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Feemster v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

October 12, 2017

KATHERINE M. FEEMSTER, next friend A.E.J., a minor Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.

         This is 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, [1] 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).

         I. Legal Standard

         A 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).

         Here, 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 jurisdiction exists.

         II. Background

         On 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.[2] 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.

         On May 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.

         III. Discussion

         42 U.S.C. § 405(g) sets forth an individual's right to judicial review of decisions made by the Commissioner of Social Security:

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).[3] 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 subchapter.

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. ...


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