Capizzi v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Steven A. Capizzi. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 2/17/2015. Signed by Magistrate Judge Norah McCann King on 1/30/2015. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN A. CAPIZZI,
Plaintiff,
vs.

Civil Action 2:14-cv-1063
Judge Marbley
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.1

This matter is before the Court

for consideration of Plaintiff Steven A. Capizzi’s Statement of
Specific Errors (“Statement of Errors”), Doc. No. 11, and the
Defendant’s Memorandum in Opposition (“Commissioner’s Response”), Doc.
No. 12.

Plaintiff has not filed a reply.

Plaintiff Steven A. Capizzi filed his application for benefits on
April 28, 2011, alleging that he has been disabled since April 8,
2011.

PAGEID 42, 156-59.

The claim was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.

1

Plaintiff filed an application for supplemental security income on April 28,
2011. PAGEID 129, 160-64. This claim was denied on May 19, 2011, PAGEID
129, and plaintiff did not pursue that claim.

An administrative hearing was held on February 13, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did Carl
Hartung, who testified as a vocational expert.

PAGEID 70.

In a

decision dated March 20, 2013, the administrative law judge concluded
that plaintiff was not disabled from April 8, 2011, through the date
of the administrative decision.

PAGEID 42-53.

That decision became

the final decision of the Commissioner of Social Security when the
Appeals Council declined review on June 6, 2014.

PAGEID 29-31.

Plaintiff was 48 years of age on the date of the administrative
decision.

See PAGEID 53, 158.

He has at least a high school

education, is able to communicate in English, and has past relevant
work as a tree trimmer.

PAGEID 51.

Plaintiff is insured for

disability insurance purposes through December 31, 2015.

PAGEID 44.

He has not engaged in substantial gainful activity since April 8,
2011.
II.

Id.
Evidence of Record2
Plaintiff reported to the emergency department at Mount Carmel

East Hospital on April 9 and April 16, 2011, after a sudden onset of
pain, tingling, weakness, and spasms in his right arm, posterior neck,
right side of his back, and right leg while working as an arborist.
PAGEID 221-22, 239-40, 285.

Plaintiff was diagnosed with cervical

radiculopathy and discharged with prescriptions for Norco and
Naprosyn.

Id.

Plaintiff again reported to the emergency department

2

The Court’s discussion of the evidence is limited to the issues presented
in plaintiff’s Statement of Errors, which challenges the administrative law
judge’s evaluation of plaintiff’s back impairments.

2

on April 24, 2011, with complaints of bowel and bladder incontinence
and difficulty with raising his head.

PAGEID 284-85.

On examination,

plaintiff had equal and symmetric sensation and strength in the upper
and lower extremities.

PAGEID 286.

tendon reflexes of 1+.

Id.

He had globally diminished deep

MRIs of the cervical and thoracic spine

revealed abnormalities related to a possible cyst or tumor.
253.

PAGEID

There were disk osteophyte complexes at C5-6 and C6-7 causing

bilateral foraminal narrowing at both levels and mild central canal
stenosis at C6-7.

Id.

An MRI of the lumbar spine revealed mild

multilevel degenerative disk disease of the lumbar spine.

PAGEID 255.

There were no large disk protrusions nor was there central canal or
foraminal stenosis.

Id.

Plaintiff was diagnosed with lumbrosacral

radiculopathy and referred to James H. Uselman, M.D., a neurosurgeon.
PAGEID 286-88.
Plaintiff was evaluated by Dr. Uselman on April 28, 2011.
336-37.

PAGEID

On September 7, 2011, Dr. Uselman performed a T1, T2, and T3

laminectomy for removal of an arachnoid cyst.

PAGEID 300.

Plaintiff

was hospitalized in connection with the surgery from September 7
through September 10, 2011.

Id.

On September 8, 2011, plaintiff

complained of left leg numbness, but had no other complaints and was
described as “doing well.”

Id.

An MRI showed post-surgical changes

but no evidence of decompression. Id.

Plaintiff had no new complaints

on September 9, 2011, and “was doing well.”

Id.

On September 10,

2011, plaintiff was “ambulating well” and was discharged to his home
in stable condition.

Id.

3

Dr. Uselman saw plaintiff on September 22, 2011,

PAGEID 340, and

noted that “the cyst was causing compression of the central canal,
which was causing dilation within the cord above it, and with removal
of the cyst this all decompressed itself.”
Uselman, “[t]he news is all good.”

Id.

Id.

According to Dr.

On examination, plaintiff’s

balance was better, but he did “have some persistent numbness in the
left thigh and upper torso.”

Id.

An October 26, 2011 MRI of the thoracic spine revealed normal
alignment of the thoracic spine and normal spinal canal diameter.
PAGEID 313.

Previously seen signal changes in the upper thoracic cord

continued to decrease.

Id.

There was also a large fluid collection

in the soft tissues of the upper back posteriorly, with extensive
surrounding soft tissue enhancement extending to the laminectomy site.
Id.

Plaintiff underwent a guided aspiration of fluid collection in

the thoracic spine at the site of the laminectomy on November 1, 2011.
PAGEID 335.
A November 16, 2011 MRI of the thoracic spine revealed changes
related to some degree of myelomalacia.

PAGEID 318.

There was some

increased signal intensity centrally in the cord at T3, but the extent
of the abnormality was unchanged since the previous MRI and there was
no longer any suggestion of fluid collection.

PAGEID 318, 341.

On November 22, 2011, Dr. Uselman noted that plaintiff “continues
to have some discomfort” and was “actually improving.”

PAGEID 341.

Plaintiff’s incision was well healed although he continued to
experience some tingling in the left leg.

4

Id.

Dr. Uselman

recommended physical therapy and prescribed Vicodin ES “to help with
some of the discomfort.”

Id.

Plaintiff treated with James P. Mackessy, M.D., from October 24,
2011 through December 19, 2011.

PAGEID 342.

On December 19, 2011,

Dr. Mackessy opined that plaintiff had “very mild weakness to both
arms,” a “mild left leg limp,” and “cervical rotation to 80˚
bilaterally.”

PAGEID 343.

Dr. Mackessy also opined that plaintiff

had no ability to perform fine and gross manipulation.

Id.

On January 26, 2012, Dr. Uselman opined that plaintiff was
“completely disabled from his job as climbing in trees and cutting
down trees.”

PAGEID 344.

According to Dr. Uselman, plaintiff did not

have normal balance or normal control of his legs.

Id.

Plaintiff reported to Dr. Uselman on February 23, 2012, with
complaints of persistent burning between his shoulder blades and
issues with balance and his left leg.
longer taking pain medication.

Id.

PAGEID 360.

Plaintiff was no

An MRI showed “only postoperative

changes” and there was no “recurrence of his cyst.”
“cord actually look[ed] quite good.”

Id.

Plaintiff’s

PAGEID 360; 418.

Plaintiff reported to the emergency department on April 25, 2012,
with reports of severe pain from the back of his shoulder down toward
his right elbow.

PAGEID 446.

Plaintiff was prescribed pain

medication and was advised to follow-up with Dr. Uselman.

PAGEID 447.

Plaintiff was evaluated by Tom Reynolds, M.D., a rehabilitation
specialist, on March 13, 2012. Dr. Reynolds noted that plaintiff had a
tight Achilles tendon, decreased motion in the left ankle and foot,

5

and difficulty walking with coordination.

PAGEID 409.

Plaintiff had

ataxia and incoordination of the left lower limb, normal strength to
manual muscle testing in the left lower limb, and an abnormal and
unbalanced gait.

PAGEID 411.

On November 16, 2012, Dr. Reynolds

noted that plaintiff was working four days per week “hauling around a
wheelbarrow full of mulch.”

PAGEID 407-08.

Plaintiff was taking no

pain medication and, although he reported soreness and discomfort, he
“had been doing pretty well” and had not followed up for his postop
MRI.

Id.

On examination, plaintiff’s gait was stable and his

reflexes were 1+ and equal in both upper and lower limbs.

Id.

He had

negative Hoffmann sign, straight leg raises were negative bilaterally,
and he had normal range of motion in the cervical spine and shoulders.
Id.
Plaintiff treated with Sarah E. Blake, M.D., at Capital City Pain
Care on December 13, 2012.

PAGEID 451-52.

Plaintiff reported neck

and shoulder pain, burning pain on the left side of his body, and
weakness in his left hand.

Id.

Plaintiff described his pain as

sharp, burning, stabbing, dull, constant, aching, and throbbing; he
rated his pain as a 10 on a 10-point scale.

Id.

Dr. Blake

recommended non-narcotic pain medication, but plaintiff refused,
citing fear of side effects.

Id.

Plaintiff continued to report

shoulder and back pain through March 2013.

PAGEID 453-61.

William Bolz, M.D., reviewed the record on June 26, 2011, and
completed a residual functional capacity assessment.

PAGEID 109-11.

According to Dr. Bolz, plaintiff could lift and/or carry 20 pounds

6

occasionally and 10 pounds frequently, stand and/or walk for about six
hours in an eight-hour workday, and sit for about six hours in an
eight-hour workday.

PAGEID 109.

Plaintiff could frequently climb

ramps/stairs, balance, kneel, and crouch; occasionally stoop and
crawl; and never climb ladders/ropes/scaffolds.

PAGEID 109-10.

Dr.

Bolz further opined that plaintiff should avoid all exposure to
unprotected heights.

PAGEID 110-11.

Gerald Klyop, M.D., reviewed the record on January 5, 2012, and
affirmed Dr. Bolz’s assessment.

PAGEID 122-24.

III. Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of degenerative disc disease and degenerative
joint disease.

PAGEID 44.

The administrative law judge also found

that plaintiff’s impairments neither meet nor equal a listed
impairment and leave plaintiff with the residual functional capacity
(“RFC”) to “perform light work as defined in 20 CFR 404.1567(b) except
the claimant cannot climb ladders/ropes/scaffolds, must avoid hazards
such as dangerous machinery and unprotected heights, and can only
occasionally stoop, kneel, crouch, and crawl.”

PAGEID 48-49.

Although this RFC precludes the performance of plaintiff’s past
relevant work as a tree trimmer, the administrative law judge relied
on the testimony of the vocational expert to find that plaintiff is
nevertheless able to perform a significant number of jobs in the
national economy, including such representative jobs as hand packager,
vehicle cleaner, and janitorial cleaner.

7

PAGEID 51-52.

Accordingly,

the administrative law judge concluded that plaintiff was not disabled
within the meaning of the Social Security Act from April 8, 2011,
through the date of the administrative decision.
IV.

PAGEID 53.

Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

8

In his Statement of Errors, plaintiff argues, first, that the
administrative law judge erred in finding that plaintiff did not have
an impairment or combination of impairments that meet or medically
equal a listed impairment.

Statement of Errors, pp. 8-10.

“At the third step in the disability evaluation process, a
claimant will be found disabled if his impairment meets or equals one
of the listings in the Listing of Impairments.”

Turner v. Comm’r of

Soc. Sec., 381 F. App’x 488, 491 (6th Cir. 2010) (citing 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii)).

The claimant bears the

burden of proof at step three to establish that the criteria of a
listing are met or that his impairment is the medical equivalent of a
listing.

Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th

Cir. 2011); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003).

An administrative law judge’s evaluation of the listings must

contain sufficient analysis to allow for meaningful judicial review.
Reynolds, 424 F. App’x at 415-16.
In the case presently before the Court, the administrative law
judge found that plaintiff “does not have an impairment or combination
of impairments that meets or equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.”

PAGEID 48.

In making this determination, the administrative law judge expressly
considered Listings 1.02A and 1.04A:
The claimant had good results from the surgery to remove
his spinal cyst. Although he has had some balance issues,
there are no neurological deficits, no weakness, and
negative straight leg raising.
Most recently his gait is
reported as stable. There is also no objective evidence of
difficulty using the hands. Additionally, the claimant has

9

had foot pain, but this has not significantly interfered
with his ability to walk.
Nor is there any gross
anatomical deformity or x-ray evidence of joint space
narrowing, bony destruction, or ankylosis.
Therefore the
criteria of Listings 1.02A and 1.04A are not met or
equaled.
Id.
Plaintiff argues that the administrative law judge erred in
evaluating Listings 1.02A and 1.04A because the evaluation was brief,
there were no citations to the medical record, and the administrative
law judge failed to obtain a medical expert opinion.
Errors, pp. 8-10.

Statement of

Plaintiff’s arguments are not well taken.

First,

plaintiff has cited no authority for the proposition that the
administrative law judge’s analysis of the listings must be lengthy or
contain citations to the record.

Second, the administrative law

judge’s evaluation of the evidence and determination that plaintiff
does not meet Listings 1.02A and 1.04A is supported by substantial
evidence.
Listing 1.02A requires, under appropriate circumstances, a
finding of disability based on a major dysfunction of a joint:
Major dysfunction of a joint(s) (due to any cause):
Characterized
by
gross
anatomical
deformity
(e.g.,
subluxation,
contracture,
bony
or
fibrous
ankylosis,
instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of
the
affected
joint(s),
and
findings
on
appropriate
medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint
(i.e., hip, knee, or ankle), resulting in inability to
ambulate effectively, as defined in 1.00B2b[.]

10

20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.02.

The administrative law

judge found that plaintiff’s gait was most recently reported as
stable, plaintiff’s foot pain did not significantly interfered with
his ability to walk, and there was no gross anatomical deformity or xray evidence of joint space narrowing, bony destruction, or ankylosis.
These findings are supported by substantial evidence.
MRIs of the cervical and thoracic spine, taken on April 24, 2011,
revealed disk osteophyte complexes at C5-6 and C6-7 causing bilateral
foraminal narrowing at both levels and mild central canal stenosis at
C6-7.

PAGEID 253.

However, an MRI of the lumbar spine revealed no

central canal or foraminal stenosis, PAGEID 255, and MRIs taken after
plaintiff’s surgery revealed “normal spinal canal diameter,” PAGEID
313 (October 26, 2011), and “only postoperative changes” with no
“recurrence of his cyst.”

PAGEID 360 (February 23, 2012).

By

February 2012, plaintiff’s “cord actually look[ed] quite good.”

Id.

Moreover, although plaintiff has been treated for foot pain, PAGEID
355-58, and experienced some issues with balance after his back
surgery, PAGEID 340, 344, 360, 411, his gait was normal in February
and March 2013.

PAGEID 455, 457.

Accordingly, the Court finds no

error in the administrative law judge’s evaluation of Listing 1.02A.
Listing 1.04A requires, under appropriate circumstances, a
finding of disability based on a disorder of the spine:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:

11

A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine)[.]
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.04A.

The administrative

law judge found that plaintiff had experienced good results from the
surgery to remove his spinal cyst; straight leg raising was negative.
PAGEID 48.

These findings are supported by substantial evidence.

On

September 22, 2011, Dr. Uselman noted that “the cyst was causing
compression of the central canal, which was causing dilation within
the cord above it, and with removal of the cyst this all decompressed
itself.”
good.”

PAGEID 340.
Id.

According to Dr. Uselman, “[t]he news is all

An October 26, 2011 MRI of the thoracic spine revealed

normal alignment and normal spinal canal diameter; the previously seen
signal changes in the upper thoracic cord continued to decrease.
PAGEID 313.

On November 22, 2011, Dr. Uselman noted that plaintiff

was “actually improving,” despite “some [continued] discomfort.”
PAGEID 341.

By February 2012, plaintiff was no longer taking pain

medication, an MRI showed “only postoperative changes,” there was no
“recurrence of his cyst,” and plaintiff’s “cord actually look[ed]
quite good.”

PAGEID 360.

By November 2012, plaintiff reported that

he was back at work four days a week “hauling around a wheelbarrow
full of mulch.”
bilaterally. Id.

PAGEID 407-08.

Straight leg raises were negative

The Court therefore finds no error in the

administrative law judge’s evaluation of Listing 1.04A.

12

Plaintiff next argues that the administrative law judge failed to
consider whether plaintiff’s back impairment medically equaled Listing
1.04C.

Statement of Errors, pp. 8-10.

Plaintiff does not argue that

Listing 1.04C was met; plaintiff argues that the administrative law
judge was required to expressly address whether Listing 1.04C was
equaled because the issue was raised at the administrative hearing.
Plaintiff also argues that the administrative law judge should have
obtained an expert medical opinion to determine whether Listing 1.04C
was equaled, and he argues that the administrative law judge failed to
cite and consider “a variety of findings and exam signs throughout the
record that were at odds with the ALJ’s conclusions.”
12.

Id. at pp. 11-

According to plaintiff, the administrative law judge “failed to

account for” the “finding [that] was the basis for potentially
equaling Listing 1.04C[:]” “the presence of cervical spinal stenosis,
identified as multilevel foraminal narrowing as well as central canal
stenosis at C6-C7, on an MRI taken April 25, 2011.”
Errors, p. 12.

Statement of

Plaintiff’s arguments are not well taken.

Listing 1.04C requires, under appropriate circumstances, a
finding of disability based on a disorder of the spine:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
. . .
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and

13

weakness,
and
resulting
in
inability
effectively, as defined in 1.00B2b.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.04C.

to

ambulate

Medical equivalence

can be established when findings related to the plaintiff’s
impairments are “at least of equal medical significance” to the
criteria of a listing.

See 20 C.F.R. § 404.1526(b).

The

administrative law judge did not expressly consider whether Listing
1.04C was met or equaled.

As discussed supra, the administrative

evaluated Listing 1.02A and 1.04A and found that plaintiff “does not
have an impairment or combination of impairments that meets or equals
the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.”

PAGEID 48.

Plaintiff apparently concedes that Listing 1.04C has not been
met.

See Statement of Errors, pp. 6-12.

Plaintiff argues, however,

that Listing 1.04C was equaled because MRIs of the cervical and
thoracic spine taken prior to his back surgery revealed bilateral
foraminal narrowing at C5-6 and C6-7 and mild central canal stenosis
at C6-7.

PAGEID 253.

This evidence of cervical spinal stenosis is

not “at least of equal medical significance” to the criteria of
Listing 1.04C.

First, there is no evidence in the record that

cervical spinal stenosis resulted in pseudoclaudication or weakness.
Second, as discussed supra, plaintiff’s post-surgery MRIs revealed
normal alignment of the thoracic spine and normal spinal canal
diameter, previously seen signal changes in the upper thoracic cord
continued to decrease, and “only postoperative changes” were present.
PAGEID 313, 360.

Moreover, there is no evidence that plaintiff was

14

unable to ambulate effectively.

Although the administrative law judge

did not expressly state that the requirements of Listing 1.04C were
not equaled, his findings support his conclusion that no Listing,
including Listing 1.04C, was equaled.

The administrative law found

that plaintiff “had good results from the surgery to remove his spinal
cyst,” that plaintiff’s pain “has not significantly interfered with
his ability to walk,” and that plaintiff did not have weakness or need
an ambulatory aid.

PAGEID 48-49.

These findings are supported by

substantial evidence and are inconsistent with a determination that
Listing 1.04C was equaled.

The Court therefore finds that the

administrative law judge’s failure to expressly state that Listing
1.04C was not equaled is not reversible error.
Plaintiff also cites to the Hearings, Appeals and Litigation Law
Manual of the Social Security Administration (“HALLEX”) and argues
that the administrative law judge must obtain the opinion of a medical
expert when considering whether an individual’s impairments equal a
listing.

Statement of Errors, p. 7.

The HALLEX states that an

administrative law judge must obtain a medical expert’s opinion when
“considering a finding that the claimant’s impairment(s) medically
equals a medical listing.”
2005).

HALLEX I-2-5-34, 1994 WL 637370 (Sept. 28,

However, the United States Court of Appeals for the Sixth

Circuit has held that the HALLEX is not binding authority.
Comm'r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008).

Bowie v.

An

administrative law judge “has discretion to determine whether further
evidence, such as additional testing or expert testimony, is

15

necessary.”

Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001)

(citing 20 C.F.R. §§ 404.1517, 416.917).

The record reflects

sufficient evidence of plaintiff’s impairments and the effects of
those impairments on plaintiff’s residual functional capacity.

It

cannot be said that the administrative law judge relied on his own lay
opinion in evaluating the evidence.

It follows that the

administrative law judge did not err in failing to secure the
testimony of a medical expert in this regard.
Having carefully considered the entire record in this action,
the Court concludes that the decision of the Commissioner is supported
by substantial evidence.

It is therefore RECOMMENDED that the

decision of the Commissioner be AFFIRMED and that this action be
DISMISSED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.

16

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

January 30, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

17