Siegel v. Commissioner Social Security Administration

Filing 19

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Daniel Paul Siegel. 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 9/8/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANIEL PAUL SIEGEL,
Plaintiff,
vs.

Civil Action 2:15-cv-403
Judge Graham
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 supplemental security
income.

This matter is before the Court for consideration of

Plaintiff’s Statement of Specific Errors (“Statement of Errors”), Doc.
No. 12, the Defendant’s Brief in opposition, Doc. No. 17, and
Plaintiff’s Reply, Doc. No. 18.
Plaintiff Daniel Paul Siegel protectively filed his application
for benefits on February 29, 2012, alleging that he has been disabled
since January 1, 2009.

PAGEID 87, 236-41.

The claim was denied

initially and upon reconsideration, and plaintiff requested a de novo
hearing before an administrative law judge.
An administrative hearing was held on June 6, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did Mary
Harris, who testified as a vocational expert.

PAGEID 112.

In a

decision dated July 12, 2013, the administrative law judge concluded
that plaintiff was not disabled from February 29, 2012, through the
date of the administrative decision.

PAGEID 87-102.

That decision

became the final decision of the Commissioner of Social Security when
the Appeals Council declined review on December 3, 2014.

PAGEID 48-

51.
Plaintiff was 54 years of age on the date of the administrative
decision.

See PAGEID 102, 236.

Plaintiff has at least a high school

education, is able to communicate in English, and has past relevant
work as a computer programmer, delivery driver, and taxi driver.
PAGEID 100.

Plaintiff has not engaged in substantial gainful activity

since February 29, 2012, the application date.
II.

PAGEID 89.

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

impairments consist of coronary artery disease status post myocardial
infarction; hyperlipidemia; hypertension; chronic obstructive
pulmonary disease; peripheral arterial disease; diabetes mellitus;
depressive disorder, not otherwise specified; and an adjustment
disorder with anxiety.

PAGEID 89.

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
lift and carry 10 pounds occasionally, to sit, with normal
breaks, for a total of six of eight hours per day and to
stand and walk, with normal breaks, for a total of two of
eight hours per day.
The claimant can occasionally climb
ramps and stairs, but never ladders, ropes or scaffolds.
The claimant can occasionally stoop.
The claimant should

2

avoid even moderate exposure to fumes, odors, dusts, gases
and poor ventilation.
The claimant should avoid exposure
to
hazards,
such
as
unprotected
heights,
dangerous
machinery and commercial driving. The claimant can perform
simple to moderately complex tasks in a relatively static
environment, where any changes in routine can be easily
explained.
PAGEID 92.

Although this RFC precludes the performance of plaintiff’s

past relevant work as a computer programmer, delivery driver, and taxi
driver, the administrative law judge relied on the testimony of the
vocational expert to find that plaintiff has acquired skills from his
past relevant work that are transferable to other occupations with
jobs existing in significant numbers in the national economy,
including such representative jobs as general clerk, information
clerk, and data entry clerk.

PAGEID 100-01.

Accordingly, the

administrative law judge concluded that plaintiff was not disabled
within the meaning of the Social Security Act from February 29, 2012,
through the date of the administrative decision.

PAGEID 101.

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 his Statement of Errors, plaintiff first argues that the
administrative law judge erred in evaluating the opinions of state
agency reviewing physicians Cynthia Waggoner, Psy.D., and Carl
Tishler, Ph.D.

Statement of Errors, pp. 10-12.

Plaintiff argues

that, “[a]lthough the ALJ claims to have given ‘great weight’ to these
opinions, the mental limitations contained in the ALJ’s RFC assessment
are significantly less restrictive than those of indicated [sic] by
Drs. Waggoner and Tishler.”

Id. at p. 11.

According to plaintiff,

the administrative law judge erred in “fail[ing] to explain why he did
not incorporate any limitations relating to Plaintiff’s ability to
maintain attention, concentration and persistence into the RFC despite
specific limitations being identified by State agency psychological
consultants Drs. Waggoner and Tishler.”

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Id. at p. 12.

In a related argument, plaintiff contends that the administrative
law judge failed to account for all of plaintiff’s limitations in the
RFC determination.

Statement of Errors, pp. 6-10.

According to

plaintiff, the administrative law judge’s RFC determination “is
woefully inadequate in capturing Plaintiff’s significant limitations
in concentration, persistence, or pace identified by the State Agency
consultants and examining source upon which the ALJ relied, or the
ALJ’s more general finding of a moderate limitation in this area.”
Id. at p. 10.

Citing Ealy v. Comm’r of Soc. Sec., 594 F.3d 504 (6th

Cir. 2010), plaintiff argues that “this error renders the ALJ’s
determination of Plaintiff’s RFC deficient as despite finding moderate
difficulties in concentration, persistence or pace, the ALJ did not
incorporate any limitations in this regard in Plaintiff’s RFC.”
Statement of Errors, p. 9.

Plaintiff specifically argues that “Dr.

Waggoner concluded that Plaintiff can ‘concentrate for 2 hour
periods,’” and the administrative law judge failed to explain his
reasoning “for not incorporating this limitation relating to
concentration offered by Dr. Waggoner in Plaintiff’s RFC.”

Id.

As physicians who did not examine plaintiff but who provided
medical opinions in this case, Drs. Waggoner and Tishler are properly
classified as nonexamining sources.

20 C.F.R. § 416.902 (A

nonexamining source is “a physician, psychologist, or other acceptable
medical source who has not examined [the claimant] but provides a
medical or other opinion in [the claimant’s] case.”).

An

administrative law judge is required to evaluate every medical

5

opinion, regardless of its source.

20 C.F.R. §§ 416.920b, 416.927.

When evaluating the opinions of state agency reviewing physicians such
as Drs. Waggoner and Tishler, an administrative law judge should
consider factors “such as the consultant's medical specialty and
expertise in [the Commissioner’s] rules, the supporting evidence in
the case record, supporting explanations the medical or psychological
consultant provides, and any other factors relevant to the weighing of
the opinions.”

20 C.F.R. § 416.927(e)(2).

“Unless a treating

source's opinion is given controlling weight, the administrative law
judge must explain in the decision the weight given to the opinions of
a State agency medical . . . consultant,” “as the administrative law
judge must do for any opinions from treating sources, nontreating
sources, and other nonexamining sources.”

Id.

Dr. Waggoner reviewed the record on May 21, 2012, and opined that
plaintiff has mild restriction of activities of daily living, no
difficulties in maintaing social functioning, and moderate
difficulties in maintaining concentration, persistence, or pace.
PAGEID 152.

In her narrative report, Dr. Waggoner explained that

plaintiff “can make simple decisions, concentrate for 2 hour periods,
and sustain competitive levels of pace, persistence or production.”
PAGEID 156.

With regard to plaintiff’s adaptation limitations, Dr.

Waggoner opined that, “[d]ue to his depression and anxiety symptoms,
[plaintiff] would be limited to a static environment where any changes
in routine could be readily explained.”

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Id.

Dr. Tishler reviewed the record on September 26, 2012, and opined
that plaintiff has mild restriction of activities of daily living, no
difficulties in maintaing social functioning, and moderate
difficulties in maintaining concentration, persistence, or pace.
PAGEID 165.

In his narrative report, Dr. Tishler explained that,

“[d]ue to his depression and anxiety symptoms, [plaintiff] would be
limited to 3-4 step tasks, in a static environment where any changes
in routine could be easily explained.”

PAGEID 170.

Plaintiff was consultatively evaluated by Scott Lewis Donaldson,
Ph.D., on May 2, 2012.

PAGEID 417-22.

Dr. Donaldson assigned a

global assessment of functioning (“GAF”) score of 501 and diagnosed
depressive disorder, NOS, and anxiety disorder, NOS.

PAGEID 420.

According to Dr. Donaldson, plaintiff’s “ability to understand,
remember and carry out instructions may not be limited,”

PAGEID 421,

plaintiff’s “abilities to maintain attention and concentration as well
as his persistence and pace in order to perform simple and multi-step
tasks may be limited by symptoms of depressive and anxiety diagnoses,”
id., and plaintiff’s “ability to respond appropriately to supervisors
and co-workers may not be limited and/or precipitate work-related
disruptions.”

PAGEID 422.

However, “[g]iven symptoms of anxiety and

1

“The GAF scale is a method of considering psychological, social,
and occupational function on a hypothetical continuum of mental
health.
The GAF scale ranges from 0 to 100, with serious
impairment in functioning at a score of 50 or below.
Scores
between 51 and 60 represent moderate symptoms or a moderate
difficulty
in
social,
occupational,
or
school
functioning . . . .”
Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 436 n.1 (6th Cir. 2012).

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depressive disorders, psychological components of chronic pain,
fatigue and orthopedic limitations, the claimant’s ability to respond
appropriately to work pressures in the work setting is likely to be
limited and precipitate disruptions in the work-place.”

Id.

The administrative law judge evaluated these opinions as
follows:2
In regards to the claimant’s mental limitations, the
undersigned considered the opinion of consultative examiner
Scott Lewis Donaldson, Ph.D. who stated that the claimant
“may not be limited” in his ability to understand, remember
and carry out instructions; “may be” limited in his ability
to perform simple and multi-step tasks; “may not be
limited” in his ability to respond appropriately to
supervisors and coworkers; and “likely to be limited” in
his ability to respond appropriately to work pressures in a
work setting.
(Exhibit 5F)
Obviously, this opinion is
quite equivocal and not overtly clear in regards to
specific limitations.
However, in that it implies little
difficulty with task completion, no difficulty in social
functioning
and
some
difficulty
in
the
area
of
concentration, persistence and pace based on difficulty
responding to work pressures, the undersigned gives the
opinion weight.
Such difficulties are corroborated by the
consultative examiner’s examination of the claimant as well
as the record as a whole, in which the claimant regularly
presented
with
few
mental
health
difficulties.
Additionally, the opinion is not contradicted by any other
examining sources nor by any treating sources.
The state agency experts, Drs. Waggoner and Tishler, both
opined that the claimant would work well in a static
environment where any changes in routine could be readily
explained.
(Exhibits 1A and 3A)
This statement is
consistent with the consultative examiner’s opinion that
the claimant would have difficulties with increased stress.
Further, it is consistent with the record as a whole and
uncontradicted by any treating sources. Accordingly, it is
given great weight.
Dr. Waggoner further opined that the
claimant
could
make
simple
decisions
and
sustain
competitive levels of pace (Exhibit 1A), while Dr. Tishler
2

The administrative law judge also dedicated more than an entire page of his
decision to summarizing Dr. Donaldson’s report and analyzing his assessed GAF
score of 50. PAGEID 95-96.

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stated that the claimant could perform three to four step
tasks (Exhibit 3A).
In the respect that these statements
support a finding that the claimant could perform simple to
moderately complex work, they are given significant weight.
Further,
such
suggestion
is
corroborated
by
the
consultative examiner who found that the claimant would
have little difficulty understanding, remembering and
carrying out instructions.
Additionally, it, like the
remainder of their opinion, is not contradicted by any
treating sources.
PAGEID 99-100.

Plaintiff argues that, “[a]lthough the ALJ claims to

have given ‘great weight’ to [the opinions of Drs. Waggoner and
Tishler], the mental limitations contained in the ALJ’s RFC assessment
are significantly less restrictive than those of indicated [sic] by
Drs. Waggoner and Tishler.

This discrepancy is never explained or

justified by the ALJ in the decision.”

Statement of Errors, p. 11.

This Court disagrees.
Plaintiff’s arguments to the contrary notwithstanding, the
administrative law judge did not assign great weight to the opinions
of Drs. Waggoner and Tishler in toto.

The administrative law judge

assigned “great weight” to both Dr. Waggoner’s and Dr. Tishler’s
opinion that plaintiff “would work well in a static environment where
any changes in routine could be readily explained” because their
opinions were consistent with each other, Dr. Donaldson’s opinion, and
the record as a whole and were uncontradicted by any treating source.
PAGEID 100.

The administrative law judge also recognized that Dr.

Waggoner’s and Dr. Tishler’s opinions differed with regard to
plaintiff’s limitations in sustained concentration and persistence,
and he assigned “significant weight” to the opinions to the extent
that their “statements support a finding that the claimant could

9

perform simple to moderately complex work.”

Id.

The administrative

law judge found that this conclusion is not contradicted by any
treating source and “is corroborated by the consultative examiner who
found that the claimant would have little difficulty understanding,
remembering and carrying out instructions.”

Id.

In short, the

administrative law judge followed the proper procedures when
evaluating Dr. Waggoner’s and Dr. Tishler’s opinions, he adequately
explained the portions of the opinions that he adopted and the reasons
for doing so, and his findings enjoy substantial support in the
record.

The administrative law judge therefore did not err in

evaluating the opinions of Drs. Waggoner and Tishler.
Plaintiff disagrees and argues that this case “is identical to
the facts of Ealy as it relates to the ALJ’s failure to incorporate
Plaintiff’s limitations in concentration, persistence or pace into his
RFC.”

Statement of Errors, p. 9.

“As in Ealy, this error renders the

ALJ’s determination of Plaintiff’s RFC deficient as despite finding
moderate difficulties in concentration, persistence or pace, the ALJ
did not incorporate any limitations in this regard in Plaintiff’s
RFC.”

Id.
In Ealy, the administrative law judge “relied on the vocational

expert’s testimony in response to a hypothetical question that stated,
in relevant part, ‘assume this person is limited to simple, repetitive
tasks and instructions in non-public work settings.’”
at 516-17.

Ealy, 594 F.3d

The administrative law judge in Ealy had expressly found

that the plaintiff could work for two-hour segments and that speed of

10

performance could not be critical to his job, but failed to include
that limitation in the hypothetical posed to the vocational expert.
Id. at 516.

The United States Court of Appeals for the Sixth Circuit

held that the hypothetical posed to the vocational expert, upon whose
testimony the administrative law judge relied, failed to adequately
describe the claimant’s moderate difficulties with regard to
concentration, persistence or pace.

See id.

Here, the administrative law judge found, at steps two and three
of the sequential evaluation process, that plaintiff has moderate
difficulties with regard to concentration, persistence, or pace.
PAGEID 91.

In making this finding, the administrative law judge

relied on the opinions of Drs. Waggoner, Tishler, and Donaldson.

Id.

In determining plaintiff’s RFC, the administrative law judge relied on
these same opinions to find that plaintiff “can perform simple to
moderately complex tasks in a relatively static environment, where any
changes in routine can be easily explained.”

PAGEID 92, 99-100.

The

administrative law judge recognized differences in the opinions and
found that this RFC “adequately accounted for the combination of the
claimant’s symptoms.”

PAGEID 99-100.

Unlike the administrative law

judge in Ealy, see Ealy, 594 F.3d at 516 (finding that the
administrative law judge’s “streamlined hypothetical” to the
vocational expert omitted specific limitations to “[two-hour] segments
over an eight-hour day where speed was not critical.”) (alteration in
original), the administrative law judge in this case did not find a
specific limitation to two-hour work segments.

11

Although Dr. Waggoner

opined that plaintiff “can make simple decisions, concentrate for 2
hour periods, and sustain competitive levels of pace, persistence or
production,” PAGEID 156, the administrative law judge assigned weight
to the opinion only to the extent that it supported a “finding that
the claimant could perform simple to moderately complex work” and that
plaintiff “would work well in a static environment where any changes
in routine could be readily explained.”
supported by substantial evidence.

PAGEID 100.

This finding is

In explaining plaintiff’s

limitations in sustained concentration and persistence, Dr. Tishler
opined that plaintiff would be limited to “3-4 step tasks, in a static
environment where any changes in routine could be readily explained.”
PAGEID 170.

Unlike in Ealy, this is not a case where the

administrative law judge completely omitted from the RFC determination
(or from the hypothetical posed to the vocational expert) a particular
limitation actually found by the administrative law judge.

Although

the administrative law judge did not articulate plaintiff’s
limitations exactly as he had at steps two and three of the sequential
process, he nevertheless considered all the relevant evidence and
explained the basis for his findings.

Under these circumstances, the

Court concludes that the administrative law judge did not err in
evaluating plaintiff’s RFC.

See Fry v. Comm'r of Soc. Sec., No. 1:13-

CV-905, 2014 WL 3577439, at *9 (W.D. Mich. July 17, 2014) (“Contrary
to Plaintiff's argument, the Ealy decision does not stand for the
proposition that a finding that a claimant is limited to ‘simple work’
is somehow legally deficient.”); Singleton v. Comm'r of Soc. Sec., No.

12

1:11-CV-1351, 2013 WL 967602, at *7 (W.D. Mich. Mar. 12, 2013)
(“Contrary to Plaintiff's argument, the Ealy decision does not stand
for the proposition that an RFC determination must include specific
limitations regarding concentration, persistence, or pace whenever the
ALJ finds limitations in such areas.”); Grim v. Colvin, No. 5:12-CV2801, 2013 WL 5316346, at *7 (N.D. Ohio Sept. 23, 2013) (“The Court
also agrees with prior decisions of this District that declined to
find Ealy established a per se rule concerning the level of functional
limitations that must be ascribed whenever a claimant is determined to
have moderate limitations in his or her ability to maintain
‘concentration, persistence, or pace.’”); Clayton v. Astrue, No. 1:12CV-79, 2013 WL 427407, at *7 (S.D. Ohio Feb. 1, 2013); Horsely v.
Comm’r of Soc. Sec., No. 1:11-CV-703, 2013 WL 55637, at *8 (S.D. Ohio
Jan. 3, 2013) (“[S]everal post-Ealy decisions declined to adopt a
bright line rule that a limitation to ‘simple repetitive tasks’ in an
RFC and hypothetical to the VE is not adequate to address a claimant's
moderate impairment as to concentration, persistence, and pace.”)
report and recommendation adopted 2013 WL 980315 (S.D. Ohio Mar. 13,
2013)).
Plaintiff next argues that the administrative law judge erred in
finding that plaintiff acquired work skills from his past relevant
work that are transferrable to other occupations.
Errors, pp. 12-17.

Statement of

Plaintiff argues that “customer service” and

13

“computer knowledge” (or “use of a keyboard”3) are not skills and that
the administrative law judge “generally failed to precisely explain
which skills transferred to which occupations, and thus his conclusion
regarding transferability is not supported by substantial evidence.”
Id. at pp. 13-16.

Plaintiff further argues that the “transferability

of skills is a determination entrusted to the ALJ,” id. at p. 16, and
the vocational expert’s “testimony was not specific enough to provide
the ALJ with sufficient information to reach an informed determination
on the issue of transferability.”

Plaintiff’s Reply, p. 2.

In making a determination as to disability, an ALJ
undertakes
a
five-step
sequential
evaluation
process
mandated by regulation. . . .
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–

3

The vocational expert referred to the skills of “computer knowledge” and
“use of a keyboard” interchangeably. See PAGEID 139-42. Plaintiff
acknowledges that it “appear[s] that the extent of the ‘computer knowledge’
which was identified as being transferable by the vocational expert was
simply the use of a keyboard.” Statement of Errors, p. 16.

14

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 acquired skills from his past
relevant work: “The vocational expert testified that the claimant’s
past relevant work as a computer programmer was skilled with a
specific vocational preparation (SVP) code of 7 and required the
following skills: customer service, computer knowledge and data
entry.”

PAGEID 100.

The administrative law judge also relied on the

testimony of the vocational expert to find that these skills were
transferable to the jobs of general clerk, information clerk, and data
entry clerk, which could be performed by an individual with the same
age, education, past relevant work experience, and RFC as plaintiff
and which exist in significant numbers in the national economy.
PAGEID 101.

Plaintiff argues that the vocational expert’s testimony

is too vague regarding what these skills entail, how these skills
transfer, the particular jobs to which each skill transfers, and how
the skills require “more than thirty days to learn and give[]
Plaintiff a special advantage over other job applicants.”
of Errors, pp. 14-16.

Statement

The vocational expert’s testimony is, however,

uncontroverted and constitutes substantial evidence supporting the
administrative law judge’s Step 5 finding that plaintiff acquired
skills in his 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 (finding that “testimony of a vocational expert

15

identifying specific jobs available in the regional economy that an
individual with the claimant's limitation could perform can constitute
substantial evidence supporting an ALJ's finding at step 5 that the
claimant can perform other work” and that neither the vocational
expert nor the administrative law judge is required to enumerate the
transferrable skills); Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 85657 (6th Cir. 2010) (“The VE listed the DOT numbers of four jobs to
which [the plaintiff’s] skills could transfer and the ALJ was correct
to rely on this testimony, given the VE's ability to tailor his
findings to an ‘individual's particular residual functional
capacity.’”) (quoting Beinlich v. Comm'r of Soc. Sec., 345 F. App'x
163, 168 (6th Cir. 2009)).
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 the failure to object

16

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
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 8, 2015

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

17