PROPOSED FINDINGS AND RECOMMENDATION

PATRICIA S. HARRIS, Magistrate Judge.

INSTRUCTIONS

The following recommended disposition has been sent to United States District Court Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court Clerk within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

DISPOSITION

Danyeill Y. Donahue-Jiles, o/b/o Darius F. Donahue ("Donahue"), filed this lawsuit in November 2016 seeking social security disability benefits. Nancy A. Berryhill ("Berryhill") filed a motion to dismiss the complaint, alleging the complaint is premature because Donahue has not yet received a response from the Appeals Council following a September 2016 unfavorable decision by an Administrative Law Judge. Berryhill alleges Donahue must first receive a ruling from the Appeals Council prior to filing a federal lawsuit. According to Berryhill, this Court is without jurisdiction absent a final decision from the Appeals Council.

By Court Order dated March 27, 2017, the Court notified Donahue of his opportunity to respond to Berryhill's motion to dismiss. In addition, Berryhill was directed to indicate to the Court why this motion, if granted, should be with prejudice, rather than without prejudice. Docket entry no. 13. Both parties have responded.

The complaint recites, "I appealed the last decision but wasn't informed of any decisions . . . " Docket entry no. 2, page 7. This statement is consistent with Berryhill's motion to dismiss, and the declaration and documents attached to the motion.

There is no dispute over the dates in question. After benefits were ceased in 2014, Donahue filed a request for reconsideration on July 21, 2014. On November 25, 2014 the Social Security Administration denied the motion for reconsideration. On December 2, 2014, Donahue requested a hearing before an Administrative Law Judge ("ALJ"). This request was granted, and a hearing was conducted on June 14, 2016. Subsequently, on September 23, 2016, the ALJ issued an unfavorable decision. Donahue filed a request for review of the ALJ's decision on October 13, 2016. The Appeals Council has not ruled on this request.

The Social Security Act provides for review in federal court of any "final decision" of the Commissioner of Social Security. 42 U.S.C. § 405(g). Under Social Security regulations, a "final decision" requires a ruling from the Appeals Council, and a claimant may not obtain judicial review unless the claimant exhausts the administrative remedies and obtains a final decision. See Sims v. Apfel, 530 U.S. 103 (2000); 20 C.F.R. § 404.900. Here, Donahue seeks judicial review prior to obtaining a ruling from the Appeals Council. Berryhill is correct that this request for judicial review is premature and this Court is without jurisdiction to consider the case absent a final decision from the Commissioner.

As a result, we recommend the motion to dismiss (docket entry no. 9) be granted. It must be stressed that this dismissal is without prejudice to Donahue obtaining judicial review after receiving a final decision.1

IT IS SO ORDERED.