Ousnamer v. Social Security, Commissioner of

Filing 15

OPINION AND ORDER ON DEFENDANT'S MOTION TO DISMISS (ECF No. 11 ). Signed by Magistrate Judge Curtis Ivy, Jr. (SKra)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEITH E. OUSNAMER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________________/

Case No. 24-11157
Curtis Ivy, Jr.
United States Magistrate Judge

OPINION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
(ECF No. 11)
I.

BACKGROUND
During April 2020, Plaintiff Keith Ousnamer was awarded disability

benefits beginning January 1, 2017. He filed this lawsuit on May 1, 2024, seeking
back payment of disability benefits beginning from May 1971 when he lost his left
arm in a farming accident. (ECF No. 1). The Commissioner of Social Security
moved to dismiss this lawsuit for failure to state a claim. (ECF No. 11). The
Commissioner argues that the complaint was not timely filed after the relevant
final decision of the Social Security Administration. For the reasons below, the
Court GRANTS the Commissioner’s motion.
II.

DISCUSSION
A.

Governing Standards

When deciding a motion to dismiss under Rule 12(b)(6), the Court must
“construe the complaint in the light most favorable to plaintiff and accept all
allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim
need not contain “detailed factual allegations,” but it must contain more than
“labels and conclusions” or “a formulaic recitation of the elements of a cause of
action”). Facial plausibility is established “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an
inference depends on a host of considerations, including common sense and the
strength of competing explanations for the defendant’s conduct.” 16630 Southfield
Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).
The Court holds pro se complaints to “less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Yet
even in pleadings drafted by pro se parties, “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77
(6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

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“[C]ourts may not rewrite a complaint to include claims that were never presented .
. . nor may courts construct the Plaintiff’s legal arguments for him. Neither may
the Court ‘conjure up unpled allegations[.]’” Rogers v. Detroit Police Dept., 595
F. Supp. 2d 757, 766 (E.D. Mich. 2009); see also, Evans v. Mercedes Benz Fin.
Servs., LLC, No. 11-11450, 2011 WL 2936198, at *2 (E.D. Mich. July 21, 2011)
(Cohn, J.) (“Even excusing plaintiff’s failure to follow Rules 8(a)(2) and 10(b), a
pro se plaintiff must comply with basic pleading requirements, including Rule
12(b)(6).”).
The Commissioner attached documents filed by Plaintiff to the Social
Security Administration or sent from the Administration to Plaintiff that Plaintiff
did not attach to his complaint. Generally, a court cannot consider matters outside
the complaint when ruling on a motion to dismiss under Rule 12(b)(6). Clark v.
Walt Disney Co., 642 F. Supp. 2d 775, 781 (S.D. Ohio 2009). That said, the court
may consider material attached to the complaint, “incorporated into the complaint
by reference,” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007),
and documents that a defendant attaches to a motion to dismiss if the documents
are referred to in the complaint and are central to the plaintiff’s claims. Weiner v.
Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997). And the court may consider
public records and matters of which a court may take judicial notice. See Jackson

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v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other
grounds, Swierkiewicz v. Sorema, 534 U.S. 506 (2002).
The Court can take judicial notice of the documents that Plaintiff filed with
and mailed to Plaintiff from the Administration that are attached to the
Commissioner’s motion without converting the motion to one for summary
judgment. Fed. R. Evid. 201(b) governs judicial notice. Pursuant to that Rule,
courts may judicially notice a “fact that is not subject to reasonable dispute”
because it is either “generally known” within the court’s territorial jurisdiction, or
because it “can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b). Facts contained in
documents held and created by the Social Security Administration can be
accurately and readily determined, and their source’s accuracy cannot reasonably
be questioned.
B.

Analysis

Plaintiff has filed three applications for disability benefits. He filed his first
application in 2007. The application was denied. That decision became final in
2010. (ECF No. 11-7). His second application was filed in 2015. It was denied
during July 2015. That decision became final during February 2017 when the
Appeals Council denied Plaintiff’s request for review. (ECF No. 11-12).

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Plaintiff filed his third application in December 2016, alleging disability
beginning on November 15, 2016. (ECF No. 11-13, PageID.171). This
application was granted in part at the initial level—he was found disabled as of
January 1, 2017. The award notice explained that he would begin receiving
payments in June 2017. (ECF No. 11-14). Plaintiff requested an administrative
hearing to appeal that initial determination. After the hearing, the administrative
law judge (“ALJ”) issued a decision on April 23, 2020. The ALJ found that
Plaintiff had engaged in substantial gainful activity until January 1, 2017. (ECF
No. 11-18, PageID.196). The ALJ noted that she was not disturbing the disability
finding at the initial level. Plaintiff sought review by the Appeals Council, which
denied his request on November 8, 2020. (Id. at PageID.202). The denial notice
informed Plaintiff that he had 60 days to file a civil action to seek review of the
ALJ’s final decision. (Id. at PageID.203). Plaintiff did not file a lawsuit within 60
days or seek an extension of time to do so.
On August 25, 2023, Plaintiff filed a Request for Reconsideration with the
Social Security Administration. He did not agree with the ALJ’s final decision
because he believed his benefits should extend to June 2007. (ECF No. 11-16,
PageID.184). Plaintiff’s request was dismissed on April 2, 2024. (ECF No. 1117).

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Plaintiff filed his complaint here on May 1, 2024, using the MIED ProSe 13
Complaint for Review of a Social Security Disability decision. The form states
than an appeal from a decision of the Commissioner must be filed within 60 days
of the date on which you received the notice that the Commissioner’s decision
became final. Plaintiff wrote that he “received forms on March 4, 2024,” but also
that a claim “was not denied, just trying to see if I could receive back payment
because I had to wait 35 years to get approve [sic] for social security disabled
[sic].” (ECF No. 1, PageID.3). He then explained that he thought the
Commissioner’s decision should be overturned because of his May 1971 accident.
(Id.). He also asserted that the ALJ told him over the telephone that he would get
back pay for four years. He never received that back pay. The ALJ’s staff later
told Plaintiff that nothing was written in his file related to back pay. He believes
he did not get a check for back pay because of an employee at the Pontiac Social
Security office who told him she thinks he is not disabled. (Id. at PageID.6-7).
It appears that Plaintiff is asking the Court to overturn the November 2020
final decision and extend his benefits period. His time to seek this Court’s review
of that final decision has long passed. As explained in the Appeals Council’s
notice of denial dated November 8, 2020, Plaintiff had 60 days from receipt of the
notice to file a complaint in this Court. (ECF No. 11-18, PageID.203-04). That
directive comes from 42 U.S.C. 405(g), which states, “[a]ny individual, after any

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final decision of the Commissioner of Social Security made after a hearing to
which he was a party, . . . 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.”
(Emphasis added). Plaintiff is presumed to have received the Appeals Council’s
notice five days after the date of the notice, November 13, 2020. 20 C.F.R. §
210(c). Plaintiff had 60 days from November 13, 2020, in which to file his
complaint seeking judicial review. Plaintiff did not seek an extension of time to
file the complaint. Thus, Plaintiff’s May 1, 2024, complaint is untimely.
As the Commissioner points out, equitable tolling may extend that statute of
limitations in Social Security appeals when exceptional circumstances warrant it.
Kellum v. Comm’r of Soc. Sec., 295 F. App’x 47, 49 (6th Cir. 2008). Plaintiff
bears the burden of establishing that “‘some extraordinary circumstance stood in
his way’” from filing a timely complaint. Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005); see also Bowen v. City of New York, 476 U.S. 467, 479-82 (1986).
Plaintiff provided no circumstances warranting equitable tolling. The Court
therefore concludes that Plaintiff did not diligently pursue his claim.
Though the Court has concluded that Plaintiff’s complaint is untimely, and
dismisses the complaint on that basis, the Court will briefly address the

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Commissioner’s other argument that Plaintiff’s Request for Reconsideration does
not revive this untimely action.
Social Security regulations permit a claimant to seek reconsideration of an
initial determination. 20 C.F.R. § 404.900(a)(1-2). The relevant initial
determination (the most recent one), dated April 24, 2017, found Plaintiff disabled
as of January 1, 2017. (ECF No. 11-14, PageID.178). Plaintiff then requested and
attended a hearing conducted by an ALJ, who then issued the April 2020 decision
affirming the initial determination. ALJ decisions are binding unless the Appeals
Council or federal court reviews the case. ALJ decisions are not subject to the
reconsideration stage of the administrative review process. See 20 C.F.R. §
404.900(a). The ALJ’s decision superseded the initial determination, so
reconsideration is no longer available to Plaintiff.
Finally, Plaintiff’s assertion that the ALJ told him he would receive
payments for four additional years is conclusory, and even if mentioned during a
telephone conversation, would not entitle him to judicial review. The ALJ’s
decision, which became the final decision of the Commissioner, makes no mention
of this additional award of disability payments. Even were judicial review of the
ALJ’s decision possible here, which it is not because the complaint is untimely,
review is limited to what is contained in the administrative record and the ALJ
decision. If there is no indication in that record or the decision that the ALJ

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intended to award more than stated in the decision, review of such a statement
would not be possible.
In short, because the complaint is untimely, it is DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.
Date: September 24, 2024.

s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge

CERTIFICATE OF SERVICE
The undersigned certifies that this document was served on counsel of
record and any unrepresented parties via the Court’s ECF System or by First Class
U.S. mail on September 24, 2024.
s/Sara Krause
Case Manager
[phone]

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