Ison v. Commissioner of Social Security
REPORT AND RECOMMENDATION that Plaintiff's statement of errors be OVERRULED, and that judgment be entered in favor of Defendant. Objections to R&R due by 4/7/2017. Signed by Magistrate Judge Kimberly A. Jolson on 3/24/2017. (agm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 2:16-cv-00464
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson
REPORT AND RECOMMENDATION
Plaintiff Sylvia Ison filed this action under 42 U.S.C. §§ 405(g) seeking review of a final
decision of the Commissioner of Social Security (the “Commissioner”), denying her application
for disability insurance benefits. For the reasons that follow, it is RECOMMENDED that
Plaintiff’s statement of errors be OVERRULED, and that judgment be entered in favor of
Plaintiff filed her application for benefits on November 20, 2012, and her application for
supplemental security income on November 22, 2012, alleging that he has been disabled since
October 10, 2008. (Doc. 10, Tr. 61–84, 198–210). On May 15, 2015, the ALJ issued a decision
finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id., Tr.
12). On April 8, 2016, the Appeals Council denied Plaintiff’s request for review and adopted the
ALJ’s decision as the Commissioner’s final decision. (Id., Tr. 1).
Plaintiff filed this case on May 27, 2016, and the Commissioner filed the administrative
record on August 5, 2016. (Doc. 10). Plaintiff filed a Statement of Specific Errors on September
13, 2016 (Doc. 13), and the Commissioner responded on October 25, 2016 (Doc. 12).
A. Plaintiff’s Background
Plaintiff was born on March 2, 1983, and was 31 years old on the date of the hearing.
(Doc. 10, Tr. 39). Plaintiff has a high school education and has past relevant work as a cashier,
assistant retail manager, a sales clerk, and a packager. (Id., Tr. 24).
B. Relevant Medical Records
1. Neurological Records
According to the medical records in this case, Plaintiff has a number of neurological
ailments and symptoms, including, inter alia, Chiari I malformation, chronic headaches,
dizziness, and vertigo. The onset date of these various issues is somewhat unclear, but it appears
that Plaintiff’s chronic headaches began around 2008 (see, e.g., id., Tr. 279), while her dizziness
and vertigo began in 2012 (see, e.g., id. Tr. 280).
Plaintiff has undergone a number of
neurological tests. An MRI of Plaintiff’s brain performed on July 9, 2012, was “[n]ormal except
for a 5-6 mm with low lying cerebellar tonsil without nodular modeling.” (Doc. 10, Tr. 256). A
brain with a 2D cine phased contrast CSF flow study performed on October 29, 2012, was
likewise normal as was an MRI on that same date. (Id., Tr. 283). MRIs of the claimant’s
cervical spine and thoracic spine revealed no evidence of cord signal abnormality. (Id., Tr.
A neurovestibular test performed on October 13, 2012, was abnormal because of
rightward beating nystagmus during upward gaze without fixation rightward tilt of subjective
visual vertical at baseline with no response to eccentric vertical axis rotational testing of the
right ear. These findings suggest incomplete compensation from a right utricular otolith loss,
which might be causing Plaintiff’s episodes of dizziness.
(Id., Tr. 287–88). A brain MRI
performed on September 30, 2014, revealed that Plaintiff’s low lining cerebellar tonsils and
borderline Chiari I malformation was “unchanged in appearance.” (Id., Tr. 545).
Despite these (and other) tests, Plaintiff’s medical providers are not completely sure as to
the cause of her symptoms. On October 16, 2012, records from the James Skull Base Surgery
Clinic reported a diagnosis of Chiari malformation and extrinsic symptomology. (See, e.g., id.,
Tr. 292). On January 15, 2013, however, medical professionals at the Ohio State University
indicated that Plaintiff was asymptomatic and that her reported dizziness was most likely due to
migraines. (Id., Tr. 279). Other records suggest the claimant’s low Body Mass Index (“BMI”)
and other abdominal problems may be contributing to her headaches. (See, e.g., id., Tr. 348;
see also id., Tr. 361 (encouraging Plaintiff to “cut down on headache medicine”)).
As for treatment, Plaintiff has received injections but discontinued use after she lost her
sense of taste for a week. (Id., Tr. 279). More recently, she has received Botox injections. (Id.,
Tr. 352). Plaintiff also had nerve blocks with some success at least as to neck pain. (See, e.g.,
id., Tr. 352 (“[l]ast block was very effective in reduction of neck pain for 7 days”)). Plaintiff
additionally treats her migraines with medication. (See id., Tr. 279 (noting “medication-overuse
headache”)). At the time of the hearing, Plaintiff had not undergone surgery, however on April
20, 2015, Plaintiff’s counsel submitted a letter indicating that the claimant will have surgery in
the “near future.” (Id., Tr. 239).
2. Otological Records
To further investigate the cause of Plaintiff’s vertigo and dizziness, her medical providers
referred her for an otologic exam. The results of the exam were normal. (Id., Tr. 282–83).
3. Records Related to Plaintiff’s Weight
It is undisputed that Plaintiff is very thin (see, e.g., id., Tr. 411 ), and has a low BMI (see,
e.g., id., Tr. 279 ). For example, on January 15, 2013, she weighed 97 pounds and had a BMI of
16.64. (Id.). However, tests for malabsorption have been negative, and recent records show an
ability to gain weight (see, e.g., id., Tr. 368–69; see also id., Tr. 363). In addition, some doctors
have attributed Plaintiff’s weight to undernourishment. (See, e.g., id., Tr. 405).
C. Relevant Hearing Testimony
Plaintiff testified that she has suffered from headaches since childhood, with a worsening
of symptoms in 2008. (Id., Tr. 44). Her headaches make her nauseous, and she also experiences
numbness, leg and back pain, and loss of appetite. (Id., Tr. 52). She testified that she suffers
from daily headaches in the back of her head, with symptoms in the front of her head that come
and go throughout the day. On a scale of one to ten, she rated her pain severity at a seven. (Id.,
Tr. 45). She testified that her headaches require her to lie down 2-3 times a day for 1-2 hours.
(Id., Tr. 51, 53). She described her vertigo as causing imbalance, problems with gait, blurry
vision, dizziness, and lightheadedness. (Id., Tr. 37, 40, 43, 46, 49–50,). Claimant also had
trouble gaining weight and had experienced extreme weight loss; as of the hearing date, she
weighed only approximately 98 pounds. (Id., Tr. 52–53, 282, 339, 343, 403).
A vocational expert (“VE”) also testified.
(Id., Tr. 55–59).
The ALJ asked if a
hypothetical individual with Plaintiff’s:
age, education, and work experience. This individual could life ant carry 20
pounds occasionally, 10 pounds frequently, stand and walk six hours out of an
eight-hour work day, sit six hours out of an eight-hour work day, unlimited
pushing and pulling except as defined by the ability to lift and carry. This
individual could occasionally climb ramps and stairs and crawl. This
individual could never climb ladders, ropes, and scaffolds. This individual
should avoid all exposure to hazards such as unprotected machines and
Could that individual do [Plaintiff’s] past work?
(Id., Tr. 56). The VE answered affirmatively. (Id.) The ALJ changed the hypothetical question
by adding a restriction of being off-task ten percent of the time due to headaches and dizziness.
(Id., Tr. 57).
The VE answered that such an individual would not be able to maintain
employment. (Id., Tr. 57–58). Plaintiff’s counsel then asked the VE if employment would be
maintained if this hypothetical individual missed two days of work per month. (Id., Tr. 58). The
VE stated that only one day of absenteeism per month would be tolerated. (Id.).
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if
supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial evidence is defined as
‘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.’” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th
Cir. 1994)). The Commissioner’s findings of fact must also be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into
account whatever in the record fairly detracts from [the] weight” of the Commissioner’s
decision. Rhodes v. Comm’r of Soc. Sec., No. 1:13-cv-1147, 2015 WL 4881574, at *2 (S.D.
Ohio Aug. 17, 2015).
Plaintiff has assigned three errors. (See generally Doc. 12).
A. Step-Three Analysis
Plaintiff challenges the ALJ’s analysis at step three. The third step of the disability
evaluation process asks the ALJ to compare the claimant’s impairments with an enumerated list
of medical conditions found in the Listing of Impairments within 20 C.F.R. Part 404, Subpart P,
Appendix 1. See 20 C.F.R. § 416.920(a)(4)(iii); Turner v. Comm’r of Soc. Sec., 381 F. App’x
488, 491 (6th Cir. 2010). The Listing of Impairments recites a number of ailments which the
Social Security Administration has deemed “severe enough to prevent an individual from doing
any gainful activity, regardless of his or her age, education, or work experience.” 20 C.F.R.
§ 416.925(a). Each listing describes “the objective medical and other findings needed to satisfy
the criteria of that listing.” 20 C.F.R. § 416.925(c)(3). A claimant has the burden at step three of
showing that her impairment meets or medically equals a listing. See Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 529 (6th Cir. 1997). Here, Plaintiff argues that the ALJ erred with respect to
three different listings.
1. Listings 11.03
At the hearing before the ALJ, Plaintiff’s counsel argued that Plaintiff’s headaches
satisfied Listing 11.02. Now, before this Court, Plaintiff argues that her headaches meet or equal
Listing 11.03. (Doc. 11 at 5). While Listing 11.03 recently was amended (see Doc. 12 at 3 n.2),
at all times relevant to Plaintiff’s claims, the Listing stated:
Epilepsy – nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented
by detailed description of a typical seizure pattern, including all associated
phenomena; occurring more frequently than once weekly in spite of at least 3
months of prescribed treatment. With alteration of awareness or loss of
consciousness and transient postical manifestations of unconventional behavior or
significant interference with activity during the day.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.03.
Plaintiff argues that, although she does not suffer from seizures, her migraines “result in
many of the same associated phenomena of epileptic seizures.” (Doc. 11 at 5). Assuming
arguendo that Plaintiff has a seizure disorder that satisfies the Listing, she still must show that
she suffered from the symptoms contemplated by Listing 11.03. In particular, she must have
“alteration of awareness or loss of consciousness” or “unconventional behavior or significant
interference with activities during the day.”
The ALJ considered Plaintiff’s headaches in the context of Listing 11.00 with a particular
emphasis on 11.02 because Plaintiff’s counsel argued at the hearing that Plaintiff’s chiari
malformation and headaches satisfied that Listing. (See id., Tr. 38). On this point, the ALJ
The claimant ’s impairments, while severe, do not meet or equal a listing. In
reaching this conclusion, the undersigned considered the claimant’s chiari
malformation and headaches under the 11.00 listings, but the claimant’s
condition does not seem to meet or equal any listing. The undersigned noted
that the claimant’s doctors considered syringomyelia. However, an MRI of the
claimant’s cervical spine revealed no evidence of cord signal abnormality to
suggest a syrinx (Exhibit 16F/5). The claimant’s representative argued the
claimant’s headaches equal listing 11.02, but his opinion is not supported by
one of the claimant’s treating sources or another medical expert. The
undersigned considered the claimant’s headaches , but do not find that they equal
a listing for seizures that requires nocturnal episodes with residual symptoms
that interfere significantly with activit y during the day or daytime episodes in
which the claimant loses consciousness.
(Id., Tr. 18).
The ALJ’s analysis was sufficient and finds support in the record. Specifically, the ALJ
noted the lack of medical records supporting Plaintiff’s assertion, and the ALJ properly relied
upon the state agency reviewers’ opinions. (Id., Tr. 23). Further, the ALJ found Plaintiff’s
description of her own limitations “not entirely credible.” (Id., Tr. 20). That was within the
ALJ’s discretion. See infra. Finally, no medical professional opined that Plaintiff satisfies
Listing 11.03. Considering all of this, substantial evidence supports the ALJ’s decision. See
White v. Comm’r of Soc. Sec., No. 2:13-cv-934, 2015 U.S. Dist. LEXIS 32012, at *46 (S.D. Ohio
Mar. 16, 2015) (affirming Commissioner’s denial of benefits where no “medical expert opined
that [claimant] met or medically equaled in severity Listing 11.03”).
Plaintiff additionally argues that the ALJ or Appeals Council should have sought more
information pursuant to SSR 96-6p in order to have further analysis by a medical expert to
determine whether Plaintiff’s headaches medically equal Listing 11.03. (Doc. 11 at 6). Under
SSR 96-6p, an updated medical opinion is required:
When no additional medical evidence is received, but in the opinion of the
administrative law judge or the Appeals Council the symptoms, signs, and
laboratory findings reported in the case record suggest that a judgment of
equivalence may be reasonable; or
When additional medical evidence is received that in the opinion of the
administrative law judge or the Appeals Council may change the State agency
medical or psychological consultant’s finding that the impairment(s) is not
equivalent in severity to any impairment in the Listing of Impairments.
1996 SSR LEXIS 3, at *9–10. Plaintiff does not inform the Court that additional evidence was
received, so the Court assumes that Plaintiff contends that the ALJ should have sua sponte
requested an additional medical opinion.
“[An] ALJ has discretion to determine whether
additional evidence is necessary.” See Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 275 (6th
Cir. 2010); see also Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 156 n.3 (6th Cir. 2009)
(“[A]n ALJ is required to [supplement the record] only when the information received is
inadequate to reach a determination on claimant’s disability status . . . .”). Here, considering the
record as a whole, the undersigned concludes that the ALJ did not abuse his discretion.
2. Listing 2.07
Plaintiff next argues that the ALJ erred when he found that Plaintiff’s vertigo or balance
problems did not meet or equal Listing 2.07. Listing 2.07 is a disturbance of labyrinthinevestibular function “characterized by a history of frequent attacks of balance disturbance,
tinnitus, and progressive loss of hearing. With both A and B: A. Disturbed function of vestibular
labyrinth demonstrated by caloric or other vestibular tests; and B. Hearing loss established by
audiometry.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.07. (emphasis added).
In his opinion, the ALJ noted Plaintiff had some abnormalities in her neurovestibular
testing report; however, there is “no record that the claimant has hearing loss established by
audiometry,” which is a requirement under listing 2.07. (Id., Tr. 18). Plaintiff does not offer any
evidence to dispute the ALJ’s determination. Consequently, the undersigned concludes that the
ALJ reasonably applied Listing 2.07 and properly concluded that Plaintiff did not meet or
medically equal the Listing.
As to this Listing, Plaintiff again claims that the ALJ or Appeals Council should have
obtained an updated medical opinion. The undersigned disagrees and concludes that the ALJ did
not abuse his discretion on this point. See Ferguson, 628 F.3d at 275; see also Poe, 342 F.
App’x at 156 n.3 (“[A]n ALJ is required to [supplement the record] only when the information
received is inadequate to reach a determination on claimant’s disability status . . . .”).
3. Listing 5.08
Plaintiff also challenges the ALJ’s consideration of Listing 5.08. Listing 5.08 states,
“[w]eight loss due to any digestive disorder despite continuing treatment as prescribed, with
BMI of less than 17.5 calculated on at least two evaluations at least 60 days apart within a
consecutive 6-month period.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 5.08 (emphasis in original).
As the ALJ explained, while Plaintiff was “very light,” “the record does not indicate that this is
necessarily due to an abdominal condition.”
(Id., Tr. 19).
Plaintiff claims that the ALJ
improperly based his entire decision on the fact that there was a suggestion that Plaintiff’s poor
nutrition was the cause of her low weight. However, the ALJ’s analysis was more thoughtful.
The ALJ considered the evidence in the record showing that Plaintiff did not suffer from
malabsorption and noted that only a few treatment notes demonstrated concern about Plaintiff’s
low weight. (Id., Tr. 18–19). He also cited the records showing that Plaintiff’s providers were
not overly concerned about Plaintiff’s weight. (Id., Tr. 22). Finally, the ALJ gave “great
weight” to the opinions of the state agency reviewing physicians who considered Listing 5.08
and found the Listing was not met or equaled. (Id., Tr. 23 (relying on id., Tr. 67, 79, 91, 103)).
Substantial evidence thus supports the ALJ’s conclusion.
B. RFC Determination
Plaintiff next argues that the ALJ did not account fully for the limiting effects of her
headaches. (See Doc. 11 at 8). The undersigned disagrees.
The ALJ considered Plaintiff’s impairment of chronic headaches, determined it was a
severe impairment, and analyzed the evidence relating to this impairment throughout his
decision. (See, e.g., id., Tr. 18-24). Specifically, the ALJ considered Plaintiff’s testimony that
her headaches had worsened since 2008 and that she was mostly unable to work due to her
(Id., Tr. 20).
The ALJ also considered the objective evidence in the record,
including MRIs of Plaintiff’s brain and spine, treatment notes from the James Skull Base Surgery
Clinic and Ohio State University, and medical notes regarding Plaintiff’s headache symptoms
and treatments, including injections and medication. (Id., Tr. 20–21).
The ALJ also properly considered the medical opinions in the record, including those
from Plaintiff’s treating neurologists, Dr. Prevedello and Dr. Hussein, and from the state agency
reviewing physicians. (Id., Tr. 23). Dr. Prevedello ordered MRIs of Plaintiff’s brain and spine
as well as a CSF study. Despite revealing a chiari malformation, these tests revealed otherwise
mostly unremarkable findings. (Id., Tr. 23, (relying on id., Tr. 542–43)). Dr. Prevedello’s
physical exams likewise revealed mostly normal findings, and he noted that Plaintiff did not
have depression or memory loss. (Id., Tr. 23 (relying on 545-46)). In addition, Dr. Hussein’s
treatment notes show mostly normal physical findings, and although he noted that some
treatments for Plaintiff’s migraines had not been successful, her last injection was very effective
for her neck pain. (Id., Tr. 23, (relying on id., Tr. 358–60)). There is nothing in either of these
providers’ treatment notes that suggested that Plaintiff would miss more than two days of work
per month due to her impairments, or that her headaches created severe enough functional
limitations that she was not capable of work. Moreover, the state agency reviewing physicians,
who reviewed the record in 2013, noted that Plaintiff was capable of a range of light work. (Id.,
Tr. 68-70, 80-82, 92-94, 104-06).
In coming to this conclusion, the reviewers considered
Plaintiff’s history of chronic headaches, her allegations regarding her limitations, and treatment
notes from Plaintiff’s neurologists. (Id., Tr. 63–67, 75–80, 86–92, 98–104). (Id., Tr. 68-70, 8082, 92-94, 104-06). See 20 C.F.R. § 404.1527(e)(2)(i) (State agency consultants are “highly
qualified physicians and psychologists who are also experts in Social Security disability
On the other side of the equation, Plaintiff has not offered evidence to show that her
headache impairment, or any other impairment, would prevent her from working. Plaintiff has
the burden of proving she is disabled and for showing how her impairment affects her
functioning. See 20 C.F.R. § 404.1512(a); see also Foster v. Bowen, 853 F.2d 483, 489 (6th Cir.
In sum, the ALJ reasonably considered the evidence in the record regarding Plaintiff’s
headaches and their functional impact (id., Tr. 18–24), and the undersigned concludes that
substantial evidence supports the ALJ’s RFC determination. See Longworth v. Comm’r of Soc.
Sec., 402 F.3d 591, 595 (6th Cir. 2005) (“This Court must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to apply the correct legal
standards or has made findings of fact unsupported by substantial evidence in the record.”).
And, for the same reasons, Plaintiff’s cursory argument regarding the hypothetical questions
posed to the VE (see Doc. 8) is without merit.
C. Plaintiff’s Credibility
An ALJ’s credibility determination is afforded great weight and deference. Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th Cir.
1987)). However, credibility determinations must be clearly explained, see Auer v. Sec’y of
Health & Human Servs., 830 F.2d 594, 595 (6th Cir. 1987), and must enjoy substantial support
in the record, see Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). Here, the ALJ found
Plaintiff “not entirely credible” regarding “the intensity, persistence and limiting effects of [her]
[impairment-related] symptoms.” (Doc. 10, Tr. 20). Plaintiff counters that the ALJ failed to
consider the entire case, as SSR 16-3p requires, when assessing credibility. (Doc. 11 at 9). The
undersigned disagrees for three primary reasons.
First, the ALJ considered that, despite Plaintiff’s complaints of numbness, her sensation
was intact at various medical appointments and, although Plaintiff testified that she had memory
problems, her neurologist noted that Plaintiff did not have this symptom. (Doc. 10, Tr. 21, 23
(relying on id., Tr. 295, 331, 402, 409, 433, 439, 448, 452, 456, 461, 516, 522, 545, 550)). “One
strong indication of the credibility of an individual’s statements is [her] consistency, both
internally and with other information in the case record.” See SSR 96-7p; see also Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (“Discounting credibility to a certain
degree is appropriate where an ALJ finds contradictions among the medical reports, claimant’s
testimony, and other evidence.”). The ALJ did not err in finding Plaintiff’s testimony partially
inconsistent with the medial records.
Second, while medical professionals generally cannot directly observe headaches, the
ALJ did not err in considering that Plaintiff was not in acute distress during her many
appointments with medical providers; that her gait was normal despite her complaints of dizzy
spells; and that she had normal coordination, reflexes, and fine motor functioning. (Doc. 10, Tr.
20-23 (citing id., Tr. 248, 259, 282–83, 302, 315, 359, 402–03, 408–09, 425, 463–77, 486, 516,
523, 542, 545, 550)). Put simply, the ALJ was within his discretion in determining that these
medical findings undermined Plaintiff’s own description of the disabling effects of her
Third, the ALJ properly considered Plaintiff’s activities of daily living. In particular, he
In addition to the foregoing, the undersigned recognizes that an individual’s
symptoms may suggest a greater level of impairment severity than what is shown
by the longitudinal medical record that is discussed below. As such, the
undersigned has also considered other evidence in assessing the credibility of the
claimant’s statements regarding their limitations and restrictions . 20 CFR
404.1529(c) and 416.929(c) provide guidance on the kinds of evidence that may
be considered when additional information is needed to assess the claimant’s
credibility. These may include, and are not limited to the claimant’s daily
activities, their pain or other symptoms, aggravating factors, their treatment
regimen including medications, any measures other than treatment they use to
help alleviate their symptoms, and any other factors concerning the individual’s
functional limitations and restrictions due to pain or other symptoms (See
generally SSR 96-7p). The claimant described her activities of daily living as
somewhat limited, but testified that she still manages her personal needs
independently and does some chores, such as occasional cooking and doing the
dishes (hearing Testimony).
(Id., Tr. 22). Consideration of Plaintiff’s daily activities was proper. See SSR 96-7p (instructing
that an ALJ may consider statements about a claimant’s daily activities while assessing
credibility); Blacha v. Sec’y of HHS, 927 F.3d 228, 231 (6th Cir. 1990) (holding that the ALJ
may consider a claimant’s household and social activities when assessing credibility).
In sum, the ALJ’s analysis of Plaintiff’s credibility was proper, and the undersigned
defers to the ALJ’s ultimate determination on this issue. See Jones, 336 F.3d at 476 (deferring to
ALJ’s credibility determination).
For the foregoing reasons, it is RECOMMENDED that Plaintiff’s statement of errors be
OVERRULED, and that judgment be entered in favor of Defendant.
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). 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, 152–53 (1985).
IT IS SO ORDERED.
Date: March 24, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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