Kerton v. US Social Security Administration, Acting Commissioner

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Emily Kerton
v. 	Case No. 19-cv-1079-SM
Nancy A. Berryhill, Acting
Commissioner of Social Security
REPORT AND RECOMMENDATION
Pro se plaintiff Emily Kerton, appearing in forma pauperis,
brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of the Acting Commissioner’s denial of
her claim for supplemental security income. 	The matter is
before the court for preliminary review. 	See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2). 	For the following reasons, the
court recommends that the action be dismissed for lack of
subject matter jurisdiction.
As delineated in the court’s order dated November 1, 2019
(Doc. No. 3), the complaint fails to satisfy the jurisdictional
prerequisites because: (1) it indicates that the Commissioner’s
decision became final on June 11, 2019, which would render the
action untimely because it was not filed within the 60-day
appeal period, see 42 U.S.C. § 405(g); 20 C.F.R. § 422.210; and
(2) a copy of a Social Security Administration Request for
Hearing attached to the complaint suggests that Kerton may have
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sought administrative review of a denial of benefits on
September 26, 2019, in which case she may not have exhausted her
administrative remedies, see Mathews v. Eldridge, 424 U.S. 319,
327 (1976). 	The court granted Kerton leave to file an amended
complaint on or before December 16, 2019, in order to
demonstrate that she has exhausted her administrative remedies
and that this action is timely. 	See Doc. No. 3. 	Kerton did not
amend her complaint within the given period and thus has failed
to cure these jurisdictional defects. 	Accordingly, the court
recommends that the complaint be dismissed for lack of subject
matter jurisdiction.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________
Andrea K. Johnstone
United States Magistrate Judge
December 17, 2019
cc: 	Emily Kerton, Pro Se
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