Popper v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by 3/28/2016. Signed by Magistrate Judge Terence P. Kemp on 3/10/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Zachary Joshua Popper,

:

Plaintiff,

:

v.

:

Carolyn W. Colvin, Acting
:
Commissioner of Social Security,
Defendant.

Case No.

2:15-cv-1116

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Zachary Joshua Popper, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his applications for social security disability benefits
and supplemental security income.

Those applications were filed

on April 8, 2011, and alleged that Plaintiff became disabled on
January 1, 2009.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on December 20, 2012, and a second hearing on August 29, 2013.
In a decision dated October 21, 2013, the ALJ issued a decision
denying benefits.

That became the Commissioner’s final decision

on February 5, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 22, 2015.

Plaintiff filed his

statement of specific errors on August 26, 2015, to which the
Commissioner responded on November 24, 2015.

No reply brief was

filed, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 35 years old at the time of the first
administrative hearing and who has a GED, testified as follows.
His testimony appears at pages 41-53 and 79-85 of the

administrative record.
Plaintiff testified at the December, 2012 hearing that he
had last worked in August of 2010, when he was employed for two
weeks at a candle warehouse.

He was forced to quit due to pain.

He had worked on a part-time basis for a pizza shop earlier that
year.

Due to severe hip and back pain, he did not look for work

afterward.

He said those problems also affected his ability to

do his basic daily activities and also made it hard for him to
concentrate and remember.

He had problems sitting or standing

for more than half an hour and also had trouble sleeping.

He had

gotten slightly better since having hip surgery several months
before the hearing.
At the second hearing, Plaintiff testified that he still had
severe pain despite the surgery.

Additionally, his pain

medications affected his ability to remember things and to
concentrate.
since 2010.
hours.

He had been experiencing pain of that severity
At that time, he was taking Dilaudid every six

It made him sleepy and dizzy.

He could walk without a

cane although he had used one for four or five months after his
hip surgery.

He was still having problems sleeping, although he

was able to sleep all night two nights out of three.
As far as physical activities were concerned, Plaintiff said
he could sit for about fifteen minutes at a time, stand for half
an hour, and walk fifteen to twenty minutes.
comfortable lying down.

He was most

He could care for himself and do some

limited household chores such as washing dishes and folding
clothes, but he was unable to transfer laundry from the washer to
the dryer, to mow the grass, or to run the vacuum.

Twice a week,

he experienced “bad days” where his medication was ineffective
and he had to stay in bed all day.
III.

The Medical Records

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

The pertinent records - which,

in this case, are only the records concerning Plaintiff’s alleged
mental impairments - can be summarized as follows.
The primary record concerning Plaintiff’s claimed mental
impairment is the consultative report from Dr. Donaldson, a
psychologist who conducted a clinical interview on July 7, 2011.
Plaintiff told Dr. Donaldson at the outset of the interview that
he was applying for disability benefits not only due to back and
hip pain but also because he had memory issues, anxiety, and
panic attacks.

He said that he found it hard to talk to people

in public settings and did not have a good relationship with
teachers and other students when in school.

Dr. Donaldson

observed that Plaintiff’s affect was flat and his mood was
agitated.

Eye contact was inadequate.

Plaintiff frequently felt

hopeless and worthless and said he was depressed most of the
time, had decreased interest in activities, and suffered from
insomnia, psychomotor retardation, fatigue, a sense of
worthlessness, and lack of concentration.

He was also anxious in

social situations and had panic-like symptoms in the past.

Based

on the interview, Dr. Donaldson diagnosed major depressive
disorder, generalized anxiety disorder, and panic disorder with
agoraphobia.

He rated Plaintiff’s GAF at 45 and found

impairments in the areas of maintaining attention and
concentration, interpersonal relationships, and dealing with work
pressure.

Dr. Donaldson also thought that, if granted benefits,

Plaintiff might need help managing his day-to-day and long-range
financial affairs.

(Tr. 621-24).

Two state agency reviewers also commented on Plaintiff’s
mental impairments.

Dr. Dietz stated that Plaintiff had both

affective and anxiety disorders and that he had a marked
impairment in dealing with detailed tasks, a moderate impairment
in maintaining concentration and attention for extended periods,
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a moderate limitation in his ability to work in proximity to
others, a moderate limitation in dealing with work stress which
would limit him to an environment with flexible production
standards and schedules, difficulty in adapting to changes in
routine, and a marked impairment in his ability to deal with the
public.

Dr. Dietz based this assessment not only on Dr.

Donaldson’s evaluation but the fact that Plaintiff “was tearful
at his 3/11 pain mgmt. exam.”
essentially the same findings.
IV.

(Tr. 132-37).

Dr. Voyten made

(Tr. 165-67).

The Vocational Testimony

Carl Hartung was called to testify as a vocational expert.
His testimony begins at page 53 of the administrative record,
and, after testimony was taken from the medical expert, resumes
again at page 69.
Mr. Hartung first testified that Plaintiff’s past employment
included work as an injection mold machine tender, a light,
unskilled occupation; as a cashier/checker, a light, semi-skilled
job; and as a fast food service manager, a job which is usually
skilled and light.

Because Plaintiff was only an assistant

manager, however, Mr. Hartung classified this last position as
semi-skilled.
Mr. Hartung, after hearing testimony that Plaintiff was
limited to sedentary work, confirmed that someone so limited
could not do any of Plaintiff’s past work.

He was then given a

hypothetical question which asked him to identify any jobs which
could be done by someone who could do sedentary work and, from a
psychological standpoint, had problems getting along with others
and with maintaining attention and concentration, and who could
do only simple, repetitive tasks without production quotas.

Mr.

Hartung responded that such a person could not do any other work,
either, because the issue with concentration even on simple,
repetitive tasks would rule out competitive employment.
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V.

The Medical Expert Testimony

Dr. Ronald Kendrick, a physician and board-certified
orthopedic surgeon, testified at both administrative hearings.
The Court will summarize his testimony from the second hearing
since that testimony is more comprehensive.
Dr. Kendrick said that Plaintiff suffered from Legg-Perthes
disease of both hips, with the right hip being more severely
involved, and also osteoarthritis of the right hip leading to
total hip replacement.
left femur.

He was also status post osteotomy of the

Dr. Kendrick also testified that the record

contained diagnoses of lumbar spondylosis and chrondromalacia of
the patellofemoral joints bilaterally.
The ALJ asked Dr. Kendrick for an opinion as to Plaintiff’s
residual functional capacity as of the onset date of January 21,
2009.

Dr. Kendrick responded that up to the date of surgery,

Plaintiff would have been limited to sedentary work with the need
to change positions every 45 minutes.

After that, he was limited

to less than sedentary work for a period of about six weeks, and
then again became capable of sedentary work.

This residual

functional capacity, according to Dr. Kendrick, took chronic pain
into account.
Dr. Kendrick was then asked about Plaintiff’s pain
medication.

He said that the dose which Plaintiff was taking

fell in the moderate range, and that patients taking that
medication usually reported drowsiness and psychological
detachment.

Dr. Kendrick did not take those side effects into

account in making his determination.

He also said that

Plaintiff’s description of good days and bad days was typical of
patients that Dr. Kendrick had treated who had similar
conditions.
VI.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 20-

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20 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 requirements of the Social Security Act
through September 30, 2015.

Next, the ALJ determined that

Plaintiff had not engaged in substantial gainful activity since
the onset date of January 1, 2009.

Going to the second step of

the sequential evaluation process, the ALJ concluded that
Plaintiff had severe impairments including Legg-Perthes disease
of both hips; osteoarthritis of the right hip; status post total
hip replacement; status post osteotomy of the left femur; lumbar
spondylosis; and chrondromalacia of the patellofemoral joints of
both knees.

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).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform a full range of sedentary work.

Although that

precluded Plaintiff from performing any of his past jobs, the ALJ
determined that the medical-vocational guidelines directed a
conclusion of “not disabled” for someone of Plaintiff’s age,
education, and work experience who was limited to sedentary work.
Consequently, the ALJ determined that Plaintiff was not entitled
to benefits.
VII.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises four
issues: (1) the ALJ erred by not finding that Plaintiff had a
severe mental impairment; (2) the ALJ erred in his evaluation of
Plaintiff’s physical residual functional capacity; (3) the ALJ
erred in relying on the medical-vocational guidelines when there
was evidence of non-exertional limitations; and (4) the ALJ erred

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by failing to take the side effects of Plaintiff’s medication
into account. These issues are evaluated 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
supported by substantial evidence.

Kinsella v. Schweiker, 708

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

Severe Mental Impairment

Plaintiff’s first argument is that the ALJ should have
determined that Plaintiff’s mental impairments, which included
major depressive disorder, generalized anxiety disorder, and
panic disorder with agoraphobia, were severe.

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He notes that

these impairments were diagnosed after Dr. Donaldson conducted
his consultative examination, and that the state agency reviewers
also found that Plaintiff had psychologically-based limitations
of function.

However, the ALJ gave almost no weight to any of

these opinions, finding instead that Plaintiff had no severe
psychological limitations at all.

Plaintiff contends that the

ALJ failed to follow the proper regulatory path laid out for
evaluating psychological impairments and, in addition, that the
ALJ’s conclusion about the absence of any severe psychological
impairments is not supported by substantial evidence but was
based on the ALJ’s own lay opinion and his belief that the
psychological limitations reported by Plaintiff and found to
exist by Dr. Donaldson were within Plaintiff’s control.
The ALJ expressed his views about Plaintiff’s mental
impairments this way.

He first observed that Plaintiff had never

sought mental health treatment.

Next, he characterized Dr.

Donaldson’s conclusion about Plaintiff’s functional limitations
as having been based “solely on the claimant’s own alleged
limitations....”

He gave that opinion little weight because it

was only a “snapshot” and because “the ‘limitations’ he opined
are within the claimant’s own control.”

The ALJ also criticized

Dr. Donaldson’s opinion as vaguely-worded and not useful for
making a function-by-function evaluation.

Last, he also

discounted the opinions of the state agency psychologists because
“the evidence of record does not adequately support a finding
that the claimant’s alleged mental impairments are severe.

No

treating source has opined that the claimant is impaired or
disabled due to mental impairments.”

(Tr. 23).

The ALJ made no

specific evaluation about the degree of Plaintiff’s impairment in
the areas of activities of daily living, social functioning,
concentration, persistence, and pace, and episodes of
decompensation.

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The Commissioner defends the ALJ’s decision on this point by
arguing, first, that all of the reasons given by the ALJ were
appropriate bases for rejecting the opinions of all three
psychologists, mainly because they all relied on Dr. Donaldson’s
report, and Dr. Donaldson, in turn, provided only a one-time
glimpse into Plaintiff’s mental condition and relied exclusively
on what Plaintiff told him.

The Commissioner also asserts that

the ALJ’s failure to follow the special technique used to
evaluate mental impairments found in 20 C.F.R. §404.1520a was not
error because that technique is used only when a severe mental
impairment is present.

Finally, the Commissioner contends that

any error in this area was harmless because the ALJ went on to
evaluate Plaintiff’s residual functional capacity based on his
finding that Plaintiff had severe physical impairments.
Taking these arguments in reverse order, the cases which
hold that the failure to find a particular impairment to be
severe is harmless error all rely on the fact that,
notwithstanding the ALJ’s finding that a particular impairment is
not severe, the ALJ nonetheless included some limitations arising
out of that impairment when determining a claimant’s residual
functional capacity.

In Maziarz v. Sec’y of HHS, 837 F.2d 240,

244 (6th Cir. 1987), the Court of Appeals rejected a claim that
reversible error had occurred when an ALJ failed to find that one
of the claimant’s alleged impairments (a cervical condition) was
severe, reasoning that “[s]ince the Secretary properly could
consider claimant's cervical condition in determining whether
claimant retained sufficient residual functional capacity to
allow him to perform substantial gainful activity, the
Secretary's failure to find that claimant's cervical condition
constituted a severe impairment could not constitute reversible
error.”

However, when an ALJ fails to consider any limitations

which might be caused by non-severe impairments, the ALJ errs.
See, e.g., Simpson v. Comm’r of Social Security, 344 Fed.Appx.
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181, 190-91 (6th Cir. Aug. 27, 2009)(finding that the ALJ erred
by not considering a non-severe mental impairment when making the
residual functional capacity finding - the same situation
involved in this case); see also Rose v. Comm’r of Social
Security, 2015 WL 6735313, *5 (S.D. Ohio Nov. 4, 2015)(“[a]s this
Court has repeatedly held, the harmless error analysis advanced
by the Commissioner is appropriate only when the ALJ properly
considered any functional limitations arising from non-severe
impairments when crafting his residual functional capacity
finding”), adopted and affirmed 2015 WL 7779300 (S.D. Ohio Dec.
2, 2015).

The ALJ did not do that here, so harmless error

analysis is not applicable, and the question becomes whether the
ALJ’s decision that Plaintiff did not suffer from a severe mental
impairment is either procedurally or substantively flawed.
Procedurally, the ALJ committed clear error by not following
the technique set forth in 20 C.F.R. §404.1520a.

That regulation

provides that an ALJ must determine, first, if there is evidence
in the record of a medically determinable mental impairment
(§404.1520a(b)(1)); if so, the ALJ “must then rate the degree of
functional limitation resulting from the impairment(s) in
accordance with paragraph (c) of this section and record our
findings as set out in paragraph (e) of this section.”
§404.1520a(b)(2).

The technique described in paragraph (c)

involves rating the degree of functional limitation in four broad
areas: “[a]ctivities of daily living; social functioning;
concentration, persistence, or pace; and episodes of
decompensation.”

Once that rating is done, the ALJ is in a

position to “determine the severity of [the claimant’s] mental
impairments” (paragraph (d)); one of the possible outcomes of
that process is a determination that a mental impairment is not
severe.

See paragraph (d)(1).

The structure of this regulation

makes it clear that the technique it lays out is to be used in
each case where a medically determinable mental impairment is
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present, regardless of whether it is ultimately found to be nonsevere.

That determination is an outcome of the process, and not

a prerequisite to apply it.
The Commissioner’s argument to the contrary represents not
only a serious misreading of the regulation, but is contradicted
by a plethora of case law.

See, e.g., Echandy-Carabello v.

Astrue, 2008 WL 910059, *3 (D.R.I. March 31, 2008), holding that
in a case where the ALJ found a mental impairment not to be
severe, “the ALJ's failure to comply with the regulation was
error,” relying on similar decisions from, inter alia, the Courts
of Appeals of the Eighth, Ninth, Tenth, and Eleventh Circuits;
see also Snyder v. Colvin, 2014 WL 3107962, *3 (N.D.N.Y. July 8,
2014)(“When mental impairments are at issue, this severity
determination (whether there is an abnormality having more than
minimal effect on ability to work) is made through application of
a ‘special technique’ set out in 20 C.F.R. § 404.1520a(b)-(e),”
citing Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir. 2008).
The failure to follow this technique may, in some cases - such as
where the ALJ finds a mental impairment be severe even though the
regulation was not followed - be harmless.

See, e.g., Rabbers v.

Comm’r of Social Security, 582 F.3d 647 (6th Cir. 2009).
However, that is not what happened here, nor does the
Commissioner make a harmless error argument concerning the
failure to follow the regulatory technique.

Rabbers further

makes clear that “courts generally should exercise caution in
conducting harmless error review in this context,” id. at 657-58,
and notes that the purpose of the technique is to assist the ALJ
in determining if more evidence is needed on the issue of
severity and how the consequences of the impairment impact a
claimant’s ability to work.

In this case, the Court cannot, for

these reasons, find the error to be harmless, and that is enough
to justify a remand.
The Court further finds, however, that the ALJ committed not
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just a procedural, but a substantive, error - that is, that the
ALJ’s determination that Plaintiff did not have a severe mental
impairment is not supported by substantial evidence.

Here, all

of the medical evidence contradicted the ALJ’s finding.

The

ALJ’s rationale for rejecting all of those opinions rested on
essentially three bases: (1) the consultative examination
provided only a “snapshot” view of Plaintiff’s mental condition;
(2) all of the psychologists relied on Plaintiff’s self-report of
symptoms; and (3) Plaintiff’s symptoms, such as his inability to
maintain friendships, were within his control.

There is no basis

in the record supporting the last of these conclusions, either as
to that or any of the other symptoms which Plaintiff reported and
which Dr. Donaldson found to be credible.

Further, all

psychological examinations rely to some degree on a patient’s
self-report of symptoms; that alone cannot be the reason why an
ALJ refuses to accept a psychologist’s or psychiatrist’s opinion.
See Keeton v. Comm’r of Social Security, 583 Fed.Appx. 515 (6th
Cir. Oct. 14, 2014); Lutz v. Comm’r of Social Security, 2015 WL
1927779 (S.D. Ohio Apr. 28, 2015), adopted and affirmed 2015 WL
5343660 (S.D. Ohio Sept. 15, 2015).

Finally, all consultative

examinations, whether psychological or physical, provide a
“snapshot” look at a claimant’s condition; if that were a proper
basis for rejecting those opinions, it would apply in every case.
The proper method for evaluating medical opinions, treating
or otherwise, is found in 20 C.F.R. §404.1527(c).

The ALJ’s

evaluation here did not follow that analytical path and is not
supported by the record.

And even if it were a legitimate

criticism of Dr. Donaldson’s opinion that he did not phrase his
conclusions in a way that could be directly converted to
vocational abilities, that is not so with respect to the two
state agency physicians, nor is it a valid reason for concluding
that Plaintiff had no limitations on his ability to function
which would impact his ability to do work at any exertional level
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- the test for determining if an impairment is severe, see 20
C.F.R. §1521; see also Salmi v. Sec’y of HHS, 774 F.2d 685 (6th
Cir. 1985).

On this record, the ALJ’s finding that Plaintiff had

no severe mental impairment is not supported by substantial
evidence, and, as part of the remand being ordered, the ALJ must
revisit this issue and engage in a proper evaluation of the
opinion evidence.
B.

Physical Residual Functional Capacity

Plaintiff’s next argument points to what he believes to be
an inconsistency between the ALJ’s adoption of Dr. Kendrick’s
testimony and the regulatory requirements for sedentary work.
Briefly stated, Dr. Kendrick said that Plaintiff could do
sedentary work but would have to adjust positions for at least a
minute or two every forty-five minutes.
adopt that testimony.

The ALJ purported to

However, in order to do a full range of

sedentary work, a person must be able to sit for at least two
hours at a time without interruption.

Plaintiff contends that it

was error, given the record, for the ALJ to find that he was
capable of a full range of sedentary work.
The Commissioner does not dispute either that Dr. Kendrick
identified the need for Plaintiff to change positions briefly
every 45 minutes or that the ALJ fully accepted that testimony.
The Commissioner argues, however, that Plaintiff has not
demonstrated that such a limitation erodes the occupational base
for sedentary work, or, if it does, that any error was harmless.
Since the Court should order remand on the first issue, this
matter can also be addressed with vocational testimony, although
the Court does note that the Commissioner had the burden at step
five to show that despite being unable to perform his past work,
Plaintiff could still do other jobs, and that it may not have
been Plaintiff’s burden to show that the limitation on sitting
which the ALJ found to exist did not substantially decrease the
number of sedentary jobs Plaintiff could perform.
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C.

Nonexertional Impairments

In this statement of error, Plaintiff asserts that use of
the medical-vocational guidelines was error due to the presence
of both physical and mental non-exertional impairments.

This

claim is moot in light of the disposition of Plaintiff’s first
two claims of error.
D.

Side Effect of Medications

Plaintiff’s final claim of error deals with the evidence
that his medications caused side effects including dizziness,
drowsiness, and loss of focus.

Dr. Kendrick testified both that

it was common for patients taking Dilaudid to report such side
effects, and that his assessment of Plaintiff’s residual
functional capacity did not take them into account.

Plaintiff

argues that under Social Security Ruling 96-8p, an ALJ must
consider side effects of medication, and that the ALJ here failed
to do so.
SSR 96-8p requires an ALJ to consider, among other factors,
evidence of “side effects of medication” in determining a
claimant’s residual functional capacity.

It also requires an ALJ

to provide “a narrative discussion describing how the evidence
supports each conclusion” as well as “a discussion of why
reported symptom-related functional limitations and restrictions
can or cannot reasonably be accepted as consistent with the
medical and other evidence.”

The Commissioner concedes that the

ALJ’s decision - which contains no discussion of side effects or
how they either did or did not affect Plaintiff’s residual
functional capacity - could have been “a little more clear” on
this subject.

Response to Statement of Errors, Doc. 17, at 11.

That is an understatement.

The Court does not view the ALJ’s

observation that Plaintiff was alert and attentive to the
proceedings at the administrative hearing, or his reference to
the fact that Plaintiff had performed some work activity
(although not substantial gainful activity) since his alleged
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onset date, to constitute a clear rejection of Plaintiff’s
testimony as to side effects.

Again, a remand will enable the

ALJ to consider all of the testimony on this subject and to
determine if any functional restrictions (like avoiding hazardous
machinery or unprotected heights) are reasonably related to the
side effects of Plaintiff’s medication.
VIII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner pursuant to 42 U.S.C.
§405(g), sentence four.
IX.

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
947 (6th Cir. 1981).

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/s/ Terence P. Kemp
United States Magistrate Judge

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