Crist v. Social Security, Commissioner of

Filing 22

ORDER Adopting In Part Report and Recommendation for 19 Report and Recommendation, 18 Motion for Summary Judgment filed by Social Security, Commissioner of Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ALAN CRIST,
Plaintiff,
Case No. 13-cv-14008
Honorable Laurie J. Michelson
Magistrate Judge Michael J. Hluchaniuk

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

_____________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION [19]
Before the Court is Magistrate Judge Hluchaniuk’s Report and Recommendation to
dismiss the complaint under Federal Rule of Civil Procedure 41(b) or, in the alternative, to grant
Defendant’s Motion for Summary Judgment. (Dkt. 19, R&R.) For the reasons that follow, the
Court adopts the Report and Recommendation in part and grants Defendant’s Motion for
Summary Judgment.
Plaintiff filed the Complaint pro se on September 13, 2013. (Dkt. 1.) Under the
Scheduling Order, Plaintiff’s motion for summary judgment was due January 17, 2014. (Dkt.
15.) On February 27, 2014, Magistrate Judge Hluchaniuk entered an Order to Show Cause
requiring Plaintiff to explain why he did not file a motion for summary judgment. (See Dkt. 17.)
Magistrate Judge Hluchaniuk warned that failure to respond could result in dismissal of the case.
(Id.) Plaintiff did not respond. Defendant filed a motion for summary judgment on April 7, 2014.
(Dkt. 18.) On April 23, 2014, Magistrate Judge Hluchaniuk issued his Report and
Recommendation to dismiss the complaint or grant Defendant’s motion. At the conclusion of his
report, the Magistrate Judge notified the parties that they were “required to file any objections

within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local
Rule 72.1(d)” and that “[f]ailure to file specific objections constitutes a waiver of any further
right of appeal.” (R&R at 9.) No party has filed timely objections to the Report and
Recommendation.
Federal Rule of Civil Procedure 41(b) authorizes involuntary dismissal “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court order.” The Sixth Circuit has held that
dismissal for failure to prosecute “is a harsh sanction which the court should order only in
extreme situations showing a clear record of contumacious conduct by the plaintiff.” Wu v. T.W.
Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (internal quotation marks omitted). The Court of
Appeals considers four factors in reviewing a dismissal for failure to prosecute: “(1) whether the
party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to
cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or
considered before dismissal was ordered.” Id. To establish the culpability required by the first
prong, a plaintiff’s conduct “must display either an intent to thwart judicial proceedings or a
reckless disregard for the effect of [his] conduct on those proceedings.” Id. (quoting Mulbah v.
Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001) (citation and quotation marks omitted)
(alteration in original)). The Sixth Circuit has also held that its four-factor test is applied “more
stringently in cases where the plaintiff’s attorney’s conduct is responsible for the dismissal.” Id.
(internal quotation marks omitted).
This case involves a pro se plaintiff who failed to file a motion for summary judgment in
contravention of the Magistrate Judge’s Scheduling Order, and failed to respond to the
Magistrate Judge’s Order to Show Cause. The Court takes these failures very seriously.

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Nonetheless, in light of the Plaintiff’s pro se status, the Court finds that the harsh sanction of
dismissal for want of prosecution is not warranted.
Other district judges in this Circuit have held that a pro se plaintiff seeking review of
denial of Social Security disability benefits has no burden to do anything but file a timely
complaint, and therefore declined to dismiss under Rule 41 for failure to file a motion for
judgment. See, e.g., Wright v. Comm’r of Soc. Sec., No. 09-CV-15014, 2010 WL 5420990, at
*1–2 (E.D. Mich. Dec. 27, 2010) (discussing Kenney v. Heckler, 577 F. Supp. 214 (N.D. Ohio
1983)). Although “reasonable jurists may differ on this issue,” Salmo v. Comm'r of Soc. Sec., No.
11-14926, 2012 WL 6929176, at *3 (E.D. Mich. Nov. 27, 2012), report and recommendation
adopted, 2013 WL 273205 (E.D. Mich. Jan. 24, 2013), including judges in this district, this
Court finds the Social Security Act does not require a motion for judgment. The Social Security
Act provides that a district court “shall have power to enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The
plaintiff in this case met his burden by filing a complaint. Therefore, the Court will not dismiss
the complaint for failure to prosecute.
That is not to say that the Court will develop arguments for the plaintiff. Cf. Kennedy v.
Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (declining to consider an issue that
was not briefed and noting that “issues which are adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived” (internal
quotation marks and citation omitted)). The Court’s role is limited to reviewing the
administrative record for obvious errors in order to “affirm the Commissioner’s conclusions
absent a determination that the Commissioner has failed to apply the correct legal standard or has

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made findings of fact unsupported by substantial evidence in the record.” Longworth v. Comm’r
of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation marks omitted).
Here, Magistrate Judge Hluchaniuk “reviewed the record evidence, the ALJ’s decision,
and the Commissioner’s motion for summary judgment,” and found that “[t]he Commissioner’s
argument that the ALJ properly weighed the medical evidence is supported by substantial
evidence in the record.” (R&R at 8–9.) He also concluded that “[w]hile plaintiff claims in his
complaint that his condition has worsened, and attaches medical records from 2013 in support of
this claim, even if the Court could consider such evidence, this does nothing to undercut the
ALJ’s decision that he was not disabled through the last date insured, which was December 31,
2007.” (Id.) This Court agrees with the Magistrate Judge’s findings.
For the reasons stated, the Court ADOPTS IN PART the Report and Recommendation
as the findings and conclusions of this Court and GRANTS Defendant’s Motion for Summary
Judgment (Dkt. 18).
SO ORDERED.

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: June 27, 2014

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on June 27, 2014.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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