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Bemrose v. Colvin

United States District Court, W.D. Washington, Tacoma

June 2, 2014

LARRY N. BEMROSE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS

J. RICHARD CREATURA, Magistrate Judge.

This matter has been referred to Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Magistrates Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261 (1976). This matter is before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction. (ECF No. 10.)

After reviewing defendant's Motion to Dismiss (ECF No. 10), the Declaration of Robert Weigel (ECF No. 10, attachment 1) and plaintiff's Response to Motion to Dismiss (ECF No. 11), the undersigned recommends that the Court grant defendant's motion and dismiss this matter for lack of subject matter jurisdiction.

Section 42 U.S.C. § 405(g) provides the exclusive jurisdictional basis for judicial review in cases arising under the Social Security Act. Judicial review is available only after the Commissioner renders a "final decision" after completion of all of the required steps of the administrative process. See 42 U.S.C. §§ 405(g) and (h); 20 C.F.R. §§ 404.900(a)(4) and (5); see also 20 C.F.R. §§ 404.907, 404.929, 404.967, 404.981. Here, plaintiff's counsel admits that he had not completed the administrative process when he filed the action in this Court and hence concedes that a final decision has not been rendered in this matter ( see ECF No. 11).

Given the facts, procedural history, and plaintiff's concession, the Court recommends that the District Judge immediately approve this Report and Recommendation and order that the case be DISMISSED pursuant to 42 U.S.C. § 405(g).


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