Selva v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Shelly M. Selva. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED pursuant to Sentence 4 of 42 U.S.C. § 405(g). Objections to R&R due by 10/1/2015. Signed by Magistrate Judge Norah McCann King on 9/14/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHELLY M. SELVA,
Plaintiff,
vs.

Civil Action 2:14-cv-2653
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.

This matter is before the Court

for consideration of the Statement of Errors of Plaintiff, Shelly M.
Selva (“Statement of Errors”), Doc. No. 12, and the Defendant’s
Memorandum in Opposition, Doc. No. 17.
Plaintiff Shelly M. Selva protectively filed her application for
benefits on October 7, 2011, alleging that she has been disabled since
July 7, 2011.

PAGEID 46, 162-63.

The claims were denied initially

and upon reconsideration, and plaintiff requested a de novo hearing
before an administrative law judge.
An administrative hearing was held on May 13, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did
Richard B. Astrike, Ph.D., who testified as a vocational expert.

PAGEID 46, 61.

In a decision dated June 28, 2013, the administrative

law judge concluded that plaintiff was not disabled from July 7, 2011,
through the date of the administrative decision.

PAGEID 46-56.

That

decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on October 16, 2014.
PAGEID 35-37.
Plaintiff was 50 years of age on the date of the administrative
decision.

See PAGEID 56, 162.

Plaintiff has at least a high school

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

PAGEID 54.

Plaintiff met the special

earnings requirements of the Social Security Act on the alleged onset
date and continued to meet the requirements through the date of the
administrative decision.

PAGEID 48.

She has not engaged in

substantial gainful activity since July 7, 2011, the alleged onset
date.
II.

Id.
Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of degenerative disc disease of the lumbar spine
with radiculopathy and status-post open reduction and internal
fixation of the right ankle.

PAGEID 48.

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 sedentary work as defined in 20 CFR
404.1567(a) except that the claimant cannot climb ladders, ropes, or
scaffolds.

She cannot work around hazards, such as unprotected

2

heights or dangerous machinery.

She can occasionally climb stairs or

ramps, stoop, kneel, crouch, or crawl.”

PAGEID 49.

Although this RFC

precludes the performance of plaintiff’s past relevant work as a
medical assistant, the administrative law judge relied on the
testimony of the vocational expert to find that plaintiff has acquired
skills from past relevant work that are transferable to other
occupations with jobs existing in significant numbers in the national
economy.

PAGEID 54-56.

The administrative law judge also found that,

prior to plaintiff attaining the age of 50, she could perform a
significant number of jobs in the national economy, including such
representative jobs as hand packer, machine tender, and assembler.
PAGEID 55-56.

Accordingly, the administrative law judge concluded

that plaintiff was not disabled within the meaning of the Social
Security Act from July 7, 2011, through the date of the administrative
decision.

PAGEID 56.

III. 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

3

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.

In her Statement of Errors, plaintiff first argues that the
administrative law judge erred in finding that plaintiff acquired work
skills from her past relevant work that are transferable to other
occupations.

Statement of Errors, pp. 4-6.

Plaintiff argues that

“social presentation” is not a skill, that she did not testify to
using the phone for business or organizing files while she was a
medical assistant, and that “the Dictionary of Occupational Titles
does not say that the job of ‘medical assistant’ (079.362-010)
includes organizing files or using the telephone as part of the job
duties.”

Statement of Errors, p. 5.

Plaintiff also argues that “the

jobs of receptionist and classification clerk provide vastly different
services, require vastly different processes, and use vastly different
machines than that of a medical assistant.”

4

Id.

The determination of disability requires a five-step sequential
evaluation:
The claimant bears the burden of proof during the first
four steps, but the burden shifts to the Commissioner at
step five.
Walters v. Comm'r of Soc. Sec., 127 F.3d 525,
529 (6th Cir. 1997).
At step five, the Commissioner must
identify a significant number of jobs in the economy that
accommodate the claimant's residual functional capacity and
vocational profile. Jones v. Comm'r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003). In many cases, the Commissioner
may carry this burden by applying the medical-vocational
grid at 20 C.F.R. Pt. 404, Subpt. P, App. 2, which directs
a conclusion of “disabled” or “not disabled” based on the
claimant's age and education and on whether the claimant
has transferable work skills.
Wright v. Massanari, 321
F.3d 611, 615 (6th Cir. 2003); Burton v. Sec'y of Health &
Human Servs., 893 F.2d 821, 822 (6th Cir. 1990). However,
if a claimant suffers from a limitation not accounted for
by the grid, the Commissioner may use the grid as a
framework for her decision, but must rely on other evidence
to carry her burden. Id. In such a case, the Commissioner
may rely on the testimony of a vocational expert to find
that the claimant possesses the capacity to perform other
substantial gainful activity that exists in the national
economy.
Heston, 245 F.3d at 537–38; Cline v. Comm'r of
Soc. Sec., 96 F.3d 146, 150 (6th Cir. 1996).
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004).
Here, the administrative law judge relied on the testimony of the
vocational expert to find that plaintiff had acquired skills from past
relevant work: “The vocational expert testified that the claimant’s
past relevant work as a medical assistant was skilled with a specific
vocational preparation (SVP) code of 6 and required the following
skills: using the telephone for business, organizing files, data
entry, patient care, and social presentation.”

PAGEID 54.

The

administrative law judge also relied on the testimony of the
vocational expert to find that these skills were transferable to the
jobs of receptionist (Dictionary of Occupational Titles (“DOT”) code

5

237.367-038) and file clerk (DOT code 206.387-010),1 which exist in
significant numbers in the national economy.

PAGEID 55-56.

As noted

by the administrative law judge, the vocational expert’s testimony is
“uncontradicted” and there is “no evidence to the contrary.”

Id.

The

vocational expert’s uncontroverted testimony therefore constitutes
substantial evidence supporting the administrative law judge’s Step 5
finding that plaintiff acquired skills during the course of the
performance of her past relevant work that are transferable to jobs
that exist in significant numbers in the national economy.

See

Wilson, 378 F.3d at 548-50; Kyle v. Comm'r Of Soc. Sec., 609 F.3d 847,
856-57 (6th Cir. 2010).
Plaintiff next argues that the administrative law judge erred by
not assigning controlling weight to the opinions of her treating
physicians, William R. Zerick, M.D., and Rajeswari Lingamneni, M.D.
Statement of Errors, pp. 6-8.

Plaintiff specifically argues that the

administrative law judge failed to consider the appropriate factors
when evaluating her doctors’ opinions and, further, improperly found
that those opinions were based on plaintiff’s subjective complaints.
Id.

1

The vocational expert testified that plaintiff acquired skills in her past
relevant work that would transfer to such representative jobs as
“semiskilled, would be SVP: 4, it’s receptionist. The number is 237.367-038”
and “a sedentary and skilled job, SVP: 5. That’s file clerk, 206.687-010.
There’d be about 1,000 in the region and 8,000 in the state.” PAGEID 87.
DOT Code 206.687-010 is actually the code for “classification clerk,” not
“file clerk.” Even though the vocational expert called the job “file clerk,”
he provided a description of the job that is consistent with the DOT Code for
“classification clerk.”

6

The opinion of a treating provider must be given controlling
weight if that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and is “not
inconsistent with the other substantial evidence in [the] case
record.”

20 C.F.R. § 404.1527(c)(2).

Even if the opinion of a

treating provider is not entitled to controlling weight, an
administrative law judge is nevertheless required to evaluate the
opinion by considering such factors as the length, nature and extent
of the treatment relationship, the frequency of examination, the
medical specialty of the treating physician, the extent to which the
opinion is supported by the evidence, and the consistency of the
opinion with the record as a whole.

20 C.F.R. § 404.1527(c)(2)-(6);

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);
Wilson, 378 F.3d at 544.

Moreover, an administrative law judge must

provide “good reasons” for discounting the opinion of a treating
provider, i.e., reasons that are “‘sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight.’”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007)
(quoting SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)).

This

special treatment afforded the opinions of treating providers
recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from

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reports of individual examinations, such
examinations or brief hospitalizations.”

as

consultative

Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
Plaintiff treated with Dr. Lingamneni from 2002 to 2013 for low
back pain stemming from a work-related injury that occurred in 1991.
On November 29, 2011, Dr. Lingamneni opined that plaintiff’s “ability
to lift heavy weight, prolonged standing, bending, stooping [are]
moderately limited.”

PAGEID 252.

Dr. Lingamneni also opined on

several occasions that plaintiff cannot work because of lumbosacral
pain, muscular tenderness and spasms, weakness in her legs, and a
history of falls secondary to an unstable gait.2

PAGEID 434-35, 438-

39, 441, 448-49,
Plaintiff also treated with Dr. Zerick for her back pain.

On

September 29, 2010, Dr. Zerick reported that plaintiff had “certainly
failed all kinds of conservative treatment.”

PAGEID 249.

On

September 15, 2011, Dr. Zerick commented that plaintiff “is now no
longer working because she is just unable to sit for any length of
time because of her back pain.”

PAGEID 245.

Dr. Zerick had offered

plaintiff an L5-S1 posterior lumbar interior fixation fusion, but the
procedure had not been approved by the workers’ compensation agency.
Id.
MRI.

Dr. Zerick had based his recommendation for surgery on a 2011
PAGEID 395.

However, a follow-up MRI performed on October 31,

2012, PAGEID 396, “changed significantly enough with degenerative

2

Dr. Lingamneni also provided multiple medical opinions in connection with
plaintiff’s workers’ compensation claim prior to plaintiff’s alleged
disability onset date. See PAGEID 307-10. Plaintiff did not rely on these
opinions in her Statement of Errors.

8

changes throughout her lumbar spine” that Dr. Zerick felt that surgery
would no longer be beneficial.

Id.

Dr. Zerick characterized

plaintiff’s “biggest issue” as “the amount of opiates that she is on;”
he recommended that Dr. Lingamneni “get her off of all the opiates.”
Id.
The administrative law judge evaluated the opinions of Dr.
Lingamneni and Dr. Zerick as follows:
As for the opinion evidence, Dr. Lingamneni offered several
opinions for purposes of workers’ compensation.
Prior to
the claimant’s alleged onset date, he also opined that the
claimant would be unable to work during “flares”.
She
would need to work part-time or reduced schedule.
She
would be unable to stand or walk for sustained period of
time and would need three-days off per flare, which would
occur once or twice every two to three months.
He
subsequently opined that the claimant’s ability to lift
heavy objects, prolonged standing, bending, and stooping
are moderately limited. However, he also indicated that he
could not offer an opinion as to the claimant’s work
related abilities without a functional capacity evaluation
(Exhibit 4F).
He opined that the claimant was entitled
temporary total disability under worker’s compensation
standards. He opined that the claimant could not return to
work as a medical assistant (Exhibit 16F). I give minimal
weight to these opinions. These opinions are inconsistent
with the medical evidence and are based on the claimant’s
subjective complaints, particularly as it relates to the
claimant’s ability to stand and walk or the need for
excessive absences.
The limitations set forth by Dr.
Lingamneni are not consistent with the claimant’s daily
activities, as set forth above, which support a higher
level of physical functioning. Furthermore, these opinions
are not function-by-function analyses of what the claimant
could despite [sic] her impairments.
Likewise, Dr. Zerick indicated that the claimant was no
longer working “because she is just unable to sit for any
length of time because of her back pain” (Exhibit 3F/1). I
give this opinion minimal weight because it appears to be a
restatement of the claimant’s subjective complaints and
limitations rather than based on any objective evidence.
PAGEID 53-54.

9

The administrative law judge’s analysis of Dr. Lingamneni’s
opinions does not violate the treating physician rule.

The

administrative law judge recognized Dr. Lingamneni as plaintiff’s
“primary doctor,” but discounted his opinions because they were
inconsistent with the medical evidence, were based on plaintiff’s
subjective complaints, were not consistent with plaintiff’s daily
activities, and were not function-by-function analyses of what
plaintiff can do despite her impairments.

PAGEID 51-54.

Plaintiff

argues that the administrative law judge “came to these conclusions
without considering any of the [] factors” in 20 C.F.R. § 404.1527.
Statement of Errors, p. 8.

This Court disagrees.

The administrative

law judge expressly considered the length, nature, and extent of the
treatment relationship; provided an extensive evaluation of the
medical evidence; and explained why Dr. Lingamneni’s opinion was
inconsistent with the evidence:
In records from the Ohio Bureau of Workers’ Compensation,
Dr. Lingamneni recommended that a functional capacity
evaluation be performed to assess the claimant’s abilities
and limitations.
He generally indicated limitations
stemming from low back pain with associated tenderness and
spasm. He also reported bilateral lower extremity weakness
but physical exams do not support or corroborate this
finding (Exhibit 16F).
Dr. Lingamneni’s own treatment
notes in 2011, 2012, and 2013, fail to specifically mention
motor weakness, atrophy, or any other neurological deficits
(see Exhibits 8F and 15F).
Rather, records indicate that
the claimant maintained full strength in both legs.
Specifically, in December 2012, the claimant went to the
emergency department after twisting her ankle while she was
walking her dog.
She sustained a bimalleolar ankle
fracture; however, the examining source noted that the
claimant was “otherwise in good health” and no other
significant abnormalities were noted.
The claimant failed
to report her back pain to the emergency department staff.
On exam, the source noted intact motor and sensory

10

functions.
The claimant underwent an ORIF of the right
ankle.
She testified that her ankle has improved
significantly following surgery (Exhibit 10F).
Likewise,
Dr. Lingamneni’s treatment notes in 2013 show ongoing low
back pain with tenderness, spasm, and reduced range of
motion on exam yet no other neurologic, sensory, or motor
deficits were noted. Furthermore, Dr. Lingamneni continued
the
claimant’s
treatment
without
making
significant
adjustments in her care (Exhibit 15F).
PAGEID 51.

See also PAGEID 50, 52-53.

The administrative law judge

also explained how the limitations found by Dr. Lingamneni are
inconsistent with plaintiff’s activities of daily living.
53-54.

See PAGEID

Plaintiff’s arguments to the contrary notwithstanding, a

formulaic recitation of factors is not required.

See Friend v. Comm’r

of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010).
The administrative law judge also did not error in evaluating Dr.
Zerick’s opinion.

The administrative law judge recognized Dr. Zerick

as plaintiff’s treating neurosurgeon, but discounted his opinion
because it appeared to be merely a restatement of plaintiff’s
subjective complaints.
substantial evidence.

PAGEID 50, 54.

This finding is supported by

Indeed, Dr. Zerick’s note that “[plaintiff] is

no longer working because she is just unable to sit for any length of
time because of her back pain,” appears to be a restatement of
plaintiff’s subjective complaints.

PAGEID 245.

Moreover, it is not

improper for an administrative law judge to consider whether a medical
opinion is dependent on the claimant’s subjective complaints,
especially where, as here, the administrative law judge also finds
that the claimant’s subjective symptoms and reported limitations are
not entirely credible.

See PAGEID 51-53.

11

The administrative law

judge also considered Dr. Zerick’s September 2010 opinion that
plaintiff “failed all kinds of conservative treatment,” PAGEID 249,
but found that, “prior to the claimant’s alleged onset date, she
admitted to significant improvement in overall back pain and
functioning with medial branch block treatment (see Exhibit 2F).”
This finding is also supported by substantial evidence.

See PAGEID

233.
Plaintiff next argues that the administrative law judge’s
credibility determination is not supported by substantial evidence.
Statement of Errors, pp. 9-10.

Plaintiff specifically argues that the

administrative law judge failed to consider the amount of pain
medication prescribed to plaintiff, failed to consider plaintiff’s
significant earnings from 1999 to 2011, and failed to consider that
the Bureau of Workers’ Compensation delayed approval of plaintiff’s
back surgery.

Id.

Plaintiff also argues that the administrative law

judge failed to consider that plaintiff’s “treating physicians both
recommended that she not return to her former position of employment
or work in general.”

Id.

A claimant's subjective complaints must be supported by objective
medical evidence in order to serve as a basis for a finding of
disability.

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230,

1234 (6th Cir. 1993).

See also 42 U.S.C. § 423(d)(5)(A).

In

evaluating subjective complaints, it must be determined whether there
is objective medical evidence of an underlying medical condition.
Stanley v. Sec’ of Health & Human Servs., 39 F.3d 115, 117 (6th Cir.

12

1994).

If so, then the evaluator must determine (1) whether objective

medical evidence confirms the severity of the complaint arising from
the condition; or (2) whether the objectively established medical
condition is of such severity that it can reasonably be expected to
produce the alleged complaint.

Id.; Duncan v. Sec’y of Health & Human

Servs., 801 F.2d 847, 853 (6th Cir. 1986).
In evaluating a claimant’s credibility, an administrative law
judge should consider the objective medical evidence and the following
factors:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the
individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate
pain or other symptoms;
5.
Treatment,
other
than
medication,
the
individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment the individual uses or
has used to relieve pain or other symptoms (e.g., lying
flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional
limitations and restrictions due to pain or other symptoms.
SSR 96-7, 1996 WL 374186 (July 2, 1996).

See also 20 C.F.R. §

404.1529(c).
An administrative law judge’s credibility determination is
accorded great weight and deference because of the administrative law
judge’s unique opportunity to observe a witness’ demeanor while

13

testifying.

Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)

(citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th Cir. 1987)).
credibility determinations must be clearly explained.

However,

See Auer v.

Sec’y of Health & Human Servs., 830 F.2d 594, 595 (6th Cir. 1987).

If

the administrative law judge's credibility determinations are
explained and enjoy substantial support in the record, a court is
without authority to revisit those determinations.

See Felisky v.

Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec’y of Health,
Educ. & Welfare, 577 F.2d 383, 386–87 (6th Cir. 1978).
In the case presently before the Court, the administrative law
judge evaluated plaintiff’s testimony and subjective complaints, but
found that plaintiff’s “statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
credible.”

PAGEID 49-50.

The administrative law judge found that the

medical evidence “fails to document that the claimant has demonstrated
most of the signs typically associated with chronic, severe pain.”
PAGEID 50-53.

The administrative law judge also found that

plaintiff’s “treatment has been essentially routine and/or
conservative in nature.”

PAGEID 50 Noting plaintiff’s reported

activities of daily living, the administrative law judge found that
plaintiff’s “described daily activities [] are not limited to the
extent one would expect, given the complaints of disabling symptoms
and limitations.”

PAGEID 50-53.

The administrative law judge also

noted several inconsistencies in the record.

See, e.g., PAGEID 53

(“The claimant testified that she used a cane several times per week

14

but the record fails to evidence that a walking device was medically
necessary.

The claimant admitted that the cane was not prescribed by

a physician.

Moreover, sources failed to observe the claimant

utilizing a cane to ambulate (see Exhibits 5F, 10F).”).

Plaintiff

argues that the administrative law judge failed to consider the
opinions of her treating physicians and failed to consider the amount
of pain medication prescribed for her.

Statement of Errors, pp. 9-10.

However, as discussed supra, the administrative law judge’s evaluation
of the treating physicians’ opinions enjoys substantial support in the
evidence.

The administrative law judge also expressly considered the

fact that, although Dr. Zerick had recommended surgery, he later
“recommended that the claimant not undergo surgery and also
recommended that she wean from opiate pain medication.”

PAGEID 50-51.

In short, the administrative law judge noted and followed the
appropriate standards, performed the appropriate evaluation of the
evidence, and clearly articulated the bases of his credibility
determinations.

The administrative law judge devoted a considerable

portion of his decision to the consideration of plaintiff’s subjective
complaints, PAGEID 49-53, but nevertheless found that those complaints
were not entirely credible.

The analysis and the credibility

determination of the administrative law judge enjoy substantial
support in the record.

The Court will not – and indeed may not -

revisit that credibility determination.
Sec., 336 F.3d 469, 476 (6th Cir. 2003).

15

See Jones v. Comm’r of Soc.

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
pursuant to Sentence 4 of 42 U.S.C. § 405(g).
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 the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those

16

objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

September 14, 2015

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

17