Patrick v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Defendant. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 11/30/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Tasha C. Patrick,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:14-cv-2346
JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Tasha C. Patrick, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

May 26, 2011, and alleged that Plaintiff became disabled on
June 1, 2006.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on February 28, 2013.
the ALJ denied benefits.

In a decision dated June 19, 2013,

That became the Commissioner’s final

decision on September 19, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on February 4, 2015.

Plaintiff filed her

statement of specific errors on March 6, 2015, to which the
Commissioner responded on June 10, 2015.

Plaintiff filed a

reply brief onn June 24, 2015, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 37 years old at the time of the

administrative hearing and who has a twelfth grade education,
testified as follows.

Her testimony appears at pages 24-39 of

the administrative record.
Plaintiff first testified that she was five feet seven
inches tall and had gained 100 pounds in the past year.
unsure why that had happened.
husband and two children.

She was

She lived in an apartment with her

She had not worked since November of

2006, when she was a cashier at Speedway.

That job ended because

she had hip and back problems and was also in a car accident.
Plaintiff said she could not lift over five pounds due to
her back and to a shoulder injury.

Her doctor had recommended

water therapy for her back and hip, and suggested hip replacement
surgery if she lost weight first.

He had prescribed a cane for

her to help with balance and also to keep some weight off her
left hip.
In terms of physical activities, Plaintiff testified that
she could walk half a mile, sit for thirty minutes, and stand for
thirty minutes.
walking.

She used her cane when either standing or

She did not go grocery shopping, drive, or cook.

She

did help her children with homework.
On a typical day, Plaintiff would get dressed, watch
television, or do a crossword puzzle.
household chores.

She was unable to do any

She needed help bathing and dressing.

medications reduced her pain level only a little.

Her

Plaintiff

described problems with depression and anxiety as well.

She said

that her back and hip issues were the most significant ones which
kept her from working.
Lastly, Plaintiff was asked some questions by the vocational
expert.

She said that she worked for a home health agency in

2006, a job which involved bathing patients, making beds, and
preparing meals.

She also did some babysitting for her niece’s

children, including preparing meals for them.
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III.

The Medical Records

The medical records in this case are found beginning on page
334 of the administrative record.

The Court will summarize those

records, as well as the opinions of the state agency reviewers,
to the extent that they are pertinent to Plaintiff’s four
statements of error.
Plaintiff’s hip degeneration is noted as early as August,
2008.

Degenerative changes of the lumbar spine were noted at the

same time, and she had been reporting back pain for a number of
years before.

An earlier report from 2008 also showed that she

complained of migraine headaches.

Emergency room notes from

December, 2006 state that Plaintiff was in a car accident; was
told at the scene she had muscle strain; and then went to the
emergency department due to right-sided pain.

She was given some

prescriptions and told to follow up with her family doctor.
Plaintiff’s treating physician, Dr. Cristales, reported in 2009
that Plaintiff had a very limited ability to stand, walk, sit,
lift, and carry.

(Tr. 339).

There are a number of emergency

room records from later years confirming back and hip pain,
including a study in 2012 which showed a labral tear in the left
hip. (Tr. 1006).
In connection with a prior application for benefits, Dr.
Virgil saw Plaintiff on June 11, 2009 for a psychological
evaluation.

She described her physical problems as arthritis of

the back, degenerative joint disease in both hips, COPD, and
fibromyalgia.

She said she was a high school graduate but had

been in special education classes.

Plaintiff reported some

depressive symptoms and her mood was depressed as well.

Her

full-scale IQ was measured at 70, with scores above 70 on all
subtests.

Dr. Virgil concluded that she was functioning within

the borderline level of intelligence.

He diagnosed major

depression, moderate, and borderline intellectual functioning.
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He rated Plaintiff’s symptom GAF at 45 but said that “[f]rom a
functional perspective, she is not prevented by strictly mental
or emotional impairment from carrying out in home or community
ADL tasks.”

Her functional GAF was 61.

Dr. Virgil saw no

impairment in Plaintiff’s ability to get along with others in the
workplace, thought she was mildly impaired in dealing with
instructions due to borderline intelligence but could still
complete routine, simple tasks, said she had no impairment in the
areas of attention, concentration, persistence, and pace, and saw
a moderate impairment in her ability to handle work stress.
626-30).

(Tr.

A state agency reviewer, Dr. Chambly, agreed, noting

that Plaintiff was, in her view, “able to complete simple tasks
in settings that are static without strict time or production
schedules.”

(Tr. 631-33).

A later consultative examiner, Dr.

Meyer, reported that Plaintiff described a four-year history of
panic attacks in addition to physical symptoms and a short
attention span.

Paxil helped control her symptoms.

She had

never held a job for more than six months but did get along well
with supervisors and coworkers.
normal.

Her behavior and affect were

Dr. Meyer rated Plaintiff’s GAF at 65 and said Plaintiff

could complete basic work tasks and maintain sufficient
concentration and attention to do so, and also that she could
tolerate low stress work situations.

(Tr. 777-89).

The record contains a number of non-treating source opinions
about Plaintiff’s functional capacity.

Again in connection with

a prior application, a state agency physician, Dr. Albert,
expressed an opinion about Plaintiff’s physical capacities on
August 21, 2009, concluding that Plaintiff could do medium work
although she could not climb ladders, ropes, or scaffolds and had
to avoid concentrated exposure to workplace hazards.
78).

(Tr. 671-

A consultative examiner, Dr. Grodner, saw Plaintiff on

September 19, 2011, and noted that Plaintiff was morbidly obese,
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walked with a deliberate gait with the use of a cane, and showed
a decreased range of motion of the lumbar spine and left hip.
x-ray of that joint was normal, however.

An

Dr. Grodner thought

that Plaintiff would have difficulty with prolonged weightbearing activities, standing, walking, bending, squatting,
kneeling, and climbing.

He said that “she could at least attempt

some type of sedentary activity” despite the fact that “she has a
lot of pain even in the sitting position....”

(Tr. 769-71).

The state agency reviews done in connection with the current
application produced these opinions.

On the physical side, Dr.

Caldwell said that Plaintiff could lift at the light exertional
level work but was capable of no more than four hours of standing
with some additional restrictions.

She noted that the main

limiting factor was morbid obesity and, as a result, limited
Plaintiff to “sedentary type work.”
concurred in that assessment.

(Tr. 56-57).

(Tr. 94-96).

Dr. Bolz later

Concerning

Plaintiff’s alleged psychological impairments, Dr. Warren
concluded that Plaintiff did not have a severe psychological
impairment, (Tr. 54-55), although she also evaluated her
functional capacity, finding that Plaintiff could “complete a
workday with an occasional extra break and [could] keep up a
consistent, but not rapid, pace.”

(Tr. 58).

Dr. Steiger agreed

that no severe psychological impairment was present.
IV.

(Tr. 93).

The Vocational Testimony

Dr. Robin Cook, a vocational expert, testified at the
administrative hearing.

Her testimony begins at page 39 of the

administrative record.
Dr. Cook began by identifying Plaintiff’s past relevant work
as a child monitor, a medium, semi-skilled job which Plaintiff
performed at the light exertional level, and a home attendant, a
job which is, under the Dictionary of Occupational Titles, a
medium, semi-skilled job which Plaintiff performed at the heavy

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exertional level.
Dr. Cook was then asked to answer some questions about a
hypothetical person who could do sedentary work and who could
occasionally climb ramps or stairs, stoop, crawl, and engage in
activities requiring balance, who could frequently kneel and
crouch, and who could never climb ladders, ropes, or scaffolds.
The person also was limited to simple, routine, repetitive tasks
as part of a low-stress job which would involve only occasional
decision-making and only occasional changes in the work setting.
According to Dr. Cook, such a person could not do Plaintiff’s
past work, but he or she could work as an optical assembler,
semiconductor bonder, and laminator.

She gave numbers for such

jobs as they existed in the State and national economies.
Next, Dr. Cook was asked to assume that the person would
also need the assistance of a cane for prolonged walking or
standing.

She said that such a restriction would not alter her

answer because the bulk of sedentary work was performed in a
sitting position.

Dr. Cook also said that either being off task

for 15% of the workday or missing more than one day per month on
an unscheduled basis would eliminate all competitive jobs.

She

also noted that some portion of her testimony addressed factors
not explicitly addressed by the DOT but there were no
inconsistencies with that source, and she testified that sitting
or standing at will was not consistent with competitive
employment, but that if a person could maintain one posture for
at least twenty minutes, work might be available.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 818 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirement of the Social Security Act

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through September 30, 2007.

Next, he found that she had not

engaged in substantial gainful activity since her alleged onset
date of June 1, 2006.
Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including disorders of the back, obstructive sleep apnea, labral
tear in the left anterior thigh and hip, headaches, obesity,
tobacco abuse, a pain disorder, osteoarthritis, degenerative
changes to the hips and knees, edema, chronic obstructive
pulmonary disease, hypertension, depression, fibromyalgia, a
panic disorder, and an anxiety disorder.

The ALJ also found that

these impairments did not, at any time, meet or equal the
requirements of any section of the Listing of Impairments (20
C.F.R. Part 404, Subpart P, Appendix 1), including sections 12.04
and 12.06.
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the sedentary exertional level except that she
could never climb ladders, ropes, or scaffolds and could
occasionally climb ramps and stairs.

She could frequently kneel

and crouch and could occasionally stoop, crawl, and balance.
Further, she was limited to work that is simple, routine, and
repetitive in nature and would be limited to a low stress job
that is defined as involving only occasional decision-making and
only occasional changes in a work setting.
The ALJ found that, with these restrictions, Plaintiff could
not perform her past relevant work, but she could do the jobs
identified by the vocational expert including optical assembler,
bonder, and laminator.

He also concluded that these jobs existed

in significant numbers in the State of Ohio and nationally.
Consequently, the ALJ decided that Plaintiff was not entitled to
benefits.

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VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises four
issues.

She asserts that (1) the ALJ erred by not finding that

her impairment met section 12.05(C) of the Listing of
Impairments; (2) the ALJ erred by not finding that her impairment
equaled section 12.05(C) of the Listing of Impairments; (3) the
ALJ failed to consider the effect of obesity on Plaintiff’s
functional capabilities; and (4) the residual functional capacity
did not properly reflect Plaintiff’s capabilities. These issues
are considered under the following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is

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supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Meeting or Equaling Listing Section 12.05(C)

Plaintiff’s first two arguments raise a similar issue
concerning the adequacy of the ALJ’s decision that she neither
met nor equaled the requirements of section 12.05(C) of the
Listing.

In particular, she asserts that she suffered from

deficits in adaptive functioning which manifested themselves
prior to age 22, and that the ALJ’s reasoning for deciding
otherwise was totally inadequate.

She also asserts that the ALJ

made no more than a passing reference to the question of medical
equivalence, and that a remand is needed in order to permit a
more thorough evaluation of this issue.
As many decisions from this Court have noted, section
12.05(C) is satisfied when a claimant has another significant
impairment and also suffers from mental retardation as
demonstrated by a qualifying IQ score (between 60 and 70) and has
deficits in adaptive functioning which manifested themselves
prior to age 22.

See, e.g., Pugh v. Comm’r of Social Security,

2015 WL 1000452, *8 (S.D. Ohio March 5, 2015).

That latter

requirement is the only one at issue here.
The ALJ, in his decision discussing the Listings, had this
to say.

First, the ALJ noted that deficits in both cognitive and

adaptive functioning must be demonstrated, and that the deficits
in adaptive functioning must arise from the cognitive impairment.
The ALJ defined adaptive functioning as “an individual’s ability
to cope with the challenges of ordinary everyday life” and stated
that “courts have held that if one is able to navigate activities
such as living on one’s own, taking care of children, paying
bills, and avoiding eviction one does not suffer from deficits in
adaptive functioning.”

(Tr. 11-12).

The ALJ then acknowledged that the record supported a
diagnosis of borderline intellectual functioning, which was a
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cognitive impairment, but concluded that “the evidence discussed
in section five below indicated that the claimant retained the
ability to engage in a range of activities of daily living, care
for herself, interact with others, and maintain her residence
without significant difficulty.”

He therefore determined that

“the claimant did not meet the requirement of listing 12.05.”
(Tr. 12).

Plaintiff argues that the reference to Plaintiff’s

activities of daily living in this section of the administrative
decision is too vague to be meaningful, and that the later
portion of the decision does not describe these activities in any
more detail, thus rendering the entire rationale provided by the
ALJ “woefully inadequate in allowing anyone to figure out how the
decision was reached.”

Statement of Errors, Doc. 9, at 10.

That is not entirely accurate.

Section 5 of the ALJ’s

opinion does contain some references to adaptive functioning.
For example, the ALJ noted that Plaintiff had told Dr. Virgil,
one of the consultative examiners, that she “was able to engage
in some activities of daily living and interacted with her family
and friends.”

(Tr. 15).

He also pointed to Dr. Meyer’s comments

that Plaintiff could work effectively in low stress environments
and perform basic and simple work tasks.

(Tr. 16).

Lastly, he

stated that “the claimant’s treatment record failed to indicate
that her mental health impairments” - one of which was borderline
intellectual functioning - “caused severe and ongoing functional
limitations.”

Id.

Those statements help the Court in

determining if the ALJ adequately considered the section 12.05(C)
issue.
The Commissioner’s memorandum goes into much greater detail,
describing how Plaintiff told Dr. Virgil that she was able to
drive, had done household chores and worked outside the home, did
crossword puzzles, and socialized.

That memorandum also cites

additional evidence from Dr. Meyer’s report, including the fact
that Plaintiff had never been diagnosed with a learning disorder
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and was raising three of her four children.

It also cites to

evidence that Plaintiff had actually begun a post-high school
course to get a nursing certificate and had dropped out for
physical reasons.

Plaintiff, citing to Simpson v. Comm’r of

Social Security, 344 Fed. Appx. 181, 192 (6th Cir. Aug. 27,
2009), criticizes this discussion as nothing more than a post hoc
rationalization of the ALJ’s decision which the Court should not
accept.
It is important to note that there is no precise
articulation requirement connected with an ALJ’s finding that a
particular section of the Listing of Impairments has not been
satisfied, nor is there, of course, any requirement that an ALJ
discuss each and every piece of evidence in the record.

See

Karger v. Comm'r of Social Security, 414 Fed. Appx. 739, 753 (6th
Cir. Feb. 10, 2011).

That being so, as this Court said in Owens

v. Comm’r of Social Security, 2014 WL 7338759, *9 (S.D. Ohio Dec.
2, 2014), adopted and affirmed 2015 WL 145090 (S.D. Ohio Jan. 12,
2015), “[t]he real question here is not the adequacy of the ALJ's
articulation of a rationale in the section of his decision
devoted to [the Listing] but whether the conclusion he reached
was supported by substantial evidence and whether the record
supports an inference that the ALJ was aware of and considered
the pertinent evidence as part of his decision-making process.”
Here, the Court can discern, from its review of the
administrative decision in its totality, that the ALJ was aware
of the key issue - whether Plaintiff suffered from deficits in
adaptive functioning caused by a cognitive impairment - and was
also aware of and considered the evidence concerning that issue,
including the particulars of Plaintiff’s testimony (even those
portions which he did not cite to directly), what she told the
consultative psychological examiners, and the conclusions which
both those examiners and the state agency reviewers reached about
Plaintiff’s ability to function both in the workplace and
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elsewhere.

Certainly, there was contrary evidence, and

Plaintiff’s statement of errors does a good job of highlighting
it; her placement in special education classes suggests some
deficits in functioning (although her ability to graduate from
high school with a 3.5 grade average and to pursue a post-high
school education detract somewhat from that evidence).

But, as

noted, she was able to work at various jobs, never reported any
work difficulties arising from psychological (as opposed to
physical) causes, got married, raised children, and operated a
household.

She held at least two semi-skilled jobs.

To the

extent Plaintiff argues that the evidence about deficits in
adaptive functioning was so one-sided that the ALJ could not
reasonably have reached the conclusion he did, the record simply
does not support that assertion.

And, of course, “[t]he findings

of the Commissioner are not subject to reversal merely because
there exists in the record substantial evidence to support a
different conclusion.”
Cir. 2001).

Buxton v. Halter, 246 F.3d 762, 772 (6th

Overall, the Court finds no error in the ALJ’s

decision concerning whether Plaintiff had an impairment which met
the requirements of section 12.05(C).
Plaintiff also argues, however, that the ALJ should have,
but does not seem to have, discussed whether her impairment
equaled that section.

She concedes that the ALJ did not have to

obtain an expert opinion on this subject, but asserts that given
the abundance of evidence from which an equivalency finding might
have been made, the ALJ had at least a minimal burden to explain
his decision.

The cases which Plaintiff cites, including Risner

v. Comm’r of Social Security, 2012 WL 893882 (S.D. Ohio March 15,
2012) do not go that far.

Risner involved a situation where an

ALJ completely failed to explain his conclusion about a
particular section of the Listing.

This Court remanded the case

so that the ALJ could “complete his task.”

Id. at 5.

Here, the

ALJ engaged in a thorough discussion of section 12.05(C).
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It is

not difficult to understand that, given his conclusion that
Plaintiff did not, and does not, have deficits in adaptive
functioning, she was unable either to meet or to equal the
requirements of that section.

Again, there is substantial

evidence to support that conclusion, and the ALJ’s failure to
engage in a separate discussion about equivalency is not error.
B.

Obesity

As her third and fourth statements of error, Plaintiff
argues that the ALJ’s decision did not adequately factor in
either the evidence concerning her obesity or Dr. Grodner’s
statement that she might be able to do sedentary work on a “trial
and error” basis.

The Court will consider these two issues

together as well.
The ALJ’s decision points out that morbid obesity was one of
Plaintiff’s diagnoses even in the treatment records created
between 2005 and 2008, and that this diagnosis appears again in
2011 records.

(Tr. 13).

The decision also makes several

references to a recommendation that Plaintiff undergo bariatric
surgery.

The ALJ then focuses on the fact that “none of the

claimant’s treating providers indicated that they felt that her
impairments were significantly debilitating, caused serious
functional limitations, or prevented the claimant from working.”
(Tr. 14).

Concerning Dr. Grodner’s report, the ALJ noted his

conclusion that Plaintiff could attempt sedentary work and that
the state agency physicians had given significant weight to Dr.
Grodner’s opinion.

The ALJ found these opinions “generally

credible” and his RFC finding is consistent with them.

He

credited Dr. Grodner’s conclusion about Plaintiff’s functional
capacity, also limiting Plaintiff to sedentary work (but on a
sustained, rather than trial-and-error basis), and rejected
several opinions which concluded that Plaintiff could do more
strenuous work.

Also, as noted above, the state agency reviewers

who concluded that Plaintiff could perform some work activity
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stated that morbid obesity was Plaintiff’s primary limiting
factor.
The Courts have consistently held that when “there is no
evidence in the record, of any functional limitations as a result
of .. obesity that the ALJ failed to consider,” a remand for
further resolution of this issue is unnecessary.
Barnhart, 400 F.3d 676, 684 (9th Cir. 2005).
pointed to no such evidence here.

See Burch v.

Plaintiff has

While she faults the ALJ for

making scant mention of obesity in his decision, he did find it
to be a severe impairment and he clearly relied heavily on Dr.
Grodner’s opinion which factored obesity into his functional
capacity assessment.

Further, although Plaintiff argues that the

Commissioner “failed to cite a single piece of evidence” to
support the argument that the state agency reviewers considered
the functional impact of Plaintiff’s obesity, that condition is
explicitly mentioned in Dr. Caldwell’s review (Tr. 56)(“Due to
the cmnt’s weight and lack of mobility, gait, and breathing, she
would be able to do sedentary type work”) and again by Dr. Bolz
(Tr. 95)(“Main limiting factor is morbid obesity”).
Consequently, there was no error in the ALJ’s consideration of
that condition.
As to the statement made by Dr. Grodner about a “trial-anderror” work period, the ALJ clearly did not accept it.

He did

use Dr. Grodner’s opinion as a basis for finding that Plaintiff
was a bit more limited than either Dr. Bolz or Dr. Caldwell
thought (both said Plaintiff could stand for four hours in a
workday, as opposed to the two-hour standing limit involved in
sedentary work), but the ALJ clearly concluded that Plaintiff
could do sedentary work on a sustained basis.

There is evidence

in the record, cited above, which supports that conclusion.
Plaintiff’s argument, properly understood, is that the ALJ had to
either accept Dr. Grodner’s conclusion about a trial-and-error
work period - which, clearly, he did not - or had to explain in
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greater detail why he did not accept it.

But Dr. Grodner is not

a treating source, so the heightened articulation rule found in
20 C.F.R. §404.1527(c) does not apply to his opinion.

Further,

it is not clear that this statement is a medical opinion at all.
In any event, the Court sees no error in the ALJ’s treatment of
Dr. Grodner’s opinion, as a whole, nor in the ALJ’s explanation
of why he found Plaintiff to be capable of a limited range of
sedentary work.

Consequently, these issues do not provide any

basis for a remand.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Defendant Commissioner.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
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947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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