Stahl v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS re 1 Complaint filed by James J Stahl. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 9/28/2015. Signed by Magistrate Judge Norah McCann King on 9/9/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES J. STAHL,
Plaintiff,
vs.

Civil Action 2:14-cv-2352
Judge Watson
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 finding that The James J. Stahl Trust, as reformed in 2007
(and relating back to the trust creation on May 21, 2002), must be
counted as a resource for plaintiff James J. Stahl for purposes of
supplemental security income.

This matter is before the Court on

Plaintiff’s Statement of Errors (“Statement of Errors”), ECF 9, and
Defendant’s Memorandum in Opposition (“Commissioner’s Response”), ECF
14.
In order to qualify for supplemental security income, an
individual who is not married must, inter alia, possess no more than
$2,000 in resources.

42 U.S.C. § 1382.

“[R]esources means cash or

other liquid assets or any real or personal property that an
individual (or spouse, if any) owns and could convert to cash to be
used for his or her support and maintenance.”

20 C.F.R. §

416.1201(a).

Certain trust assets, including those in a “special

needs trust” (also known as a “Medicaid payback trust”) are not
considered countable resources.

42 U.S.C. § 1396p(d)(4)(A).

A

“special needs trust” is
[a] trust containing the assets of an individual under age
65 who is disabled . . . and which is established for the
benefit of such individual by a parent, grandparent, legal
guardian of the individual, or a court if the State will
receive all amounts remaining in the trust upon the death
of such individual up to an amount equal to the total
medical assistance paid on behalf of the individual under a
State plan under this subchapter.
Id.

A special needs trust is not a countable resource if it meets all

three requirements of Section 1396p(d)(4)(A), i.e., if it (1) contains
the assets of an individual who is under the age of 65 and who is
disabled; (2) is established for the benefit of such individual by a
parent, grandparent, legal guardian, or a court; and (3) provides that
the State will receive all amounts remaining in the trust upon the
death of the individual up to an amount equal to the total medical
assistance paid on behalf of the individual under a State Medical
See id.; POMS SI 01120.203(B)(1).1

plan.

The James J. Stahl Trust Agreement was established on May 21,
2002, through a conservatorship for the benefit of plaintiff.
45-56.

PAGEID

The trust was funded by an inheritance to plaintiff in the

amount of approximately $74,000.

Id.; PAGEID 41.

In a letter dated

January 11, 2006, plaintiff was informed by the Social Security
1

The parties agree that POMS SI 01120.203(B)(1) accurately sets forth the
requirements of a special needs trust under 42 U.S.C. § 1396p(d)(4)(A).

2

Administration that his supplemental security income benefits would
cease in February 2006 because he had resources worth more than
$2,000, i.e., the trust.

PAGEID 70.

Plaintiff was notified on

February 2, 2006, that he had been overpaid $16,527 in supplemental
security income benefits from September 2003 through January 2006.
PAGEID 76.

Plaintiff filed a request for reconsideration, which was

denied on December 26, 2006.

PAGEID 94-97.

On January 8, 2007,

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

PAGEID 99.

On January 18, 2007, the Probate Court of Franklin County, Ohio,
granted a motion to reform the trust.

PAGEID 25-29.

Item II(C) and

Item II(D) of the trust were amended “for purposes of compliance with
Social Security Administration requirements.”

Id.

An administrative hearing was held on August 4, 2008, at which
plaintiff, represented by counsel, appeared and testified.
227-47.

PAGEID

In a decision dated February 26, 2009, the administrative law

judge determined that the original trust was a countable resource
within the meaning of 20 C.F.R. § 416.1201 and did not meet the
requirements for a special needs trust under 42 U.S.C. §
1396p(d)(4)(A) because it was not for the sole benefit of plaintiff
and it did not give priority to the state for reimbursement of medical
expenses upon plaintiff’s death.

PAGEID 14-23.

denied review on December 21, 2011.

PAGEID 2-5.

The Appeals Council
Plaintiff sought

review of that decision in this Court and, upon joint motion, the
matter was remanded to the Commissioner.

3

Stahl v. Commissioner of

Social Security, 2:12-cv-137 (S.D. Ohio Nov. 6, 2012); see also PAGEID
300-01.

The Appeals Council vacated the February 26, 2009 decision

and remanded the case to the administrative law judge with directions
to, inter alia, “consider the Trust, as reformed by the January 2007
court order, in determining whether the Trust meets the requirements
of 42 U.S.C. § 1396p(d)(4)(A) as of May 21, 2002.”

PAGEID 305-07.

Another administrative hearing was held on September 30, 2013, at
which plaintiff, represented by counsel, appeared and testified.
PAGEID 337-62.

In a decision dated January 3, 2014, the

administrative law judge found that the “James J. Stahl Trust, as
reformed in January 2007 (and relating back to the trust creation on
May 21, 2002), does not meet all three criteria of the exception
outlined in Section 1917(d)(4)(A) of the Social Security Act and,
therefore, must be counted as a resource for SSI purposes.”
266-76.

PAGEID

That decision became the final decision of the Commissioner

of Social Security when the Appeals Council declined review on October
2, 2014.
II.

PAGEID 248-51.

Standard
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

4

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 employed the proper legal

standards and 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.
III. Discussion
The administrative law judge relied on Program Operations Manual
System (“POMS”) SI 01120.201F(2) and concluded, first, that the James
J. Stahl Trust, as reformed in January 2007 (and relating back to the
trust creation on May 21, 2002), does not meet the second criterion of
Section 1396p(d)(4)(A) because the trust was not created for the sole
benefit of plaintiff.

PAGEID 268-70.

In this regard, the

administrative law judge specifically found that Item II(C) of the
trust, “Frustration of Trust Purpose,” could permit distributions
during plaintiff’s lifetime to contingent beneficiaries identified in

5

the trust,

PAGEID 269-70, and that Item V, “Restriction Against

Alienation,” creates contingent interests in “any other beneficiary or
beneficiaries.”

PAGEID 270-71.

Relying on POMS SI

01120.203(B)(1)(h), the administrative law judge also concluded that
the third criterion of Section 1396p(d)(4)(A) was not satisfied
because the trust provides for reimbursement of Medicaid benefits to
only the State of Ohio and not for “the total medical assistance paid
on behalf of the individual under a state plan.”

PAGEID 272-73.

In

this regard, the administrative law judge explained that the trust
improperly “excludes other States who might have previously, OR who
might in the future provide medical assistance on behalf of the
beneficiary under the State’s Medicaid program.”
in original).

PAGEID 273 (emphasis

For both these reasons, the administrative law judge

concluded that the James J. Stahl Trust does not qualify as a special
needs trust under 42 U.S.C. § 1396p(d)(4)(A) and must therefore be
counted as a resource for supplemental security income purposes.
PAGEID 267, 275-76.
In his Statement of Errors, plaintiff argues that the
administrative law judge erred in relying on the POMS and in
concluding that the trust is not a valid special needs trust under 42
U.S.C. § 1396p(d)(4)(A).2
2

Plaintiff’s Statement of Errors cites only to the vacated February 26, 2009
administrative decision. In addition to the arguments noted supra, plaintiff
also argues that the administrative law judge refused to acknowledge the 2007
reformation of the trust and that the administrative law judge improperly
relied on POMS SI 01120.203(B)(3)(a) to find that the trust’s provision for
payment of burial expenses and administrative costs rendered the State of
Ohio a secondary beneficiary. See Statement of Errors, pp. 9, 13-14. As

6

As noted supra, a special needs trust is not a countable resource
if it meets all three requirements of Section 1396p(d)(4)(A), i.e., if
it (1) contains the assets of an individual who is under the age of 65
and who is disabled; (2) is established for the benefit of such
individual by a parent, grandparent, legal guardian, or a court; and
(3) provides that the State will receive all amounts remaining in the
trust upon the death of the individual up to an amount equal to the
total medical assistance paid on behalf of the individual under a
State Medical plan. There is no dispute that the trust at issue in
this case meets the first criterion of Section 1396p(d)(4)(A).

The

second criterion requires that the trust be “established for the
benefit of such individual by a parent, grandparent, legal guardian of
the individual, or a court.”
POMS SI 01120.203(B)(1).

42 U.S.C. § 1396p(d)(4)(A).

See also

Citing POMS SI 01120.201F(2), the

administrative law judge noted that this “provision requires that the
trust be for the sole benefit of the individual.”
(emphasis in original).

PAGEID 269

The administrative law judge then evaluated

the trust and determined that Item II(C) and Item V of the trust
improperly create contingent beneficiaries:
The January 2007 trust “reformation” stated the following:
noted supra, the administrative law judge’s February 26, 2009 decision was
vacated by the Appeals Council on January 30, 2013, PAGEID 302-07, and the
administrative law judge’s January 3, 2014 decision is the final decision of
the Commissioner of Social Security. In any event, the 2014 administrative
decision acknowledged the 2007 reformation of the trust and did not rely on
POMS SI 01120.203(B)(3)(a). Although the administrative law judge did not
consider that the trust was again reformed on July 18, 2008, see PAGEID 3035, 249, plaintiff does not mention the 2008 reformation of the trust in his
Statement of Errors. The Court has interpreted the remainder of plaintiff’s
argument to apply to the administrative law judge’s January 3, 2014 decision.

7

ITEM II(C): Frustration of Trust Purpose. Should the
State of Ohio fail to honor the terms of this Trust,
should the Grantor’s intentions be frustrated by
actions of any State or Federal Agency, or should 42
U.S.C. § 1396p(d)(4)(A) be repealed or judicially
emasculated, the Trustee will distribute this Trust as
set forth in ITEM VI.
. . .
As referenced in Item II(C), Item VI sets forth how
distributions of trust proceeds would be made should the
trust terminate because of failure by the State of Ohio to
honor the terms of the trust, if the Grantor’s intentions
are frustrated by actions of any State or Federal Agency,
or if 42 U.S.C. § 1396p(d)(4)(A) is repealed or judicially
emasculated.
Thus, these distributions could be made
during the lifetime of the claimant.
Moreover, the
distributions, in part, would be made to charities
identified in the trust.
This express language clearly
allows for distribution of assets during the claimant’s
lifetime to third parties.
Consequently, since contingent
interests are created from this provision, the trust was
not established for the sole benefit of the beneficiary
(i.e., claimant).
Item V of the May 2002 trust document, entitled Restriction
Against Alienation, stated the following:
If a beneficiary alienates or attempts to alienate any
interest or right to receive payments under any trust
created by this document, or if, by any reason the
payments or any part thereof would but for this Item
become payable to or pass to for the benefit of any
person, corporation or governmental agency other than
the beneficiary, then the interest in and the right of
the beneficiary to receive the payments will cease and
terminate and thereafter the payments, or any part
thereof forfeited by the beneficiary, will be applied
as determined by the Trustee in the Trustee’s
uncontrolled discretion to the use of any other
beneficiary or beneficiaries in the manner and
portions as the Trustee determines.
It is important to note at the outset that Item V was not
“reformed” in the January 2007 “reformation”, despite the
fact that the Social Security Administration found that
this part of the trust created contingent interests that
could benefit third parties during the lifetime of the
claimant (Exhibit 1).

8

In correspondence dated April 2006, the claimant’s counsel,
Richard Meyer, argued that the language in Item V, which
states, “any other beneficiary or beneficiaries”, should
only be understood to mean James J. Stahl, since the term
“beneficiary” is defined in Item III(C) as “James J. Stahl”
(Exhibit 10).
However, the express language of Item V states “any other
beneficiary or beneficiaries”.
If the trust was meant
solely to mean that James is synonymous with the term
“beneficiary”, then why did the trust state the words “any
other” and “beneficiaries”?
If James were to be the only
one to benefit from the forfeited payments, then it would
seem more reasonable to indicate the payments would be
applied by the Trustee to the “beneficiary” in the manner
and portions as the Trustee determines, especially since
the term “beneficiary” was defined in Item III. The terms
“any other beneficiary” and “beneficiaries” were not
defined.
For these reasons, Mr. Meyer’s argument is not
persuasive that this portion of the trust was to benefit
the claimant as the sole beneficiary.
. . .
Since Item V was not “reformed” in January 2007, the
undersigned has compared Item V of the original May 2002
trust to the POMS set forth above. As set forth above, the
express language of Item V creates contingent interests in
“any other beneficiary or beneficiaries”.
Thus, the trust
benefits
individuals,
other
than
the
claimant,
and,
therefore, does not solely benefit the claimant.
. . .
Given that Item II(C) and Item V provide for the trust
corpus or income to be paid to a beneficiary/beneficiaries
other than the claimant (i.e., the SSI applicant) (thereby
creating
contingent
interests),
the
trust
is
not
established for the sole benefit of the claimant, and,
accordingly, disqualifies the trust from the special needs
trust exception.
PAGEID 269-71 (emphasis in original).
Plaintiff argues that the administrative law judge’s application
of POMS SI 01120.201(F)(2) in this regard is unreasonable because it
is inconsistent with the statute, Section 1396p(d)(4)(A).

9

It was

improper to rely on the POMS, plaintiff argues, because Section
1396p(d)(4)(A) requires only that the trust be “for the benefit” of
the beneficiary, not for the “sole benefit” of the beneficiary.
Statement of Errors, pp. 5-12.

See

Plaintiff also argues that, “[i]f the

contingency arises that the trust does not effectively function as a
(d)(4)(A) trust, only then would any other beneficiaries be
considered.

Therefore, as long as the trust meets the requirements of

(d)(4)(A), O.R.C. 5163.21(F)(1), and POMS SI 01120.203, no contingent
beneficiaries exist.”

Statement of Errors, p. 13.

Plaintiff’s

arguments are not well taken.
Section 1396p(d)(4)(A) provides that a special needs trust must
be “established for the benefit of [an individual under age 65 who is
disabled].”

42 U.S.C. § 1396p(d)(4)(A).

The Social Security

Administration “has interpreted this provision to require that the
trust be for the sole benefit of the individual, as described in SI
01120.201F.2.”

POMS SI 01120.203(B)(1)(e).

Any provision (other than

those falling within several enumerated exceptions) that “allow[s] for
termination of the trust prior to the individual's death and payment
of the corpus to another individual or entity (other than the State(s)
or another creditor for payment for goods or services provided to the
individual), will result in disqualification for the special needs
trust exception.”

Id.

Item V of the trust at issue in this case provides:
If a beneficiary alienates or attempts to alienate any
interest or right to receive payments under [the trust], .
. . then the interest in and the right of the beneficiary
to receive the payments will cease and terminate and

10

thereafter the payments, or any part thereof forfeited by
the beneficiary, will be applied as determined by the
Trustee in the Trustee’s uncontrolled discretion to the use
of any other beneficiary or beneficiaries in the manner and
portions as the Trustee determines.
PAGEID 48.

As noted by the administrative law judge, see PAGEID 270-

71, this provision allows for termination of the trust prior to
plaintiff’s death and payment to another individual, i.e., “any other
beneficiary or beneficiaries,” in the trustee’s discretion.

Plaintiff

seems to argue that Item V applies only if the “trust does not
effectively function as a (d)(4)(A) trust.”
pp. 12-13.

See Statement of Errors,

By its express terms, however, Item V applies when, inter

alia, plaintiff alienates or attempts to alienate his interest in the
trust.

The trust could therefore terminate during plaintiff’s life

and result in payment of the corpus to another individual.
Accordingly, the Court finds no error in the administrative law
judge’s decision in this regard.
Plaintiff also complains that the administrative law judge erred
in relying on the POMS, the Social Security Administration’s Program
Operations Manual System.

Although the POMS “does not have the force

and effect of law, it is nevertheless persuasive.”

Davis v. Sec'y of

Health & Human Servs., 867 F.2d 336, 340 (6th Cir. 1989) (citing
Evelyn v. Schweiker, 685 F.2d 351 (9th Cir. 1982)).

“The POMS

explains the meaning of Social Security Act terms as well as the
meaning intended by terms appearing within the regulations.”

Id.

(citing Powderly v. Schweiker, 704 F.2d 1092 (9th Cir. 1983)).
explained by the administrative law judge, the “POMS is Agency-

11

As

approved policy that should be given deference to the extent it is not
unreasonable, inappropriate, or conflict with the statute,
regulations, and ruling.”

PAGEID 274.

The administrative law judge found that “there is no compelling
or persuasive evidence that establishes that POMS [SI 01120.201(F)(2)]
is inconsistent with the statute, regulations, and rulings.”
274.

This Court agrees.

PAGEID

See Ham ex rel. Ham v. Colvin, No. 4:14-CV-

3065, 2015 WL 1754641, at *3 (D. Neb. Apr. 17, 2015) (finding POMS SI
01120.201(F)(3) “not unreasonable: an early termination provision that
avoided recapture would have the effect of avoiding the statutory
requirement of recapture upon the beneficiary's death.”); Draper v.
Colvin, 779 F.3d 556, 561 (8th Cir. 2015) (finding that the provisions
of POMS SI 01120.203B “warrant relatively strong Skidmore deference”
because they “fall squarely within the SSA’s area of expertise,”
“demonstrate valid reasoning,” are “are part of a relatively longstanding and consistent interpretation that ensures universal
applicability of [§ 1396p(d)(4)(A)]).

Considering that the third

criterion of a special needs trust requires repayment of certain
government benefits upon the death of the trust beneficiary, see 42
U.S.C. § 1396p(d)(4)(A), it is reasonable to interpret the first
criterion to require that the trust be for the sole benefit of that
beneficiary.
Under the third criterion of Section 1396p(d)(4)(A), a qualified
special needs trust requires that “the State receive all amounts
remaining in the trust upon the death of such individual up to an

12

amount equal to the total medical assistance paid on behalf of the
individual under a State plan under this subchapter.”
1396p(d)(4)(A).

See also POMS SI 01120.203(B)(1).

42 U.S.C. §

Citing POMS SI

01120.203, the administrative law judge held that, “to qualify for the
special needs trust exception, the trust must contain specific
language as set forth in the third requirement.”

PAGEID 272.

The

administrative law judge found that the trust at issue in this case
failed to meet the third criterion because Item II(D) of the trust
“provides for reimbursement only to the State of Ohio.”

Id. Plaintiff

challenges this finding.
Specifically, plaintiff again argues that the administrative law
judge erred in relying on the POMS.

According to plaintiff, “[t]he

ALJ’s assertion that ‘[t]o qualify for the special needs trust
exception, the trust must contain specific language that provides that
upon the death of the individual, the State(s) will receive all
amounts remaining in the trust, up to an amount equal to the total
amount of medical assistance paid on behalf of the individual under
the State Medicaid plan(s)’ is simply not a requirement of either Ohio
or federal law.”

Statement of Errors, pp. 7-8.

Plaintiff’s argument

is without merit.
Item II(D) of the trust requires that the State of Ohio be
reimbursed, upon plaintiff’s death, for “the total medical assistance
paid on behalf of the beneficiary under the State’s Medicaid program,
including the Home and Community Based Services Waiver Programs.
PAGEID 46-47.

Limiting reimbursement for medical assistance paid on

13

behalf of plaintiff under a single state’s Medicaid plan is contrary
to the requirement of Section 1396p(d)(4)(A) that “the State will
receive all amounts remaining in the trust upon the death of such
individual up to an amount equal to the total medical assistance paid
on behalf of the individual under a State plan.”
1396p(d)(4)(A).

See 42 U.S.C. §

POMS 01120.203(B)(1)(h) provides that “the trust must

contain specific language that provides that upon the death of the
individual, the State(s) will receive all amounts remaining in the
trust, up to an amount equal to the total amount of medical assistance
paid on behalf of the individual under the State Medicaid plan(s).”
The POMS also provides that the “trust must provide payback for any
State(s) that may have provided medical assistance under the State
Medicaid plan(s) and not be limited to any particular State(s).”

Id.

The requirement that a special needs trust not limit
reimbursement of Medicaid benefits to any particular state is
consistent with Section 1396p(d)(4)(A) and is reasonable.

As noted by

the administrative law judge, “[t]here is no guarantee that the
claimant will only live in Ohio.”

PAGEID 273.

Moreover, as noted

supra, the United States Court of Appeals for the Eighth Circuit
recently held that the provisions in POMS SI 01120.203B “warrant
relatively strong Skidmore deference” because
[t]he relevant POMS provisions fall squarely within the
SSA's area of expertise. In addition, the POMS provisions
demonstrate valid reasoning; that is, the detailed process
required for establishing qualifying special-needs trusts
contained in the POMS is consistent with “Congress's
command that all but a narrow class of an individual's
assets count as a resource when determining the financial
need of a potential SSI beneficiary.”
Finally, the

14

provisions interpreting § 1396p(d)(4)(A) are part of a
relatively long-standing and consistent interpretation that
ensures universal applicability of the statute.
Draper, 779 F.3d at 561-62 (internal citations omitted).

Accordingly,

the Court finds no error in the administrative law judge’s evaluation
of the third criterion.
Plaintiff next argues that the administrative law judge erred by
relying on the POMS and not Ohio law to interpret the trust.
Statement of Errors, pp. 14-18.

According to plaintiff, the

administrative law judge should have applied “state law for questions
regarding the availability of the trust, specific language required
for a trust, and whether the trust complied with federal and state
law.”

Id. at p. 14.

Plaintiff reasons that the trust at issue in

this case should be recognized as a special needs trust under 42
U.S.C. § 1396p(d)(4)(A) because it was called a “Medicaid Payback
Trust,” was intended to be a special needs trust, and “passed muster
under the scrutiny of the Franklin County Department of Job & Family
Services.”

Statement of Errors, pp. 10, 14-18.

Plaintiff perceives

no “reasonable policy objective” in including the trust as a countable
resource when “the Medicaid agency in Ohio has not objected to the
trust.”

Id. at p. 10.

The administrative law judge considered – and

rejected - this argument as follows:
The “intentions” of the original trust document have been
meticulously considered per the directive of the Appeals
Council. However, as precisely articulated earlier in this
decision, the January 2007 “reformation” and July 2008
“amendment”, regardless of what phrases are chosen by
counsel, still do not qualify for the trust exception
outlined in Section 1917(d)(4)(A).

15

It is important to recognize that the Agency-approved POMS
are in place to provide guidance on what trusts can and
cannot
state
in
order
to
maintain
eligibility
for
Supplemental Security Income.
If the general “intent”
argument were accepted in every trust case, then an
undeniable precedent would be established, thereby creating
an unintended avenue for every individual who drafts a
trust to assert that they “intended” to conform to the
policy
they
are
alleged
to
be
in
conflict
with.
Eliminating disparities and conflicts is most certainly a
purpose of POMS.
PAGEID 275.
law judge.

The Court agrees with the reasoning of the administrative
Although plaintiff may have intended to create a special

needs trust, the trust simply does not meet the requirements of a
special needs trust under 42 U.S.C. § 1396p(d)(4)(A).
Having carefully considered the entire record in this action,
the Court concludes that the findings of the administrative law judge
are supported by substantial evidence and employed the proper legal
standards.

It is therefore RECOMMENDED that the decision of the

Commissioner be AFFIRMED and that this action be DISMISSED.
IV.

Procedure on Objections
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).

16

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.
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).

September 9, 2015

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

17