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Ackerman v. Berryhill

United States District Court, W.D. Kentucky, Louisville

March 22, 2018

DARLENE ACKERMAN o/b/o THE ESTATE OF HEATHER ACKERMAN PLAINTIFF
v.
NANCY A . BERRYHILL, ACTING COMMISSIONER SOCIAL SECURITY ADMINISTRATION DEFENDANT

          MEMORANDUM OPINION

          DAVE WHALIN, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         This matter comes before the Court on the motion of the Defendant, Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (Commissioner). The Commissioner requests pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure that the Court dismiss the complaint filed on the half of the Plaintiff Estate of Heather Ackerman (Estate) by her mother, Linda Darlene Ackerman, for lack of subject matter jurisdiction and for failure to identify a final decision of the Commissioner that is subject to judicial review. The Estate has responded to the motion to dismiss arguing that Ava Ackerman, the daughter of the late claimant, is entitled to her mother's unpaid SSI benefits, which were wrongly denied her due to the errant hearing decision of the ALJ (DN 12). The Commissioner has filed a reply in which she points out that Ava would only have been entitled to her mother's unpaid social security benefits if her mother had successfully applied for DIB not SSI. (DN 13). Because her mother Heather only applied for SSI benefits, the language of 42 U.S.C. 1383(b)(1)(A) and 20 C.F.R. 416.542(b)(4) absolutely preclude her estate from receiving unpaid SSI benefits.

         We agree. Because the Estate lacks standing under 20 C.F.R. § 416.542(b), due to its ineligibility to receive any potential SSI benefits due the decedent, the Court shall recommend that the motion to dismiss for lack of subject matter jurisdiction be granted and that the complaint be dismissed with prejudice.

         I. The Material Facts

         Heather Ackerman on June 21, 2013 filed an application for supplemental security income (SSI). At the time of her application, Ackerman, who was born on September 9, 1974 was a 38-year-old, never married female.[1] Unfortunately, Ackerman suffered a cerebrovascular incident and died on October 24, 2015 soon after ALJ Michael J. Nichols conducted the administrative hearing on her claim in late September 2015 .[2] Two months later, on November 25, 2015 ALJ Nichols rendered an adverse hearing decision that denied Ackerman's SSI claim.[3]

         Heather's mother, Linda D. Ackerman, through her late daughter's counsel, Brian Canupp, filed a request for review of the hearing decision on January 26, 2016.[4] The Appeals Council sent a letter to attorney Canupp on February 25, 2016 requesting proof of the claimant's death, as well as, information as to whether a qualified individual under 20 C.F.R. § 416.1471(b) wished to continue the action.[5] Attached to the letter was the form entitled “Request For Designation As A Qualified Individual In A Proceeding Pending Before The Appeals Council.”

         On March 14, 2016, attorney Canupp transmitted to the Appeals Council a copy of the verified Kentucky Certificate of Death for Heather Ackerman along with a partially completed Request for Designation form in which Linda Ackerman asked to be designated as a substitute party in the claim of her deceased daughter.[6] Ackerman, however, did not complete that portion of the form that requested she indicate by checkmark which category of “qualifying individual” she satisfied. Further, the fax cover sheet sent from the law office of Canupp further provided that “Mrs. Linda Ackerman is the mother of the deceased. She is taking care of the deceased minor child and one that is 18 years old.”[7]

         On April 29, 2016 the Appeals Council entered an order that dismissed Ackerman's request for review.[8] The Appeals Council in its order explained that:

On February 25, 2016, the Appeals Council [sent] notices to the representative and to the claimant's next of kin inquiring whether there was a survivor or other qualified person adversely affected who wishes to proceed with the request for review. The Appeals Council did not receive a response.

(DN 8, Exhibit 7, Order at p. 1). Accordingly, the SSA dismissed the request for review pursuant to 20 C.F.R. § 416.1471(b).

         Attorney Canupp responded by letter to the Council on August 8, 2017 advising it that his office had sent the claimant's death certificate and her mother Linda Ackerman's request for designation, on February 2, 2016 and again on March 14, 2016.[9] The Appeals Council in response notified attorney Canupp on September 9, 2017 that it would extend the time in which to file a civil action for 30 days from the date of receipt of the September 9 letter.[10] On October 13, 2017, Linda “Darlene” Ackerman on behalf of the estate of her deceased daughter, Heather, the present action seeking review of the Appeals Council Order of Dismissal dated April 29, 2016.[11]

         II. Standing

         Because the Commissioner has moved to dismiss the present action pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on the absence of standing, the Plaintiff, as the party in opposition, “has the burden of proving subject matter jurisdiction.” Brott v. United States, 858 F.3d 425, 428 (6th Cir. 2017). See also, Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)(same); Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)(same). Until the question of subject matter jurisdiction is resolved, the District Court will not proceed to the merits. Tenet v. Doe, 544 U.S. 1, 6 n. 4 (2005).

         Challenges to subject matter jurisdiction under Rule 12(b)(1) “come in two varieties: a facial attack or a factual attack.” Wayside Church v. Van Buren County, 847 F.3d 812, 816 (6thCir. 2017) (quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6 Cir. 2012)). A facial attack on subject matter jurisdiction is one that “questions merely the sufficiency of the pleading.” Wayside Church, 847 F.3d at 817(citing Gentek Bldg. Prods, Inc. v. Sherman-Williams Co., 491 F.3d 320, 330 (6 Cir 2007)). In such situation, the District Court will take the allegations of the complaint as being true similar to a Rule 12(b)(6) motion to dismiss. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).

         A factual attack on the other hand raises a factual controversy that requires the District Court to “weigh the conflicting evidence to arrive at the factual predicate that subject matter [jurisdiction] does or does not exist.” Wayside Church, 847 F.3d at 817 (citing Gentek Bldg Prods. 491 F.3d at 330). When the question of subject matter jurisdiction is resolved based upon findings of fact by the District Court, ...


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