Summary
affirming judgment dismissing complaint seeking review of SSA determination, as appeal was still pending before Appeals Council
Summary of this case from ROSA v. SECRETARY OF D. OF HEALTH HUMAN SERVICES OF U.S.Opinion
No. 05-36066.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 27, 2007.
David B. Lowry, Esq., Law Offices of David B. Lowry, Portland, OR, for Plaintiff-Appellant.
Neil J. Evans, Esq., Craig J. Casey, Esq., Office of the U.S. Attorney, Portland, OR, Lucille G. Meis, Esq., Franco Becia, Esq., Social Security Administration, Office of the General Counsel, Seattle, WA, for Defendant-Appellee.
Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-05-00410-MFM.
Before: GRABER, CLIFTON, and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
John Widman appeals from the district court's judgment dismissing for lack of subject matter jurisdiction his action seeking judicial review of an administrative law judge's ("ALJ") determination that Widman is not entitled to disability insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000), and we affirm.
The district court properly dismissed Widman's action for failure to exhaust administrative remedies because his appeal of the ALJ's decision was still pending before the Appeals Council. See 42 U.S.C. § 405(g) (requiring appellant to obtain a final decision by the Commissioner before filing a federal action); Bass v. Social Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (holding that there is no final decision until the Appeals Council either grants or denies review). Consequently, there was no final decision of the Commissioner subject to judicial review.
Contrary to Widman's contention, the ALJ's decision did not become the final agency decision when the Appeals Council did not respond to his request for review within sixty days. See 20 C.F.R. § 404.984(a) (b) (providing the Appeals Council with more than sixty days to assume jurisdiction over the decision of an ALJ upon the party's filing of a request for review).
AFFIRMED.