UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL MINTHORN, 

 

 Plaintiff, Civil Action No. 14-14114 

 Honorable Avern Cohn 

 Magistrate Judge David R. Grand 

v. 

 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DISMISS THE COMPLAINT FOR 

FAILURE TO PROSECUTE [1] 

I. RECOMMENDATION 

Pro se plaintiff Michael Minthorn (“Minthorn”) brings this action pursuant to 42 U.S.C. § 

405(g), seeking judicial review of a final decision of the Commissioner of the Social Security 

Administration denying his claim for benefits. Having failed to file a renewed motion for 

summary judgment despite an order from the Court requiring its filing, and having offered no 

excuse as to his failure to file such a motion, the Court RECOMMENDS that the complaint 

(Doc. #1) be DISMISSED WITH PREJUDICE for failure to prosecute. 

II. REPORT 

A. Background 

 Minthorn commenced this action on October 27, 2014. (Doc. #1). At the time, he was 

represented by attorney Richard Doud of the firm Davidson, Breen, Doud, Steele & Ferguson, 

P.C. (the “Firm”). Doud filed a motion for summary judgment on Minthorn’s behalf on 

February 11, 2015. (Doc. # 9). On April 10, 2015, attorney James Smith (“Smith”) of the Firm 

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moved to both substitute into the action for attorney Doud on behalf of Minthorn (Doc. #11) and 

for leave to amend the motion for summary judgment. (Doc. #12). At the same time, Smith filed 

a proposed amended motion for summary judgment. (Doc. #13). 

 On May 20, 2015, this action was transferred to a three-judge panel (the “Panel”) to 

address the Firm’s representation of Social Security claimants in the Eastern District of 

Michigan. (5/20/15 docket entry). Pursuant to 15-AO-033, on June 9, 2015, the Panel 

administratively stayed this action. (Doc. #16). On October 19, 2015, pursuant to 15-AO-045, 

the Panel determined that the affected cases (including this one) would be transferred back to the 

originally assigned judge, and that it would be each such judge’s responsibility to determine 

when to lift the stay. (10/19/15 docket entry). 

The Court was later advised that the Firm had notified Minthorn that he would have until 

December 30, 2015, to retain a new attorney and have that attorney file an appearance in this 

action. Minthorn was also notified that if no such appearance was filed by December 30, 2015, 

the Court would consider Minthorn to be continuing his appeal without legal representation, i.e., 

that he would be representing himself in this action pro se. (Doc. #17). Because no new attorney 

appeared on Minthorn’s behalf, the Court deemed him to be representing himself pro se, ordered 

that his motion for summary judgment and his proposed amended motion for summary judgment 

be stricken from the docket, and issued an amended scheduling order. (Doc. #18). The Court 

mailed a copy of this last order to Minthorn at his address listed on the docket. (1/11/16 docket 

entry). It was returned as undeliverable on February 10, 2016. (Doc. #19). On the label the Post 

Office used to return the order to the Court, it listed an alternative address for Minthorn at “514 

N. Mincer Dr., Au Gres, MI 48703-9729.” (Id.). 

In its order dated May 24, 2016, the Court required Minthorn, on or before June 13, 2016, 

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to either file a renewed motion for summary judgment or show cause in writing as to why this 

case should not be dismissed. (Doc. #20). The Court explicitly warned Minthorn that, in the 

event he failed to file documents by the above deadline, it would either “(a) issue a report and 

recommendation that the case be Dismissed with prejudice for want of prosecution pursuant to 

Rule 41(b) of the Federal Rules of Civil Procedure and E.D. Mich. LR 41.2; or (b) treat this 

matter as before the Court upon the documents submitted.” (Id. at 2). The Court mailed a copy 

of its order to both Minthorn’s address listed on the docket and the alternative address listed on 

the Post Office’s return label. (5/24/16 docket entries). The mailing to the address listed on the 

docket was returned as undeliverable (Doc. #21), but the one sent to his alternative address was 

not returned. To date, Minthorn has not filed a renewed motion for summary judgment. (Doc. 

#21). Nor has Minthorn taken any steps to notify the Court of a change of address, despite his 

continuing obligation to do so. See Yeschick v. Mineta, 675 F.3d 622, 630 (6th Cir. 2012) (“it is 

the party, not the court, who bears the burden of apprising the court of any changes to his or her 

mailing address.”).

B. Analysis 

 If a plaintiff fails to prosecute an action, it can be dismissed either pursuant to the Court’s 

inherent power to control its docket or involuntarily under Fed.R.Civ.P. 41(b). Link v. Wabash 

R. Co., 370 U.S. 626, 629-32 (1962). The authority to dismiss a plaintiff’s case for failure to 

prosecute is available to the district court “as a tool to effect management of its docket and 

avoidance of unnecessary burdens on the tax-supported courts and opposing parties.” Schafer v. 

City of Defiance Police Dep’t., 529 F.3d 731, 736 (6th Cir. 2008) (quoting Knoll v. AT & T, 176 

F.3d 359, 363 (6th Cir. 1999)). A Rule 41(b) dismissal is an appropriate sanction for a pro se

litigant’s failure to provide the Court with information regarding his current address. Trotter v. 

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Gonzalez, No. 03-10096, 2008 U.S. Dist. LEXIS 125241, at *2 (E.D. Mich. Jul. 15, 2008); Ortiz 

v. Donnellon, No. 11-14154, 2012 U.S. Dist. LEXIS 75541, at *1 (E.D. Mich. Apr. 18, 2012) 

(courts may dismiss an action sua sponte pursuant to Rule 41(b) for failure to prosecute). 

 Even where 41(b) dismissal is warranted, however, there is a line of cases from this 

district requiring courts to conduct an independent review of the record to ensure that the ALJ’s 

decision is supported by substantial evidence. Wright v. Comm’r of Soc. Sec., No. 09-15014, 

2010 U.S. Dist. LEXIS 136402, at *3 (E.D. Mich. Dec. 27, 2010) (holding that a Social Security 

plaintiff has “no burden to do anything in order to obtain judicial review of the administrative 

decision except file a timely complaint.”); see also Krawczak v. Comm’r of Soc. Sec., No. 14-

11281, 2016 U.S. Dist. LEXIS 39420, at *2-3 n.2 (E.D. Mich. Feb. 26, 2016) (remanded on 

other grounds); but see Salmo v. Comm’r of Soc. Sec., No. 11-14926, 2012 U.S. Dist. LEXIS 

185107, at *6 (E.D. Mich. Nov. 27, 2012) (collecting cases dismissing Social Security 

complaints pursuant to Rule 41(b)). To satisfy any obligation the Court may have under these 

precedents, it will review the ALJ’s decision to determine whether it is supported by substantial 

evidence. 

Minthorn initially received disability insurance benefits as of June 30, 2008, after he 

fractured his right femur. (Tr. 70-71). However, on August 30, 2011, the Commissioner issued a 

“Cessation or Continuance of Disability or Blindness Determination and Transmittal” concluding 

that Minthorn was no longer disabled as of that date. (Tr. 72). A disability hearing officer upheld 

the Commissioner’s cessation of disability determination on August 8, 2012. (Tr. 100-110). 

Minthorn then timely requested a hearing before an ALJ. (Tr. 119). After conducting a hearing 

on April 30, 2013, the ALJ affirmed the Commissioner’s cessation of disability determination 

and concluded that Minthorn’s disability ended as of August 30, 2011. (Tr. 32, 38-61). 

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In arriving at his decision, the ALJ reviewed the objective medical evidence, which 

substantiated the following medically determinable impairments as of August 30, 2011: soft 

tissue of the lower extremity, arthritis of the lower extremity, affective disorder. (Tr. 19). 

The ALJ then appropriately determined that Minthorn’s impairments, whether considered 

alone or in combination, do not meet or medically equal a listed impairment. (Tr. 19). The ALJ 

specifically considered listings 1.02 (“Major dysfunction of a joint(s) (due to any cause)”) and 

1.06 (“Fracture of the femur, tibia, pelvis, or on or more of the tarsal bones”) and found no 

evidence that Minthorn’s physical impairments met either listing as of August 30, 2011. (Tr. 19-

20). The ALJ also correctly concluded that Minthorn’s mental impairments did not meet Listing 

12.04(B) (“Affective disorders”) since Minthorn’s September 2011 function report, and the 

third-party function report of his girlfriend, supported a determination of only mild to moderate 

difficulties in activities of daily living, social functioning, concentration, persistence or pace, 

with no evidence of any episodes of decompensation. (Tr. 21, 195-210). In addition, the record 

is devoid of any “[m]edically documented history of a chronic affective disorder” satisfying the 

criteria set forth in Listing 12.04(C). (Tr. 21). 

Next, the ALJ found that the impairment for which Minthorn had initially received 

disability benefits, a right femur fracture (Listing 1.06(B)), had medically improved as of August 

30, 2011. (Tr. 22). This finding is supported by substantial evidence. In May 2010, a CT scan of 

Minthorn’s right leg revealed a “component of fibrous union identified at the fracture site” (Tr. 

301, 614). However, independent medical examiner Paul LaClair, M.D., attested that “there was 

reasonable healing of the fracture.” (Tr. 681). As of October 2010, Minthorn’s physical therapist 

noted that he ambulated with an antalgic gait without the use of an assistive device. (Tr. 312). 

Minthorn later improved to ambulating with a Trendelenburg gait, again without the use of an 

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assistive device. (Tr. 325). Minthorn testified at the hearing that he is able to walk 300 yards, 

and even testified that he has “to walk after I sit for too long,” and finds himself taking such 

walks five or six times in each eight-hour day. (Tr. 45, 49). He also testified that he drives a car 

using both of his feet. (Tr. 45). Furthermore, Minthorn and his girlfriend stated in their 

September 2011 function reports that Minthorn could walk 150 to 200 yards before needing to 

rest. (200, 208). Minthorn also indicated that he is able to do basic housework, like vacuuming, 

dishes, and laundry (although he takes him longer because of his leg), and that he goes hunting a 

few times each year. (Tr. 197, 199, 207). 

After concluding that Minthorn’s medically determinable impairments as of August 30, 

2011, were sufficiently “severe” under Social Security regulations, the ALJ proceeded to 

evaluate Minthorn’s residual functional capacity (“RFC”). (Tr. 22-23). The ALJ concluded that 

Minthorn is capable of performing sedentary work with the following limitations: lifting up to 10 

pounds occasionally; a sit/stand option at will provided he is not off task more than 10 percent of 

the work period (and that he may exercise this option on an hourly basis after sitting or after 

walking 300 yards); no climbing of ladders, ropes, or scaffolds; no kneeling, crouching, or 

crawling; and unrestricted performance of simple, routine and repetitive tasks. (Id.). In 

formulating his RFC assessment, the ALJ assigned great weight to Dr. LaClair’s March 2013 

medical opinion that Minthorn should have “permanent activity restrictions” including “10 

pound maximum lift, sit/stand option, no squatting, kneeling or crawling, no prolonged standing 

or walking and no ladder climbing.” (Tr. 697, 26). Since this was the most restrictive medical 

opinion in the record, the Court perceives no error in either the ALJ’s RFC determination or the 

weight he afforded to Dr. LaClair’s medical opinion. 

As for Minthorn’s alleged mental impairments, having considered the clinical medical 

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evidence, as well as his own self-reported activities of daily living, the ALJ determined that 

Minthorn’s “complaints of disabling symptoms and limitations” were less than fully credible. 

(Tr. 29-30). This finding, and the limitations imposed in his RFC are supported by substantial 

evidence. Primarily relying upon Minthorn’s September 2011 function report, in which 

Minthorn indicated that he could pay attention “pretty long,” can follow simple written and 

spoken instructions, does not need special reminders to take care of his personal needs, and gets 

along “good” with authority figures (Tr. 197, 200, 201), and the similar reports in the third-party 

function report of his girlfriend (Tr. 205, 207 (noting that Minthorn spends time with others 

“several times a week”), 208, 209), the ALJ observed that Minthorn could perform a range of 

daily household chores and recreational activities that significantly undermined the veracity of 

his hearing testimony and the self-reported severity of his symptoms. (Tr. 29-30, 195-210). The 

Court also notes medical records, such as a July 21, 2011 medical review report from Dr. 

Kishore Kondapaneni, stating that Minthorn had “no complaints at this time...symptoms are 

stable...denies any symptoms of anger...anxiety...behavior issues...depression...side effects 

from his medications...” (Tr. 488). Moreover, a Mental Residual Functional Capacity 

Assessment performed by Dr. Art Durdon, M.D., on August 29, 2011, mostly (and in many areas 

entirely) reflected findings that Minthorn was “not significantly limited” in understanding and 

memory, sustained concentration and persistence, social interation, and adaptation, and 

concluded that Minthorn “[r]etains the ability to do simple tasks on a sustained basis...” (Tr. 

496-98). 

In sum, the ALJ formulated an RFC that accounted for Minthorn’s credible limitations, 

and sought and relied upon vocational expert testimony to determine what other work he would 

still be capable of performing. (Tr. 31-32). Based upon its own comprehensive review of the 

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record, the Court concludes that the ALJ’s reasons, and his ultimate decision finding Minthorn 

not disabled, are all supported by substantial evidence. Therefore, the ALJ’s decision should be 

affirmed and the Court recommends dismissal of Minthorn’s complaint with prejudice. See

Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (stating that judicial 

review under the Social Security Act is limited in that courts “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.”) 

(internal citations omitted); Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994) (stating that in the event the Commissioner’s decision is supported by substantial 

evidence, “it must be affirmed even if the reviewing court would decide the matter differently 

and even if substantial evidence also supports the opposite conclusion.”) (internal citations 

omitted). 

III. CONCLUSION 

 For the foregoing reasons, the Court RECOMMENDS that the complaint (Doc. #1) be 

DISMISSED WITH PREJUDICE. 

Dated: June 17, 2016 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

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

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 

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(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 

638 F.2d 947, 949–50 (6th Cir.1981). The filing of objections which 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. Secretary of HHS, 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 

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A 

party may respond to another party’s objections within 14 days after being served with a copy. 

See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Any such response should be concise, and 

should address specifically, and in the same order raised, each issue presented in the objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on June 17, 2016. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager

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