Johnson v. Commissioner of Social Security et al

Filing 12

REPORT AND RECOMMENDATION that the decision of the Commissioner be Affirmed and this matter be closed on the docket of the Court. Objections to R&R due by 9/3/2013. Signed by Magistrate Judge Karen L. Litkovitz on 8/14/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BETTY JOHNSON,
Plaintiff,

Case No. 1: 12-cv-590
Spiegel, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final
decision of the Commissioner of Social Security (Commissioner) denying plaintiffs application
for disability insurance benefits (DIB). This matter is before the Court on plaintiffs Statement of
Errors (Doc. 5), the Commissioner's response in opposition (Doc. 10), and plaintiffs reply
memorandum. (Doc. 11 ).

I. Procedural Background
Plaintiff filed an application for DIB in September 2004, alleging disability since March
16, 2004, due to back, neck, shoulder, arm, and hand pain and leg swelling. Plaintiffs
application was denied initially and upon reconsideration. Plaintiff requested and was granted a
de novo hearing before Administrative Law Judge (ALJ) Deborah Smith. Plaintiff, her husband,
and a vocational expert (VE) appeared and testified at the ALJ hearing, at which plaintiff was
represented by counsel. On August 15, 2007, the ALJ issued a decision denying plaintiffs DIB
application. Plaintiffs request for review by the Appeals Council was denied and in December
2009, she sought judicial review of the ALJ's decision. See Johnson v. Comm 'r ofSoc. Sec., No.
1:09-cv-936 (S.D. Ohio 2009) (Johnson I).

In Johnson I, the Court reversed the ALJ's decision and remanded for further proceedings
as follows:
The Magistrate Judge determined that the ALJ' s findings were not
supported by substantial evidence ([Doc. 18] citing, inter alia, Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Specifically, the Magistrate Judge found that
the ALJ' s determination that Plaintiff suffers from myofascial pain syndrome and
not, as Plaintiff claims, fibromyalgia, was the result of an erroneous assumption
that the two conditions are mutually exclusive and a factual error in finding that
Plaintiff was not prescribed strong pain medication (/d.). Further, the Magistrate
Judge determined that the ALJ' s conclusion that Plaintiff had a residual functional
capacity ("RFC") of medium and was capable of doing her previous work was not
supported by substantial evidence in the record as a whole (Jd ). In particular, the
Magistrate Judge noted that the ALJ relied "heavily, if not exclusively" on the
RFC form completed by consulting physicians who relied solely on a records
review as the basis for their opinion (!d). Notably, however, most of Plaintiffs
records were not in her file at the time the consulting physicians conducted their
review (Jd ).
Having found that the decision of the ALJ was not supported by
substantial evidence in the record, the Magistrate Judge recommends that the case
be remanded for further proceedings, that the ALJ carefully review evidence of
Plaintiffs allegations of additional limitations based on evidence of fibromyalgia
and/or carpal tunnel syndrome and that the ALJ fully review the medical evidence,
including the functional capacity assessments of Plaintiffs treating physicians,
and give specific reasons for the weight given to the opinions of the treating
physicians (!d.).

Johnson I, No. 1:09-cv-936 (Doc. 18 at 2-3). Judge Spiegel adopted the Report and
Recommendation, vacated the decision of the ALJ, and remanded the matter for further
proceedings.
On remand, plaintiff, through counsel, appeared at a second hearing on December 15,
2011, before ALJ Smith. Plaintiff, a VE, and a medical expert (ME) testified at the ALJ hearing.
On April 24, 2012, ALJ Smith held a third hearing at which a different ME and VE testified. On
May 25, 2012, the ALJ issued a decision finding that plaintiff was not disabled. Plaintiffs
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request for review by the Appeals Council was denied, making the decision of the ALJ the final
administrative decision of the Commissioner.
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(l)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) Ifthe claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities - the claimant is not
disabled.
3) Ifthe claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.

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Rabbers v. Comm 'r ofSoc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing§§ 404.1520(a) (4)(i)-

(v), 404.1520(b)-(g)). The claimant has the burden ofproofat the first four steps ofthe
sequential evaluation process. !d.; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541, 548 (6th Cir.
2004). Once the claimant establishes a prima facie case by showing an inability to perform the
relevant previous employment, the burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that such employment exists in the
national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.
1999).

B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] met the insured status requirements for disability insurance
benefits on her alleged onset date of March 16, 2004, and continued to meet them
through December 31, 2009 (Exhibit 8D).
2. There is no evidence that the [plaintiff] engaged in any substantial gainful
activity during the period from her alleged onset date through the date last insured
of December 31,2009 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the [plaintiff] had the following severe
impairments: fibromyalgia and a myofascial pain syndrome (20 CFR
404.1520(c)).
4. Through the date last insured, the [plaintiff] did not have an impairment or
combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. Careful consideration of the entire record shows that, through the date last
insured, the [plaintiff] had the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except the [plaintiff] could sit, stand, and walk
-each- only 2 hours at a time for 6 hours a workday. She cannot crouch, crawl,
or climb ladders, ropes, or scaffolds. She could occasionally stoop and climb
stairs. She should not work at unprotected heights or around hazards.
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6. Through the date last insured, the [plaintiff] was unable to perform any past
relevant work (20 CFR 404.1565).
7. The [plaintiff] was born [in] ... 1960, was 43 years old on her alleged onset
date, was 49 years old on the date last insured, and considered to be a younger
individual age 18-49 (20 CFR404.1563).
8. The [plaintiff] has a limited education and is able to communicate in English
(20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is "not disabled," whether or not the [plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the [plaintiff]'s age, education,
work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the [plaintiff] could have
performed (20 CFR 404.1569 and 404.1569(a)).
11. The [plaintiff] was not under a disability, as defined in the Social Security Act,
at any time from March 16, 2004, the alleged onset date through December 31,
2009, the date last insured. (20 CFR 404.1520(g)).
(Tr. 427-38).

C. Judicial Standard of Review
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm 'r ofSoc. Sec., 581 F.3d 399,406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,

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402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NL.R.B., 305 U.S. 197, 229
( 193 8)). Substantial evidence consists of "more than a scintilla of evidence but less than a
preponderance .... " Rogers v. Comm 'r ofSoc. Sec., 486 F.3d 234,241 (6th Cir. 2007). In
deciding whether the Commissioner's findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ' s conclusion that the
plaintiff is not disabled, "a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right." Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm 'r ofSoc.

Sec., 478 F.3d 742, 746 (6th Cir. 2007)). See also Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541,
545-46 (6th Cir. 2004) (reversal required even though ALJ' s decision was otherwise supported
by substantial evidence where ALJ failed to give good reasons for not giving weight to treating
physician's opinion, thereby violating the agency's own regulations).

D. Specific Errors
On appeal, plaintiff raises eight assignments of error: (1) the ALJ improperly weighed the
medical opinions of record; (2) the ALJ incorrectly analyzed plaintiffs fibromyalgia in light of
Sixth Circuit precedent; (3) the ALJ improperly ignored the ME's opinion that plaintiffs facet
joint arthropathy impairment met or equaled the Listing oflmpairments; (4) the ALJ erred by
failing to find that plaintiffs facet joint arthropathy is a severe impairment; (5) the ALJ erred by
failing to follow the dictates of the remand order issued in Johnson I; (6) the ALJ improperly
ignored evidence of record, namely a residual functional capacity (RFC) assessment performed
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by Karen Scholl, plaintiffs physical therapist; (7) the ALJ erroneously held a third supplemental
hearing in April2012 despite having a complete record before her; and (8) the ALJ presented
improper hypothetical questions to the VE. Plaintiff also alleges the ALJ violated her due
process rights by prematurely terminating the cross-examination of the ME at the April2012
hearing.

1. The ALJ complied with the remand order in Johnson I.
Plaintiff argues the ALJ ignored the "real issue" cited by the Court in its remand order that of plaintiffs RFC - and ignored plaintiffs almost three years of pain management treatment,
which was the type of evidence that was absent from the previous record. (Doc. 5 at 23). 1
Plaintiff also contends that ALJ erroneously rejected the functional capacity assessments of John

B. Baxley, M.D., her treating internist from 2005 to 2006, and of Karen Scholl, P.T, the physical
therapist who evaluated plaintiff on March 19, 2009. /d.
The Court's remand order in Johnson I required the ALJ to (1) carefully review evidence
of plaintiffs allegations of additional limitations based on evidence of fibromyalgia and/or carpal
tunnel syndrome; (2) fully review the medical evidence, including the functional capacity
assessments of plaintiffs treating physicians; and (3) give specific reasons for the weight given
to the opinions ofthe treating physicians. (Doc. 18).

1

Plaintiff speculates that had this evidence been before the district court in the previous appeal, she would
have obtained an outright reversal for an award of benefits. The undersigned believes that plaintiff reads the district
court's decision much too broadly. In reviewing the ALJ's previous finding that fibromyalgia was not a severe
impairment, Magistrate Judge Bowman addressed plaintiff's reliance on Rogers v. Comm 'r ofSoc. Sec., 486 F.3d
234 (6th Cir. 2007) and distinguished Rogers because plaintiff's records did not reflect "classic fibromyalgia
distribution" tender points, examination or treatment by a rheumatologist or specialist, or "rule out" testing as
performed in Rogers. While plaintiff was treated by a pain management specialist subsequent to the district court
remand, the other factors that distinguished her case from Rogers are still at issue as discussed more fully infra.

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As explained more fully below in Sections II.D.5, the ALJ complied with the dictates of
the Court's remand order to consider the evidence of plaintiff's fibromyalgia and the functional
capacity assessments of plaintiff's treating physicians. The ALJ likewise articulated specific
reasons for the weight afforded those assessments. To the extent plaintiff alleges the ALJ erred
by not discussing the functional assessment of the physical therapist, the Court finds no error as
set forth in Section II.D.5. Nor did the ALJ "ignore" the relevant pain management records in
assessing plaintiff's claim for disability. The ALJ specifically addressed plaintiff's treatment
with Dr. Simons, a pain management specialist, beginning in April 2009 through the end of 2009
when plaintiff's insured status lapsed. (Tr. 431 ). The ALJ did not err by not considering the two
years of treatment plaintiff received from Dr. Simons after her insured status lapsed on December
31,2009. See Higgs v. Bowen, 888 F.2d 860,863 (6th Cir. 1988) (evidence post-dating
expiration of claimant's insured status only minimally probative); Bagby v. Harris, 650 F.2d 836
(6th Cir. 1981) (post-insured status evidence of new developments in claimant's condition
generally not relevant)?
The ALJ also considered plaintiff's alleged carpal tunnel syndrome and reasonably
determined that the single notation of this impairment by Dr. Baxley was unsupported by the
record evidence for the reasons stated in the ALJ's decision. (Tr. 435). Plaintiff alleges no error
by the ALJ in consideration of this alleged impairment.

2

The Court recognizes that post-insured status evidence may be relevant when it establishes an impairment
existed continuously and in the same degree from the date that a claimant's insured status terminated. Johnson v.
Sec 'y ofHE. W., 679 F.2d 605 (6th Cir. 1982). See also King v. Sec 'y of HHS., 896 F.2d 204, 205--06 (6th Cir.
1990) (post-expiration evidence must relate back to condition prior to the expiration of claimant's date last insured).

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As the ALJ reviewed the evidence of plaintiffs fibromyalgia and carpal tunnel syndrome
and re-assessed the functional capacity assessments of plaintiffs treating physician, the Court
finds the ALJ complied with the remand order in Johnson I.
2. The ALJ did not err by holding a third hearing.
Plaintiff contends the ALJ erred by holding a third hearing and eliciting the opinion of
Lee A. Fischer, M.D., the ME who testified at the April2012 ALJ hearing. Plaintiff alleges the
record supported a finding of disability at the conclusion of the second hearing at which ME Dr.
Kushner testified because Dr. Kushner opined that plaintiffs recently diagnosed obstructive
sleep apnea could explain her long-term symptoms and "[p]laintiffs condition met or equaled
the Listing oflmpairments based upon his diagnosis of facet joint arthropathy." (Doc. 5 at 13,
24).
The ALJ elected to hold a third administrative hearing because Dr. Kushner, the expert at
the second hearing, testified he did not believe fibromyalgia was even a recognized medical
impairment or disease. (Tr. 1011, 1014). In light of the Sixth Circuit case law and Social
Security Ruling recognizing fibromyalgia as a medically determinable impairment, see Rogers v.
Comm 'r ofSoc. Sec., 486 F.3d 234, 243-44 (6th Cir. 2007) and Social Security Ruling 12-2p
(2012), as well as the Court's remand order directing the ALJ to "carefully review evidence of
Plaintiffs allegations of additional limitations based on evidence of fibromyalgia," it would
surely have been reversible error had the ALJ relied on Dr. Kushner's testimony to deny plaintiff
benefits. In addition, while Dr. Kushner testified that obstructive sleep apnea "could" explain
plaintiffs underlying symptomotology (Tr. 1023), the ALJ noted that plaintiff was not diagnosed
with this impairment until December 2009. The ALJ reasonably concluded that sleep apnea was
9

not the source of plaintiffs symptoms as no other physician related plaintiffs symptoms to sleep
apnea and the evidence showed that despite being fitted with a CPAP machine in December
2009, which corrected plaintiffs sleep apnea, her other symptoms persisted. (Tr. 436). The ALJ
reasonably determined that she needed to obtain additional testimony on plaintiffs fibromyalgia
and sleep apnea in view of Dr. Kushner's testimony. There was no error in this regard and
plaintiff has pointed to no legal authority establishing it is error to hold a supplemental hearing
under the circumstances presented.
3. The ALJ's Listings finding is supported by substantial evidence.
Plaintiff claims that Dr. Kushner's testimony establishes "that [p]laintiffs condition met
or equaled the Listing oflmpairments based upon his diagnosis of facet joint arthropathy." (Doc.
5 at 13, 24). In assessing the merits of this assignment of error, the Court has carefully reviewed
the transcript of the ALJ hearing relating to Dr. Kushner's testimony. In the context of
discussing how a physician evaluates a patient's complaints of pain, Dr. Kushner drew a
distinction between a patient's subjective complaints of pain and a finding of"tenderness,"
where touch elicits symptoms of pain. (Tr. 10 19). Dr. Kushner explained that tenderness
findings may provide an explanation for the underlying pain, such as signaling an underlying
inflammatory or degenerative process. !d. Dr. Kushner was then questioned on Dr. Simons'
findings of tenderness in different areas in his examinations of plaintiff. Dr. Kushner then
testified:
A. . . . Just as a digression, the tender points were regarded as valid for a long
time, but nobody ever studied them to see how valid they were. They required
validation. And I'm not sure the detection of facet joint tenderness in the cervical
spine has ever really been validated. You know, I'm taking a hard nosed scientific
approach to the practice of medicine, and yeah, if you push me, I'll say well the
fact of the matter is that medicine is not really a science, and that we have to allow

10

a little slack for the their non-scientific approaches- yeah, I mean it's true. I'm
not going to dig my heels in on that. If, you know, if you wish to [INAUDIBLE]
that her major problems (sic) is facet joint arthropathy, and that it is medically
determinable by finding tenderness in the, in certain spots in the cervical spine,
[INAUDIBLE] her sufficiently to equal some listing or other in the system, I'll go
along with that.
Q. So I think what you were saying is ... that you have a large amount of
skepticism for some of the pain diagnoses as you've described fibromyalgia,
myofascial pain syndrome, and a (sic) can accept that.

A. That's correct. Because I think you're right.

Q.

And - correct. And I think you are saying that others in the medical
profession would disagree with you, and would hold a -

A. Yes, yes. I believe you're right.

Q. That some physicians, some experts would support the notion that fibromyalgia
is a medically determinable condition? I'm not-

A. Yeah, yeah. Okay, yeah.
(Tr. 1019-21).
Plaintiff relies on the above testimony to conclude that her "condition met or equaled the
Listing oflmpairments based upon [Dr. Kushner's] diagnosis of facet joint arthropathy."
Contrary to plaintiffs argument, Dr. Kushner's testimony is confusing, equivocal, and does not
clearly establish that plaintiff met or equaled a Listing for facet joint arthropathy. Dr. Kushner
does not "diagnose" facet joint arthropathy, nor does he conclude that plaintiff actually meets a
specific Listing based thereon. In fact, Dr. Kushner expressed his skepticism about the
impairment given the absence of validation of facet joint arthropathy in the cervical spine. The
testimony cited above is Dr. Kushner's only comment on facet joint arthropathy in connection
with the Listings and does not amount to an assessment of any particular Listing. It is not clear

11

what Dr. Kushner meant by the following statement: "If, you know, if you wish to
[INAUDIBLE] that her major problems (sic) is facet joint arthropathy, and that it is medically
determinable by finding tenderness in the, in certain spots in the cervical spine, [INAUDIBLE]
her sufficiently to equal some listing or other in the system, I'll go along with that." There are no
follow-up questions to Dr. Kushner to flesh out or clarify his testimony. Dr. Kushner does not
identify or analyze any particular Listing in his testimony, nor does he evaluate the specific
elements of a particular Listing and how the medical evidence of record meets or equals those
elements. Based on this testimony of Dr. Kushner, the Court cannot find any error in the ALJ's
decision declining to find plaintiff met or equaled a listed impairment.

4. The ALJ did not err by presenting "invalid" hypothetical questions to the VE
Plaintiff contends the ALJ erred "by adopting the opinion of the vocational expert based
upon invalid hypothetical questions." (Doc. 5 at 20). However, plaintiff fails to identify the
allegedly "invalid" hypothetical questions or present any developed argument on this assignment
of error. Without any argument or citation to the record evidence in this regard, the Court does
not find any error in the ALJ' s vocational analysis. 3

3

Similarly, while plaintiff alleges the ALJ erred by failing to find plaintiffs facet joint arthropathy is a
severe impairment (Doc. 5 at 20), plaintiff has presented no developed argument on this alleged error. Even if the
ALJ erred in not finding plaintiffs facet joint arthropathy to be a "severe" impairment, such error was harmless.
Social Security regulations require that if one "severe" impairment exists, all impairments -severe or otherwisemust be considered in the remaining steps of the sequential evaluation process. 20 C.F.R. §§ 404.1523, 404.1545(e).
Where an ALJ errs in finding a particular impairment "non-severe" in step two of the analysis, the error is harmless if
the ALJ finds at least one severe impairment and continues to address each impairment in determining the claimant's
RFC. See Meadows v. Comm 'r ofSoc. Sec., No. 1:07-cv-1010, 2008 WL 4911243, at *13 (S.D. Ohio Nov. 13,
2008) (citing Maziarz v. Sec'y ofHHS, 837 F.2d 240,244 (6th Cir.1987)). Here, the ALJ found "severe"
fibromyalgia and myofascial pain syndrome at step 2 of the sequential evaluation and went on to consider Dr.
Simon's pain management treatment in assessing plaintiffs RFC, despite no finding of"severe" facet joint
arthropathy as diagnosed by Dr. Simon. (Tr. 436). Thus, any error the ALJ committed by not finding severe facet
joint arthropathy was harmless.

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5. The ALJ's analyses of plaintiff's impairments, RFC and weight to the opinion evidence
are substantially supported by the record evidence.
As plaintiffhas combined her arguments regarding Errors 1, 2, and 6, the Court will
likewise address them together. Plaintiff asserts the ALJ erroneously weighed the medical
opinions of record, including the opinion of her physical therapist, in determining that plaintiffs
fibromyalgia and other impairments are not disabling. Specifically, plaintiff argues the ALJ
erred by adopting the opinion and RFC assessment of Dr. Fischer, the ME at the third hearing,
over the opinions of her treating physician, Dr. Baxley, and physical therapist, Ms. Scholl
because Dr. Fischer's testimony reflects a flawed understanding of fibromyalgia.
The ALJ adopted Dr. Fischer's opinion that plaintiff is capable of performing "light
work" with certain limitations because, despite his concerns about the supportability of plaintiffs
fibromyalgia diagnosis, Dr. Fischer's RFC opinion was the most consistent with the evidence of
record. (Tr. 437). The ALJ gave "some weight" to Dr. Baxley's opinion that plaintiff was
capable of performing only "sedentary work," in part because Dr. Baxley opined that plaintiff
had a limited ability to perform fine and gross manipulations due to carpal tunnel syndrome but
the record evidence contained "no clear evidence of carpal tunnel syndrome." (Tr. 435). The
ALJ briefly discussed the records from plaintiffs physical therapy sessions (Tr. 431) but declined
to weigh the opinion of Ms. Scholl. For the following reasons, the undersigned finds the ALJ did
not err in weighing the opinions of Dr. Fischer and Dr. Baxley or by not assigning weight to the
RFC assessment completed by the physical therapist.
It is well-established that the findings and opinions of treating physicians are entitled to

substantial weight. "In general, the opinions of treating physicians are accorded greater weight

13

than those of physicians who examine claimants only once," Walters v. Comm 'r ofSoc. Sec., 127
F.3d 525, 530-31 (6th Cir. 1997), or to the opinions of non-examining medical advisors or
experts. See Sherrill v. Sec. of HHS, 757 F.2d 803, 805 (6th Cir. 1985). See also Harris v.

Heckler, 756 F.2d 431,435 (6th Cir. 1985) ("The medical opinions and diagnoses oftreating
physicians are generally accorded substantial deference, and if the opinions are uncontradicted,
complete deference.").
"Treating-source opinions must be given 'controlling weight' if two conditions are met:
(1) the opinion 'is well-supported by medically acceptable clinical and laboratory diagnostic
techniques'; and (2) the opinion 'is not inconsistent with the other substantial evidence in [the]
case record."' Gayheart v. Comm 'r ofSoc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). Ifthe ALJ
declines to give a treating source's opinion controlling weight, the ALJ must balance the factors
set forth in 20 C.F .R. § 404.1527(c)(2)-( 6) in determining what weight to give the opinion. See

Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. These factors include the length, nature and
extent of the treatment relationship and the frequency of examination. 20 C.F.R. §
404.1527(c)(2)(i), (ii); Wilson, 378 F.3d at 544. In addition, the ALJ must consider the medical
specialty of the source, how well-supported by evidence the opinion is, how consistent the
opinion is with the record as a whole, and other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
The ALJ must give "good reasons" for the weight afforded a treating source's opinion and those
reasons must be supported by the record evidence. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir.
2011).

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Where a medical source is not a treating source, the ALJ must consider the following
factors in determining how much weight to afford the opinion: the length and nature of the
treatment relationship, the evidence that the physician offered in support of his opinion, the
consistency of the opinion with the record as a whole, and whether the physician was practicing a
specialty. See 20 C.F.R. § 404.1527(c). Ealy v. Comm 'r ofSoc. Sec., 594 F.3d 504, 514 (6th
Cir. 2010). The weight given to the opinions of non-examining sources will depend on the
"degree to which they provide supporting explanations for their opinions." 20 C.F.R. §
404.1527(d)(3). A non-examining physician's opinion may be accepted over that of an
examining physician when the non-examining physician clearly states the reasons that his
opinions differ from those ofthe examining physicians. Lyons v. Soc. Sec. Admin., 19 F. App'x
294,302 (6th Cir. 2001) (citing Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)).
Plaintiff treated with Dr. Baxley of the Regional Family Health Center for one year from
August 2005 to July 2006. (Tr. 315-34). Dr. Baxley's treatment notes include plaintiffs
subjective reports of pain in her left side, neck, back, wrists, and feet (Tr. 315, 317, 319, 327,
330, 332-34) and objective findings of bilateral hyperactive knee reflexes and left biceps reflex;
positive Spurling's test with spasm and tightness of the left neck; and spasm of the left cervical
spine at C6 and C7. (Tr. 315,319,327,330, 333-34). January, February, March, May, June, and
July 2006 examination results revealed a supple neck with no tenderness, full range of motion in
the back, normal deep tendon reflexes, and normal gait. (Tr. 325, 328, 331 ). Plaintiff
experienced some swelling in the legs in late January and early February 2006. (Tr. 324-25,
327). A February 9, 2006 examination showed that plaintiff had a normal gait and was able to
15

move her extremities without difficulty, and that her swelling apparently resolved with
medication. (Tr. 321, 324). In June and July 2006, Dr. Baxley noted positive Tinel and Phalen
signs of both wrists. (Tr. 315, 317). Dr. Baxley diagnosed plaintiff with cervical spine syndrome
with secondary radiculopathy and pain with leg spasms (Tr. 334); possible herniated disc along
with restless leg syndrome and neuropathy (Tr. 333); fibromyalgia (Tr. 327); and carpal tunnel
syndrome. (Tr. 317).
On August 16, 2006, Dr. Baxley completed a "Fibromyalgia and Myofascial Pain
Functional Questionnaire." (Tr. 301-04). Dr. Baxley opined that plaintiff had fibromyalgia,
carpal tunnel syndrome, and depression. (Tr. 301). Though Dr. Baxley stated plaintiffs
prognosis was good, he opined that plaintiff had severely limited functional abilities, including
only being able to sit or stand for less than two hours at a time; needing to shift positions at will;
being able to carry only 10 pounds occasionally; and being restricted to handling and fingering
objects with her right hand 50 percent of the time and with her left hand 10 percent of the time
with no ability to reach overhead. (Tr. 301, 303-04). Dr. Baxley stated that the basis of his
opinion was "no labs, [negative] MRI of wrist July 2006."4 (Tr. 301).
The ALJ gave "some weight" to Dr. Baxley's RFC assessment, "except for the limitations
on fine and gross manipulations." (Tr. 435). The ALJ noted that there was no objective
evidence supporting a diagnosis of carpal tunnel syndrome or Dr. Baxley's associated limitations.

!d. Further, the ALJ identified that April2004 and August 2009 EMG and nerve conduction
studies yielded normal results. (Tr. 435, citing Tr. 170, 830). As for the other limitations
imposed by Dr. Baxley, the ALJ opted instead to adopt the RFC assessment of Dr. Fischer, the

4

A July 3, 2006 MRI of plaintiffs cervical spine revealed largely normal results with mild tonsillar ectopy
noted. (Tr. 356).

16

ME, because Dr. Fischer's opinion was most consistent with the subjective and objective
evidence of record. (Tr. 437).
Dr. Fischer opined that plaintiff was capable of performing a range of light work5 with
additional limitations such as sitting, standing, and walking six hours out of an eight hour day,
two hours at a time each; no use or climbing of ladders, ropes, or scaffolding; no crouching or
crawling; and only occasional stooping or climbing of stairs. (Tr. 1071 ). Dr. Fischer testified at
length about the deficiencies of Dr. Baxley's RFC assessment and why he did not believe
plaintiff had any limitations associated with fibromyalgia. See Tr. 1064-97. After explaining the
difficulty in diagnosing fibromyalgia, Dr. Fischer stated that he did not believe that Dr. Baxley's
diagnosis was supported by the record evidence. (Tr. 1064-65). Dr. Fischer testified that the
record did not include any evidence of specific tender points on examination but, rather, the
record largely consisted of plaintiff's complaints of pain. (Tr. 1065). For example, Dr. Fischer
discussed treatment notes where plaintiff complained of pain but where no tenderness was found
on palpation. (Tr. 1065, citing Tr. 312). Dr. Fischer stated that "[b]asically [plaintiff] doesn't
have any physical findings whatsoever of fibromyalgia or any other complaint of pain in any
other area, other than her neck, and [Dr. Baxley is] attributing it to fibromyalgia" despite the lack
of evidence supporting the diagnosis. (Tr. 1066). Dr. Fischer further explained that while there
is often not objective evidence supporting a fibromyalgia diagnosis, that in this instance
plaintiff's symptoms are disproportionate to the overall physical examination findings of record.
(Tr. 1068-69). Dr. Fischer further testified that he believed Dr. Baxley's opinion was a result of

5

The Social Security regulations define "light work" as work that involves "lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds." "Light work" further involves jobs
where a good deal of walking or standing is involved or mostly sitting with pushing and pulling of arm or leg
controls. 20 C.F.R. § 404.1567(b ).

17

his treatment of plaintiffs pain and that he diagnosed her with fibromyalgia "to come up with
some type of label" for plaintiffs maladies. (Tr. 1069). 6
The ALJ adopted Dr. Fischer's RFC opinion despite the ME's concerns that the record
did not support a diagnosis of fibromyalgia because his opinion on plaintiffs functional
limitations was the most consistent with the evidence of record. (Tr. 437). The ALJ's decision
in this regard is substantially supported by the record. The ALJ discussed Dr. Fischer's
testimony and opinion at length and clearly articulated her rationale for adopting his limitations.
First, the ALJ discussed Dr. Fischer's rejection of Dr. Baxley's fibromyalgia diagnosis based on
the lack of supporting findings in his treatment notes - particularly the absence of trigger point
findings and subjective complaints which are generally present in fibromyalgia patients. See Tr.
436, 1065, 1069, 1074, 1078-79, 1084-85. Second, the ALJ noted that Dr. Baxley did not rule
out other potential reasons for plaintiffs symptoms given that fibromyalgia is a diagnosis of
exclusion. (Tr. 436). Third, the ALJ identified Dr. Fischer's testimony regarding
inconsistencies between the objective evidence and Dr. Baxley's RFC assessment, e.g., plaintiff
exhibited normal reflexes and leg strength on examination and no difficulty ambulating but Dr.
Baxley concluded that she had extreme sitting, standing, and walking limitations. See Tr. 436,
1068, 1073. Fourth, the ALJ noted Dr. Fischer's testimony that the objective evidence
demonstrated that plaintiff had responded well to sleep apnea treatment, had normal conduction

6

Despite Dr. Fischer's rejection of plaintiffs fibromyalgia diagnosis, the ALJ nevertheless found that
plaintiff had the severe impairment offibromyalgia. (Tr. 429). It appears the ALJ made this determination largely
based on the remand order from Johnson I, as the ALJ stated that (1) she sought the testimony of the ME due to the
lack of clear evidence of fibromyalgia in the record, and (2) the prior order of the Court required her to find
fibromyalgia is a severe impairment. (Tr. 434, 437). Upon review, the undersigned does not agree with the ALJ's
interpretation of the prior remand order. That order simply required the ALJ to carefully review the evidence related
to plaintiffs allegations of additional limitations based on evidence of fibromyalgia but did not mandate a finding
that the impairment was severe.

18

studies in her extremities, and was able to treat her degenerative disc disease with epidural
steroid injections, which was inconsistent with the limitations provided by Dr. Baxley. See Tr.
436-37, 1072-73, 1085.
Faced with these starkly contrasting opinions, the ALJ reasonably determined, based on
Dr. Fischer's testimony and the whole of the record evidence, to discount Dr. Baxley's RFC
assessment. It is the Commissioner's function to resolve conflicts in the medical evidence.
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Hardaway v. Sec 'y of HHS., 823 F.2d
922,928 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984). The
Commissioner's determination must stand if it is supported by substantial evidence regardless of
whether the reviewing court would resolve the conflicts in the evidence differently. Kinsella v.
Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). See also Boyle v. Sullivan, 998 F.2d 342,347
(6th Cir. 1993); Tyra v. Sec 'y of HHS., 896 F.2d 1024, 1028 (6th Cir. 1990). The fact that the
record could support a contrary conclusion does not mean the ALJ' s decision is not supported by
substantial evidence. See Collins v. Astrue, 373 F. App'x 552, 556 (6th Cir. 2010) (court must
defer to the agency "even if there is substantial evidence in the record that would have supported
an opposite conclusion, so long as substantial evidence supports the conclusion reached by the
ALJ" the ALI's decision should be given deference) (quoting Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997)).
Here, the ALJ rejected Dr. Baxley's opinion because: (1) his diagnosis offibromyalgia
was not supported by the requisite examination findings and symptomology; (2) his diagnosis of
and accordant limitations for carpal tunnel syndrome was contradicted by the objective findings;
(3) there was no evidence of record from a rheumatologist which supported a finding that
19

plaintiffhad significant physical limitations due to fibromyalgia; and (4) Dr. Fischer's testimony
and opinion was more consistent with the record as a whole as to plaintiffs functional
limitations. Substantial evidence supports the ALJ's determination to reject Dr. Baxley's RFC
assessment due to its inconsistency and lack of support, regardless of how plaintiff or the Court
would have resolved the conflict. See Kinsella, 708 F.2d at 1059. The ALJ thoroughly discussed
the lengthy record evidence and found that Dr. Baxley's opinion failed to accurately reflect
plaintiffs physical abilities. Consequently, the ALJ's decision to discount Dr. Baxley's opinion
is supported by substantial evidence. 7
To the extent plaintiff argues that the ALJ' s evaluation of plaintiffs fibromyalgia is
inconsistent with Sixth Circuit precedent, the undersigned disagrees. Fibromyalgia is a condition
that "causes severe musculoskeletal pain which is accompanied by stiffness and fatigue due to
sleep disturbances." Preston v. Sec yof HHS., 854 F.2d 815, 817-20 (6th Cir. 1988). In the
context of social security disability cases, fibromyalgia presents particularly challenging issues in
determining credibility, RFC, and disability because its symptoms are entirely subjective. See

Rogers, 486 F.3d at 243 n.3. Similar to chronic fatigue syndrome, Cohen, 964 F.2d at 529,
fibromyalgia is not amenable to objective diagnosis and standard clinical tests are "not highly
relevant" in diagnosing or assessing fibromyalgia or its severity. Preston, 854 F.2d at 820. See

also Rogers, 486 F.3d at 243-44 ("in light of the unique evidentiary difficulties associated with
the diagnosis and treatment of fibromyalgia, opinions that focus solely upon objective evidence

7

In support of her argument that the ALJ erred in adopting Dr. Fischer's RFC assessment, plaintiff claims
that "the ALJ incorrectly stated that Dr. Fischer was an internist [when, instead,] he was a family practice physician ..
. ." (Doc. 5 at 23). Plaintiff fails to identify the difference between the two, however, and the undersigned finds that
the distinction has no bearing on Dr. Fischer's medical expertise as it relates to his testimony in this matter. See
Jsbel v. Comm 'r ofSoc. Sec., No. 1:06-cv-384, 2008 WL 2676363, at *13 (S.D. Ohio July 2, 2008) (recognizing
similarity of internists and family practice physicians as both are primary care physicians).

20

are not particularly relevant"); Swain v. Comm'r ofSoc. Sec y, 297 F.Supp.2d 986, 990 (N.D.
Ohio 2003) ("[f]ibromyalgia is an 'elusive' and 'mysterious' disease. It has no known cause and
no known cure. Its symptoms include severe musculoskeletal pain, stiffness, fatigue, and
multiple acute tender spots at various fixed locations on the body.") (footnotes and citations
omitted).
Here, the ALJ made a factual finding at Step 2 of the sequential evaluation process that
plaintiffs fibromyalgia is a severe impairment under the Social Security Regulations. (Tr. 429,
Finding #3, citing 20 C.F.R. § 404.1520(c)). Upon making this determination, the ALJ
continued to apply the appropriate standard in evaluating the limitations plaintiff faced due to her
fibromyalgia. Plaintiff argues the ALJ erred by adopting Dr. Fischer's RFC assessment because
he opined that the evidence of record did not support a finding that plaintiff had, or was limited
by, fibromyalgia. (Doc. 5 at 21). Plaintiff paints Dr. Fischer's opinion as being rooted in a lack
of objective findings which, as stated above, is not a sufficient basis for rejecting limitations
associated with fibromyalgia. See Preston, 854 F.2d at 820; Rogers, 486 F.3d at 243-44.
However, Dr. Fischer's opinion that plaintiff did not have disabling fibromyalgia was not based
solely on a lack of objective findings. Dr. Fischer provided detailed testimony about
fibromyalgia and acknowledged that it was not easily diagnosable through objective tests. (Tr.
1064-65). Dr. Fischer then detailed why plaintiffs treatment records did not, in his opinion,
support a finding that she was limited by fibromyalgia because, inter alia,: (1) the treatment
notes did not meet the criteria utilized by the American Rheumatologic Association for
diagnosing fibromyalgia (Tr. 1065); (2) the treatment notes from plaintiffs providers attributed
basic neck pain to fibromyalgia despite no findings of trigger point pain (Tr. 1065, citing Tr.

21

312); and (3) the records did not have "any physical findings whatsoever of fibromyalgia or any
other complaint of pain in any other area, other than her neck .... " (Tr. 1066). Contrary to
plaintiffs argument, the ALJ did not reject plaintiffs treating physician's limitations due to a
lack of objective evidence. Rather, the ALJ discussed Dr. Fischer's opinion in the context of the
Preston standard for assessing fibromyalgia and reasonably relied on Dr. Fischer's

comprehensive testimony which identified several "good" reasons for rejecting Dr. Baxley's
opinion that plaintiff suffered from disabling fibromyalgia.
Nevertheless, plaintiff contends that Dr. Fischer's testimony could in fact support the
fibromyalgia diagnosis because he "agreed that plaintiffs treating physician found her to have
many ofthe symptoms associated with fibromyalgia." (Doc. 5 at 22, citing Tr. 1077-78). The
testimony referenced by plaintiff is directed solely to the "Fibromyalgia" questionnaire
completed by Dr. Baxter in which he checked off many symptoms that Dr. Fischer agreed were
consistent with a diagnosis offibromyalgia. (Tr. 1077-78). But significantly, Dr. Fischer also
testified that he did not see confirmation of the alleged fibromyalgia symptoms on the check-off
form in Dr. Baxter's records, nor did Dr. Baxter's treatment records evidence a process of
diagnosis elimination. (Tr. 1078, 1079, 1083, 1084, 1085). Plaintiffhas not pointed to progress
notes or records aside from Dr. Baxter's "Fibromyalgia" questionnaire to show that Dr. Baxter's
opinion is well-supported by his clinical and diagnostic findings. Accordingly, the Court finds
that the ALJ applied the appropriate standards under Sixth Circuit precedent for evaluating
plaintiffs fibromyalgia.
Lastly, plaintiff argues the ALJ erred by not addressing the opinion of physical therapist
Scholl, which was generated after the Court's prior remand order. (Doc. 5 at 23). Ms. Scholl
22

opined that plaintiff "would have difficulty working at this time due to production of pain [with]
most activities." (Tr. 650). The ALJ discussed plaintiffs physical therapy findings, noting that
they contained mostly findings of diminished lumbar and cervical range of motion with intact
sensory examinations. (Tr. 431). This also accurately summarizes the "functional activities"
portion of the RFC assessment provided by Ms. Scholl. See Tr. 650. Plaintiff argues that the
therapist's RFC assessment supports Dr. Baxley's RFC opinion and, thus, should have been
weighed by the ALJ. Plaintiffs argument is not well-taken.
First, the RFC assessment from Ms. Scholl includes findings that plaintiffs range of
motion is within functional limits except for her neck and lower back and her muscle strength is
fair to good across the board. (Tr. 650). Contrary to plaintiffs assertion, these findings are not
consistent with Dr. Baxley's severely restrictive RFC assessment.
Second, while Ms. Scholl determined that plaintiff could only sit for five to ten minutes;
stand for 30 minutes; and walk for five minutes at a time, she says nothing about how long
plaintiff can do these activities throughout the day. It is therefore unclear how consistent this
opinion is with Dr. Baxley's as to plaintiffs ability to sit, stand, and walk throughout a full 8hour work day.
Third, and most importantly, the ALJ was not required to give any special weight to Ms.
Scholl's RFC assessment because a physical therapist like Ms. Scholl is not an acceptable
"medical source" who is qualified to assess the severity of plaintiffs impairments and
functioning. Compare 20 C.P.R.§ 404.1513(a) (acceptable medical sources include licensed
physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists and
qualified speech-language pathologists), with 20 C.P.R.§ 404.1513(d)(l) (medical sources not
23

listed in§ 1513(a), such as nurse practitioners, physicians' assistants, naturopaths, chiropractors,
audiologists and therapists are considered to be "other sources" rather than "acceptable medical
sources"). See also Nierzwick v. Comm 'r ofSoc. Sec., 7 F. App'x 358, 363 (6th Cir. 2001)
(physical therapist's report not afforded significant weight because therapist not recognized as an
acceptable medical source); Jamison v. Comm 'r, No. 1:07-cv-152, 2008 WL 2795740, at *10
(S.D. Ohio July 18, 2008) (Dlott, J.) (same). Because physical therapists are not considered
acceptable medical sources under the regulations, the ALJ was not required to give any special
deference to Ms. Scholl's RFC assessment. Consequently, the ALJ did not err by declining to
weigh Ms. Scholl's opinion.
For the above reasons, the undersigned finds that the ALJ did not err in assessing
plaintiffs RFC or weighing the opinions of record.

6. The ALJ did not violate plaintiff's due process rights.
The Social Security Act, 42 U.S.C. § 405(b), and due process require that a claimant
receive meaningful notice and a full and fair opportunity to be heard before a claim for disability
benefits can be denied. Stoner v. Sec'y ofHHS., 837 F.2d 759,760-761 (6th Cir. 1988) (citing

Parker v. Califano, 644 F.2d 1199 (6th Cir. 1981)). The Social Security regulations specifically
provide: "Any party to a hearing has the right to appear before the administrative law judge ... to
present evidence and to state his or her position. A party may also make his or her appearance by
means of a designated representative .... " 20 C.F.R. § 404.950(a). "The essence of due process
is the requirement that a person in jeopardy of a serious loss be given notice of the case against
him and opportunity to meet it. All that is necessary is that the procedures be tailored, in light of
the decision to be made, to the capacities and circumstances of those who are to be heard to
24

insure that they are given a meaningful opportunity to present their case." Flatford v. Chafer, 93
F.3d 1296, 1306 (6th Cir. 1996) (quoting Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976))
(internal citations and quotations omitted).
Plaintiff contends the ALJ "cut short" her attorney's cross-examination of Dr. Fischer at
the April2012 hearing and, consequently, violated her due process rights to a full and fair
hearing. (Doc. 5 at 24-25). Specifically, plaintiffs attorney states that he was denied the
opportunity to question Dr. Fischer about Ms. Scholl's March 2009 RFC opinion. !d. Plaintiff
asserts the ALJ' s premature conclusion of Dr. Fischer's cross-examination constitutes reversible
error. The undersigned disagrees.
A review of the April 24, 2012 hearing transcript demonstrates that plaintiff was given
ample opportunity to cross examine Dr. Fischer and present her case. Plaintiffs counsel
extensively questioned Dr. Fischer about the medical records, his medical opinion on plaintiffs
physical limitations, and the doctor's basis for disagreeing with the limitations provided by
plaintiffs treating medical providers. See generally Tr. 1073-96. After an extensive crossexamination, the ALJ instructed plaintiffs counsel to "wrap it up" several times as it was still
necessary to question the VE and the ALJ had to attend to another scheduled hearing. (Tr. 1085,
1092, 1096). Despite having obtained Dr. Fischer's opinions on every pertinent medical opinion,
counsel reluctantly concluded his questioning stating that he "would have other questions for
[Dr. Fischer]" (Tr. 1097) without identifying on the record what those questions would be. In her
Statement of Errors, plaintiff asserts she would have questioned Dr. Fischer on the RFC opinion
and testing results of plaintiffs physical therapy. (Doc. 5 at 24-25). However, plaintiff has not
demonstrated that she was prohibited from obtaining this information from Dr. Fischer through
25

the issuance of interrogatories - the use of which the Sixth Circuit has repeatedly held satisfies
due process requirements in social security administrative determinations. See Chandler v.
Comm 'r ofSoc. Sec., 124 F. App'x 355, 359 (6th Cir. 2005). See also Flatford, 93 F.3d at 130506 (given non-adversarial nature of social security disability determinations, due process does not
require that plaintiffs be permitted to cross-examine physicians given ability to use
interrogatories). Given the extensive questioning of Dr. Fischer by plaintiffs counsel at the
hearing and the lack of evidence that plaintiff was prohibited from later obtaining further
information regarding the physical therapy documentation, 8 the undersigned finds that the ALJ
did not violate plaintiffs due process rights to a full and fair hearing.

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED and this matter be closed on the
docket of the Court.

Date:

~?+LjJ-1-Cf-1--L/£-=-3_ _

~XX~

Karen L. Litkovitz
United States Magistrate Judge

8

Notably, as the information plaintiff sought was related to the findings and opinion of the physical
therapist, any ostensible error was harmless. As discussed supra, physical therapists are not acceptable medical
sources and the ALJ was not required under the applicable regulations to afford Ms. Scholl's opinion any special
deference.

26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1:12-cv-590
Spiegel, J.
Litkovitz, M.J.

BETTY JOHNSON,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

27