UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TAMMY EICKMEYER,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 14-12402

Judith E. Levy

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

RULE 41(b) AND DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT (Dkt. 18)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On June 19, 2014, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Judith E.

Levy referred this matter to Magistrate Judge Michael Hluchaniuk for the purpose

of reviewing the Commissioner’s decision denying plaintiff’s claim for benefits. 

(Dkt. 3). This matter was reassigned to the undersigned Magistrate Judge on

January 5, 2016, pursuant to administrative order. (See Text-Only Order dated

January 5, 2016). Plaintiff was initially represented by counsel in this matter. 

However, the matter was subsequently stayed and a three-judge panel of this court

1

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 1 of 20 Pg ID 713
determined that plaintiff’s counsel was no longer permitted to represent her. (Dkt.

13, 14). Counsel has since withdrawn. (Dkt. 16). 

After the withdrawal by counsel, the undersigned issued an order striking

the previously filed motions for summary judgment (Dkt. 9, 11), and setting a new

briefing schedule for the parties. (Dkt. 17). New counsel did not appear for

plaintiff, who is now deemed to be proceeding in this matter pro se. Plaintiff’s

motion for summary judgment was due on March 1, 2016. The scheduling order

specifically provided that “PLAINTIFF’S FAILURE TO TIMELY FILE A

MOTION FOR SUMMARY JUDGMENT WILL RESULT IN A

RECOMMENDATION OF DISMISSAL.” (Dkt. 17) (emphasis in original). 

The deadline for plaintiff to file a motion for summary judgment has passed and

she has neither filed a motion nor contacted the Court. The Commissioner filed

her motion for summary judgment on March 9, 2016. (Dkt. 18). 

B. Administrative Proceedings

Plaintiff filed the instant claims on August 19, 2011, alleging that she

became unable to work on August 20, 2010. (Dkt. 6-2, Pg ID 45). The claim was

initially disapproved by the Commissioner on December 7, 2011. Id. Plaintiff

requested a hearing and on January 11, 2013, plaintiff appeared via video before

Administrative Law Judge (ALJ) Keith J. Kearney, who considered the case de

novo. (Dkt. 6-2, Pg ID 62-81). In a decision dated February 14, 2013, the ALJ

2

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 2 of 20 Pg ID 714
found that plaintiff was not disabled. (Dkt. 6-2, Pg ID 42-55). Plaintiff requested

a review of this decision on February 25, 2013. (Dkt. 6-2, Pg ID 40-41). The

ALJ’s decision became the final decision of the Commissioner on April 18, 2014,

when the Appeals Council denied plaintiff’s request for review. (Dkt. 6-2, Pg ID

34-39); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). 

This matter is now ready for report and recommendation. The Court

concludes that substantial evidence supports the decision of the Administrative

Law Judge. The Court therefore RECOMMENDS that the findings of the

Commissioner of Social Security be AFFIRMED or, in the alternative, that

plaintiff’s complaint be DISMISSED WITHOUT PREJUDICE pursuant to

Fed.R.Civ.P. 41(b).

II. FACTUAL BACKGROUND

Plaintiff was born in 1965 and was 44 years of age on the disability onset

date. (Dkt. 6-2, Pg ID 54). Plaintiff’s last date insured is December 31, 2016. Id.

at 47. At step one of the sequential evaluation process, the ALJ found that

plaintiff had not engaged in substantial gainful activity after the alleged onset date

through the date of his decision. Id. At step two, the ALJ found that plaintiff had

the following severe impairments: degenerative disc disease of the thoracic and

lumbar spine; degenerative joint disease of the right knee; depressed mood; and

adjustment disorder with mixed anxiety. Id. at 47. The ALJ found that plaintiff

3

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 3 of 20 Pg ID 715
had the following residual functional capacity (RFC):

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform unskilled sedentary work

as defined in 20 CFR 404.1567(a). She can occasionally

climb ramps and stairs. The claimant can never climb

ladders, ropes, or scaffolds. She can occasionally

balance, kneel, stoop, and crouch. The claimant cannot

crawl. She requires the option to sit or stand at will

provided that this does not take her off task for more

than 10% of the work day. The claimant must avoid

hazards such as unprotected heights and dangerous

moving machinery. She must avoid extreme temperatures

and excessive vibration. The claimant can tolerate

normal workplace hazards such as boxes on the floor,

moving vehicles, swinging doors, people moving around,

etc. She can hear and understand simple oral

instructions. The claimant can carry out simple routine

repetitive tasks. She cannot perform production rate

paced work. The claimant can perform “goal oriented”

type work tasks. She can occasionally interact with the

public, coworkers, and supervisors. 

Id. at 50. At step three, the ALJ found that plaintiff did not have an impairment or

combination of impairments that met or medically equaled the severity of any

Listed Impairment. Id. at 48. At step four, the ALJ found that plaintiff was unable

to perform any of her past relevant work. Id. at 53. Considering plaintiff’s age,

education, work experience, and RFC, the ALJ determined that jobs existed in

significant numbers in the national economy that she could perform. Id. at 54-55. 

As such, the ALJ concluded that plaintiff had not been under a disability from

August 20, 2010 through the date of his decision. Id. 

4

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 4 of 20 Pg ID 716
II. DISCUSSION

A. Standard of Review 

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has 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);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do not try the case

de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). “However, the ALJ is not

free to make credibility determinations based solely upon an ‘intangible or

intuitive notion about an individual’s credibility.’” Rogers, 486 F.3d at 247,

quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4.

 If supported by substantial evidence, the Commissioner’s findings of fact

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

5

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 5 of 20 Pg ID 717
Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more than a

scintilla of evidence but less than a preponderance; it is such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Rogers, 486

F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing Mullen, 800 F.2d at 545. 

B. Merits of Plaintiff’s Claims

The undersigned recommends that the court affirm the ALJ’s findings of

fact and conclusions of law. The undersigned has reviewed the record evidence,

the Commissioner’s motion for summary judgment, and the ALJ’s decision. The 1

undersigned focused the analysis on the points at which the ALJ made conclusions

 A review of the merits of plaintiff’s case in the absence of a motion for summary

1

judgment from plaintiff is supported by Wright v. Comm’r of Soc. Sec., 2010 WL 5420990, at *3

(E.D. Mich. Dec. 27, 2010), where the court held that dismissal for failure to file a motion for

summary judgment is unwarranted because the plaintiff has “no burden to do anything in order to

obtain judicial review of the administrative decision except file a timely complaint.” Other

judges in this district have concluded, however, that dismissal of Social Security complaints

pursuant to Fed.R.Civ.P. 41(b) is appropriate. See Salmo v. Comm’r of Soc. Sec., 2012 WL

6929176, at *2 (E.D. Mich. Nov. 27, 2012) (collecting cases dismissing Social Security

complaints under Rule 41(b)); see also Brinkley v. Comm’r of Soc. Sec., 2015 WL 1637598 (E.D.

Mich. Apr. 13, 2015) (Michelson, J.).

6

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 6 of 20 Pg ID 718
adverse to an ultimate finding of disability, and agrees that substantial evidence

supports the ALJ’s conclusions as they relate to the weighing of the medical

opinions in the record, the step five determination, and plaintiff’s credibility.

The first step at which the ALJ’s findings diverge from the path leading to a

finding of disability in plaintiff’s case is at step two, where the ALJ determined

that certain of plaintiff’s impairments – hip pain, varicose veins, and headaches –

were non-severe. As to plaintiff’s hip pain, the ALJ noted that her x-rays were

normal and the pain was thought to be due to a dermoid cyst, which was removed. 

Thus, the ALJ concluded that plaintiff’s hip problems were not medically

determined. (Dkt. 6-2, Pg ID 48). In the view of the undersigned, the ALJ’s

conclusion that plaintiff’s hip pain is nonsevere is supported by substantial

evidence because: (1) plaintiff did not indicate at the hearing that hip pain was

problematic or causing an inability to work or other specific limitations; (2)

plaintiff’s treating physician did not opine in the medical source statement that hip

pain was causing her any limitations; and (3) the x-ray of plaintiff’s hip was

normal. Under these circumstances, the ALJ’s conclusion is supported by

substantial evidence. 

As to plaintiff’s varicose veins, the ALJ concluded that this condition was

nonsevere because there was no evidence that it limited plaintiff in any way. She

was able to walk without assistance. And, she was referred to a vascular surgeon

7

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 7 of 20 Pg ID 719
but there was no evidence that she followed through with any treatment. Thus, the

ALJ concluded that plaintiff’s varicose veins were nonsevere. (Dkt. 6-2, Pg ID

48). In the view of the undersigned, the ALJ’s conclusion that plaintiff’s varicose

veins are nonsevere is supported by substantial evidence because: (1) plaintiff did

not indicate at the hearing that her varicose veins were problematic or causing her

inability to work or other specific limitations; (2) plaintiff’s treating physician did

not opine in the medical source statement that varicose veins were causing her any

limitations; and (3) plaintiff was sent for diagnostic testing and referred to a

vascular surgeon, but there is no evidence of any follow up treatment in the record.

Under these circumstances, the ALJ’s conclusion is supported by substantial

evidence. 

As to plaintiff’s headaches, the ALJ concluded that this condition was

nonsevere because they were secondary to pain injections in 2010, but plaintiff

underwent a procedure that apparently resolved the problem. The ALJ pointed out

that plaintiff told her doctor that she was no longer having headaches in June and

October 2011. Thus, the ALJ concluded that this condition was nonsevere

because it did not persist for more than 12 months. In the view of the undersigned,

the ALJ’s conclusion that plaintiff’s headaches are nonsevere is supported by

substantial evidence because: (1) plaintiff did not indicate at the hearing that her

headaches were problematic or causing her inability to work or other specific

8

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 8 of 20 Pg ID 720
limitations; (2) plaintiff’s treating physician did not opine in the medical source

statement that headaches were causing her any limitations; and (3) plaintiff’s

headaches appeared to have resolved and were not causing any problems after

June 2011. Under these circumstances, the ALJ’s conclusion is supported by

substantial evidence. 

At step three, the ALJ found that plaintiff did not have an impairment or

combination of impairments that met or medically equaled the severity of any

Listed Impairment. (Dkt. 6-2, Pg ID 48). Under the theory of presumptive

disability, a claimant is eligible for benefits if she has an impairment that meets or

medically equals a Listed Impairment. See Christephore v. Comm’r of Soc. Sec.,

2012 WL 2274328, at *6 (E.D. Mich. June 18, 2012). When considering

presumptive disability at step three, “an ALJ must analyze the claimant’s

impairments in relation to the Listed Impairments and must give a reasoned

explanation of his findings and conclusions in order to facilitate meaningful

review.” Id. (citing Reynolds v. Comm’r of Soc. Sec., 424 Fed. Appx. 411, 416

(6th Cir. 2011)). An ALJ’s failure to sufficiently articulate his step three findings

is error. See M.G. v. Comm’r of Soc. Sec., 861 F. Supp.2d 846, 858-59 (E.D.

Mich. 2012). “For a claimant to show that his impairment matches a listing, it

must meet all of the specific medical criteria.” Sullivan v. Zebely, 493 U.S. 521,

530 (1990) (emphasis in original). 

9

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 9 of 20 Pg ID 721
Here, the ALJ concluded that plaintiff’s knee pain failed to meet Listing

1.02A, citing no evidence of anatomical deformity with chronic joint pain and

joint space narrowing resulting in the inability to ambulate effectively. (Dkt. 6-2,

Pg ID 48). As to plaintiff’s back pain, the ALJ concluded that it was not severe

enough to meet Listing 1.04 because the record was devoid of any evidence of

nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with

accompanying ineffective ambulation. Id. Next, the ALJ considered whether

plaintiff’s mental impairments met Listings 12.04 or 12.06. The ALJ thoroughly

considered the “B” and “C” criteria, concluding that plaintiff did not meet or equal

either Listing. Id. at 48-49. The ALJ’s listing analysis is thorough and supported

by substantial evidence in the record. Thus, the undersigned finds no error at this

step of the analysis.

Next, the undersigned finds that the ALJ’s RFC findings are also supported

by substantial evidence. The ALJ determined that plaintiff had the RFC to

perform a limited range of sedentary work. The ALJ gave little weight to the

various opinions of plaintiff’s treating physician, Dr. van der Harst. After seeing

plaintiff only one time, Dr. van der Harst opined that plaintiff could not engage in

prolonged driving, mental focus, or handling of dangerous equipment. She also

opined that plaintiff could not perform her past work as a welder on a permanent

basis. Because Dr. van der Harst only saw plaintiff once before giving these

10

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 10 of 20 Pg ID 722
opinions, the ALJ gave her opinion little weight.

In August 2011, Dr. van der Harst opined that plaintiff could not work even

four hours a day with restrictions until her pain, rehabilitative, nutritional and

sleep needs were met. The ALJ gave this opinion little weight because it did not

specify how long the restrictions were intended to last, the opinion was not

supported by the record in that the conditions were addressed immediately and

plaintiff’s condition had improved shortly afterward. (Dkt. 6-2, Pg ID 52). The

ALJ also pointed out that while Dr. van der Harst assigned upper extremity

limitations in her August 2011 opinion, she also noted that plaintiff’s EMG was

normal and there was no evidence of carpal tunnel syndrome. Thus, the ALJ

concluded that this opinion was based solely on plaintiff’s subjective complaints.

Id.

On the other hand, the ALJ gave significant weight to the opinion of Dr.

Eric VanderHaagen, a reviewing physician, who opined that plaintiff was limited

to sedentary work. The ALJ gave this opinion significant weight because it was

consistent with plaintiff’s history of back and knee surgery. Id. at 53. 

Additionally, the ALJ gave significant weight to Dr. van der Harst’s opinion that

plaintiff required a sit/stand option because this opinion was also consistent with

plaintiff’s history of back and knee surgery. Id. 

Finally, the ALJ gave significant weight to the opinion of Dr. Joe DeLoach,

11

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 11 of 20 Pg ID 723
the reviewing mental health expert, who opined that plaintiff could perform

simple, low-stress tasks where her contact with others would be limited. The ALJ

found this opinion to be consistent with plaintiff’s history of pain, depression, and

anxiety, which limited her ability to concentrate and get along with others. Id. 

In the view of the undersigned, the ALJ properly weighed the opinions of

the treating and consulting physicians and considered the whole of the medical

and other evidence in formulating the RFC. The ALJ gave good reasons and

provided specific explanation for the weight given to each opinion. Thus, the

undersigned finds that substantial evidence supports the RFC.

With respect to the Step Five findings, the ALJ concluded that considering

the plaintiff’s age, education, work experience, and RFC, there are jobs that exist

in significant numbers in the national economy that plaintiff can perform. (Dkt. 6-

2, Pg ID 54). To meet her burden at step five, the Commissioner must make a

finding “‘supported by substantial evidence that [Plaintiff] has the vocational

qualifications to perform specific jobs.’” Varley v. Sec’y of Health & Human

Servs., 820 F.2d 777, 779 (6th Cir. 1987) (quoting O’Banner v. Sec’y of Health,

Educ. & Welfare, 587 F.2d 321, 323 (6th Cir. 1978)). The ALJ first noted that if

plaintiff were able to perform the full range of sedentary work, a finding of “not

disabled” would be directed by Medical-Vocational Rule 201.28. (Dkt. 6-2, Pg ID

54). However, the ALJ went on to explain that plaintiff’s ability to perform all of

12

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 12 of 20 Pg ID 724
the requirements of sedentary work was impeded by additional limitations. The

ALJ used a vocational expert to determine the extent to which the occupational

base was eroded by plaintiff’s additional limitations. The vocational expert

testified that an individual with plaintiff’s RFC could perform the jobs of security

system monitor, machine attendant, and sorter. Id. The ALJ acknowledged that

the vocational expert’s testimony was inconsistent with the Dictionary of

Occupational Titles, but concluded that there was a reasonable explanation for the

discrepancy. The vocational expert reduced the number of existing jobs to

accommodate plaintiff’s need for a sit/stand opinion, based on her education and

experience. The ALJ found the vocational expert’s testimony credible because her

sources of information were reliable. Thus, the ALJ concluded that a finding of

not disabled was appropriate. The undersigned concludes that the ALJ’s Step Five

analysis is supported by substantial evidence, based on the vocational expert’s

testimony. 

Finally, to the extent there is a question of whether the ALJ correctly

assessed plaintiff’s credibility, the undersigned notes that “[i]t is for the

[Commissioner] and his examiner, as the fact finders, to pass upon the credibility

of the witnesses and weigh and evaluate their testimony.” Heston v. Comm’r of

Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v. Richardson, 471

F.2d 1265, 1267 (6th Cir. 1972)). As the Sixth Circuit has held, determinations of

13

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 13 of 20 Pg ID 725
credibility related to subjective complaints of pain rest with the ALJ because “the

ALJ’s opportunity to observe the demeanor of the claimant ‘is invaluable, and

should not be discarded lightly.’” Kirk v. Sec’y of Health & Human Servs., 667

F.2d 524, 538 (6th Cir. 1981) (citation omitted). Thus, an ALJ’s credibility

determination will not be disturbed “absent compelling reason.” Smith v. Halter,

307 F.3d 377, 379 (6th Cir. 2001). 

Here, the undersigned agrees with the Commissioner that the ALJ’s

conclusions regarding plaintiff’s credibility are supported by substantial evidence. 

While the ALJ acknowledged that plaintiff suffered from medically determinable

impairments, the ALJ determined that the objective medical evidence did not

support the severity of plaintiff’s claims. (Dkt. 6-2, Pg ID 50) (20 C.F.R.

§§ 404.1529(c)(4), 416.929(c)(4) (in evaluating statements about pain or other

symptoms, the ALJ will consider any inconsistencies in the evidence); Social

Security Ruling (SSR) 96-7p, 1996 WL 374186, at *5 (July 2, 2006) (stating that

one strong indication of the credibility of an individual’s statements is their

consistency, both internally and with other information in the case record). The

ALJ discussed in detail the relatively minor findings in the objective medical

evidence. (Dkt. 6-2, Pg ID 51). Plaintiff also admitted that she was noncompliant

with her medications. Id. And, the ALJ concluded that plaintiff’s daily activities

– which included walking for miles without assistance, watching children, making

14

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 14 of 20 Pg ID 726
crafts, driving, and using a computer, participating in water aerobics, working with

children at church – were not as limited as one would expect, given the complaints

of symptoms and limitations. (Dkt. 6-2, Pg ID 52-53). The ALJ also pointed out

that plaintiff’s medicines were working well and had not changed and that plaintiff

received only conservative treatment. Id. at 51. The ALJ also observed that

plaintiff walked with a steady gait, without any assistance, despite her complaints.

Id. The undersigned concludes that the ALJ’s credibility findings are supported

by substantial evidence and there is no compelling reason to disturb the ALJ’s

credibility analysis.

C. Rule 41(b) Dismissal

Alternatively, the undersigned recommends that plaintiff’s complaint be

dismissed for failure to prosecute. “The authority of a federal trial court to dismiss

a plaintiff’s action with prejudice because of his failure to prosecute cannot

seriously be doubted.” Link v. Wabash R. Co., 370 U.S. 626, 629 (1962). “The

power to invoke this sanction is necessary in order to prevent undue delays in the

disposition of pending cases and to avoid congestion in the calendars of the

District Courts.” Link, 370 U.S. at 629-630. “[D]istrict courts possess broad

discretion to sanction parties for failing to comply with procedural requirements.”

Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173

F.3d 988, 991 (6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th

15

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 15 of 20 Pg ID 727
Cir.1991). Further, “a district court can dismiss an action for noncompliance with

a local rule ... if the behavior of the noncomplying party rises to the level of a

failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.” 

Tetro, 173 F.3d at 992. 

Federal Rule of Civil Procedure 41 governs dismissals. As to involuntary

dismissals, it provides:

If the plaintiff fails to prosecute or to comply with these

rules or a court order, a defendant may move to dismiss

the action or any claim against it. Unless the dismissal

order states otherwise, a dismissal under this subdivision

(b) and any dismissal not under this rule - except one for

lack of jurisdiction, improper venue, or failure to join a

party under Rule 19 - operates as an adjudication on the

merits.

Fed.R.Civ.P. 41(b). “Neither the permissive language of [Rule 41(b)] – which

merely authorizes a motion by the defendant – nor its policy requires us to

conclude that it was the purpose of the Rule to abrogate the power of courts,

acting on their own initiative, to clear their calendars of cases that have remained

dormant because of the inaction or dilatoriness of the parties seeking relief.” Link

v. Wabash R. Co., 370 U.S. 626, 630 (1962). “The authority of a federal trial court

to dismiss a plaintiff’s action with prejudice because of his failure to prosecute

cannot seriously be doubted.” Link, 370 U.S. at 629; see also Carter v. City of

Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980) (“It is clear that the district

16

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 16 of 20 Pg ID 728
court does have the power under [Fed.R.Civ.P. 41(b)] to enter a sua sponte order

of dismissal.”) (citing Link). Moreover, “district courts possess broad discretion to

sanction parties for failing to comply with procedural requirements.” Tetro v.

Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988,

991 (6th Cir. 1999), citing Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991). 

And, “a district court can dismiss an action for noncompliance with a local rule

only if the behavior of the noncomplying party rises to the level of a failure to

prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.” Tetro, 173

F.3d at 992.

The Sixth Circuit considers “four factors in reviewing the decision of a

district court to dismiss a case 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.

Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005), citing Knoll v.

American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). In this case, the

Court warned plaintiff that his case would be dismissed if she failed to file her

motion for summary judgment. (Dkt. 17). Thus, this factor weighs in favor of

dismissal. With respect to the first factor, just as in White v. Bouchard, 2008 WL

17

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 17 of 20 Pg ID 729
2216281, *5 (E.D. Mich. 2008), “it is not clear whether plaintiff’s failure to

prosecute is due to willfulness, bad faith or fault.” Id. Regardless, “defendant[]

cannot be expected to defend an action,” that plaintiff has “apparently abandoned,

not to mention the investment of time and resources expended to defend this case.” 

Id. Thus, the first and third factors weigh in favor of dismissal. Finally, given

plaintiff’s failure to substantively participate in this case since the withdrawal of

her attorney, the undersigned sees no utility in considering or imposing lesser

sanctions. Thus, the undersigned concludes that none of the factors weigh against

dismissal for failure to prosecute.

It is true that “district courts should be especially hesitant to dismiss for

procedural deficiencies where, as here, the failure is by a pro se litigant.” White,

at *8, quoting, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). However, a sua

sponte dismissal may be justified by a plaintiff’s “apparent abandonment of [a]

case.” White, at *5, citing Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir.

1984). While the undersigned is sympathetic to plaintiff’s situation, she failed to

file an initial brief, as ordered. Under the circumstances, in the view of the

undersigned, dismissal without prejudice is an appropriate alternative disposition. 

IV. RECOMMENDATION

For the reasons set forth above, the Court concludes that substantial

evidence supports the decision of the Administrative Law Judge. The Court

18

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 18 of 20 Pg ID 730
therefore RECOMMENDS that the findings of the Commissioner of Social

Security be AFFIRMED or, in the alternative, that plaintiff’s complaint be

DISMISSED WITHOUT PREJUDICE pursuant to Fed.R.Civ.P. 41(b).

The parties to this action may object to and seek review of this Report and

Recommendation, but are 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). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

19

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 19 of 20 Pg ID 731
same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: June 29, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on June 29, 2016, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record and that I have mailed by United States Postal

Service to the following non-ECF participant: Tammy Eickmeyer, 7138 3 Mile

Road, Bay City, MI 48706.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

20

5:14-cv-12402-JEL-SDD Doc # 19 Filed 06/29/16 Pg 20 of 20 Pg ID 732