United States District Court, W.D. Michigan, Southern Division
RICHARD R. BLACKSTON , Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
J. BERENS U.S. MAGISTRATE JUDGE
Richard Blackstone, filed a pro se complaint seeking judicial
review of a final decision of the Commissioner of Social
Security. The three-paragraph form complaint does not specify
the type of benefits Plaintiff seeks, but the last paragraph
states that “[t]he plaintiff has exhausted his
administrative remedies in this matter and this court has
jurisdiction for judicial review pursuant to 42 U.S.C. §
405(g).” (ECF No. 1 at PageID.2.)
moves to dismiss Plaintiff's complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of
jurisdiction, arguing that Plaintiff failed to exhaust his
administrative remedies prior to filing the instant action.
(ECF No. 8.) Plaintiff has filed a response. (ECF No. 12.)
reasons that follow, the Court will grant Defendant's
it is far from clear, Plaintiff's complaint and his
response to Defendant's motion suggest that Plaintiff
seeks survivor's benefits on the record of his father,
Billie Blackstone. (ECF No. 1 at PageID.1; ECF No.12 at
to Defendant's evidence, on June 9, 2010, Administrative
Law Judge Scott M. Staller issued a decision finding that
Plaintiff had been disabled beginning March 31, 2006. (ECF
No. 8-1.) Accordingly, Plaintiff was awarded Supplemental
Security Income. Pursuant to 20 C.F.R. §§ 404.1594
and 416.994, the Social Security Administration (SSA)
conducted a continuing disability review in 2016 and
determined that Plaintiff's disability was continuing.
(ECF No. 8-2 at PageID.102; ECF No. 8-3 at PageID.110.) On
December 19, 2018, the SSA sent Plaintiff notice that it
would not be reviewing his case at that time. (ECF No. 1-1 at
PageID.47.) On March 2, 2019, the SSA notified Plaintiff of
the termination of his “Extra Help with Medicare
Prescription Drug Plan Costs.” (ECF No. 8-4 at
PageID.117.) The notice contained instructions for appealing
the decision if Plaintiff disagreed with it. (Id. at
connection with this case, Plaintiff has submitted an
affidavit from his father, Billie Blackston. (ECF No. 5.) SSA
records reflect that Billie Blackstone is not deceased. (ECF
No. 8-5.) For purposes of Plaintiff's apparent claim of
survivor's benefits, the SSA has not received information
that Billie Blackston is deceased.
motion under Rule 12(b)(1) for lack of jurisdiction may be
brought either as a facial attack or a factual attack.
Gentek Bldg. Prods. v. Steel Peel Litig. Trust, 491
F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat'l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.
A facial attack on the subject-matter jurisdiction alleged in
the complaint questions merely the sufficiency of the
pleading. When reviewing a facial attack, a district court
takes the allegations of the complaint as true. If those
allegations establish federal claims, jurisdiction exists.
Id. (citations omitted). On the other hand, when a
motion presents matters outside the pleadings in an attack on
jurisdiction, the district court may make factual findings to
resolve the dispute. Lovely v. United States, 570
F.3d 778, 781-82 (6th Cir. 2009); see also Golden v.
Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2007)
(“When a Rule 12(b)(1) motion attacks the factual basis
for jurisdiction, the district court must weigh the evidence
and the plaintiff has the burden of proving that the court
has jurisdiction over the subject matter.”). Because
Defendant's motion presents matters outside the record,
the motion presents a factual attack.
appeals of Social Security decisions are authorized by 42
U.S.C. § ...