Blevins v. Commissioner of the Social Security Administration

Filing 23

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that the Court REVERSE the Commissioner and the ALJ under Sentence Four of § 405(g) for further consideration consistent with this Report and Recommendation re 3 Complaint filed by Steven W. Blevins. Objections to R&R due by 8/28/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on August 14, 2017. (jlk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

STEVEN W. BLEVINS,
Plaintiff,
Civil Action 2:16-cv-530
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND RECCOMENDATION
Plaintiff, Steven Blevins, brings this action under 42 U.S.C. § 405(g) for review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying his application for
supplemental social security income (“SSI”) and disability insurance benefits (“DIB”). This
matter is before the United States Magistrate Judge for a Report and Recommendation on
Plaintiff’s Statement of Errors (ECF No. 16), the Commissioner’s Memorandum in Opposition
(ECF No. 22), and the administrative record. (ECF No. 9.) For the reasons that follow, the
Undersigned RECCOMENDS that the Court REVERSE the Commissioner of Social Security’s
nondisability finding and REMAND this case to the Commissioner and the administrative law
judge under Sentence Four of § 405(g).
I.

BACKGROUND

Plaintiff filed his application for benefits on June 25, 2013, alleging that he had been
disabled since October 31, 2008, later amended to June 3, 2013. (R. at 10.) Plaintiff’s
application was denied initially on August 9, 2013, and upon reconsideration on January 22,

2014. (Id.) Thereafter, Plaintiff sought a de novo hearing before an administrative law judge.
(Id.)
Administrative Law Judge Edmund E. Giorgione (“ALJ”) held a hearing on September
23, 2015, at which Plaintiff, represented by counsel, appeared and testified. (R. at 29–41.)
Medical Vocational Expert Carl W. Hartung also appeared and testified. (R. at 29, 41–46.) On
October 20, 2015, the ALJ issued a decision finding that the Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 10–23.) On April 15, 2016, the Appeals Council
denied Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final
decision. (R. at 1–6.) Plaintiff then timely commenced the instant action. (ECF No. 1.)
II.
A.

HEARING TESTIMONY

Plaintiff’s Testimony
Plaintiff, who was fifty-two years old at the time of the hearing, testified that that he has a

ninth grade education, is divorced, lives alone in a house and last worked in construction. He
testified that he is able to interact okay with family and friends and does not have any problems
with crowds or strangers. (R. at 37.) He testified that his brother and sister help him with
household chores. (R. at 38.) He drives, but has some difficulty sitting. (R. at 37.) Plaintiff
smokes a pack of cigarettes a day. (R. at 39.) He claims that his most severe problem is his
lower back and that he stopped working in 2008 when he was laid off and collected
unemployment. (R. at 35.) He said that he intended to go back to work; however his pain was
too much. He further testified that he can only stand and walk for ten minutes and only sit for
ten minutes. (R. at 36.) He said he can lift ten pounds. (Id.) Plaintiff underwent back surgery in
June 2014, which he said has helped. (R. at 40–41.) He testified that prior to the surgery his
impairments were so severe as to render him unable to walk. (R. at 41.)

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B.

Vocational Expert’s Testimony
The Vocational expert (“VE”) testified at the administrative hearing that Plaintiff’s past

relevant employment as construction worker required a very heavy level of physical demand.
Based on Plaintiff’s age, education, work experience, and residual functional capacity, the VE
testified that a similarly situated hypothetical individual could not perform Plaintiff’s past work,
but could perform a number of other jobs. The other jobs include: housecleaner, with 4,202 jobs
in the state and 133,887 nationally; marker, with 11,223 jobs in the state and 271,554 nationally;
labeler with 1,053 jobs in the state and 26,506 nationally. (R. at 44.)
III.

MEDICAL RECORDS 1

A. Examining Physician Records
On June 3, 2013, Plaintiff went to the emergency room reporting back pain. (R. at 261.)
The physical examination revealed soft tissue tenderness in the left lower lumbar paraspinous
region and limited range of motion in his left lower leg. (R. at 261–62.) Plaintiff underwent an
MRI of his spine on the same day. The MRI revealed “an area of abnormality behind the L4
vertebral body that likely represents a free disc fragment. This effaces the anterior left aspect of
the thecal sac. The thecal sac is not stenotic. There is a minimum disc bulge at L4-5. Disc and
osteophyte narrows the left neural foramen greater than right.” (R. at 267.)
On July 7, 2013, Plaintiff visited Dr. W. Bradley Strauch. Plaintiff reported that “he
worked laying concrete and has not been able to work over the past couple of weeks.” (R. at
243.) The physical examination revealed restricted flexion in lumbar spine, pain with lateral
bending and rotation, mild tenderness over the iliolumbar regions bilaterally, as well as mild
tenderness at the lumbrasacral junction and tenderness extending to the PSIS regions bilaterally
1

The Court limits its analysis of the medical evidence to the issues raised in Plaintiff’s Statement
of Errors.
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with no tenderness of the SI joints and no evidence of scoliosis. (R. at 244.) Dr. Strauch
recommended that Plaintiff see Dr. James Fleming for surgical consideration.
On June 18, 2013, Plaintiff visited Dr. Fleming. Dr. Fleming reported that Plaintiff had
an antalgic gait pattern, some weakness in his ankle dorsiflexion and quad extension on his left
side, and an equivocal straight leg raise. (R. at 246.) Dr. Fleming assessed lumbar disc
herniation, lumbar radiculopathy, and lumbar degenerative disc disease. (Id.)
On June 30, 2013, Plaintiff returned to the emergency room reporting back pain. (R. at
251.) At discharge Plaintiff reported his pain level was reduced to a four out of ten. (R. at 252.)
The emergency room doctor proscribed Percocet. (Id.)
Plaintiff appeared on November 8, 2013, with Dr. Phillip Swedberg for a consultative
examination. (R. at 276.) Plaintiff reported that he has experienced lower back pain since 2008
and takes over-the-counter Tylenol and Advil, but not other medication. (R. at 276.) Dr.
Swedberg’s physical examination revealed Plaintiff was able to ambulate with a steady gait
without the use of an ambulatory aid and he “appeared comfortable in the sitting and supine
position.” (R. at 277.) Plaintiff was unable to squat or walk heel to toe and exhibited a
decreased range of motion of the lumbosacral spine. Dr. Swedberg also reported that Plaintiff
had paraspinal muscle tenderness and his lumbosacral spine was positive for straight leg raising
at sixty degrees bilaterally. Based on the examination, Dr. Swedberg opined Plaintiff “appeared
capable of performing a mild-to-moderate amount of sitting, standing, ambulating, bending,
kneeling, pushing, pulling, lifting, and carrying heavy objections. (R. at 278–79.)
Over the course of the next year Plaintiff’s medical records reflect physical examinations
with similar findings including some tenderness and pain in the paravertebral musculature

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lumbar spine and assessments for lumbar pain and L4 disc disease, pain with flexion and
extension, lumbar disc disease, lumbago, and peripheral neuropathic pain. (R. 372, 375.)
On January 29, 2014 and then again on March 21, 2014, Plaintiff visited Dr. Ellis Frazier.
During the January visit Dr. Frazier prescribed 7.5 mg of Mobic, 4 mg of Zanaflez, and Percocet.
(R. at 375.)
On April 3, 2014, Dr. Fleming’s physical examination revealed an antalgic gait pattern
(R. at 353.) Plaintiff received a transforaminal epidural steroid injection on April 25, 2014. (R.
at 335.) On May 29, 2014, Plaintiff reported to Dr. Fleming that the epidural steroid injection
did not help. Dr. Fleming assessed lumbar radiculopathy and lumbar disc herniation and
recommended microdiscectomy L4-L5 surgery. (R. at 348.) Plaintiff underwent
microdiscectomy surgery. (R. at 365, 403.) He reported continued back pain but less pain down
his left leg. (Id.) He also reported that he is able to sit and lay, but that if he lays for too long he
experiences pain. (Id.)
On August 11, 2014, a physical examination revealed stiff posterior cervical muscle
tenderness with decreased range of motion, infrascapular musculature, and lumbar paravertebral
musculature. (R. at 364.) In November, 2014, Dr. Frazier reported similar findings, but noted
Plaintiff experienced pain in his neck. Dr. Frazier assessed herniation of intervertebral disc L4
and L5, lumbar radiculopathy, sleep disturbance, mood and affect disturbance, and chronic pain.
(R. at 360.) From March 24, 2015 through April 3, 2015, Plaintiff attended physical therapy.
His therapist reported that Plaintiff “tolerated treatment very poorly” and recommended pain
management. (R. at 387–88.)
On April 25, 2015, Plaintiff went to the emergency room after being in a car accident.
(R. at 411.) The physical examination revealed moderate tenderness in the head with mild

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swelling and subcutaneous laceration of the anterior aspect of the vertex. (R. at 412.) On May 7,
2015, a physical examination performed by Dr. Chamberlain revealed decreased lumbar lordosis,
decreased extension with increased lumbar paraspinal pain, decreased right side bending with
increased ipsilateral lumbar paraspinal pain, decreased left side bending with increased ipsilateral
lumbar paraspinal pain, soft tissue tenderness, and paraspinous tenderness bilaterally. (R. at
400–401.) Dr. Chamberlain performed medical branch blocks, which Plaintiff reported helped
for a day before his symptoms returned. (R. at 421.)
B. Non-examining Physician Records
In January 2014, Dr. Edmond Gardner reviewed the record evidence on reconsideration.
(R. at 71–87.) Dr. Gardner provided an assessment from the period beginning February 3, 2013,
prior to Plaintiff’s amended onset date. (R. at 81.) Dr. Gardner opined that Plaintiff could
perform light work including lifting/carrying twenty pounds occasionally and ten pounds
frequently; standing/ walking about six hours in an eight-hour workday; and sitting at least six
hours in an eight hour workday. (R. at 81–82.) He further opined that Plaintiff could frequently
climb ramps and stairs; never climb ladders, ropes, and scaffolds; occasionally stoop, kneel,
crouch, and crawl. (R. at 82.)
IV.

ADMINISTRATIVE DECISION

On October 20, 2015, the ALJ issued his decision. (R. at 10–23.) At step one of the
sequential evaluation process, 2 he found that Plaintiff had not engaged in substantially gainful

2

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1.
2.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
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activity since June 3, 2013, the alleged onset date of disability. (R. at 12.) The ALJ found that
Plaintiff had the severe impairments of degenerative disc disease of the back status post
microdiscectomy at L4-5, and affective and anxiety disorders. (Id.) He further found that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(R. at 12–13.)
At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except that the claimant can lift and carry
twenty pounds occasionally, ten pounds frequently; stand and walk for six of
eight hours; sit for six of eight hours; unlimited pushing and pulling except as
defined by the ability to lift and carry; frequently climb ramps and stairs; never
climb ladders, ropes, and scaffolds; occasionally stoop, kneel, and crawl; can
interpret simple instructions and perform simple routine repetitive tasks with no
strict time or production demands; capable of occasional superficial contact with
supervisors, co-workers, or the general public; capable of work in a static work
environment with static work processes and procedures. Furthermore, the
claimant would not be able to squat (or crouch) or walk heel to toe and he would
need demonstration of new tasks.
(R. at 14–15.)
In reaching this determination, the ALJ pointed to inconsistencies throughout the record.
After reviewing a July 23, 2013 function report, the ALJ found that Plaintiff’s limitations on

3.

4.
5.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
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daily activities were not as limited as he testified. (R. at 16.) In the function report, Plaintiff
reported the following activities: “watching television, cleaning, talking to friends on the phone,
walking around the yard, caring for a dog, preparing meals, sweeping, washing dishes, doing
laundry, mowing the yard on a riding mower, driving, shopping in stores for food, paying bills
and handling a savings/checking account.” (R. at 16.) Moreover, the ALJ noted that Plaintiff
testified he has not worked since 2008, since being laid off and then experiencing too much pain
to return to work, however, June 7, 2013, he reported that “he works laying concrete and has not
been able to work over the past couple of weeks.” (R. at 16.) Based on this report, the ALJ
concluded Plaintiff “was admittedly working laying concrete while applying for disability and
claiming an inability to work.” Plaintiff testified that he was prescribed and used a cane. (R. at
35–36.) The ALJ however, points to different parts of the record which show otherwise. For
example, at a consultative examination November 8, 2013, Plaintiff was described as ambulating
with a steady gait without the use of an ambulatory aid.
The ALJ gave great weight to the findings and opinion of the consultative examiner, Dr.
Swedberg. Summarizing Dr. Swedberg’s exam, the ALJ stated:
[T]his is a 51-year-old male who states he is unable to work secondary to “my
back.” On physical examination, the patient walked with a steady gait without
the use of ambulatory aid. He did have decreased range of motion of the
lumbosacral spine and was unable to squat or walk heel to toe. He also had a
positive straight leg raising test bilaterally and decreased sensory examination,
left lower extremity. The rest of the neuromuscular examination of the bilateral
lower extremities was within normal limits. Based on the information described
above, the patient appears capable of performing a mild-to-moderate amount of
sitting, standing, ambulating, bending, kneeling, pushing, pulling, lifting and
carrying heavy objects. In addition, the patient had no difficulty reaching,
grasping, or handling objects. There are no visual or communication limitations,
nor are there environmental limitations.
(R. at 16–17.) The ALJ balanced this with Plaintiff’s treatment history, which he noted
contains significant gaps. The ALJ noted that after Plaintiff went to the emergency department
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on June 30, 2013, he did not seek additional follow-up treatment prior to the November 8, 2013
consultative examination. (R. at 16.) The ALJ acknowledged Plaintiff’s claim that the gap
stemmed from his inability to afford treatment. (R. at 17.) The ALJ, however, found that
justification unreasonable because “[Plaintiff] reported taking nothing for pain at his November
17, 2013 emergency department treatment. However, he admitted to smoking one to two packs
of cigarettes daily. Thus, he has been spending money on things like cigarettes while claiming
an inability to afford medical treatment.” (Id.) The ALJ moreover pointed out that Plaintiff was
repeatedly warned that his continued smoking aggravates his back pain and that smoking
cessation was recommended. (Id.)
Reviewing medical records prior to Plaintiff’s back surgery, the ALJ determined that
Plaintiff’s records as a whole did not support a finding of disability. (R. at 16–18.) For example,
the ALJ noted that pre-surgery medical records showed that Plaintiff reported working laying
concrete in June 2013, a time he claims he was unemployed. The ALJ also noted that during the
pre-operative evaluation, Plaintiff “reported being able to climb one flight of stairs slowly, walk
on flat ground at a slow steady pace, and do strenuous household chores (mow grass) without
experiencing any chest pain.” (R. at 18; citing R. at 310.) He therefore concluded that Plaintiff
was not disabled under the Social Security Act. (R. at 23.)
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42
U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if

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supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial
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, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286
(6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“take into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)).
Finally, even if the ALJ’s decision meets the substantial evidence standard, “a decision of
the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
Cir. 2007)).

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VI.

ANALYSIS

In his Statement of Errors, Plaintiff argues that the ALJ’s RFC was not based on
substantial evidence and that the ALJ erred in giving Dr. Swedberg’s opinion ‘great weight.’
(SOE at 12.) 3
A. The ALJ failed to consider a closed period
The ALJ erred in assessing Plaintiff’s RFC by failing to consider the twelve-month
period prior to Plaintiff’s surgery separately from the time period after Plaintiff’s surgery.
The ALJ’s found a light RFC, reflective of improvements Plaintiff experienced post-surgery, and
yet assessed one RFC for the entire time period. (SOE at 12 (quoting R. at 19 “while the record
shows continued pain complaints, there is also evidence of reduction of his symptoms with
treatment. The claimant admitted that the back surgery, which had been delayed for financial
reasons, was helpful in both reducing his pain and in resolving his radiculopathy.”).)
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When
considering the medical evidence and calculating the RFC, “ALJs must not succumb to the
temptation to play doctor and make their own independent medical findings.” Simpson v.
Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d

3

Because the ALJ’s RFC did not include a closed period and is therefore not supported by
substantial evidence requiring the case to be remanded for further fact finding, the Undersigned
will not specifically address Plaintiff’s remaining contention of error.
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966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at
*10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not interpret raw medical data in
functional terms”) (internal quotations omitted).
An ALJ is required to explain how the evidence supports the limitations that he or she set
forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations).
In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted).
To qualify for disability benefits, Plaintiff need not show that he was disabled at the time
of the hearing, only that he was disabled for any consecutive twelve-month period between the
alleged onset date and the hearing date. 41 U.S.C. § 423(d)(1)(A). An ALJ’s failure to consider
whether a closed period of disability existed is subject to remand. Allison v. Comm’r of Soc.
Sec., Case No. 96-cv-3261, 1997 WL 103369, at *2 (6th Cir. March 6, 1997); Shiplett v. Colvin,
No. 5:15-cv-55, 2016 WL 6783270, at *13 (W.D. Va. Nov. 16, 2016) (remanding to determine
whether a closed period is appropriate between a surgery and an EMG study revealing no active
nerve root irritation); Puryear v. Comm’r of Soc. Sec. Admin., No. 4:14-cv-00057, 2016 WL
462822, at *6 (W.D. Va. Jan. 5, 2016) (remanding for the ALJ to consider a closed period of
disability due to “evidence indicating greater impairment before [plaintiff’s] surgery”); Reynoso
v. Astrue, No. CV 10-04604, 2011 WL 2554210, at *5–7 (C.D. Cal. June 27, 2011) (remanding
12

based on ALJ’s failure to consider whether claimant had a closed period of disability prior to
undergoing surgery).
Plaintiff alleges that he suffered from disabling back pain since his alleged onset date
June 3, 2013. He underwent lumbar spine surgery a little more then twelve months later, on June
18, 2014. In his decision, the ALJ implied that Plaintiff was more limited prior to surgery when
he indicated that he found a light RFC based in-part on Plaintiff’s improvement post-surgery.
(R. at 17.) Evidence in the record, including Dr. Fleming’s treatment notes, suggests Plaintiff
suffered from serious injury from lumbar radiculopathy and lumbar disc herniation prior to
improvements after his surgery. (R. at 348.) If Plaintiff’s impairments rendered him disabled for
more than twelve months during that period, he would be entitled to a closed period of benefits.
Forman v. Comm'r of Soc. Sec., No. 1:06-cv-805, 2008 WL 3166332, at *4 (S.D. Ohio Aug. 4,
2008) (finding factual issues unresolved where ALJ failed to consider whether there was
substantial evidence to support a finding of a closed period of disability.) Because the ALJ did
not address Plaintiff’s impairments in terms of a closed period or analyze his preoperative period
of impairment separately, the Court cannot discern whether Plaintiff’s impairments rendered him
disabled during the twelve-month period prior to surgery. Therefore, on remand, the ALJ must
conduct a more thorough analysis of the record and determine whether the evidence supports
awarding a closed period of disability benefits or if Plaintiff is otherwise entitled to disability
benefits.
VII.

CONCLUSION

Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to
the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g).
Accordingly, the Undersigned RECCOMENDS that the Court REVERSE the Commissioner

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and the ALJ under Sentence Four of § 405(g) for further consideration consistent with this
Report and Recommendation.
VIII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, he or
she may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

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Date: August 14, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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