United States District Court, E.D. Missouri, Eastern Division
KATHERINE M. FEEMSTER, next friend A.E.J., a minor Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
an action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for judicial review of a finding by Defendant Nancy A.
Berryhill, the Acting Commissioner of Social Security, that
Plaintiff A.E.J., minor son of Katherine M. Feemster,
ceased to be disabled under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381, et seq., as of
July 15, 2015. The parties consented to the jurisdiction of
the undersigned magistrate judge pursuant to 28 U.S.C. §
636(c). (Doc. 14). Defendant has filed a motion to dismiss
this case for lack of subject matter jurisdiction. (Doc. 13).
On October 10, 2017, Plaintiff filed a response. (Doc. 16).
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may be either a “facial”
challenge, which is based on the face of the pleadings, or a
“factual” challenge, in which the court considers
matters outside the pleadings. See Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v.
United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990);
C.S. ex rel. Scott v. Mo. State Bd. of Educ., 656
F.Supp.2d 1007, 1011 (E.D. Mo. 2009). If the movant brings a
factual challenge, “the court may receive competent
evidence such as affidavits, deposition testimony, and the
like in order to determine the factual dispute.”
Titus, 4 F.3d at 593. Plaintiff bears the burden of
establishing the existence of subject matter jurisdiction by
a preponderance of the evidence. See Eckerberg v.
Inter-State Studio & Publishing Co., 860 F.3d 1079,
1084 (8th Cir. 2017); One Point Solutions, LLC v.
Borchert, 486 F.3d 342, 347 (8th Cir. 2007).
Defendant raises a factual challenge to the Court's
subject matter jurisdiction, so the Court must consider the
affidavits and exhibits in the record and determine whether
Plaintiff has shown by a preponderance of the evidence that
October 15, 2009, Plaintiff filed an application for
disability benefits under Title XVI of the Social Security
Act, and Plaintiff was found disabled as of October 1, 2009.
Declaration of Cristina Prelle (“Prelle Decl.”),
Doc. 13-1, at ¶ 3(a) & Ex. 1. On July 23, 2015,
Disability Determination Services found that Plaintiff's
disability ceased as of July 15, 2015. Id. On
December 29, 2015, that determination was affirmed on
reconsideration. Id. at 3(b) & Ex. 2. On January
7, 2016, Plaintiff filed, through his mother, a Request for
Hearing by Administrative Law Judge (ALJ). Id. at
3(c) & Ex. 3. Plaintiff's mother did not appear at
the hearing scheduled for June 7, 2016, but provided good
cause for failure to appear, and the hearing was rescheduled
for November 3, 2016. Id. at 3(c) & Exs. 4-6. On
July 27, 2016, a document titled “Notice of
Hearing” was sent to Plaintiff's mother, notifying
her of the date, time, and location of the November 3, 2016
hearing and stating that it was important that Plaintiff and
his mother attend. Id. at 3(c) & Ex. 6. On
October 20, 2016, a document titled “Notice of
Hearing-Important Reminder” was sent to Plaintiff's
mother, notifying her of the date, time, and location of the
November 3, 2016 hearing and stating that if she did not
appear and did not provide a good reason for not appearing,
the ALJ would dismiss the request for hearing without further
notice. Id. & Ex. 7. On October 24, 2017,
Plaintiff was contacted by phone to remind him of the hearing
date and time. Id. & Ex. 8. Neither Plaintiff
nor his mother appeared at the hearing on November 3, 2016.
Id. at 3(d) & Ex. 9, at 5. On November 16, 2016,
the ALJ issued a Notice of Dismissal and Order of Dismissal.
Id. The ALJ noted in the Order of Dismissal that
neither Plaintiff nor his mother had appeared at the hearing,
that they had not notified the ALJ that they would not appear
and the hearing, that there had been no contact from
Plaintiff or his mother to explain the failure to attend the
hearing, and that the United States Postal Service had not
returned any correspondence mailed to Plaintiff. Ex. 9, at p.
5. Plaintiff requested that the Appeals Council review the
ALJ's order of dismissal, and on March 17, 2017, the
Appeals Council denied the request for review. Id.
at 3(e) & Ex. 10.
17, 2017, Plaintiff filed the instant action seeking judicial
review of the decision of the Commissioner. Plaintiff asserts
that the decision of the Commissioner was not based on
substantial evidence in the record and that the decision
should be reversed, remanded, and modified. On August 14,
2017, Defendant filed the instant motion to dismiss the case
for lack of subject matter jurisdiction, arguing that this
Court does not have jurisdiction to review the decision of
the Commissioner because there was no final decision made
after a hearing in Plaintiff's case. On October 10, 2017,
Plaintiff filed a response, asserting that Plaintiff had not
gotten better and that Plaintiff had been treated like a
number rather than like a human being. Plaintiff attached to
the response exhibits relevant to a review of Plaintiff's
disability claim. Plaintiff did not address the failure to
attend the hearing before the ALJ or the subject matter
jurisdiction arguments raised in Defendant's motion.
U.S.C. § 405(g) sets forth an individual's right to
judicial review of decisions made by the Commissioner of
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy, may obtain
a review of such decision by a civil action commenced within
sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of
Social Security may allow.
42 U.S.C. § 405(g). Section 405(h) further provides:
The findings and decision of the Commissioner of Social
Security after a hearing shall be binding upon all
individuals who were parties to such hearing. No findings of
fact or decision of the Commissioner of Social Security shall
be reviewed by any person, tribunal, or governmental agency
except as herein provided. No action against the United
States, the Commissioner of Social Security, or any officer
or employee thereof shall be brought under section 1331 or
1346 of Title 28 to recover on any claim arising under this
42 U.S.C. § 405(h). As other courts have found, these
provisions establish that Section 405(g) provides the
exclusive basis for judicial review of a decision of the
Commissioner of Social Security. See Kaeding v.
Berryhill, Civ. No. 16-889 (JRT/TNL), 2017 WL 4023101,
at *2 (D. Minn. Sept. 13, 2017); Scott v. ...