability insurance benefits. See ECF #6-2, Declaration of Robert Weigel ("Weigel Declaration"), Exhibit 1, p. 4. She began receiving such benefits in July 1997. Weigel Declaration, p. 2. On October 14, 1999, plaintiff filed a claim for retirement benefits. Weigel Declaration, Exhibit 1, p. 4. Although Mrs. Holcomb continued to receive disability insurance benefits until her death on January 18, 2011, she never filed a claim for spousal retirement benefits. Weigel Declaration, p. 2, Exhibit 2, p. 13. It appears plaintiff did not become aware of the potential for Mrs. Holcomb to receive spousal retirement benefits until he reported her death to the Social Security Administration ("SSA") in March 2011. See Weigel Declaration, Exhibit 2, p. 13; ECF #1, Exhibits B-11, B-42.
Plaintiff alleges that shortly after reporting Mrs. Holcomb's death he was informed by an SSA representative that a claim for spousal retirement benefits could have been filed when she turned age 62 on October 20, 2008, but that he could not now apply for them. See ECF #1, Exhibits B-42, B-43. On April 8, 2011, plaintiff filed a request for reconsideration with the SSA appealing the SSA's "determination" that he could not apply for spousal retirement benefits on his wife's behalf. Id., Exhibit B-42, B-43; see also Exhibit B-46; see also Weigel Declaration, p. 3, Exhibit 1, p. 2. In that request for reconsideration, plaintiff also alleged Mrs. Holcomb was never told she could file for those benefits either when she filed for her disability insurance benefits or at any other time. See Exhibits B-42, B-43; see also Weigel Declaration, Exhibit 1, p. 2.
That request for reconsideration was dismissed on April 18, 2011, because there had been "no initial determination made with appeal rights attached." Weigel Declaration, p. 3, Exhibit 1, p. 4. On May 12, 2011, plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ") challenging the dismissal of his request for reconsideration. See ECF #1, Exhibit B-58; Weigel Declaration, Exhibit 1, pp. 8-9. On October 21, 2011, that request was dismissed by an ALJ on the basis that plaintiff lacked any appeal rights, since no initial or reconsideration determination had been made. See Weigel Declaration, Exhibit 2, pp. 13-14. Plaintiff's request for review of the ALJ's dismissal was denied by the Appeals Council on February 7, 2013. See id. at pp. 15-16.
On April 5, 2013, plaintiff filed his complaint in this Court claiming that both the ALJ and the Appeals Council erred in determining that he lacked the right to appeal and thus that he had no right to a hearing. See ECF #1, pp. 4-5. Plaintiff also once more raises the issue of lack of notice of the right to apply for spousal retirement benefits. See id. at p. 5. Although it is not entirely clear from the face of the complaint, it appears plaintiff may be asserting a due process claim with respect to that issue. See id.; see also ECF #16, pp. 3-4. He seeks a reversal of this matter and an award of spousal retirement benefits. See id. at p. 6.
On June 10, 2013, prior to filing an answer and a copy of the administrative record in this case, defendant submitted her motion to dismiss. See ECF #6. Following dismissal of plaintiff's motion to strike and motion for recusal (see ECF #7, #10=#12, #14), plaintiff's matter was re-noted to allow plaintiff additional time to respond thereto (see ECF #13, #15). As plaintiff has filed his response to defendant's motion (see ECF #16) and defendant has filed her reply thereto (see ECF #17), this matter is now ripe for consideration. Defendant argues the Court lacks subject matter jurisdiction because plaintiff failed to exhaust his administrative remedies, and thus there is no final decision subject to judicial review. For the reasons set forth below, the Court agrees it lacks the requisite jurisdiction in this case.
Prior to seeking judicial review in this Court plaintiff must obtain a "final judgment" from the Commissioner of Social Security (the "Commissioner") pursuant to 20 U.S.C. § 405(g). Johnson v. Shalala , 2 F.3d 918, 921 (9th Cir. 1993); see also Heckler v. Ringer , 466 U.S. 602, 617 (1984) ("§ 405(g) is the only avenue for judicial review" of claims for benefits). "A final judgment" in the context of 42 U.S.C. § 405(g) "consists of two elements: the presentment of a claim to the [Commissioner] and the exhaustion of administrative remedies." Johnson , 2 F.3d at 921. "The presentment requirement is jurisdictional, and therefore cannot be waived." Id .; see also Heckler , 466 U.S. at 617 ("§ 405(g) consists of a nonwaivable requirement that a claim for benefits shall have been presented to the [Commissioner]") (quoting Mathews v. Eldridge , 424 U.S. 319, 328 (1976)). It is satisfied when a claim for benefits is made and the Commissioner "determines that the claimant meets the eligibility requirements for those benefits." Briggs v. Sullivan , 886 F.2d 1132, 1139 (9th Cir. 1989).
Accordingly, where the complaint does not contain any allegation that an application for benefits has been filed with the SSA - let alone that eligibility therefor has been determined - the complaint will be deemed "jurisdictionally deficient." Mathews v. Eldridge , 424 U.S. 319, 329 (1976) (concluding complaint was sufficient as it alleged claims for benefits had been "fully presented" to "[the] district Social Security Office and, upon denial, to the Regional Office for reconsideration.") (quoting Weinberger v. Salfi , 422 U.S. 749, 764-65 (1975) (internal quotation marks omitted)). "[T]o become entitled to [spousal retirement] benefits, " furthermore, it is the spouse of the insured person who must apply therefor by signing and filing "an application that [the Commissioner] prescribe[s]." 20 C.F.R. §§ 404.330(b), 404.603, 404.611(a), 404.612(a); see also Driver v. Heckler , 779 F.2d 509, 511 (9th Cir. 1985) ("The filing of an application is a prerequisite to the entitlement to benefits."). In addition, the spouse "must be alive at the time [the] application is filed." 20 C.F.R. § 404.615.
To satisfy the presentment requirement in this case, therefore, plaintiff has to show Mrs. Holcomb herself signed and filed an application for spousal retirement benefits in the manner prescribed by the Commissioner. But as discussed above, Mrs. Holcomb never applied for such benefits prior to her death. Thus, the presentment requirement has not been satisfied. See Crane v. Shalala , 76 F.3d 251, 255 (9th Cir. 1996) (rejecting claim that ALJ erred by failing to consider application for benefits because no showing was made that application was ever filed and record did not ...