Morris v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Defendant. Objections to R&R due by 11/25/2016. Signed by Magistrate Judge Terence P. Kemp on 11/7/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
William C. Morris,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:16-cv-132
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, William C. Morris, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

October 19, 2012, 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 August
8, 2014.
benefits.

In a decision dated September 26, 2014, the ALJ denied
That became the final decision of the Commissioner

when the Appeals Council denied review on December 21, 2015.
After Plaintiff filed this case, the Commissioner filed the
administrative record on April 22, 2016.

Plaintiff filed a

statement of specific errors on June 6, 2016, to which the
Commissioner responded on August 12, 2016.

Plaintiff has not

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

The Lay Testimony at the Administrative Hearings

Plaintiff, who was 52 years old as of the date of the
administrative hearing and who has a seventh grade education,
testified as follows.

His testimony appears at pages 35-54 of

the administrative record.
Plaintiff was first asked what caused him to be disabled as
of January 1, 2009.

He said his diabetes was the reason.

It had

gotten worse and he was light-headed and dizzy every day due to
fluctuations in his blood sugar.
him to be forgetful.

In turn, those symptoms caused

He had done some part-time work after that

date through temporary employment services.
Plaintiff saw his doctor once a month.

He was being treated

for diabetes, high blood pressure, high cholesterol, and a mood
disorder.

He was under the care of a different doctor for the

last of these conditions and was taking medications to control
his mood swings.
In terms of daily activities, Plaintiff said he could walk
but was unable to participate in any sports or hobbies.

He

visited with friends and attended car races or baseball and
football games.

He did not think he could work due to constant

depression, agitation when around people, and the effects of his
diabetes.

He also identified problems with his back that made it

hard to walk or stand for more than fifteen or twenty minutes.
Finally, he said that he was tired all of the time due to sleep
apnea.
III.

The Medical Records

The pertinent medical records are found beginning at page
277 of the record and can be summarized as follows.

Because

Plaintiff does not contend that the content of records relating
to his physical impairments are pertinent to his statements of
error and does not summarize those records in his memorandum, the
Court will not include them in this summary.
Dr. Tanley, a neuropsychologist, conducted a consultative
evaluation on December 21, 2012.

Plaintiff described his chief

complaint as neuropathy and said he had no money to purchase
insulin.

He said he had stopped working six months before after
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spending a week as a cook at a Kentucky Fried Chicken restaurant.
He had never been treated by a mental health professional.

His

speech and content were within normal limits, his affect was
appropriate to thought, and his eye contact was good.
no signs of anxiety.

There were

Dr. Tanley observed that Plaintiff’s level

of intellectual functioning appeared to be in the mentally
retarded range but a diagnosis would require review of school
records.

The diagnoses included an adjustment disorder with

depressed mood, and Plaintiff’s GAF was rated at 60.

Dr. Tanley

said that Plaintiff could function in a work setting “in the MR
range” and would be expected to have difficulty with either
complex or multistep tasks.

Plaintiff reported no problems

getting along with others, but Dr. Tanley thought that his
depression might affect that relationship in a work setting.
Finally, his depression would also affect “to some degree”
Plaintiff’s ability to deal with work stress.

(Tr. 302-06).

On October 16, 2013, Helen Harvey, who had started providing
counseling services to Plaintiff two months before, filled out a
mental residual functional capacity questionnaire.

She indicated

a number of either moderate or marked limitations in work-related
areas, most significantly in the areas of working around others,
working independently, maintaining attention and concentration
for more than brief periods of time, performing at an acceptable
level, remembering basic workplace information, and dealing with
work stress.

Ms. Harvey also said that Plaintiff would likely

miss five or more days of work per months and that his condition
would deteriorate under work stress.

She noted that Plaintiff

“has had little success in retaining jobs in the past.”
349-51).

(Tr.

The record also contains a number of Ms. Harvey’s

counseling session notes, one of which indicated that Plaintiff
was to be seen by Dr. Shiflett.

That doctor filled out a form on

February 24, 2014, indicating that Plaintiff was either markedly
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or extremely impaired in almost all areas of work-related
functioning.

(Tr. 421-23).

The administrative record does not

appear to contain any treatment notes from Dr. Shiflett.
There are also opinions about Plaintiff’s mental residual
functional capacity from state agency reviewers.

The first, Dr.

Umana, concluded that Plaintiff was markedly limited in his
ability to deal with complex instructions but otherwise had only
a few moderate limitations.

He was viewed as being able to

maintain sufficient attention and concentration to complete
simple tasks. (Tr. 91-92).

Dr. Johnston, the second reviewer,

added, in her evaluation, the observation that Plaintiff could
adapt to settings where changes were infrequent and were clearly
explained.

(Tr. 107-08).
IV.

The Vocational Testimony

Eric Pruitt was called to testify as a vocational expert at
the second administrative hearing.

His testimony begins at page

54 of the administrative record.
Mr. Pruitt first asked Plaintiff some questions about his
past work.

Plaintiff said that his last job was trimming around

road signs with a utility knife, and he testified about other
jobs as well.

Mr. Pruitt then characterized Plaintiff’s past

work as a material handler, which was semi-skilled and heavy; a
hand trimmer, which is light and unskilled; a courier, which was
also light and unskilled; a production assembler, which was the
same; and a conveyor feeder, which was unskilled and medium.
Next, Mr. Pruitt was asked questions about someone with
Plaintiff’s background who could work at the medium exertional
level and who could perform goal-based production/work measured
by end result, not pace work, and which was limited to simple,
routine, repetitive tasks done in a low-stress environment,
defined as involving only occasional changes in the work setting
and occasional interaction with coworkers, supervisors, and the
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public.

Mr. Pruitt said that someone with those restrictions

could do Plaintiff’s past job as a hand trimmer, and could also
work as a floor technician, laundry worker I, or mill operator
helper.

The hand trimmer job would be available even if

Plaintiff were limited to light work, as would positions like
label coder, laundry press operator, and buffing machine tender.
At the sedentary level, someone with those restrictions could be
a film touch up inspector, laminator I, gauger, or printed
circuit board inspector.
Lastly, Mr. Pruitt was asked if any jobs would be available
to someone who had to work in isolation, with only ten percent of
time or less spent in contact with a supervisor.

He said that

there were no sedentary, light, or medium unskilled jobs fitting
that description.

He also testified that the jobs he identified

could accommodate frequent supervision initially, but not on an
ongoing basis, and that being off task 10 to 20 percent of the
time was also inconsistent with being employed in an unskilled
job.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision which is under
review in this case appears at pages 14-25 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 March 31, 2015.

Second, he found that Plaintiff had not

engaged in substantial gainful activity since his alleged onset
date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe impairments
including degenerative disc disease of the lumbar spine,
degenerative joint disease of the left shoulder, diabetes
mellitus type II, hypertension, and affective disorders.

The ALJ

also found that these impairments did not, at any time, meet or

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equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at the light exertional level.

From a

mental standpoint, he could perform goal-based production/work
measured by end result, not pace work, which was limited to
simple, routine, repetitive tasks done in a low-stress
environment, defined as involving only occasional changes in the
work setting and occasional interaction with coworkers,
supervisors, and the public.

The ALJ next found that, with these

restrictions, Plaintiff could perform his past relevant work as a
had trimmer.

Consequently, the ALJ decided that Plaintiff was

not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises these
issues: (1) the ALJ did not properly follow the “treating
physician” rule in his rejection of Dr. Shiflett’s opinion; (2)
the ALJ did not correctly follow Social Security Ruling 06-3p in
his evaluation of Ms. Harvey’s opinion; and (3) the mental
residual functional capacity finding was not supported by
substantial evidence.

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.

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

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Cir. 1976).

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.

The Treating Source Opinion

Because the first issue which Plaintiff raises questions the
sufficiency of the reasons given by the ALJ for discounting Dr.
Shiflett’s opinion, the Court will set out the ALJ’s rationale in
some detail.

Here is what the ALJ had to say about that opinion.

The ALJ began by noting that Plaintiff had been diagnosed
with adjustment disorder with depressed mood and bipolar mood
disorder.

Next, citing to Dr. Tanley’s report, the ALJ noted

that Plaintiff said his mood was better and he had more energy
after having been prescribed medication.

He then assigned “some

weight” to the state agency reviewers’ opinions because “there is
evidence that the claimant would have social and stress-related
limitations as discussed in Dr. Tanley’s assessment.” (Tr. 21).
Reviewing Dr. Tanley’s report in more detail, the ALJ gave it
“great weight” because Dr. Tanley had the chance to examine
Plaintiff and his views were “consistent with the medical
evidence of record.”

Id.

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After discussing Ms. Harvey’s opinion and giving it little
weight, the ALJ turned to Dr. Shiflett’s opinion.

This, too, was

accorded “little weight” for what the ALJ described as “a number
of reasons” - including that it was “inconsistent with the
medical evidence of record,” namely treatment notes, the fact
that it purported to assess Plaintiff’s condition as of January
1, 2009, but no mention of depression appears in the medical
records until December 12, 2012, Plaintiff’s assertion that he
did not become disabled until August, 2012, his statements to Dr.
Tanley about how well he related to others, the fact that he told
other providers that his disability was based on diabetes, and
the fact that he never reported issues with his supervisors when
he was working.

(Tr. 22).

In his statement of errors, Plaintiff makes two separate
arguments about why this treatment of Dr. Shiflett’s opinion
justifies a remand.

First, he argues that the ALJ articulated

and relied upon an incorrect legal standard.

Second, he asserts

that the ALJ’s statement of reasons was either not specific
enough or is not supported by the record.

The Court will address

each of these contentions in turn.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

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.
1990).

The Commissioner may also evaluate other objective

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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.
2004).
In support of his first argument, Plaintiff points out that
the ALJ did not lay out the guiding principles which the Court
has just articulated, did not mention the concept that under
certain circumstances a treating source opinion is to be given
“controlling weight,” and simply stated, in conclusory fashion,
that the opinion was entitled to only “little weight.”

In

response, the Commissioner argues that the ALJ’s analytical
method tracked both the applicable regulation and the
requirements of cases such as Gayheart v. Comm’r of Social
Security, 710 F.3d 365 (6th Cir. 2013).
The regulation at issue, 20 C.F.R. §404.1527(c), states that
treating source opinions are evaluated using a variety of
factors, including the presence of a treating or examining
relationship, the length of any treating relationship, the
frequency of examination, the supportability of the opinion by
medical evidence in the record, its consistency with other
evidence, the specialization of the source, and other pertinent
considerations.

Section 404.1527(c)(2) says that “[i]f we find

that a treating source's opinion on the issue(s) of the nature
and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case
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record, we will give it controlling weight.”

Gayheart

interpreted this part of the regulation to require that an ALJ
first determine whether to give a treating physician’s opinion
controlling weight, based on the supportability and consistency
of the opinion, and held that the ALJ may apply the remainder of
the regulatory factors “only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.”
Id. at 376.

The failure to follow that sequence of decision-

making and to explain why the treating source opinion is not
entitled to controlling weight “hinders a meaningful review of
whether the ALJ properly applied the treating-physician rule that
is at the heart of this regulation.”

Id. at 377.

However, as

the court observed in Aiello-Zak v. Comm’r of Social Security, 47
F.Supp.3d 550, 558 (N.D. Ohio 2014), “recent authority has held
that so long as an ALJ adequately addresses the factors required
by Gayheart and articulates good reasons for discounting the
opinion of a treating source, the Commissioner's decision will
not be upset by a failure to strictly follow the Gayheart
template” (citing Dyer v. Social Security Administration, 568
Fed.Appx. 422, 425-26 (6th Cir. June 11, 2014)).

See also Halama

v. Comm’r of Social Security, 2013 WL 2013 WL 4784966, *7 (N.D.
Ohio Sept. 5, 2013)(failure to follow exactly the Gayheart
sequence of findings can be excused if the ALJ addresses “on the
record each of the Gayheart elements so as to permit meaningful
judicial review of the final decision”).
Here, the ALJ did collapse the inquiry into a single
discussion of the weight to be given to Dr. Shiflett’s opinion,
exactly what Gayheart cautioned against.

In the paragraph

discussing that opinion, the ALJ did not mention the concept of
“controlling weight,” nor did he directly explain why crediting
Dr. Shiflett’s opinion to that extent was not justified based
upon the two criteria listed in §404.1527(c)(2).

Nevertheless,

the ALJ earlier cited to that regulation (Tr. 19) and to the
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corresponding Social Security Regulation (SSR 96-2p),
undercutting Plaintiff’s argument that the ALJ used an incorrect
legal standard in evaluating the treating source opinion.
Further, the Court can meaningfully review the ALJ’s decision not
to give controlling weight to Dr. Shiflett’s opinion because the
ALJ explicitly addressed the lack of support for that opinion in
the treatment notes and its inconsistency with other evidence in
the case, which are the appropriate factors.

Consequently, while

it would have been better for the ALJ to have followed the
analytical path set forth in Gayheart, the Court does not find
that this failure, standing alone, would support a remand.
Plaintiff’s second contention is that the ALJ did not
provide good and well-supported reasons for giving only little
weight to Dr. Shiflett’s opinion.

He argues that the

inconsistencies which the ALJ cited were between Plaintiff’s
self-reports of symptoms and what Dr. Shiflett concluded, and not
in the medical evidence itself; that although the ALJ might have
properly discounted Dr. Shiflett’s opinion about Plaintiff’s
condition before the treatment relationship began, he should not
have done so afterward; that the ALJ should not have relied on
statements which Plaintiff made to other doctors about the basis
for his disability; and that the ALJ’s critique of the form used
by Dr. Shiflett was misplaced.

The Commissioner, in turn, says

that the record fully supported the reasons given by the ALJ for
his assessment of Dr. Shiflett’s opinion.
It is true that much of the inconsistency noted by the ALJ
between what are, undeniably, extreme limitations imposed by Dr.
Shiflett on Plaintiff’s ability to function in the workplace, and
other portions of the record, comes from Plaintiff’s own
statements.

Some of them were not made in the context of seeking

either physical or psychiatric treatment; others were.

However,

given the fact that Dr. Shiflett did not state, on the form he
completed, what the basis was for his opinion, and also given the
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fact that here (as in many cases) the opinions about mental
limitations are derived substantially from Plaintiff’s own selfreports, the Court sees no reason why the ALJ could not place
some weight on the fact that Plaintiff’s own description of his
abilities and problems conflicts with Dr. Shiflett’s more
pessimistic views of what he could do.

Cf. Sturgeon v. Comm’r of

Social Security, 2013 WL 6632635, *14 (S.D. Ohio Dec. 17, 2013).
As to the date on which Dr. Shiflett said Plaintiff became
disabled, as the Court reads it, the ALJ found the opinion
somewhat suspect because it purported to express an opinion about
Plaintiff’s condition several years before Dr. Shiflett ever saw
him.

That is a valid reason to question the opinion in its

entirety.

The ALJ also commented about the categories on the

form, but the Court sees little relationship between those
comments of the ALJ and his reasons for discounting Dr.
Shiflett’s opinion.

In short, the ALJ’s reasoning was

sufficiently specific to permit the Court to review it, and it
cited reasons which find support in the record.

Therefore, the

first statement of error should be overruled.
B.

SSR 06-3p

Plaintiff next takes issue with the ALJ’s weighing of Ms.
Harvey’s opinion.

Ms. Harvey is not a “medical source” as

defined in the regulations, but the ALJ was still required to
evaluate her opinion.
SSR 06-3p.

The standard for doing so is set out in

As this Court has previously explained,

SSR 06–3p states that “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....” This does not
create an independent regulatory duty to articulate
the ALJ's reasoning in the same way required for an
opinion rendered by a treating source. See, e.g.,
Robinson v. Comm'r of Social Security, 2012 WL 194966,
*12 (N.D. Ohio Jan. 20, 2012) (“there is no
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controlling precedent requiring an ALJ to explicitly
address written statements such as” a function report
from a case manager). Rather, all that is needed is a
sufficient discussion of all of the evidence of record
to demonstrate that the ALJ considered the key factors
of “ ‘supportability and consistency’ ” in deciding
how much to credit these types of reports. See Action
v. Comm'r of Social Security, 2013 WL 3761126, *5
(S.D. Ohio July 16, 2013), quoting Kerlin v. Astrue,
2010 WL 3937423, *8 (S.D.Ohio March 25, 2010), adopted
and affirmed 2010 WL 3895175 (S.D. Ohio Sept. 29,
2010).
Swartz v. Comm’r of Social Security, 2014 WL 868127, *8 (S.D.
Ohio March 5, 2014), adopted and affirmed 2014 WL 1343094 (S.D.
Ohio Apr. 3, 2014).
Here, the ALJ explained that he gave little weight to Ms.
Harvey’s conclusions about Plaintiff’s mental limitations because
it was (like Dr. Shiflett’s) “inconsistent with the medical
evidence of record” and “too restrictive....”

(Tr. 22).

The ALJ

also noted that Ms. Harvey had been seeing Plaintiff for only two
months when she expressed her opinion and that she was not an
“acceptable medical source.”

Id.

Plaintiff argues that the ALJ

used the short duration of the treatment relationship as a
negative instead of a positive factor and otherwise misapplied
the legal standard set out in SSR 06-3p.
The Court agrees with the Commissioner that the ALJ’s
treatment of Ms. Harvey’s opinion was adequate to satisfy his
duty under SSR 06-3p.

The length of the treating relationship is

a factor, and there is no reason why a short period of treatment,
as opposed to a longer one, cannot justify giving less weight to
an opinion from a non-medical source.

Further, it appears from

the record that Plaintiff himself never expressed a problem
getting along with others in the workplace or, indeed, any
psychological issues interfering with his ability to work, and
the treatment notes from his few visits with Ms. Harvey do not
contain evidence of this restriction or other severe
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psychological limitations.

There was evidence from medical

sources - in particular, Dr. Tanley, whose opinion was given
great weight by the ALJ - which contradicted Ms. Harvey’s
findings.

Given her status, and given the ALJ’s use of various

appropriate factors to discount her opinion, the Court finds no
merit in Plaintiff’s second assignment of error.
C.

The Mental Residual Functional Capacity Finding

Plaintiff’s final assignment of error is, in essence, an
invitation to the Court to reweigh the ALJ’s assessment of Dr.
Tanley’s conclusions.

Plaintiff contends that there is some

ambiguity in the way Dr. Tanley expressed the limitations he
found, and that they are not necessarily inconsistent with a
finding of disability.

The Commissioner notes that Dr. Tanley’s

report was itself reviewed by the state agency psychologists and
that they, like the ALJ, determined that it could reasonably be
read as supporting a finding that Plaintiff had the mental
capacity to perform at least a limited range of work so long as
accommodations were made to the moderate impairments he suffered
from.
Where evidence in the record is susceptible of different
reasonable interpretations, it is not the Court’s job, when
performing a “substantial evidence” review, to substitute its
judgment for that of the ALJ.

An ALJ has a “zone of choice” when

interpreting the record, and so long as the ALJ makes a choice
which finds reasonable support in that record, that choice is
insulated from judicial reversal.

See generally Ritterbeck v.

Comm’r of Social Security, 2012 WL 6594828 (S.D. Ohio Dec. 18,
2012), adopted and affirmed 2013 WL 796069 (S.D. Ohio March 4,
2013).

Perhaps Plaintiff’s reading of Dr. Tanley’s report is a

reasonable one, but that does not mean it is the only reasonable
way for it to be understood.

The Court finds that, particularly

taking into account the state agency reviewers’ opinions, the ALJ
had a reasonable basis for finding that Dr. Tanley’s conclusions
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were consistent with the ability to perform basic work-related
functions.

Nothing more is needed to sustain the ALJ’s decision

on this issue.
VII.

Recommended Decision

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.
VIII.

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).
/s/ Terence P. Kemp
United States Magistrate Judge

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