UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

WANDA FAY OVERTON,

Plaintiff, Civil Action No.: 15-11750

Honorable Victoria A. Roberts

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN COLVIN,

Acting Commissioner of

Social Security, 

Defendant. 

__________________________________/

REPORT AND RECOMMENDATION TO DISMISS

PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE

I. INTRODUCTION

Plaintiff Wanda Fay Overton 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 her claim for benefits. Having 

failed to file her motion for summary judgment despite two orders from the 

Court requiring its filing, and having offered no excuse as to her failure to 

file such a motion, the Court now RECOMMENDS that Overton’s complaint 

be DISMISSED WITH PREJUDICE for failure to prosecute and for lack of 

merit. 

II. BACKGROUND

On August 10, 2015, the court directed Overton to file her motion for 

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summary judgment by September 9, 2015. [R. 12]. On September 16, 

2015, after Overton failed to file her motion, the Court issued an Order to 

Show Cause instructing her to inform the Court by September 30, 2015

why it should not recommend dismissal of her complaint pursuant to 

Federal Rule of Civil Procedure 41(b) for failure to prosecute and adhere to 

a Court order. [R. 13]. To date, Overton, who is proceeding pro se, has 

not responded or filed her summary judgment motion. Notably, neither of 

the Court’s Orders has been returned as undeliverable, permitting an 

inference that she received them. For this reason, and because the 

decision of the Administrative Law Judge (ALJ) was procedurally sound 

and supported by substantial evidence, Overton’s complaint should be 

dismissed.

III. ANALYSIS

A. Failure to Prosecute

A court’s discretion to sua sponte dismiss an action for failure to 

prosecute derives from its inherent authority and Federal Rule of Civil 

Procedure 41(b). Link v. Wabash R. Co., 370 U.S. 626, 629-632, (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. Nonetheless, a court should proceed with 

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appropriate caution. “The dismissal of a claim 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) (citation and internal 

quotation marks omitted).

Four factors guide the determination of whether a case should be 

dismissed for failure to prosecute pursuant to Rule 41(b): “(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.” Knoll, 176 F.3d at 363.

The Court finds that the analysis of these factors weighs in favor of 

dismissal. First, Overton is at fault, as she has failed to timely file her 

motion for summary judgment and has not responded to the order for show 

cause, despite being warned that failure to file her motion might result in 

dismissal of her case with prejudice for failure to prosecute. 

With regard to the second factor, the delay of the litigation caused by 

Overton’s failure to prosecute has not caused the Commissioner any 

discernable prejudice. However, the third factor, relating to whether 

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Overton was clearly warned of the potential for dismissal, weighs heavily in 

favor of dismissal. Likewise, the fourth factor, which requires the Court to 

consider less drastic sanctions, weighs in favor of dismissal because 

Overton has become completely absent from the proceedings. Under 

these circumstances, “dismissal is the only appropriate remedy” because 

Overton “has effectively abandoned the case.” Morley v. Comm’r of Soc. 

Sec., No. 12-14653, 2013 U.S. Dist. LEXIS 68040, *3, 2013 WL 2051326 

(E.D. Mich. May 14, 2013). 

Rule 41(b) states that a dismissal under that subdivision “operates as 

an adjudication upon the merits,” so dismissal should be with prejudice. 

Alternatively, Overton’s complaint should be dismissed on the merits 

because the ALJ’s did not commit reversible error.

B. Merits of Complaint

The Court recognizes that there is some debate regarding the 

propriety of dismissing pro se social security complaints for want of 

prosecution. In Wright v. Comm’r of Soc. Sec., No. 09-15014, 2010 U.S. 

Dist. LEXIS 136402, 2010 WL 5420990, at *3 (E.D. Mich. Dec. 27, 2010), 

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 

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except file a timely complaint.” Other courts have held that dismissal of 

Social Security complaints pursuant to Rule 41(b) is appropriate. See

Salmo v. Comm’r of Soc. Sec., No. 11-14926, 2012 U.S. Dist. LEXIS 

185107, 2012 WL 6929176, at *2 (E.D. Mich. Nov. 27, 2012) (collecting 

cases dismissing Social Security complaints under Rule 41(b)). Given this 

debate, the Court alternatively recommends dismissal because the ALJ’s 

decision is procedurally sound and supported by substantial evidence of 

record. 

Overton’s complaint alleges that the ALJ erred in finding her not 

disabled because her doctors had stated that she could not work and 

because she suffers from a host of ailments. [R. 1]. The Court has 

reviewed the medical opinions of record, and the ALJ’s consideration of 

them, and finds no error. 

i. Treating Physician Rule

The “treating physician rule” requires an ALJ to give controlling 

weight to a treating physician’s opinions regarding the nature and severity 

of a claimant’s condition when those opinions are well-supported by 

medically acceptable clinical and diagnostic evidence, and not inconsistent 

with other substantial evidence. Gentry v. Comm’r of Soc. Sec., 741 F.3d 

708, 723, 727-29 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 

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234, 242-43 (6th Cir. 2007). “Even when not controlling, however, the ALJ 

must consider certain factors, including the length, frequency, nature, and 

extent of the treatment relationship; the supportability of the physician’s 

conclusions; the specialization of the physician; and any other relevant 

factors,” and give appropriate weight to the opinion. Gentry, 741 F.3d at 

723. In all cases, a treating physician’s opinion is entitled to great 

deference. Id. Courts will not hesitate to remand when the ALJ failed to 

articulate “good reasons” for not fully crediting the treating physician’s 

opinion. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004).

In this case, the ALJ articulated good reasons for giving less than full 

weight to treating primary care provider Dr. Jeremiah Lopez’s opinions. Dr. 

Lopez opined in December 2012 that Overton could do no work until she 

completed cardiac rehabilitation. [R. 11-9, Tr. 701]. In April 2013, he 

provided a medical source statement indicating that Overton could work no 

hours per day due to chest pain, shortness of breath and decreased 

exercise tolerance associated with her diagnoses of coronary artery 

disease, hypertension and atrial fibrillation. [R. 11-9, Tr. 884-85]. The ALJ 

extensively addressed these opinions in her decision. [R. 11-2, Tr. 36-39]. 

She noted that Dr. Lopez did not treat Overton between the December 

2012 and April 2013 opinions. [R. 11-2, Tr. 38; R. 11-9, Tr. 694-701, 884-

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85]. Additionally, the ALJ cited Dr. Lopez’s description of Overton as being 

“currently asymptomatic” in April 2013; detailed treatment notes from that 

visit and the December 2012 visit that did not substantiate disabling 

symptoms; and specifically noted the lack of a diagnosis or treatment for 

Dr. Lopez’s indications that Overton could never use her hands for 

manipulation. [R. 11-2, Tr. 36-39; R. 11-9, Tr. 694-701]. The ALJ further 

cited the treatment notes from Joseph Arcidi, M.D., who found in May 2012 

that Overton had improved since her January 2012 coronary bypass 

surgery, that her arthritis was “now her major issue,” and that he felt 

comfortable discontinuing cardiac follow-up. [R. 11-2, Tr. 37; R. 11-7, Tr. 

597-98]. The ALJ’s analysis complied with her procedural obligations for 

considering Dr. Lopez’s opinions and giving them appropriate weight. 

Gentry, 741 F.3d at 723. 

Additionally, although the ALJ gave Dr. Lopez’s opinion less than full 

weight, she showed sufficient deference by incorporating into the residual 

functional capacity (RFC) Dr. Lopez’s limitations on lifting, postural 

movements and overhead reaching, and a requirement that Overton be 

allowed to alternate between sitting and standing. [R. 11-2, Tr. 30-31, 39; 

R. 11-9, Tr. 884-85]. 

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ii. Substantial Evidence

The ALJ’s decision is otherwise supported by substantial evidence in 

the record. Pursuant to § 405(g), this Court’s review is limited to 

determining whether the Commissioner’s decision is supported by 

substantial evidence and was made in conformity with proper legal 

standards. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 

2014). “If the Secretary’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.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 

(6th Cir. 1994) (citations and internal quotation marks omitted).

In addition to challenging the ALJ’s rejection of her treating 

physician’s opinion, Overton’s complaint cites her shoulder, knee and back 

problems, her atrial fibrillation and the need for a pacemaker as supporting 

her disability claim. The Court does not see any record evidence to 

support her claim that she needs a pacemaker, and the reasoning 

supporting the ALJ’s finding that Overton’s heart ailments were not 

completely disabling is described in the preceding section. The ALJ 

acknowledged and considered Overton’s degenerative joint disease in her 

shoulders and knees, as well as her back pain, but she also described 

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evidence in the record showing that Overton tended to have minimal gait 

limitations, normal strength and normal ranges of motion, and found that 

none of her conditions resulted in a twelve month continuous period in 

which Overton could not perform work consistent with the RFC. [R. 11-2, 

Tr. 32-39; R. 11-7, Tr. 597-98; R. 11-8, Tr. 631-36; R. 11-9, Tr. 700, 708-

18, 751-57, 767-70]. 

For all of these reasons, the ALJ’s decision was supported by 

substantial evidence in the record. 

V. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS dismissing 

Overton’s complaint WITH PREJUDICE for failure to prosecute or, 

alternatively, on the merits of her complaint. 

Dated: November 5, 2015 s/Elizabeth A. Stafford

Detroit, Michigan ELIZABETH A. STAFFORD

United States Magistrate Judge

NOTICE TO PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen 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 (1985); Howard v. 

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

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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 

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System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on November 5, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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