Yerian v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION 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 7/5/2018. Signed by Magistrate Judge Chelsey M. Vascura on 6/20/2018. (daf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN YERIAN,
Plaintiff,
Civil Action 2:17-cv-562
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Kevin Yerian (“Plaintiff”), 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 disability insurance benefits and supplemental security income. 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.
19), and the administrative record (ECF No. 11). Plaintiff did not file a reply brief. For the
reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of
Errors and AFFIRM the Commissioner’s decision.
I.

BACKGROUND

Plaintiff filed his application for disability insurance benefits and supplemental security
income on November 22, 2013. (R. at 227, 231.) Plaintiff’s applications were denied initially
and upon reconsideration. (R. at 132, 136, 141-42, 149.) Plaintiff sought a de novo hearing
before an administrative law judge. Administrative Law Judge Susan F. Zapf (the “ALJ”) held a
hearing on February 8, 2016, at which Plaintiff, represented by counsel, appeared and testified.

(R. at 30-65.)
On May 4, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within
the meaning of the Social Security Act. (R. at 11-29.) On April 27, 2017, the Appeals Council
denied Plaintiff’s request for review and affirmed the ALJ’s decision. (R. at 1.) Plaintiff timely
filed this action for review. (ECF No. 1.)
Plaintiff advances two errors in his Statement of Errors. First, Plaintiff maintains that
remand is required because the ALJ failed to specify what weight she accorded two state agency
reviewing psychologists’ opinions. Second, Plaintiff contends that the ALJ failed to explain why
her residual functional capacity (“RFC”)1 was less restrictive than the two state agency reviewing
psychologists’ opinions, which Plaintiff maintains constitutes a second, independent basis for
remand. The undersigned limits her discussion to evidence bearing on these contentions of error.
II.

RELEVANT RECORD EVIDENCE

A. Carolyn Patterson, Ph.D.
Consultative Examiner Carolyn Patterson, Ph.D. conducted a psychological evaluation of
Plaintiff on January 14, 2014. (R. at 369-373.) Dr. Patterson noted that Plaintiff was casually
dressed, well groomed, and cooperative. (R. at 371.) She observed Plaintiff’s affect and mood
to be appropriate. (Id.) Plaintiff reported that his current barriers to employment consist of
anxiety and depression, which he indicated interfere with his ability to work because “he becomes
argumentative.” (R. at 369.) Plaintiff stated that he was fired from his last job for arguing with
and allegedly pushing a woman, though he maintained that he did not actually push her. Plaintiff
reported that he walked off of the job he held prior to that because his coworkers were
1

A claimant’s RFC is an assessment of “the most [he] can still do despite [his] limitations.”
20 C.F.R. § 404.1545(a)(1).
2

“aggravating him,” though he acknowledged that he was using cocaine at the time. (R. at 371.)
Plaintiff stated that he no longer uses cocaine. Plaintiff stated that he “get[s] mad really easily”
and that he “can snap” at any moment. (Id.) Plaintiff reported that he “doesn’t think he can
work” because of his tendency to anger quickly and become argumentative as a result of his
anxiety and depression. (Id.)
Dr. Patterson assessed Plaintiff’s self-reported data as “reliable,” though she observed that
“[s]igns of anxiety were not noted during the examination and interview.” (R. at 372, 373.)
Ultimately, Dr. Patterson concluded as follows:
The claimant presented with reports of anxiety and depression as barriers to
employment. He also reported taking medication for anxiety and depression.
The symptoms he reported are not suggestive of anxiety and depression, perhaps
because they are adequately controlled by the medication. He did describe
difficulty adjusting to the loss of family members with some reports of depressed
mood.
(Id.) In light of her conclusions, Dr. Patterson provided the following functional assessment
related to Plaintiff’s ability to respond appropriately to supervisors and coworkers in a work
setting:
The claimant has reported a past history of problems getting along with coworkers.
He reported that he and the coworkers were taking cocaine at the time. He did
report another incident when he was not on cocaine, which involve[d] him arguing
with a woman. He was accused of pushing her but said he did not.
(R. at 373.) Dr. Patterson did not suggest further limitations in this regard.
B. State Agency Evaluations
On February 4, 2014, state agency psychologist Patricia Semmelman, Ph.D. reviewed the
record and concluded that “[t]he severity of the information provided [by Plaintiff] to [Dr.
Patterson] is somewhat inconsistent with [Plaintiff’s primary care physician’s treatment] notes and
found to be only partially credible.” (R. at 73.) Dr. Semmelman concluded that Plaintiff is
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moderately limited in both his ability to (1) accept instructions and respond appropriately to
criticism from supervisors; and (2) get along with coworkers; and that he is mildly restricted in the
area of activities of daily living (“ADLs”). (R. at 71, 72-73.) Dr. Semmelman went on to
explain that although Plaintiff reported a history of altercations with coworkers, “he was doing
cocaine at the time,” and noted that Plaintiff “[w]as able to cooperate and get along [with]
examiner.” (R. at 73.) Based on her review of the record, Dr. Semmelman assessed Plaintiff’s
mental RFC as follows:
The claimant retains the ability to perform tasks that are simple/complex in nature.
He would work best in environments that require minimal and superficial
interaction with others.
(Id.) On April 8, 2014, at the reconsideration level, state agency reviewing psychologist Paul
Tangeman, Ph.D agreed with the findings, conclusions, and mental RFC of Dr. Semmelman. (R.
at 95, 96, 97.)
C. The ALJ’s Decision
The ALJ issued her decision on May 4, 2016. (R. at 14-24.) At step one of the sequential
evaluation process,2 the ALJ determined 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.
3.

4.

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?
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activity since January 16, 2013, his alleged date of onset disability. (R. at 16.) The ALJ found
that Plaintiff had the following medically determinable mental impairments: depression, anxiety
and history of substance abuse. (Id.) The ALJ further found that Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 18.)
In making this determination, the ALJ concluded that Plaintiff had “at most a mild
limitation in activities of daily living.” (R. at 19.) The ALJ noted that Plaintiff “testified that he
performs household chores, goes to the grocery store, visits with family and friends, plays cards
and watches sports such as football and racing,” as well as “spending time with family and friends
and going out in public.” (Id.)
The ALJ further noted that while Plaintiff alleged anxiety and depression to Dr. Patterson,
Dr. Patterson opined that Plaintiff “did not present with such symptoms.” (Id.) The ALJ
acknowledged that Plaintiff “alleged to the consulting psychologist that he did not like to leave his
bedroom, and said he had been fired from jobs for arguing,” but observed that “[h]is history of
cocaine use was noted to be problem in the past with his anger issues,” and that Plaintiff “alleged
he no longer used cocaine.” (Id.) The ALJ further found that Plaintiff “may have moderate
difficulties in maintaining social functioning, especially during times of symptom exacerbation or
drug use, emphasizing that the “record does not demonstrate more than moderate limitations.”
(Id.) The ALJ further concluded that “[t]his moderate limitation would not prevent occasional

5.

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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contact with others in the work place.” (Id.)
At step four of the sequential process, the ALJ set forth Plaintiff’s mental RFC as follows:
[T]he claimant has the residual functional capacity to perform light work as defined
in 20 C.F.R. 404.157(b) and 416.967(b) except he is limited to . . . detailed but not
complex work tasks and is limited to occasional interaction with co-workers and
supervisors with no interaction with the general public.
(R. at 20.) In reaching this determination, the ALJ noted that Plaintiff had reported to a treating
physician “that his depression and anxiety had improved significantly with treatment, and that he
had been able to go to football games and socialize ‘more than he ever had before.’” (R. at 21.)
The ALJ further noted that Plaintiff testified that he “generally gets along well with others, but had
some problems with irritability.” (Id.) Also, the ALJ observed that “mental status examinations
revealed [Plaintiff] to be stable.” (Id.) Ultimately the ALJ concluded that limiting Plaintiff to
detailed but not complex work tasks and occasional interactions with others accommodated “all
mental limitations due to residual anxiety, depression and substance abuse.” (R. at 22.) The ALJ
acknowledged her reliance on the state agency psychologists in reaching this decision, noting that
she “generally concurs” with their mental assessments noting some moderate limitations. (Id.)
The ALJ relied upon the Vocational Expert’s (“VE”) testimony to conclude that jobs exist
in significant numbers in the national economy that Plaintiff can perform. The ALJ therefore
concluded that Plaintiff was not disabled under the Social Security Act. (R. at 24.)
III.

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. §
6

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
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)).
IV.

ANALYSIS

Plaintiff asserts that remand is required because (1) the ALJ failed to specify what weight
she accorded the two state agency reviewing psychologists’ opinions; and (2) the ALJ failed to
explain why her mental RFC was less restrictive than the two state agency psychologists’ opinions.
The undersigned finds both assertions unpersuasive.

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A. Weight Assigned to State Agency Opinions
First, it is clear from the ALJ’s decision that she gave some weight to the state agency
reviewing psychologists’ opinions. The ALJ must consider all medical opinions that he or she
receives in evaluating a claimant’s case. 20 C.F.R. § 416.927(c); see also SSR 96–8p 1996 WL
374184, at *7 (July 2, 1996) (“The RFC assessment must always consider and address medical
source opinions.”). The applicable regulations define medical opinions as “statements from
physicians and psychologists or other acceptable medical sources 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).
Further, regardless of the source of a medical opinion, in weighing the opinion, the ALJ
must apply the factors set forth in 20 C.F.R. § 416.927(c), including the examining and treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the source. In addition, the regulations provide that where, as here, the
ALJ does not assign controlling weight to the claimant’s treating physician, he or she must explain
the weight assigned to the opinions of the medical sources:
Unless a treating source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, as the administrative law judge must do
for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.
20 C.F.R. § 416.927(e)(2)(ii). Where an ALJ’s opinion satisfies the goal of § 416.927 and is
otherwise supported by substantial evidence, the failure to explicitly provide the weight assigned
is harmless. See, e.g., Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005)
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(harmless error where the ALJ failed to mention or weigh the report of consultative neurologist
who only evaluated plaintiff once and was not a treating source); Dykes v. Barnhart, 112 F. App’x
463, 467–69 (6th Cir. 2004) (failure to discuss or weigh opinion of consultative examiner was
harmless error); cf. Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010)
(explaining that the treating physician rule “is not a procrustean bed, requiring an arbitrary
conformity at all times. If the ALJ’s opinion permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating physician’s opinion, strict compliance
with the rule may sometimes be excused.”).
Here, contrary to Plaintiff’s assertion, the ALJ’s decision reflects that she assigned some
weight to the state agency reviewing psychologists, Drs. Semmelman and Tangeman. The ALJ
specifically noted that she “considered the opinions of the state agency psychologists and
generally concurs with their mental assessments noting some moderate limitations.” (R. at 22.)
The ALJ went on to account for the moderate mental limitations advanced by the state agency
psychologists in her RFC. (R. at 20.) The ALJ’s decision reflects that she relied upon other
portions of the opinions of Drs. Semmelman and Tangeman as well, including, for example, their
determination that Plaintiff had mild limitations in the areas of ADLs. (R. at 19.)
Although Plaintiff acknowledges that the ALJ noted she generally concurred with the
opinions of Drs. Semmelman and Tangeman, he maintains that this is somehow insufficient. To
the extent Plaintiff suggests that the ALJ was required to use specific words or phrases when
assigning weight to these opinions, the undersigned disagrees, particularly because “the ALJ’s
opinion permits the claimant and a reviewing court a clear understanding of the reasons for the
weight given.” Friend, 375 F. App’x at 551. Because the ALJ’s decision reflects that she gave
some weight to these opinions and the reasons why, the undersigned finds no reversible error.
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Relatedly, Plaintiff points to a typographical error in the ALJ’s discussion of the state
agency reviewing psychologists’ opinions to argue that the ALJ confused Plaintiff’s physical RFC
with his mental RFC in considering the opinions. (Pl.’s Statement of Errors 8, ECF No. 16.)
Specifically, the AJL stated: “In assessing the claimant’s physical residual functional capacity, the
undersigned has considered the opinions of the state agency psychologists and generally concurs
with their mental assessments noting some moderate limitations.” (Id., citing R. at 22) (emphasis
added.) It is clear from the context as well as the decision as a whole, however, that the ALJ
considered the opinions in assessing Plaintiff’s mental RFC. In fact, in the same sentence the
ALJ notes her general concurrence with the “mental assessments” of Drs. Semmelman and
Tangeman. (R. at 22.) As such, the undersigned is not persuaded that the ALJ confused
Plaintiff’s physical RFC with his mental RFC.
For all of these reasons, the undersigned RECOMMENDS that Plaintiff’s first contention
of error be OVERRULED.
B. Explanation of Limitations in Mental RFC
Plaintiff next contends that the ALJ failed to explain why her mental RFC accounted for
less restrictive limitations than those advanced by the state agency reviewing psychologists. The
undersigned finds this contention of error unpersuasive as well.
The ALJ is charged with the final responsibility for determining a claimant’s residual
functional capacity. See, e.g., 20 C.F.R. § 404.1527(d)(2) (“Although we consider opinions from
medical sources on issues such as your residual functional capacity, . . . the final responsibility for
deciding these issues is reserved to the Commissioner.”). 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). Social Security Ruling 96-8p instructs that the ALJ’s
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residual functional capacity assessment must be based on all of the relevant evidence in the case
record, including factors such as medical history, medical signs and laboratory findings, the effects
of treatment, daily activities, lay evidence, recorded observations, medical source statements,
effects of symptoms, and evidence from attempts to work. See also 42 U.S.C. § 423(d)(5)(B).
An ALJ is required to explain how the evidence supports the limitations that he or she sets 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).
Here, Plaintiff posits that the ALJ’s mental RFC was less restrictive than the opinions of
the state agency reviewing psychologists in two distinct ways, and that the ALJ failed to explain
the basis for imposing these less restrictive limitations.
Plaintiff first asserts that the ALJ’s RFC imposes less restrictive limitations because it
limits Plaintiff to “occasional” interaction with coworkers and supervisors as opposed to
“minimal” interaction as proposed by Drs. Semmelman and Tangeman. The Court need not
determine whether “occasional” is less restrictive than “minimal” as Plaintiff contends. Even if it
is, the ALJ adequately explained how the evidence supports the limitations set forth in her mental
RFC and substantial evidence supports her decision.
The ALJ provided ample explanation for her conclusion that Plaintiff’s “moderate
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limitation would not prevent occasional contact with others in the work place,” including citations
to substantial supporting evidence. (R. at 19.) For example, the ALJ noted that Plaintiff reported
to a treating physician “that his depression and anxiety had improved significantly with treatment,
and that he had been able to go to football games and socialize ‘more than he ever had before.’”
(R. at 21.)

The ALJ also observed that “mental status examinations revealed [Plaintiff] to be

stable.” (R. at 19.) The ALJ further noted that Plaintiff goes to the grocery store, visits with
family and friends, plays cards and watches sports, and that he goes out into public.
Further, the ALJ emphasized that although Plaintiff alleged anxiety and depression to Dr.
Patterson, Dr. Patterson opined that Plaintiff “did not present with such symptoms.” (Id.) The
ALJ acknowledged that Plaintiff “said he had been fired from jobs for arguing,” but observed that
“[h]is history of cocaine use was noted to be problem in the past with his anger issues,” and that
Plaintiff “alleged he no longer used cocaine.” (Id.) The ALJ further found that Plaintiff “may
have moderate difficulties in maintaining social functioning, especially during times of symptom
exacerbation or drug use, emphasizing that the “record does not demonstrate more than moderate
limitations.” (Id.) The ALJ ultimately concluded that “[t]his moderate limitation would not
prevent occasional contact with others in the work place.” (Id.) Based on the foregoing, the
undersigned concludes that the ALJ adequately explained how the evidence supports her mental
RFC and finds that substantial evidence supports her decision. Consequently, Plaintiff’s
assertion that the Court is left to wonder whether the opinions of Drs. Semmelman and Tangeman
were rejected or overlooked lacks merit.
Second, Plaintiff points out that although Drs. Semmelman and Tangeman opined that he
should be limited to “superficial” interaction with coworkers and supervisors, the ALJ did not
similarly incorporate a qualitative limitation in her mental RFC. (R. at 73, 97, 20.) Plaintiff
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relies upon Ealy v. Commissioner of Social Security, 594 F.3d 504 (6th Cir. 2010), to argue that the
ALJ’s failure to incorporate the qualitative limitation constitutes reversible error. Plaintiff
contends that Ealy stands for the proposition that an ALJ is required to include every limitation
proposed by a medical expert upon whose opinion the ALJ relies. (Pl.’s Statement of Errors 11,
ECF No. 16.) Because the ALJ “generally concur[red]” with Drs. Semmelman and Tangeman,
Plaintiff contends she was required to account for all of their proposed limitations in her mental
RFC. The undersigned finds this contention of error to be without merit.
As an initial matter, Plaintiff misinterprets Ealy. In Ealy, both the claimant’s doctor and
the ALJ concluded that Plaintiff was moderately limited in pace, speed, and concentration. Ealy,
594 F.3d at 516 n.4. To account for these and other limitations, the claimant’s doctor limited him
to “simple, repetitive tasks [for] [two-hour] segments over an eight-hour day where speed was not
critical.” Id. at 516. The ALJ’s RFC, however, included only a limitation to “simple repetitive
tasks and instructions in nonpublic work settings.” Id. In other words, the RFC failed to account
for limitations in pace, speed, and concentration, even though the ALJ found the claimant to have
moderate limitations in these areas. Id. The hypothetical posed by the ALJ to the VE tracked the
ALJ’s RFC, thus also failing to account for these limitations. Id. The Sixth Circuit held that the
VE’s testimony could not serve as substantial evidence to support the ALJ’s decision as a result.
Id. at 517.
Here, in contrast, the ALJ did not find that Plaintiff was qualitatively limited in his ability
to interact with coworkers or supervisors. Nor did the ALJ adopt the opinions of Drs.
Semmelman and Tangeman. She was therefore not required to incorporate all of their proposed
limitations into her RFC. Rather, the ALJ was charged with determining the RFC based on the
relevant evidence and explaining how that evidence supports the RFC. 20 C.F.R. §§ 404.1527(e),
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416.927(e); Berry, 2010 WL 3730983, at *8; S.S.R. 96-8p, 1996 WL 374184, at *6-7. As
discussed above, the ALJ’s decision reflects that she did precisely that.
For the foregoing reasons, it is RECOMMENDED that Plaintiff’s second contention of
error be OVERRULED.
V.

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.
VI.

PROCEDURE ON OBJECTIONS

If Plaintiff seeks review by the District Judge of this Report and Recommendation, he 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).
Plaintiff is 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
14

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.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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