UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PEARLENE DRAKE,

Plaintiff, Civil Action No. 14-CV-12686

vs. HON. BERNARD A. FRIEDMAN

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

__________________/

ORDER REJECTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,

VACATING ORDER TO SHOW CAUSE, GRANTING PLAINTIFF’S MOTION FOR

AN ENLARGEMENT OF TIME, AND VACATING ORDER OF REFERENCE

This matter is presently before the Court on Magistrate Judge Patricia Morris’ Report

and Recommendation dated March 10, 2016, which recommends that the Court dismiss the

complaint for lack of prosecution and because defendant’s administrative decision is supported by

substantial evidence. For the reasons stated below, the Court shall reject this recommendation.

Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant’s

denial of her applications for Social Security disability insurance benefits and Supplemental Security

Income. Defendant has answered the complaint and filed the administrative record. In an order

dated January 5, 2016, the magistrate judge stated:

Plaintiff was informed by the firm of Davidson, Breen and Doud,

P.C. that they will no longer be representing her in her case. Plaintiff

was given until December 30, 2015, to retain new counsel otherwise

she would be deemed to be representing herself.

As of this date an appearance of new counsel has not been

filed in this matter; therefore, IT IS ORDERED that Plaintiff shall be

deemed to be representing herself. The parties shall each be given an

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additional 30 days to file any necessary supplemental briefings. IT IS

FURTHER ORDERED that Plaintiff’s supplemental brief shall be

filed on or before February 4, 2016, and Defendant’s supplemental

brief shall be filed on or before March 4, 2016.

In a show cause order dated February 17, 2016, the magistrate judge stated:

An Order was entered January 5, 2016, deeming Plaintiff as

representing herself and setting a new briefing schedule. The briefing

schedule ordered Plaintiff to file her brief on or before February 4,

2016. As of today, Plaintiff has failed to file her brief or a request to

have the deadline extended.

Accordingly, IT IS ORDERED THAT PLAINTIFF SHOW

CAUSE IN WRITING on or before March 2, 2016, why the

undersigned should not recommend that this case be dismissed for

want of prosecution. This Order is being issued pursuant to E.D.

Mich. LR 41.2.

On March 2, 2016, plaintiff responded to the show cause order. She indicated that she 

was under the mistaken belief that she was still being represented by

attorney Aaron T. Lemmens.

Plaintiff has met with several attorneys in an effort to retain counsel

to assist her in this most difficult area.

Plaintiff was scheduled to meet with an attorney on March 1, 2016,

but said appointment was cancelled due to a snow emergency.

Plaintiff seeks an extension of 30 days to allow the new attorney she

is retaining to review the file and file her motion and brief.

On March 10, 2016, the magistrate judge issued the R&R that is now before the Court. She

recommends that the complaint be dismissed for lack of prosecution for “her failure to comply with

the Court’s orders.” R&R at 6. She further recommends that the complaint be dismissed because

defendant’s denial of plaintiff’s applications is supported by substantial evidence.

The Court rejects this recommendation. As this Court has held before, dismissal for

lack of prosecution in a social security disability case is inappropriate because the plaintiff in such

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a case is not required to do anything at all except to “file a timely complaint seeking judicial review

of the administrative decision.” Wright v. Comm’r of Soc. Sec., No. 99-CV-15014 (E.D. Mich. Dec.

27, 2010) (rejecting a magistrate judge’s recommendation that the Court dismiss the complaint for

lack of prosecution when plaintiff failed to file a summary judgment motion). In that case, the Court

cited Kenney v. Heckler, 577 F. Supp. 214, 216 (N.D. Ohio 1983), for its statement that 

as § 405(g) does not require the filing of motions or briefs for the

Court to render a decision on the merits, the failure to file such

motions cannot be the basis of a dismissal for failure to prosecute.

Stated another way, once the plaintiff has filed a complaint stating his

grounds for appeal from the Secretary’s decision, he has done all that

is required of him by § 405(g). Further, once the Secretary has filed

a transcript of the record, all that is required by § 405(g) of both

parties has been done.

Accordingly, it would be improper for the Court to dismiss the complaint in this matter merely

because plaintiff declined to accept the magistrate judge’s invitation to file a supplemental brief. 

To the extent the magistrate judge recommends dismissal on this basis, the R&R is rejected. For

the same reason, the Court hereby vacates the magistrate judge’s February 17, 2016, show cause

order.

The magistrate judge also recommends dismissal on the grounds that defendant’s

administrative decision is supported by substantial evidence. The Court rejects this recommendation

for two reasons. First, if defendant’s decision is supported by substantial evidence, the Court would

enter judgment for defendant, not dismiss the complaint. Second, and more importantly, the Court

prefers (but does not require) that the parties submit summary judgment motions in social security

disability cases, and neither party has done so in the present case. Plaintiff, for whatever reason, is

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not currently represented by counsel.1

 Plaintiff states she believed “she was still being represented

by attorney Aaron T. Lemmens,” who was associated with the same law firm that represented her

initially. Given the confusion surrounding the status of plaintiff’s representation, it is certainly

plausible that plaintiff was unaware until recently that she is in fact not represented by counsel. 

Under these circumstances, plaintiff has shown sufficient cause for her request for additional time

to seek substitute counsel. For these reasons,

IT IS ORDERED that Magistrate Judge Morris’ R&R is rejected.

IT IS FURTHER ORDERED that the magistrate judge’s February 17, 2016, show

cause order is vacated.

IT IS FURTHER ORDERED that plaintiff’s motion for additional time to retain

substitute counsel is granted. Substitute counsel may enter an appearance until April 15, 2016.

1

 Plaintiff was initially represented by the law firm of Davidson, Breen, Doud, Steele &

Ferguson, P.C. The magistrate judge states that

[t]he Doud Firm having been removed from all pending Social

Security cases, Drake was left with the option of representing herself

pro se, or obtaining new legal counsel. Drake was specifically

informed of this option by letter, sent pursuant to a stipulation

between the Doud Firm and the United States District Court for [the]

Eastern District of Michigan, and that she had until December 30,

2015, to obtain new counsel (Doc. 26).

R&R at 2. The Court is aware of the controversy surrounding the Doud Firm, but it is not aware of

the referenced letter and there is no Docket Entry 26 in this matter. There is a clerk’s entry dated

January 5, 2016, indicating that attorney James Smith (who substituted for Richard Doud on April

14, 2015) of the Doud Firm was terminated, but the basis for that entry is not apparent.

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IT IS FURTHER ORDERED that both parties may, if they wish, submit summary

judgment motions (not to exceed 25 pages in length) by June 15, 2016. 

IT IS FURTHER ORDERED that the order of reference in this matter is vacated.

_s/ Bernard A. Friedman_____

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: March 14, 2016

Detroit, Michigan

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