McKinney v. Commissioner of Social Security
REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Defendant Commissioner. Objections to R&R due by 5/2/2016. Signed by Magistrate Judge Terence P. Kemp on 4/14/2016. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Christina M. McKinney,
Commissioner of Social Security,
JUDGE GREGORY L. FROST
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff, Christina M. McKinney, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for supplemental security income.
application was filed on January 17, 2012, and alleged that
Plaintiff became disabled on February 12, 2008.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on November 15, 2013.
In a decision dated March 10, 2014, the
ALJ issued a decision denying benefits.
That became the
Commissioner’s final decision on April 11, 2015, when the Appeals
Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on August 17, 2015. Plaintiff filed a
statement of specific errors on September 16, 2015, to which the
Commissioner responded on December 18, 2015.
Plaintiff filed a
reply brief on January 1, 2016, and the case is now ready to
The Lay Testimony at the Administrative Hearings
Plaintiff, who was 29 years old as of the date of the
hearing and who is a high school graduate with some college work,
testified as follows.
Her testimony appears at pages 120-149 of
the administrative record.
Plaintiff testified that she had taken some online classes
beginning in July, 2012, but had withdrawn from that program.
She explained that she was having trouble with the math required
and determined that she could not do the externship which
accompanied the program.
She had not looked for work in that
In 2004, she worked at Dollar General, a job which
lasted about a year.
She ran a cash register, unloaded trucks,
and stocked shelves.
She had also worked in the deli department
at a Kroger store for several months.
Through the Ohio Works
First program, she was assigned to work at a Salvation Army
location sorting and hanging clothes, but she could not do that
According to Plaintiff, the reasons she could not work
included loss of sensation, numbness, tingling, and weakness in
her right arm, which caused her to be unable to grasp objects and
to drop things.
A 2011 surgery did not improve her condition.
She had several cervical vertebrae fused as well, but that was
not as helpful as she and her doctor had hoped.
She had trouble
bending her neck to read and also sitting, standing, or walking
for any length of time, which related not only to her neck issue
but to problems throughout her spine.
She had undergone
injections in her lower back and was scheduled for an additional
treatment on the nerve in that area.
Plaintiff described constant pain which at times reduced her
She often had to lie down and use a heating pad for
Also, she experienced depression and anxiety.
conditions caused her to have panic attacks in groups of people,
even as small as six or seven.
Plaintiff told the ALJ she had
weekly panic attacks and they typically lasted an hour.
not sleep well at night and would lie down every day.
suffered from memory lapses.
She was able to relate to the
people she was living with and with her grandmother and other
She left her house to attend medical
appointments for herself and her son.
On a typical day, Plaintiff took care of her young son,
although she had help doing that.
She helped out with some
household chores and occasionally did grocery shopping.
read books and used a computer to access Facebook and use email.
Plaintiff said that she could sit for 45 minutes, stand for an
hour before having to lie down, and walk about an hour over the
course of a day.
She had experienced suicidal thoughts in the
She was not able to lift her son, who weighed 40 pounds.
The Medical and Educational Records
The medical and educational records in this case are found
beginning on page 317 of the administrative record.
pertinent records - primarily those relating to Plaintiff’s
condition after her application date of January, 2012 - can be
summarized as follows.
Plaintiff does have a long history of psychiatric care, as
noted in a discharge summary dated May 27, 2010, and reflected in
various treatment notes before that date.
At that time, her
diagnoses included major depressive disorders with psychotic
features, alcohol abuse, and borderline personality disorder.
She had been treated for hallucinations and suicidal thoughts.
She had another short psychiatric hospitalization
in 2011, again for suicidal ideation along with increased
depression, but was discharged with a GAF of 60.
Dr. Hammerly, a psychologist, conducted a consultative
evaluation on April 3, 2012.
Plaintiff explained that the bases
for her claim of disability included panic attacks, anxiety, and
problems with her neck and shoulder.
She reported a history of
childhood abuse and also having been in special education classes
in high school.
She had assistance managing her finances.
Hammerly observed that Plaintiff had a downcast mood and a
restricted affect and that she experienced feelings of
hopelessness and worthlessness from time to time.
panic attacks and several psychotic episodes.
diagnosed major depression of moderate severity and rated
Plaintiff’s GAF at 55.
He thought that she was in the borderline
range with respect to understanding and carrying out instructions
and maintaining attention and concentration.
He also said she
would have problems relating to coworkers and supervisors and
would “be expected to withstand the daily psychological pressures
of work with a decreased degree of success,” particularly in the
face of a changing work environment.
evaluation was done by Dr. Dubey on September 6, 2012.
that Plaintiff reported feeling “okay and depressed” and had
She also reported anxiety since childhood.
Plaintiff showed an exaggerated presentation and she was tense,
irritable, negativistic, and avoidant.
She said she was
benefitting from mental health treatment.
Dr. Dubey thought she
was stable and had no problems with simple and multistep
directions or questions.
He rated her GAF at 55 and thought she
would be able to deal with simple instructions in the workplace,
including paying attention to them, would have moderate issues
with coworkers and supervisors, and would also have moderate
issues dealing with work pressure. (Tr. 755-63).
On July 13, 2013, Plaintiff’s counselor, Todd Warren, filled
out a form rating Plaintiff’s mental capacity for work.
that, in his opinion, she had marked or extreme limitations in
all areas of social interaction, sustained concentration and
persistence, and adaptation.
He believed she would deteriorate
under work stress and would miss five or more days per month due
to her psychological condition.
In August, 2013, Plaintiff was again hospitalized for
She reported suicidal thoughts and her
GAF upon admission was rated at 30.
It is unclear how long that
admission lasted but it was estimated to be 3-5 days.
State agency reviewers expressed opinions about Plaintiff’s
psychological capacity based on some of these records.
Goldsmith concluded, on April 16, 2012, that Plaintiff was
limited to simple tasks which were not fast paced and did not
have strict production demands.
She could also have only
occasional and superficial interpersonal contact and was limited
to working in an environment with infrequent changes.
Dr. Swain later concurred in that assessment.
Plaintiff had arthroscopic surgery on her right arm and
shoulder in 2011 in order to repair a rotator cuff tear.
six-month followup visit, she reported reinjuring her shoulder
and an increase in pain.
There was still some tenderness over
the subacromial space but range of motion and strength were good.
She was given an injection for the pain, and physical therapy was
Emergency room notes from February 11, 2012, show that
Plaintiff was treated on that date for cervical sprain and
She had apparently fallen and hit her neck on a crib.
little more than a month later she had neck surgery, but it was
for degenerative disc disease at C6-7.
she was discharged in stable condition.
The surgery went well and
On June 20, 2012,
however, she was seen at the Pain Management Consortium of
Central Ohio complaining of pain in the back, neck, and
shoulders, and stating that she could not pick up her son.
that time, she was working 20.5 hours per week through OWF.
Limitations were noted in movement of the right shoulder and the
fingers on both hands, and she had diminished reflexes in many
Flexion and extension of the cervical spine were not
Plaintiff’s primary physician during this time was Dr.
Turner, and there are office notes documenting her treatment of
Plaintiff as well as many emergency room treatment notes from
On August 9, 2013, Dr. Turner completed a residual
functional capacity questionnaire indicating that Plaintiff could
only stand, walk, and sit for a total of 3.5 hours in a workday,
could lift up to ten pounds but do so rarely and not in a work
setting, could not squat or crawl, and would deteriorate under
stress and was likely to have five or more unscheduled absences
from work each month.
There were two state agency physicians who commented on
Plaintiff’s physical residual functional capacity.
on March 27, 2012, concluded that Plaintiff could do a limited
range of light work with various postural limitations, and that
she was limited in her ability to reach overhead, in front, or
laterally with her right arm.
reached the same conclusions on August 14, 2012 except that he
added environmental limitations due to asthma and restricted her
from working around heights or machinery and doing commercial
Eric Pruitt was
The Vocational Testimony
called to testify as a vocational expert at
the administrative hearing.
His testimony begins at page 149 of
the administrative record.
Mr. Pruitt described Plaintiff’s past employment as a sales
clerk at Dollar General as light and semi-skilled.
job was a combination position and was unskilled and either light
Mr. Pruitt was then asked some questions about someone with
Plaintiff’s background and who could work at the light exertional
That person could not climb ladders, ropes, or scaffolds
and had to avoid exposure to hazards like dangerous machinery or
He or she could occasionally crawl and
frequently reach overhead with the right arm, and was limited as
to frequent exposure to dust, fumes, odors, gases, and poorly
Also, the person could do simple repetitive
tasks in a relatively static work environment where therewere
infrequent changes in duties or processes and the work did not
require more than occasional contact with others, nor did it
involve fast pace or strict production demands.
Mr. Pruitt said
that someone with those restrictions could work as a deli cutter
and slicer, and also could be a routing clerk, label coder, and
Those jobs could not be done, however, by someone
who could only occasionally use their dominant hand and arm for
handling, feeling, and fingering.
Such a person could work at
the light level as a furniture rental clerk, groover and
stripper, or blending paint tender even with those restrictions.
Only a few sedentary jobs were consistent with those restrictions
- surveillance system monitor and call out operator.
Lastly, Mr. Pruitt was asked about the job possibilities for
someone who was as limited as Plaintiff testified.
were no jobs available to such a person.
He said there
The same was true for
someone who could lift ten pounds on a rare basis and not in a
work setting, who had five unscheduled absences in a month, and
who had to take an additional one-hour break during the work day.
Additional work-preclusive restrictions included being unable to
perform at a consistent pace for up to half the work day, being
unable to respond appropriately to changes in the work setting,
and being off task for fifteen percent of the day (assuming that
the person was limited to unskilled work).
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 88107 of the administrative record.
decision are as follows.
The important findings in that
The Administrative Law Judge found, first, that Plaintiff
had not engaged in substantial gainful activity since her
application date of January 17, 2012.
Going to the second step
of the sequential evaluation process, the ALJ concluded that
Plaintiff had severe impairments including degenerative disc
disease of the lumbar spine, status post cervical fusion, status
post two right shoulder arthroscopies, asthma, major depression,
a generalized anxiety disorder, a personality disorder, and
borderline intellectual functioning.
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 light work with limitations.
They included the
ability to crawl only occasionally, to reach laterally, forward,
and overhead with the right arm frequently, to have frequent
exposure to dust, fumes, odors, gases, and poorly ventilated
areas, and never to climb ladders, ropes, or scaffolds or to work
around hazards such as unprotected heights or dangerous
machinery. From a psychological standpoint, Plaintiff could
perform simple, repetitive tasks in a relatively static work
environment where there are infrequent changes in duties and
processes, where the work does not require more than occasional
contact with others, and where the work does not involve a fast
work pace or strict production demands.
With these restrictions,
the ALJ concluded that although Plaintiff could not perform her
past relevant work,
Plaintiff could perform the light jobs
identified by the vocational expert, including routing clerk,
label coder, and mail clerk, and that these jobs existed in
significant numbers in the local, state, and national economies.
Consequently, the ALJ determined that Plaintiff was not entitled
Plaintiff’s Statement of Specific Errors
In her statement of specific errors, Plaintiff raises these
issues: (1) the ALJ did not properly evaluate the opinion of Dr.
Turner, a treating source; and (2) the ALJ did not properly apply
Social Security Rule 06-3p to the opinion of Mr. Warren.
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
Richardson v. Perales, 402
adequate to support a conclusion'"
U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
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.
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).
Dr. Turner’s Opinion
Plaintiff first asserts that the ALJ did not properly
evaluate Dr. Turner’s opinion, which, if accepted, would lead to
a finding of disability.
In particular, she argues that the ALJ
did not cite to specific inconsistencies between that opinion and
the medical evidence and did not provide good reasons for
The analysis of this issue begins with an
examination of the ALJ’s stated rationale for refusing to give
this opinion controlling weight.
First, the ALJ assigned “significant weight” to the opinions
of the state agency reviewers based on their familiarity with the
Social Security disability program and because they are
“consistent with and well supported by the evidence of the record
as a whole ....”
He then assigned little weight to
Dr. Turner’s opinion, explaining his decision this way:
The claimant’s treating physician, Dr. Marsha
Turner, offered a medical source statement in August
2013 (Exhibit 33F). Her opinion is assigned little
weight. The opinion is quite restrictive, but offers
no specific findings to support such restrictions.
Overall, the opinion is far more limiting than what is
supported by the medical record, which ultimately shows
the claimant has subjective tenderness with good
strength and range of motion. Furthermore, Dr. Turner
is a primary care physician and is not Board Certified
in orthopedics, neurological, or physical medicine.
Later in the administrative decision, the ALJ
discussed Plaintiff’s subjective complaints of disability due to
her right shoulder impairment, and found that there was not
sufficient medical evidence to substantiate her testimony.
cited to treatment notes indicating a lack of gross weakness or
instability following the 2011 rotator cuff surgery, and also
good range of motion and strength.
He also noted some
inconsistencies in the report of numbness and tingling, minimal
objective findings with respect to the cervical spine, and only
mild tenderness to palpation.
Plaintiff does not challenge the
ALJ’s credibility finding.
The law in this area is clear.
A treating physician's
opinion is entitled to weight substantially greater than that of
a nonexamining medical advisor or a physician who saw plaintiff
20 C.F.R. §404.1527(c); see also Lashley v. Secretary
of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983); Estes v. Harris,
512 F.Supp. 1106, 1113 (S.D. Ohio 1981).
However, in evaluating
a treating physician’s opinion, the Commissioner may consider the
extent to which that physician’s own objective findings support
or contradict that opinion.
Moon v. Sullivan, 923 F.2d 1175 (6th
Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
The Commissioner may also evaluate other objective
medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).
Cutlip v. Secretary of
No matter how the issue of the
weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
The Court begins with the argument that the ALJ committed an
“articulation error” - that is, that even if the record contained
enough evidence to discount Dr. Turner’s opinion, the ALJ did not
provide an adequate explanation of his decision-making process,
particularly as to the conflicting medical evidence.
It is true
that the general phrase that a treating source opinion is
“inconsistent with the evidence” is not specific enough to allow
either the Court or the Plaintiff to understand what evidence the
ALJ is relying upon.
See, e.g., Mercer v. Comm'r of Social
Security, 2013 WL 3279260, *7 (S.D. Ohio June 27, 2013), adopted
and affirmed 2014 WL 197874 (S.D. Ohio Jan. 15, 2014).
And it is
also true that the ALJ’s discussion of Dr. Turner’s opinion is
not very detailed.
However, it provides two reasons for giving
the opinion little weight - that Dr. Turner is essentially a
general practitioner rather than a specialist, and that the
medical records do not support her opinions because they report
more subjective than objective findings.
That statement, coupled
with the later discussion about those records and the specific
objective findings contained in them, is enough to permit the
Court to understand and evaluate the ALJ’s decision, and to
advise Plaintiff why the ALJ did not accept Dr. Turner’s views.
Those are the two purposes behind the applicable regulation, 20
See Hall v. Comm’r of Social Security, 148
Fed.Appx. 456, 461-62 (6th Cir. 2005).
Consequently, there is no
reversible articulation error in this case.
Plaintiff’s other argument is that the reasons given by the
ALJ do not adequately support his decision.
She asserts that the
primary basis given for assigning little weight to Dr. Turner’s
opinion was the conflict with the state agency reviewers, and
that the ALJ did not give enough consideration to the
longitudinal treating relationship.
She also argues that he
improperly emphasized Dr. Turner’s lack of specialization but
failed to note that neither of the state agency reviewers were
specialists in the field of orthopedic medicine (one was an
emergency room physician and the other was a pediatrician).
As the Commissioner correctly points out, the ALJ’s two
primary reasons for discounting Dr. Turner’s opinion were the
lack of supporting reasons (and the form she completed did not
contain any) and the inconsistency with the medical evidence,
particularly the records which reported more subjective than
These are both supported by the record.
ALJ was clearly aware of the longitudinal treating relationship
but also the fact that, for the conditions which Plaintiff
claimed were disabling, Dr. Turner had referred Plaintiff to
Further, it is true that Dr. Turner is not an
orthopedic or mental health specialist.
While the fact that the
two state agency physicians may not have been orthopedic
specialists is a factor that the ALJ might have considered more
explicitly, the Court cannot say that the ALJ did not assert
reasons, supported by the record, for declining to adopt Dr.
Turner’s extremely restrictive view of Plaintiff’s physical
capacity or for adopting the evaluations of the state agency
reviewers because they were more consistent with the records.
See Ruby v. Colvin, 2015 WL 1000672, *3 (S.D. Ohio March 5,
2015)(affirming ALJ’s reliance on state agency reviewers whose
opinions were “consistent with objective medical evidence of
Consequently, there is no error in the ALJ’s decision
to accord only little weight to Dr. Turner’s opinions.
The Counselor Opinion
The other issue raised in Plaintiff’s statement of errors
deals with the functional capacity evaluation done by her
counselor, Mr. Warren.
He, too, concluded that Plaintiff had
limitations which were incompatible with the ability to work on a
This is what the ALJ had to say about his
In July 2013 the claimant’s counselor, Mr. Todd
Warren, completed an assessment of the claimant’s
mental residual functional capacity .... A licensed
professional counselor (“LPC”) is not an “acceptable
medical source” as defined in 20 C.F.R. 416.913....
[T]he opinion is considered only to the extent that it
helps understand how an impairment affects the ability
I have considered these observations, consistent
with the above-cited regulations and SSR 06-3p. Mr.
Warren’s opinions on this assessment are assigned
little weight. With a few exceptions, Mr. Warren
concluded that the claimant had “extreme” limitations
in nearly every functional area listed on the
assessment form. This conclusion is not supported by
or consistent with the medical evidence of record. Mr.
Warren did not provide specific findings to support his
opinion. Instead, it appears Mr. Warren relied quite
heavily on the claimant’s subjective reports. However,
as described elsewhere in this decision, the claimant’s
reports are not entirely credible.
The ALJ went on to discuss the opinions of the two
consultative examiners, giving both “some” weight as consistent
with the finding that Plaintiff needed a static work environment
and could only perform simple repetitive tasks, and he also
assigned great weight to the GAF scores indicating a moderate
level of impairment.
Ultimately, the ALJ adopted the opinions of
the state agency reviewers on this issue as well, again making an
(unchallenged) finding that Plaintiff’s description of her
psychologically-based symptoms was not entirely credible.
Plaintiff contends that the ALJ erred by mis-stating the legal
standard under which opinions like Mr. Warren’s must be reviewed.
Contrary to Plaintiff’s assertion, the ALJ both cited the
correct regulation, 20 C.F.R. §416.913, and accurately described
That regulation lists providers who are “acceptable
medical sources” and Mr. Warren, as a counselor, is not one of
It then states that the ALJ may use evidence from “other
sources” to “show the severity of your impairment(s) and how it
affects your ability to work.”
That is exactly how the ALJ
explained this regulation in his decision.
Plaintiff argues, however, that the ALJ erred by not
evaluating Mr. Warren’s opinion using the factors set out in 20
Under SSR 06-3p (also cited by the ALJ),
such “other” source opinions “may” be used by an ALJ and an ALJ
“can” use the §416.927(c) factors when evaluating such an
opinion; as the regulation states, “it would be appropriate to
consider such factors as the nature and extent of the
relationship between the source and the individual, the source's
qualifications, the source's area of specialty or expertise, the
degree to which the source presents relevant evidence to support
his or her opinion, whether the opinion is consistent with other
evidence, and any other factors that tend to support or refute
In addition, “the adjudicator generally should
explain the weight given to opinions from these ‘other sources,’
or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent
reviewer to follow the adjudicator's reasoning, when such
opinions may have an effect on the outcome of the case.”
Since there is no heightened duty on the part of an ALJ to
explain his or her reasoning about non-medical source opinions,
the Court’s review of that reasoning is limited.
If it appears
from the record that the ALJ properly understood the controlling
law and had a substantial basis for reaching the conclusion
reflected in the administrative decision, the Court cannot
overturn that conclusion.
That is what happened here.
The ALJ’s decision makes clear
that after he identified Mr. Warren’s opinion as not coming from
an acceptable medical source, he nonetheless considered it in
light of some of the relevant factors, including its consistency
with the other evidence of record, the level of support provided
by Mr. Warren, and the fact that Mr. Warren relied heavily on
Plaintiff’s subjective reporting which the ALJ found to be less
than fully credible.
There is no indication that the ALJ
misunderstood his ability to do that type of analysis, and
Plaintiff has not (and cannot) make the argument that the Court
should substitute its weighing of the evidence for that of the
As the Court did in Speakes v. Comm’r of Social Security,
2015 WL 4480562, *7 (S.D. Ohio July 22, 2015), adopted and
affirmed 2015 WL 4776696 (S.D. Ohio Aug. 14, 2015), the Court
finds here that “the ALJ did not deviate from this regulation,
and that he adequately described his reasoning process with
respect to the weight afforded to [the non-medical] opinion.”
Consequently, there was no error in the way that the ALJ dealt
with Mr. Warren’s opinion.
Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Defendant Commissioner.
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
of the report or specified proposed findings or
recommendations to which objection is made.
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).
/s/ Terence P. Kemp
United States Magistrate Judge
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