Hedges v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION re 3 Complaint filed by William E. Hedges in that it is RECOMMENDED that the Court OVERRULE Plaintiffs Statement of Errors and AFFIRM the Commissioner of Social Securitys decision. Objections to R&R due by 8/8/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/25/17. (sem)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM E. HEDGES,
Plaintiff,
Case No. 2:16-cv-592
JUDGE GEORGE C. SMITH
Chief Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, William E. Hedges, 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 social security disability insurance benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.
9) (“SOE”), the Commissioner’s Memorandum in Opposition (ECF No. 12), Plaintiff’s Reply
(ECF No. 13), and the administrative record (ECF No. 8). For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE the SOE and AFFIRM the Commissioner’s
nondisability finding.
I.

BACKGROUND

Plaintiff filed his application for benefits on September 10, 2010, alleging that he has
been disabled since February 22, 2008, due to a back injury, protruding disc, bulging disc, fluid
sacs around discs, lumbosacral spondylosis, lumbosacral sprain, lumbar sprain, thoracic sprain,
neck sprain, herniated disc, facet arthropathy, arthritis, and depression. (R. at 289–90, 321.)
Plaintiff’s application was denied initially and upon reconsideration. Plaintiff sought a de novo

hearing before an administrative law judge. Administrative Law Judge Timothy Keller (“ALJ”)
held a hearing on February 2, 2012, at which Plaintiff, who was not represented by counsel,
appeared and testified. (R. at 94–108.) On March 16, 2012, the ALJ issued a decision finding
that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 133–42.)
On June 19, 2013, the Appeals Council granted Plaintiff’s request for a review and remanded his
claim back to the ALJ. (R. at 148–51.)
The ALJ held another hearing on December 11, 2014, at which Plaintiff, who was not
represented by counsel, appeared and testified. (R. at 38–46.) On December 31, 2014, the ALJ
issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security
Act. (R. at 13–28.) On April 29, 2016, the Appeals Council denied Plaintiff’s request for review
and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1–3.) Plaintiff then
timely commenced the instant action.
II.
A.

HEARING TESTIMONY1

Plaintiff’s Testimony
Plaintiff testified at the administrative hearing on February 2, 2012, that he attends his

son’s football games and drives to the away games. (R. at 107.) Plaintiff also testified at the
December 11, 2014, administrative hearing that he continues to see his treating psychologist,
Alethea Baker, Ph.D., every week. (R. at 44.)
B.

Vocational Expert Testimony
Bruce Growick testified as a vocational expert (“VE”) at the February 2, 2012,

administrative hearing. (R. at 108–10.) The VE classified Plaintiff’s past relevant work as a

1

The Court limits its analysis of the evidence and the administrative decision to the issues raised
in the SOE, i.e., that the ALJ improperly determined there were no severe mental health
impairments and that the ALJ violated the treating physician rule.
2

construction superintendent as follows: light, low-skilled work; being on his feet for at least six
hours during an eight-hour work day. (R. at 109.) The ALJ proposed a hypothetical that
presumed Plaintiff was capable of lifting and carrying, pushing, pulling 20 pounds occasionally
and 10 pounds frequently; able to sit, stand, and walk for six hours each, out of an eight-hour
work day; limited to only occasional climbing of ladder, rope, or scaffold and only occasional
stooping, crouching, or crawling. (Id.) The VE testified that nothing in that hypothetical
precluded Plaintiff from performing his past relevant work. (Id.)
Carl Hartung testified as a VE at the administrative hearing on December 11, 2014. (R.
46–48.) The VE classified Plaintiff’s past relevant work as a construction superintendent as
light work. (R. at 47.) The ALJ proposed a hypothetical that presumed the same limitations as
those identified during the hearing on February 2, 2012. (Id.) The VE testified that Plaintiff’s
previous job is still available based on that hypothetical. (Id.) The VE further testified that,
presuming the same restrictions, Plaintiff could also perform such light, unskilled jobs as marker
(approximately 271,554 such jobs in the national economy); labeler (approximately 26,509 such
jobs in the national economy); and buffing machine tender (approximately 4,479 such jobs in the
national economy). (Id.) The VE testified that his testimony does not conflict with the
Dictionary of Occupational Titles (“DOT”). (Id.)
III.
A.

MEDICAL RECORDS

Alethea Baker, Ph.D.
On June 4, 2010, Alethea Baker, Ph.D. performed a psychological assessment of Plaintiff

at the request of his Ohio Bureau of Workers’ Compensation (“BWC”) attorney. (R. at 595–98,

3

988.)2 During the mental status evaluation, Dr. Baker reported that Plaintiff appeared neat and
that he was friendly and appropriate. (R. at 597.) Plaintiff was able to communicate on a
receptive and expressive level and his thought processes were logical, cohesive and goal
directed. (Id.) Dr. Baker noted that Plaintiff’s affect was blunted and flat with frequent
tearfulness. (Id.) Plaintiff reported suicidal thoughts (without intent) and that he cries about
twice a day. (Id.) Plaintiff also reported several correlates of depression, including daily sad
mood, fatigue, significant sleep impairment, diminished libido, difficulty concentrating, feelings
of worthlessness, helplessness, suicidal thoughts, and social isolation. (Id.) Dr. Baker further
noted that Plaintiff was alert and oriented times four and that he appeared to be functioning at the
average range. (Id.) Plaintiff’s memory appeared to be intact and his concentration was
variable. (Id.) While Plaintiff could count backwards from 100 by seven, he did so very slowly
and made mistakes. (Id.) Plaintiff named the current U.S. President, and three previous
presidents in the correct order and was able to identify one historic event and one historic person.
(Id.) A test, the Battery for Health Improvement 2 (“BHI-2”), was self-administered and the
results were deemed to be valid. (Id.) Many of these results correlated with depression and
some results correlated with anxiety. (R. at 597–98.) Based upon the results of her
“examination and the information provided and reviewed,” Dr. Baker concluded that Plaintiff
was experiencing psychopathology and diagnosed him with major depressive disorder and an
anxiety disorder. (R. at 598.) In so concluding, Dr. Baker noted that since his work-related
injury in 1999, Plaintiff “has not been able to continue his usual vocational activities, and feels a
near complete loss of effectiveness in his vocational activities.” (Id.)

2

Plaintiff suffered a work-related injury on June 8, 1999, when working as a construction
superintendent. (R. at 595.)
4

On September 17, 2010, Dr. Baker reaffirmed her conclusion that Plaintiff suffered from
both disorders. (R. at 640–43.)3 Dr. Baker’s conclusion in this regard was based on Plaintiff’s
self-reports, his presentation during the clinical interview, and objective testing. (R. at 643.)
Once the BWC allowed Plaintiff’s claim for treatment for depression and anxiety,
Plaintiff began cognitive-behavioral treatment with Dr. Baker on April 1, 2011. (R. at 988.) In
an evaluation dated December 5, 2011, Dr. Baker reported that she had conducted thirty sessions
with Plaintiff, with the most recent on November 30, 2011. (R. at 956.) Dr. Baker noted that
while Plaintiff had improved, he continued to experience correlates of depression and anxiety.
(Id.) Dr. Baker recommended continued weekly sessions for six months. (Id.)
Dr. Baker reported on June 11, 2012, that she observed Plaintiff smiling and talkative
more often than in previous sessions. (R. at 977.) Despite improvements, however, Plaintiff
experienced continued correlates of depression and anxiety. (Id.) Dr. Baker again recommended
weekly sessions for six months. (Id.)
Dr. Baker noted in July 2013, that Plaintiff experienced ongoing feelings of loss and grief
regarding his inability to work. (R. at 999.) She did not recommend that he return to work
because it would likely worsen Plaintiff’s condition. (Id.)
On September 9, 2013, Dr. Baker reported that Plaintiff’s psychological conditions have
improved since April 1, 2011, but also noted that her clinical observations and his self-reports
revealed that Plaintiff continued to experience depression and anxiety. (R. at 967.) Dr. Baker
went on to conclude that Plaintiff was permanently and totally disabled because of his
psychological conditions and that he was not capable of returning to his former position of
employment, or able to sustain any form of gainful employment. (R. at 968.)
3

Dr. Baker’s report in this regard was prepared as rebuttal to the August 26, 2010, report of Lee
Howard, Ph.D., discussed below.
5

Dr. Baker noted on February 7, 2014, that Plaintiff had experienced a slightly improved
mood recently, but continued to experience depression and anxiety at times. (R. at 997.) Dr.
Baker opined that Plaintiff would not be likely to withstand the stress associated with a return to
work and did not recommend such effort because it would likely worsen Plaintiff’s condition.
(Id.) She reported similar findings in July and September 2014. (R. at 998–99.) On July 16,
2014, Dr. Baker added that Plaintiff sometimes becomes tearful when speaking of his symptoms
of depression and anxiety. (R. at 1024.)
B.

Darrell Snyder, Ph.D.
Darrell Snyder, Ph.D., a state agency psychologist at the initial consideration level whose

assessment was based on the period February 22, 2008, to August 30, 2010, found only mild
limitations in activities of daily living, maintaining social functioning, and maintaining
concentration, persistence, or pace and no episodes of decompensation. (R. at 629.) Dr. Snyder
gave only “partial weight” to Plaintiff’s statements, which appeared to be exaggerated. (R. at
631.) Dr. Snyder concluded that Plaintiff did not have a severe mental impairment and therefore
mental limitations in a work setting would not be severe. (R. at 621, 631.)
C.

Lari Meyer, Ph.D.
During an evaluation on August 20, 2010, Lari Meyer, Ph.D., described Plaintiff as

mildly dramatic. (R. at 611.) Dr. Meyer noted that Plaintiff’s eye contact was appropriate but
that Plaintiff tended to avoid eye contact when describing his psychological or psychiatric
symptoms. (Id.) Plaintiff cried intermittently throughout the examination and reported explosive
outbursts in public. (R. at 612.) Plaintiff reported socializing every day with his family and
every once in a while with others. (R. at 610.) Dr. Meyer noted that Plaintiff reported concerns
with his ability to remember and concentration, but concluded that these problems were not

6

evidenced in the mental status testing. (R. at 612, 615.) In addressing work-related mental
abilities, Dr. Meyer found that Plaintiff was not impaired in his ability to understand, remember,
and follow direction. (R. at 617.) If a task was simple, Dr. Meyer found no impairment in
Plaintiff’s ability to maintain attention, concentration, persistence, and pace to perform routine
tasks, and only mild impairment if the task is more complex. (Id.) Dr. Meyer found mild
impairments in Plaintiff’s ability to relate to others and his ability to withstand stress and
pressures associated with day-to-day work activity. (R. at 617–18.)
D.

Lee Howard, Ph.D.
Lee Howard, Ph.D., conducted a psychological evaluation, which included an in-person

meeting, of Plaintiff on August 26, 2010. (R. at 930–45.) Dr. Howard noted that Plaintiff
reported crying spells once per week. (R. at 938.) Plaintiff reported suicidal ideation the day
before the exam, but denied any current or imminent intent and denied homicidal ideation. (Id.)
Dr. Howard further noted that Plaintiff reported some unipolar depression every three to four
weeks for a day over the last seven to eight months during which he will lay around and mope
but feel better the next day. (Id.) Dr. Howard concluded that Plaintiff
is not reporting, measuring, and/or demonstrating symptoms consistent with either
major depression, single episode, or anxiety disorder n.o.s. He does not meet the
DSM-IV frequency requirements for these diagnoses per his self-report, he does
not manifest classic symptoms of such on clinical observation, and all
psychometric test results are positive for some form of symptom
magnification/malingering/accentuation as opposed to true psychopathology.
(R. at 943.)
E.

Donald S. Scott, Ph.D.
Scott S. Donald, Ph.D., performed an in-person examination of Plaintiff on December 30,

2011, for BWC disability purposes. (R. at 948.) Dr. Donald noted that Plaintiff attended his
son’s athletic activities. (R. at 949.) Dr. Donald reported that Plaintiff was alert, cooperative,
7

and maintained good eye contact during the examination. (R. at 952.) Dr. Donald also noted,
however, Plaintiff’s depressed mood and sad affect with occasional anger. (Id.) Plaintiff
maintained good eye contact and was cooperative in the interview. (Id.) While Plaintiff’s
immediate memory was good, his delayed memory was very poor. (Id.) Plaintiff’s
concentration as measured by serial seven subtraction from 100 was good and his calculations
were accurate and at a fair speed. (Id.) His ability to abstract was in the normal range. (Id.) Dr.
Donald diagnosed Plaintiff with a major depressive disorder and generalized anxiety disorder.
(Id.) Dr. Donald reported that Plaintiff’s depressive symptoms and functional abilities remained
unchanged in the last six months and assigned Plaintiff a Global Assessment of Functioning
(“GAF”) score of 52. (Id.)4 Dr. Donald opined that Plaintiff could not return to his previously
employment because he would be unable to tolerate the day-to-day interaction with co-workers,
supervisees, and supervisors. (Id.) Dr. Donald further opined that Plaintiff would be unable to
meet the time and pace demands of his former workplace. (R. at 952–53.)
F.

Rakesh Ranjan, M.D.
Rakesh Ranjan, M.D., performed an independent medical evaluation of Plaintiff on June

11, 2014, for purposes of Plaintiff’s worker’s compensation claim. (R. at 1004–07.) Upon the
mental status examination, Dr. Ranjan noted that Plaintiff was alert and oriented. (R. at 1006.)
Dr. Ranjan further noted that Plaintiff was withdrawn, somewhat disheveled, with a despondent
and anxious mood. (Id.) Dr. Ranjan also noted a somewhat constricted affect, mild
psychomotor retardation, as well as erratic concentration and memory. (Id.) Dr. Ranjan opined
that Plaintiff could not return to his former employment because it had the potential to

4

A GAF score of 52 reflects moderate symptoms. Osborne v. Colvin, No. 15-CV-2233, 2017
WL 874501, at *5 (N.D. Ohio Mar. 6, 2017) (citing Diagnostic and Statistical Manual of Mental
Disorders at 34 (American Psychiatric Ass’n, 4th ed., 2000)).
8

exacerbate his psychological symptoms. (R. at 1006–07.) Dr. Ranjan also opined, however, that
Plaintiff may be able to perform sedentary, low stress work. (R. at 1007.)
G.

Steven J. Meyer, Ph.D.
On March 24, 2011, Steven J. Meyer, Ph.D., a state agency psychological consultant who

reviewed new evidence upon reconsideration, assessed Plaintiff’s limitations, finding several
moderate limitations in areas requiring sustained concentration and persistence, social
interaction, and adaptation. (R. at 895–97.) Dr. Meyer opined that Plaintiff was capable of
simple and moderately complex routine work, within physical conditions, at a reasonable pace,
in setting with regular expectations, occasional intermittent interactions with others, and few
changes. (R. at 897.)
IV.

ADMINISTRATIVE DECISION

On December 31, 2014, the ALJ issued his decision. (R. at 13–28.) The ALJ found that
Plaintiff last met the insured status requirements of the Social Security Act through December
31, 2013. (R. at 16.) At step one of the sequential evaluation process,5 the ALJ found that
Plaintiff had not engaged in substantially gainful activity during the period from his

5

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(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.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
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?
9

alleged onset date of February 22, 2008, through his date last insured (“DLI”) of December 31,
2013. (R. at 16.)
At step two, the ALJ determined that through the DLI, Plaintiff had the severe
impairments of degenerative disc disease of the spine, obesity, right shoulder impingement, and
injury to the right elbow post surgeries. (Id.) In connection with this finding, the ALJ explicitly
concluded that Plaintiff did not have a medically determinable mental impairment through his
DLI. He offered the following analysis in support of this determination:
The claimant’s medically determinable mental impairment of an affective
disorder did not cause more than minimal limitation in the claimant’s ability to
perform basic mental work activities and was therefore nonsevere.
In making this finding, the undersigned has considered the four broad functional
areas set out in the disability regulations for evaluating mental disorders and in
section 12.00C of the Listing of Impairments (20 CFR, Part 404, Subpart P,
Appendix 1). These four broad areas are known as the “paragraph B” criteria.
(Id.) After describing mild limitations in the functional areas of activities of daily living, social
functioning, and concentration, persistence and pace, the ALJ went on to consider Dr. Howard’s
assessment, concluding that Plaintiff’s medically determinable mental impairment was
nonsevere:
The claimant had a comprehensive psychological evaluation and testing by Dr.
Howard on August 26, 2010. After a review of the claimant’s records
(including the evaluation by Dr. Baker on June 10, 2010) and significant
psychological testing, Dr. Howard opined, “In conclusion, the claimant is not
reporting, measuring, and/or demonstrating symptoms consistent with either
major depression, single episode, or anxiety disorder n.o.s. He does not meet the
DSM-IV frequency requirements for these diagnoses per his self-report, he does
not manifest classic symptoms of such on clinical observation, and all
psychometric test results are positive for some form of symptom magnification/
malingering/ accentuation as opposed to true psychopathology” (Exhibit 34F).
Dr. Baker submitted a rebuttal to this evaluation, which has been considered

See 20 C.F.R. § 404.1520(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).
10

and found to be unpersuasive as largely supported by the claimant’s own
subjective report of symptoms from the June 10, 2010 initial evaluation, which
was less extensive than the evaluation by Dr. Howard. Dr. Baker was not
treating the claimant at this point as he did not return for treatment until April of
2011 (Exhibit 42F). The evidence reveals inconsistent reports of
symptomology to various medical sources, which further supports the testing
results that suggested the strong possibility of malingering or exaggeration and
the opinion of Dr. Howard at Exhibit 34F.
Because the claimant’s medically determinable mental i m p a i r m e n t caused no
more than “ mild” limitation in any of the first three functional areas and “no”
episodes of decompensation which have been of extended duration in the fourth
area, it was nonsevere (20 CFR 404.1520a(d)(l)).
(R. at 18.)
The ALJ next found that through Plaintiff’s DLI, he 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, specifically comparing his impairments
against Listings 1.02 (disorders of the lower extremities) and 1.04 (disorder of the spine). (R. at
18–19.) At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional
capacity (“RFC”) as follows:
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional capacity to
lift, carry, push and pull twenty pounds occasionally and ten pounds frequently,
and to sit, stand and walk for six hours each out of an eight hour day, except that
he can only occasionally climb ladders, ropes, and scaffolds, stoop, crouch, and
crawl.
(R. at 19.)
In assessing the foregoing RFC, the ALJ specifically noted that the case had been
remanded for new and material evidence. (Id.) Although he considered this new evidence, the
ALJ nevertheless found that no new evidence supported a finding different from Plaintiff’s RFC
in the earlier decision. (Id.) In doing so, the ALJ went on to assign Dr. Baker’s opinion “little”
weight, reasoning as follows:
11

The claimant’s treating psychologist, Dr. Baker, has many opinions in the record,
both in the old evidence and in the new evidence. However, these opinions were
primarily made for purposes of continuing psychological treatment benefits
pursuant to the claimant's workers’ compensation claim, and the standard for
disability under workers’ compensation is different from the standard for social
security disability. Furthermore, even where the doctor indicates that the claimant
is disabled, this issue is reserved for the Commissioner. The undersigned has
considered all these opinions, but notes that these opinions are largely based on
the claimant's subjective reports of symptoms and limitations, which have been
revealed by other evidence to be inconsistently reported and contradicted by other
evaluations and testing. The contradictory reports of symptoms and contrary
findings by other physicians have been discussed in detail above. Thus, little
weight is given to all of Dr. Baker’s opinions.
(R. at 23.)
The ALJ also assigned “little” weight to the opinions of Dr. Scott and Dr. Rakjan,
explaining as follows:
Little weight is given to the December 30, 2011 psychological evaluation [by Dr.
Scott] of the claimant for purposes of workers’ compensation. The examiner
opined that the claimant would not be able to return to his former position of
employment due to being unable to tolerate interaction with co-workers,
supervisees, or supervisors, or meet the time and pace demands and the energy
demands due to impaired sleep (Exhibit 35F). This opinion was made for
purposes of disability under workers’ compensation standards, which are different
from social security disability standards, and was based largely on the claimant’s
subjective complaints. Other evidence discussed above showed that the claimant
had only mild limitation in social functioning, which would not support a finding
that he would be unable to tolerate interaction with others. Similarly, other
evidence revealed that the claimant engaged in a wide range of daily activities and
did not support a finding that the claimant-reported impaired sleep would
preclude him from performing the time, pace, and energy demands of his former
employment.
Little weight is given to the medical evaluation [by Dr. Rakjan] for purposes of
the claimant’s workers’ compensation claim on June 11, 2014 at Exhibit 45F,
which was largely based on the claimant’s reported symptoms and limitations and
contradicted by other evidence in the record. The claimant had reported that he
does not cook or clean, has no hobbies, and does not socialize, where other
evidence shows that the claimant engaged in far more extensive daily activities.
The examiner opined that the claimant had reached maximum medical
improvement given his regular counseling for the past four years and
improvement in symptoms (no longer preoccupied with death and dying), a
finding which relates to his workers’ compensation claim. Furthermore, the
12

examiner opined that the claimant could not return to his past employment due to
its potential to exacerbate his psychological symptoms, but could perform other
work, which is solitary, sedentary, and low stress. However, these opinions are
on issues reserved to the Commissioner and were made after the claimant’s date
last insured and based largely on subjective complaints.
(R. at 24.)
The ALJ went on to find as follows:
Great weight is given to the assessment of the State agency psychological
consultant [Dr. Snyder] at Exhibit 23F, who found no severe mental impairment.
Less weight is given to the assessment of the State agency psychological
consultant [Dr. Meyer] at Exhibit 28F, as the evidence as a whole shows the
claimant to have a nonsevere mental impairment as detailed above.
The undersigned has considered all opinion evidence and finds no other treating
source opinion and no other opinions indicating that the claimant is disabled for
purposes of social security disability.
(R. at 25.)
Relying on the VEs’ testimony, the ALJ concluded that Plaintiff can perform past
relevant work as a construction supervisor. (R. at 26.) The ALJ also found that Plaintiff can
perform other jobs existing in the national economy. (Id.) He therefore concluded that Plaintiff
was not disabled under the Social Security Act. (R. at 27–28.)
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. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if 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

13

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 & Hum. 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)).
VI.

ANALYSIS

Plaintiff advances two contentions of error. First, Plaintiff maintains that the ALJ
improperly determined that Plaintiff had no severe mental health impairments. Second, Plaintiff
maintains that the ALJ’s opinion violates the treating source rule. The Undersigned considers
these contentions of error in turn.
A.

Severe Mental Health Impairments
Plaintiff contends that the ALJ erred in failing to find that he suffers from severe mental

health impairments. Plaintiff specifically complains that the ALJ relied on outdated opinions
issued in August 2010, which only had the benefit of Dr. Baker’s initial 2010 assessment. (SOE

14

at 9.) Plaintiff also insists that his mental health impairments more than minimally limit his
ability to work. (SOE at 7–10.) Plaintiff further argues that the ALJ erred in analyzing the state
agency psychological opinions. (SOE at 10–11.) Finally, Plaintiff argues that the case should be
remanded because the ALJ violated the Appeals Council order. (SOE at 11–12.)
Where, as here, the ALJ determines that a claimant had a severe impairment at step two
of the analysis, “the question of whether the ALJ characterized any other alleged impairment as
severe or not severe is of little consequence.” Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801,
803 (6th Cir. 2003). Instead, the pertinent inquiry is whether the ALJ considered the “limiting
effects of all [claimant’s] impairment(s), even those that are not severe, in determining [the
claimant’s] residual functional capacity.” 20 C.F .R. § 404.1545(e); Pompa, 73 F. App’x at 803
(rejecting the claimant’s argument that the ALJ erred by finding that a number of her
impairments were not severe where the ALJ determined that claimant had at least one severe
impairment and considered all of the claimant’s impairments in her RFC assessment); Maziarz v.
Sec’y of Health & Hum. Servs., 837 F.2d 240, 244 (6th Cir. 1987) (same).
In addition, an ALJ generally does not err in failing to specifically mention each and
every one of a claimant’s impairment at step four so long as the record is clear that he or she
considered the impairments in developing the RFC and the RFC accounts for limitations caused
by the impairments. Cf. Loy v. Sec’y of Health & Human Servs., 901 F.2d 1306, 1310 (6th Cir.
1990) (“An ALJ’s individual discussion of multiple impairments does not imply that he failed to
consider the effect of the impairments in combination, where the ALJ specifically refers to a
‘combination of impairments’ in finding that the plaintiff does not meet the listings.”); Maziarz
v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (“[U]pon determining that
a claimant has one severe impairment, the Secretary must continue with the remaining steps in

15

his disability evaluation[.]”); see also Malone v. Comm’r of Soc. Sec., 507 F. App’x 470, 472
(6th Cir. 2012) (finding no reversible error in the RFC determination “because the ALJ
considered all of the symptoms that were consistent with the medical evidence in determining his
residual functional capacity”); McDaniel v. Astrue, No. 1:10–cv–699, 2011 WL 5913973, *6
(S.D. Ohio Nov. 28, 2011) (finding no error where the ALJ “discussed every impairment
advanced” by the plaintiff and stated that he considered the combined effects of these
impairments).
Here, the Undersigned finds no reversible error in the ALJ’s failure to conclude that
Plaintiff suffers a severe mental health impairment. First, the ALJ found other severe
impairments at step two of the sequential evaluation process, including degenerative disc disease
of the spine, obesity, right shoulder impingement, and injury to the right elbow post surgeries.
(R. at 16.) Second, it is clear from his decision that the ALJ specifically considered the
evidence related to Plaintiff’s mental health. He discussed Plaintiff's mental health at step two of
the process. (R. at 16.) He specifically cited the medical sources related to Plaintiff’s mental
health treatment, which demonstrates that he considered it. (R. at 16–18.) In addition, the ALJ
continued with the sequential analysis and considered both severe impairments as well as his
non-severe mental impairment when determining Plaintiff’s RFC. (R. at 19–26.) The ALJ
specifically considered new evidence related to Plaintiff’s mental health, including additional
records from Drs. Baker, Scott, and Ranjan. (R. at 16–26.) Accordingly, to the extent that
Plaintiff complains that the ALJ erred in relying on outdated opinions issued in August 2010,
that argument is not well taken.
Plaintiff’s contention that the ALJ erred because Plaintiff’s mental health impairments
more than minimally limit his ability to work is likewise unavailing. “A severe mental

16

impairment is ‘established by medical evidence consisting of signs, symptoms, and laboratory
findings, not only by [a plaintiff’s] statement of symptoms.’” Griffith v. Comm’r, 582 F. App’x
555, 559 (6th Cir. 2014) (quoting 20 C.F.R. § 416.908). Significantly, “[n]o symptom or
combination of symptoms by itself can constitute a medically determinable impairment.” SSR
96-4p, 1996 WL 374187, at *2 (July 2, 1996). “[S]ymptoms” consist of a claimant’s description
of his or her alleged impairment. 20 C.F.R. § 404.1528(a). In contrast, “signs” include
“psychological abnormalities which can be observed.” 20 C.F.R. § 404.1528(a)-(b). In addition,
“[p]sychiatric signs are medically demonstrable phenomena that indicate specific psychological
abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation,
development, or perception.” 20 C.F.R. § 404.1528(a)-(b). “Laboratory findings” include
“psychological phenomena which can be shown by the use of medically acceptable laboratory
diagnostic techniques.” Id. Consistently, the Sixth Circuit has advised that “[w]hen mental
illness is the basis of a disability claim, clinical and laboratory data may consist of the diagnosis
and observations of professionals trained in the field of psychopathology.” Blankenship v.
Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (internal quotation marks and citations omitted).
Plaintiff bears the burden of establishing the existence of a severe medically determinable
impairment at step two. Griffith, 582 F. App’x at 559.
In this case, the ALJ found that Plaintiff’s mental impairment caused no more than
minimal limitations in three functional areas, including activities of daily living, social
functioning, and in concentration, persistence or pace. (R. at 16–18.)6 The Undersigned finds
that the ALJ’s discussion on this issue is supported by substantial evidence. For example, the
ALJ included a lengthy and thorough discussion of the record evidence, detailing Plaintiff’s

6

The ALJ found no evidence of decomposition of extended duration. (R. at 16.)
17

activities in 2010, 2011, and 2012. (R. at 16–17.) The ALJ also found that Plaintiff has reported
inconsistent symptoms as to social functioning, citing specific instances in the record where
Plaintiff complained of social isolation but also where Plaintiff reported socializing with family
and occasionally with friends and attending his son’s athletic events. (R. at 17.) Plaintiff
reported having, and then denied having, explosive outbursts. (Id.) Treating and examining
doctors described Plaintiff as pleasant and cooperative. (Id.) Similarly, as to Plaintiff’s
concentration, persistence, and pace, the ALJ noted that Plaintiff had intact memory and variable
concentration on June 10, 2010. (Id.) Although Plaintiff performed serial seven subtraction
slowly and made mistakes on June 10, 2010, his concentration and pace improved when
performing a counting task on August 26, 2010 (close to normal sustained concentration), and
improved while performing the serial seven subtraction on December 30, 2011 (good
concentration with accurate calculations at a fair speed). (Id.) Plaintiff was also capable of
identifying his problems in a written statement dated June 23, 2011. (R. at 389.) Plaintiff was
capable of attending administrative hearings and answered questions without difficulties. (R.
38–49, 53–58, 61–64, 67–75, 78–89, 93–110.) In short, the ALJ’s determination that Plaintiff’s
mental health impairments minimally limit Plaintiff’s ability to work enjoys substantial support
in the record. In these circumstances, even though Plaintiff goes on to point to evidence that
supports a finding that his mental health impairments more than minimally limit his ability to
work (SOE at 7–10), the Court must nevertheless defer to the ALJ’s finding in this regard. See
Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (“[I]f 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.’”) (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

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Plaintiff next argues that the ALJ erred in analyzing the state agency psychological
opinions. (SOE at 10–11.) As set forth above, the ALJ gave great weight to Dr. Snyder’s
assessment, which found no severe mental impairment, and gave less weight to Dr. Steven
Meyer’s assessment “as the evidence as a whole shows the claimant to have a nonsevere mental
impairment as detailed above.” (R. at 25.) Plaintiff complains that this statement does not
sufficiently explain why Dr. Meyer, who had access to more of the record, deserved less weight
than Dr. Snyder, who had access to less of the record. (SOE at 10–11.)
The Undersigned disagrees. Dr. Snyder’s findings that Plaintiff had only mild limitations
in activities of daily living, maintaining social functioning, and maintaining concentration,
persistence, or pace and no episodes of decompensation supported the ALJ’s conclusion that
Plaintiff did not have a severe mental impairment. (R. at 629.) Dr. Snyder gave only “partial
weight” to Plaintiff’s statements, which appeared to be exaggerated. (R. at 631.) Dr. Snyder
concluded that Plaintiff did not have a severe mental impairment and therefore mental limitations
in a work setting would not be severe. (R. at 621, 631.) In giving Dr. Snyder’s opinion more
weight, the ALJ explained that the “evidence as a whole” supported Dr. Snyder’s findings and
conclusions. Indeed, this decision was reasonable in light of the record discussed above and the
ALJ’s failure to restate specific evidence in the record is not fatal to his analysis. See Swope v.
Colvin, No. 2:14-cv-516, 2015 WL 5626508, at *4 (S.D. Ohio Sept. 24, 2015) (“The ALJ was
not required to restate the opinions of Drs. Murphy and Bline after determining to give them
little weight.”). Moreover, to the extent Plaintiff complains that Dr. Snyder’s opinion did not
have the benefit of additional later medical records, Social Security Ruling 96-6p does not
require the ALJ “to reject a state agency medical opinion merely because the claimant continues
treatment after the reviewer’s opinion was formed or merely because additional medical records

19

are generated after the reviewer's opinion is rendered.” Swope v. Comm’r of Soc. Sec., No. 2:14cv-516, 2015 WL 1526723, at *9 (S.D. Ohio Apr. 2, 2015), adopted and affirmed by Swope v.
Comm’r of Soc. Sec., No. 2:14-cv-516, 2015 WL 5626508 (S.D. Ohio Sept. 24, 2015).
Accordingly, under these circumstances where the record supports the ALJ’s decision to give
more weight to Dr. Snyder’s opinion, the Undersigned cannot find that the ALJ erred as to his
treatment of the state agency psychologists’ opinions. Id.; cf. Williamson v. Comm’r of Soc. Sec.,
No. 1:11–cv–828, 2013 WL 121813, at *7 (S.D. Ohio Jan. 9, 2013) (“[T]he regulations provide
only that an [administrative law judge] should give more weight to an opinion that is consistent
with the record as a whole.”) (citing 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4)).
Finally, Plaintiff contends that the ALJ did not comply with directive from the Appeals
Council to “[o]btain evidence from a medical expert to clarify the nature and severity of
claimant’s impairment.” (SOE at 11; Reply at 3; R. at 150.) According to Plaintiff, the ALJ
disregarded the directive, relied on outdated opinions, and that the failure to properly classify
Plaintiff’s mental health impairments was not merely harmless error. (SOE at 11.) To the extent
Plaintiff suggests that the Court remand for failure to comply with the Appeals Council’s Order,
that argument is not well taken. Federal courts, including those within the Sixth Circuit, disagree
“‘whether an ALJ’s failure to follow Appeals Council directives in a remand order may serve as
independent grounds for reversal absent other error.’” Coleman v. Berryhill, No. 1:16CV00931,
2017 WL 1208760, at *16 (N.D. Ohio Feb. 17, 2017) (quoting Godbey v. Colvin, No. 1:13CV–
00167–HBB, 2014 WL 4437647, at *5 (W.D. Ky. Sept. 9, 2014), adopted by Coleman v.
Berryhill, No. 1:16CV00931, 2017 WL 1199086 (N.D. Ohio Mar. 31, 2017)). “‘The
overwhelming majority of courts in this circuit, however, have determined that federal courts
lack jurisdiction to consider whether an administrative law judge complied with the Appeals

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Council’s instructions on remand.’” Id. (quoting Shope, 2015 WL 3823165 at * 8). As this
Court has previously explained:
When the Appeals Council denies a claimant’s request for review, the decision of
the administrative law judge becomes the final decision of the Commissioner.
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)
(citing 20 C.F.R. § 404.955). Under such circumstances, a court called upon to
review the final decision of the Commissioner of Social Security is confined to a
review of the administrative law judge’s decision and the evidence presented to
the administrative law judge. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003) (citing Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 685 (6th Cir. 1992)). “Whether an ALJ complies with an Appeals Council
order of remand is an internal agency matter which arises prior to the issuance of
the agency’s final decision.” Brown, 2009 WL 465708 at *6. The Appeals
Council had an opportunity to review the administrative law judge’s compliance
with its directives, and it did not remand the matter a second time. This Court has
no authority to review the decision of the Appeals Council, see Cline v. Comm’r
of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996), and “Section 405(g) does not
provide this court with authority to review intermediate agency decisions that
occur during the administrative review process.” Brown, 2009 WL 465708 at *6.
Shope, 2015 WL 3823165, at *9. The Undersigned agrees with the above reasoning and finds
that the Court lacks jurisdiction to consider whether the ALJ complied with the Appeals
Council’s directive. Id.
In sum, the Undersigned finds no error with the ALJ’s determination that Plaintiff did not
suffer from severe mental impairments. It is therefore RECOMMENDED that Plaintiff’s first
contention of error be OVERRULED.
B.

Evaluation of Treating Psychologist’s Opinions
Plaintiff next contends that the ALJ committed reversible error in failing to properly

weigh the opinion of the treating psychologist, Dr. Baker. The Undersigned concludes that
substantial evidence supports the ALJ’s decision and therefore finds Plaintiff’s second
contention of error to be without merit.

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The ALJ must consider all medical opinions that he or she receives in evaluating a
claimant’s case. 20 C.F.R. § 416.927(d). The applicable regulations define medical opinions as
“statements from physicians . . . that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2).
The ALJ generally gives deference to the opinions of a treating source “since these are
likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a
patient’s] medical impairment(s) and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings alone . . . .” 20 C.F.R.
§ 416.927(d)(2); Blakley, 581 F.3d at 408. If the treating physician’s opinion is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling
weight.” 20 C.F.R. § 404.1527(d)(2).
If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ
must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling
weight:
[A]n ALJ must apply certain factors—namely, the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source—in
determining what weight to give the opinion.
Id.
Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of
determination or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20
C.F.R. § 416.927(d)(2). Accordingly, the ALJ’s reasoning “must be sufficiently specific to make
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clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., No. 09-3889,
2010 WL 1725066, at *7 (6th Cir. 2010) (internal quotation omitted). The United States Court
of Appeals for the Sixth Circuit has stressed the importance of the good-reason requirement:
“The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases,” particularly in situations where a claimant knows that
his physician has deemed him disabled and therefore “might be especially
bewildered when told by an administrative bureaucracy that she is not, unless
some reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128,
134 (2d Cir.1999). The requirement also ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.
See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).
Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important
when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v.
Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).
Finally, the Commissioner reserves the power to decide certain issues, such as a
claimant’s residual functional capacity. 20 C.F.R. § 404.1527(e). Although the ALJ will
consider opinions of treating physicians “on the nature and severity of your impairment(s),”
opinions on issues reserved to the Commissioner are generally not entitled to special
significance. 20 C.F.R. § 404.1527(e); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).
Here, the ALJ did not err in according little weight to the opinion of Plaintiff’s treating
psychologist, Dr. Baker. Plaintiff complains that the ALJ failed to give good reasons for giving
little weight to Dr. Baker’s opinion, taking issue with the ALJ’s criticism that Dr. Baker’s
opinions were primarily made for the purpose of Plaintiff’s workers’ compensation claim; that
Dr. Baker opined that Plaintiff is disabled, which is an issue reserved for the Commissioner; and
that Dr. Baker relied largely on Plaintiff’s subjective reports, which the ALJ stated were
contradicted by other evaluations and testing. (SOE at 14–15; Reply at 3–7.) However,
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substantial evidence supports the ALJ’s decision where Plaintiff’s subjective reports conflict
with other evidence in the record. For example, as discussed above, the ALJ noted that Plaintiff
reported inconsistent symptoms as to social functioning, including where Plaintiff complained of
social isolation to Dr. Baker in June 2010 (R. at 17, 597), but then Plaintiff reported to Dr. Meyer
in August 2010, that he socializes with family every day and “once in a while” with other people.
(R. at 610.) In December 2011 and in February 2012, Plaintiff reported that he attended his
son’s athletic events. (R. at 107, 949.) Plaintiff complained that he used to be good at math and
struggled to do serial seven subtraction for Dr. Baker in June 2010 (R. at 17, 974), but in
December 2011, Plaintiff improved while performing the serial seven subtraction, achieving
accurate calculations at a fair speed. (R. at 17, 952.) Plaintiff reported to Dr. Baker that he had
difficulty concentrating in June 2010. (R. at 17, 597.) However, at other times Plaintiff reported
sustaining concentration sufficient to drive up to twenty minutes, to watch a thirty-minute
television show, and to count backwards from thirty by threes without errors. (R. at 17, 939,
949.) Similarly, Dr. Meyer noted in August 2010, that Plaintiff reported concerns with the
ability to remember and concentration, but concluded that these problems were not evidenced in
the mental status testing. (R. at 17, 612, 615.) As previously noted, Plaintiff was also capable of
identifying his problems in a written statement dated June 23, 2011, and was capable of
attending administrative hearings and answered questions without difficulties. (R. 317, 8–49,
53–58, 61–64, 67–75, 78–89, 93–110, 389.) Moreover, while Plaintiff reported to Dr. Baker in
June 1010, that he spent most of his time in a recliner or bathtub (R. at 596), Plaintiff remained
capable of performing many daily activities, including attending his son’s football games,
socializing daily with family, performing housework twice per week, watching half-hour long
television programs, feeding his dogs, taking care of his personal needs, mowing at times,

24

picking up his son from school, grocery shopping with his wife, opening mail, and performing
other activities. (R. at 16–17, 107, 336–43, 610, 937, 949.) See 20 C.F.R. § 404.1529(c)(3)(i)
(daily activities may be useful to assess nature and severity of claimant’s symptoms); cf. Warner
v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) (“The administrative law judge
justifiably considered [the claimant’s] ability to conduct daily life activities in the face of his
claim of disabling pain.”). In addition, examiners other than Dr. Baker noted that Plaintiff was
dramatic or exaggerated his symptoms or may be malingering. (R. at 18, 21–22, 611, 631, 943.)
All of this evidence demonstrates that the ALJ considered the entire record and was justified in
giving Dr. Baker’s opinion little weight because it is inconsistent with other substantial evidence.
Price v. Comm’r of Soc. Sec., 342 F. App’x 172, 175-76 (6th Cir. 2009) (“Where the opinion of a
treating physician is not supported by objective evidence or is inconsistent with the other medical
evidence in the record, the Court generally will uphold an ALJ’s decision to discount that
opinion.”).
Plaintiff’s contrary argument on this issue does not militate a different result. While
Plaintiff insists that the ALJ failed to give even one “good reason” and that other evidence
demonstrates a severe mental impairment (Reply at 3–7), the Undersigned has already found for
the reasons discussed above that substantial evidence supports the ALJ’s decision. The Court
must defer to that decision when it is supported by substantial evidence “‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakely,
581 F.3d at 406.
In sum, the Undersigned concludes that the ALJ did not violate the treating physician rule
or otherwise err in his assessment of Dr. Baker’s opinions and that his decision is supported by

25

substantial evidence. It is therefore RECOMMENDED that Plaintiff’s second contention of
error be OVERRULED.
VII.

CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
VIII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party 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

26

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.

Date: July 25, 2017

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

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