Spiller v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE BE CLOSEDObjections to R&R due by 8/3/2012. Signed by Magistrate Judge Michael J Newman on 07/17/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LAURA C. SPILLER,

:

Plaintiff,

Case No. 3:11-cv-94
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

vs.
:
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

:

REPORT AND RECOMMENDATION THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND
AFFIRMED; AND (2) THIS CASE BE CLOSED
______________________________________________________________________________
This is a Social Security disability benefits appeal brought pursuant to 42 U.S.C. § 405(g)
and §1383(c). At issue is whether the Administrative Law Judge (“ALJ”) erred in finding
Plaintiff Laura C. Spiller (“Plaintiff”) not “disabled” and therefore unentitled to Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
This case is before the Court upon Plaintiff’s Statement of Errors (doc. 12), the
Commissioner’s Memorandum in Opposition (doc. 13), Plaintiff’s Reply (doc. 14), and the
administrative record.
I. BACKGROUND
A.

Procedural History
Plaintiff filed her applications for DIB and SSI on August 31, 2005, asserting that she has

been under a “disability” since August 24, 1998. See Administrative Transcript (“Tr.”) 56-60,
424-27.

Plaintiff claims she is disabled due to ocular histoplasmosis, stress, depression,

fibromyalgia, fatigue, migraines, back and neck pain, degenerative disc disease, IBS (irritable
bowel syndrome), reflux, ulcers, memory loss, arthritis in her ankles, knees and hips, vertigo,
TMJ (temporomandibular joint disorder), and a lack of depth perception. Tr. 68.
Following initial administrative denials of her application, Plaintiff received a hearing
before ALJ Thaddeus Armstead, Sr. on June 23, 2008. Tr. 439-93. On November 19, 2008, ALJ
Armstead issued a written decision, concluding that Plaintiff could perform a limited range of
light work and was not “disabled.” Tr. 20-31.
Specifically, the ALJ’s “Findings,” which represent the rationale of his decision, were as
follows:
1.

The claimant met the insured status requirements of the Social Security
Act through December 31, 2003.

2.

The claimant has not engaged in substantial gainful activity since August
24, 1998, the alleged onset date (20 CFR 404.1571, et seq., and 416.971,
et seq.).

3.

The claimant has the following severe impairments: ocular histoplasmosis;
fibromyalgia; mild degenerative disc disease; a history of irritable bowel
syndrome associated with fibromyalgia; depression; and a history of
paranoid personality disorder with borderline features (20 CFR 404.1521
et seq. and 416.921 et seq.).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1525, 404.1526, 416.925
and 416.926).

5.

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 she should not
climb ladders, ropes, or scaffolds or perform commercial driving as a job
task[]; should not perform more than occasional stooping, crouching,
crawling, kneeling, or climbing; should not perform tasks relying on
reading fine print or job tasks relying on peripheral vision or other
demands of the left eye; and is further limited to performing simple,
repetitive tasks that do not involve fast pace, strict time standards, or
production quotas.
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6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on May 23,1964 and was 34 years old, which is
defined as a 30 younger individual age 18-49, on the alleged disability
onset date (20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569a, 416.969, and 416.969a).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from August 24, 1998, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

Tr. 22-31.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. Tr. 6-8. See Casey
v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this
appeal on March 24, 2011. Doc. 1.
B.

Administrative Hearing
1.

Plaintiff

At the administrative hearing, Plaintiff testified that she stopped working in June 1998 as
a result of her fibromyalgia, degenerative disc disease, and ocular histoplasmosis. Tr. 456-57.
Plaintiff testified that her IBS, depression, and anxiety have also precluded her from working

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since then. Tr. 458-59. (Before that time, Plaintiff worked as a switchboard operator/desk clerk
at a local hospital. Tr. 457.)
Plaintiff testified that she lost her center vision due to her ocular histoplasmosis, and that
it cannot be corrected, thus making it difficult for her to read. Tr. 453.
When asked about her fibromyalgia pain, Plaintiff responded that it is “all over, mainly
from the neck down. I have a lot of problems with my hips, my back, my neck, my shoulder
blades, knees, and my ankles and my feet.” Id. Plaintiff further testified that she has “good”
days and “bad” days. Tr. 462. On a “bad” day, she spends most of the time lying on her bed or
couch with heating pads. Tr. 463.
Plaintiff also reported she suffers from fatigue and other symptoms related to her IBS.
Id. She does not get much sleep at night, making it difficult for her to function and think during
the day. Tr. 464.
Plaintiff rated her back and neck pain as a nine to ten on most days. Tr. 464. She has
undergone physical therapy for the pain – the last time in 2006 – and also takes Vicodin and
over-the-counter medication. Tr. 464-65. When her back “goes out,” she uses a back brace and
cane. Id.
With respect to her depression, Plaintiff testified that she has crying spells almost every
day. Tr. 466. She testified that she is not able to concentrate on a single task for more than
several minutes at a time. Id. She indicated that she did not handle stress well, and is nervous
around other people. Id.
2.

Medical Expert

Hershel Goren, M.D., a board certified neurologist, testified as the medical expert
(“ME”) at the administrative hearing. Tr. 467-85. Dr. Goren reported that he had training in

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treating fibromyalgia, disc disease, eye problems including histoplasmosis, and IBS. Tr. 468-69.
Dr. Goren also reported that he had training and practical experience in psychiatry, although he
is not board certified in that discipline. Tr. 469.
Dr. Goren testified that, based on his review of Plaintiff’s medical records and testimony,
Plaintiff’s impairments do not meet or equal any Listing, either individually or in combination.
Tr. 470. Dr. Goren reported that “the treatment for fibromyalgia is exercise, so if claimant’s
problem is fibromyalgia, not only should she not be restricted, she should be exercising and
should be building up her exercise to the point where she’s jogging.” Tr. 471.
Dr. Goren further testified that he did not believe Plaintiff had significant mental
limitations, finding Plaintiff’s treating psychologist’s disability opinion conclusory. Id.
Dr. Goren opined that Plaintiff does not have any exertional restrictions. Tr. 474. With
respect to Plaintiff’s pain allegations, he repeated that Plaintiff’s pain caused by fibromyalgia
“gets better with exercise.” Tr. 474-75.
Dr. Goren opined that Plaintiff should be restricted to no climbing of ladders, ropes or
scaffolds; no reading of fine print; no exposure to moving machinery or unprotected heights; no
commercial driving; and no high-production quotas (e.g., no assembly line work). Tr. 476-78.
3.

Vocational Expert

Charlotta Ewers, a vocational expert (“VE”), also testified at the hearing. Tr. 485-91. The
ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional capacity (“RFC”)
to the VE. See id. Based on Plaintiff’s RFC, age, education, and work experience, the VE
testified there were 5,000 light exertional jobs in the regional economy which Plaintiff could
perform. Tr. 488.

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II. APPLICABLE LAW
A.

Standard of Review

The Court’s inquiry on appeal is to determine (1) whether the ALJ’s non-disability
finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal
criteria. 42 U.S.C. §§ 405(g), 1383(c)(3); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,745-46
(6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the Commissioner has a
“‘zone of choice’ within which he can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). Thus, “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.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined

by the Social Security Act. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Narrowed to its
statutory meaning, a “disability” includes physical and/or mental impairments that are both

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“medically determinable” and severe enough to prevent a claimant from (1) performing his or
her past job and (2) engaging in “substantial gainful activity” that is available in the regional or
national economies. Id. A claimant bears the ultimate burden of establishing that he or she is
disabled under the Social Security Act’s definition. Key v. Callahan, 109 F.3d 270, 274 (6th Cir.
1997).
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Although a dispositive finding at
any step ends the ALJ’s review, Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the
complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

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 (the Listings), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s residual functional capacity (“RFC”), can he or
she perform his or her past relevant work?

5.

Considering the claimant’s age, education, past work experience, and RFC,
can he or she perform other work, that is available in the national economy?

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
III. ANALYSIS
As a preliminary note, Plaintiff’s pertinent medical records have been adequately
summarized in the parties’ briefs, see doc. 12 at PageID 43-50; doc. 13 at PageID 63-68, and the
Court will not repeat them here. Where applicable, the Court will identify the medical evidence
relevant to its decision.

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In her Statement of Errors, Plaintiff argues that the ALJ’s RFC determination is not
supported by substantial evidence. See doc. 12 at PageID 51-55. Specifically, she asserts that the
ALJ erroneously disregarded the medical opinion of Dr. Kraus, Plaintiff’s treating psychologist,
and instead relied on the medical opinion of the medical expert, who did not review Dr. Kraus’s
treatment notes. See id. Second, Plaintiff argues that the ALJ erroneously disregarded the
severity of her pain and other symptoms. See id. at PageID 56-60.
A.

Substantial Evidence Supports the ALJ’s Decision to Not Give Controlling or
Deferential Weight to Dr. Kraus

George Kraus, Ph.D. is a clinical psychologist who began treating Plaintiff in August
2005, when Plaintiff’s primary care physician referred her for a psychological evaluation. Tr.
290. At that time, Dr. Kraus determined that Plaintiff qualified for “Major Depression, recurrent,
moderate severity.” Id. He continued to treat her through April 2008. See tr. 311-423. In 2005
and 2006, Plaintiff saw Dr. Kraus once a week. See tr. 332-404. However, after Plaintiff’s
insurance benefits were terminated in January 2007 (following her divorce from her husband),
she could only afford to see Dr. Kraus monthly from that point forward. See tr. 294.
Dr. Kraus completed a questionnaire from the Bureau of Disability Determination with
respect to Plaintiff a few months after treating her, in October 2005. Tr. 287-89. He reported
that Plaintiff suffers from labile affect1, sleep difficulty, weight loss, decreased concentration,
fatigue, sadness, and anxiousness. Tr. 288. He further noted that Plaintiff is fully oriented; does
not have psychotic processes; and does not have suicidal/homicidal ideation. Id. Dr. Kraus
opined that Plaintiff has no significant restrictions in her daily activities or her ability to care for
herself; nor does she have significant deficits in social interaction. Id.

Finally, he noted that

Plaintiff’s ability to tolerate stress is “poor.” Tr. 289.

1

Labile means “free and uncontrolled mood or behavioral expression of the emotions.” Stedman’s
Medical Dictionary 1037 (28th ed. 2006).

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The record also contains several letters from Dr. Kraus in which he discusses his
treatment of Plaintiff and her current mental health status. Notably, the three letters -- dated
December 1, 2006, September 21, 2007, and June 2, 2008 -- contain similar language. Tr. 29091, 294-95, 306-07.

The June 2008, which is the most comprehensive letter, provides in

relevant part:
When I began seeing [Plaintiff] she was suffering from considerable
anxiety and depression, was consistently tearful and exhibited considerable
feelings of helplessness and dependency in the sessions. In the course of her
treatment, however, she has made good progress and now much less frequently
exhibits the acute symptoms prompting her initial referral. . . .
She is able to generally function on a satisfactory basis punctuated by brief
periods where she has felt cheated, misunderstood, and disillusioned by
relationships with others. The basis for these feelings resulted from considerable
tension in her 22-year marriage, which came to an end in August 2006. [Plaintiff]
is under a tremendous amount of stress dealing with exceedingly difficult
responsibilities parenting her developmentally disabled child. [Plaintiff] also
struggles with more longstanding issues of self-esteem.
During the course of her treatment, [Plaintiff] has made good progress in
managing her stress and has begun to examine more longstanding issues of
fearfulness and self-esteem. . . .
...
[Plaintiff] is trying to procure Social Security Disability and other benefits
on her own and on her daughter’s behalf. While she appears to be well organized
in these pursuits, her efforts lead to considerable distress. As well as she does
with these activities, however [Plaintiff] struggles mightily to maintain adequate
levels of effectiveness – this being caused by the significant stress of caretaking
for a child who is not only developmentally disabled, but who is also experiencing
escalating psychiatric and behavioral problems. In this sense, [Plaintiff]’s ability
to maintain attention and concentration is markedly affected by her depressive
condition, as is her ability to understand, remember, and follow instructions, and
her ability to withstand the stress and pressures of day-to-day work activity. Her
psychological difficulties are also exacerbated by her fibromyalgia and ocular
histoplasmosis. Because of my role as her psychotherapist, though, I have not
performed cognitive tests to substantiate my conclusions. These tests would
certainly be recommended to further support her Social Security disability appeal.
Tr. 306-07.

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Dr. Kraus did not complete any other State agency forms or questionnaires in which he
found her disabled. Thus, this letter is Dr. Kraus’s disability finding to which, Plaintiff argues,
the ALJ should have given controlling or deferential weight. See doc. 12 at PageID 52-53.
The ALJ adequately considered Dr. Kraus’s medical opinion and treatment notes in his
decision, and reasonably concluded that it was not entitled to controlling or deferential weight.
The ALJ stated:
The record also contains the opinion of Dr. Kraus, the claimant’s therapist, who
reported on June 2, 2008, that the claimant exhibited marked limitations in her
ability to maintain attention and concentration; understand, remember, and follow
instructions; and withstand the stress and pressures of day-to-day work activity.
However, Dr. Kraus also attributed these restrictions to the difficulties related to
tensions in her marriage, taking care of a child with a developmental disability and
psychiatric and behavioral problems. While the duties required of the claimant in
taking care of her daughter are certainly demanding, they are not a basis to find that
the claimant is disabled within the meaning of the Social Security Act. Disability is
based on the functional limitations imposed by medically-determinable
impairments, not the demands of childcare or other factors beyond the functional
limitations imposed by medically determinable impairments. Dr. Kraus’ report and
his treatment records confirm that the claimant had made good progress during her
treatment and exhibits has reported acute symptoms much less frequently. Dr.
Kraus’ treatment notes also demonstrate that the claimant struggled with her
divorce, but that issue has passed and there is no indication anywhere in the record
that the claimant experiences difficulty relating to others. Contrary to the marked
restriction stated by Dr. Kraus (while also mentioning moderate severity at
initiation of treatment), records alternatively document a psychological functioning
level past and present of limited severity as noted by GAF’s of 69 and 65, the latter
rendered as of April 2008, prior to the June 2, 2008 report by Dr. Kraus. While the
claimant may experience some difficulty in the areas set forth by Dr. Kraus,
treatment continue[s] to document improvement and the reasonable degree of
difficulty maintaining attention and tolerating work stress are fully taken into
account by the restrictions set forth above. Accordingly, Dr. Kraus’ opinion is not
entitled to controlling or deferential weight as to the issue of disability, but it has
been given significant weight to the extent supported by the evidence of record,
including his own treatment notes concerning the claimant’s ability to handle more
than simple, repetitive tasks or significant work stressors.
Tr. 29.

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The Court finds that the ALJ reasonably decided to not give controlling weight to Dr.
Kraus’s disability finding as set forth in the June 2, 2008 letter. As a general matter, an
adequately supported treating source opinion is entitled to great weight. Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). However, a treating source’s broad, conclusory
formulations regarding the ultimate issue of disability, which must be decided by the
Commissioner, are not determinative of the question of whether an individual is under a
disability. See Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981); see
also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). “‘It is an error to give
an opinion controlling weight simply because it is the opinion of a treating source if it is not
well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is
inconsistent with the other substantial evidence in the case record.’” Blakely, 581 F.3d at 406
(quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2, 1996)). “If the ALJ does not
accord controlling weight to a treating source, the ALJ must still determine how much weight is
appropriate by considering a number of factors, including the length of the treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and any specialization of the treating physician.” Id.
The ALJ’s reasons -- for not giving Dr. Kraus’s opinion controlling or substantial weight
-- are supported by substantial evidence. First, Dr. Kraus’s letter is internally inconsistent:
After noting that Plaintiff has made good progress; is generally able to function on a satisfactory
basis; and is an attentive, patient and good parent; Dr. Kraus then concludes that Plaintiff
nonetheless has marked restrictions in three mental functional abilities. See tr. 306-07. Second,
there is no objective medical evidence supporting Dr. Kraus’s opinion. Indeed, Dr. Kraus admits
in the letter that he has “not performed cognitive tests to substantiate [his] conclusions,” and

11 

recommends that Plaintiff obtain such tests. Tr. 307. Third, Dr. Kraus’s disability finding is
inconsistent with his treatment notes. Dr. Kraus repeatedly notes Plaintiff’s “good progress” in
his treatment records. See tr. 311-423. Further, the treatment notes focus on Plaintiff’s stress
and anxiety caused by her divorce and childcare responsibilities, rather than documenting
Plaintiff’s mental functional limitations. See id.
Therefore, the Court finds Plaintiff’s first assignment of error is unpersuasive. The ALJ
provided good reasons, supported by substantial evidence, to not give controlling or deferential
weight to Dr. Kraus’s opinion. Accordingly, the ALJ reasonably acted within the acceptable
“zone of choice” and should therefore be affirmed. Buxton v. Halter, 246 F.3d 762, 772-73 (6th
Cir. 2001).
B.

The ALJ Did Not Err in Evaluating Plaintiff’s Pain

In Plaintiff’s second assignment of error, she asserts that the ALJ erroneously evaluated
her pain and other symptoms. See doc. 12 at PageID 56-59. Plaintiff specifically takes issue
with the fact that the ALJ did not believe Plaintiff’s her fibromyalgia caused her disabling pain.
See id.
Here, where Plaintiff claims the symptoms of her fibromyalgia, and not the condition
itself, renders her disabled, a two-step process is used in evaluating her complaints of disabling
pain: (1) the ALJ must determine whether there is “an underlying medically determinable
physical or mental impairment . . . that could reasonably be expected to produce the claimant’s
pain or other symptoms”; and (2) if so, the ALJ “must evaluate the intensity, persistence, and
limiting effects of the claimant’s symptoms to determine the extent to which they limit the
claimant’s ability to do basic work activities.” See 20 C.F.R. §§ 404.1529, 416.929; Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).

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Contrary to Plaintiff’s argument, the ALJ did not reject Plaintiff’s claims of disabling
pain from fibromyalgia based solely on a lack of objective medical evidence. See doc. 13 at
PageID 72-73. Rather, the ALJ stated, “[Plaintiff] testified that she experiences constant, severe
pain that never goes away, but these allegations are not supported by either objective evidence or
a severe anatomical abnormality, clinical findings supporting significant functional impairment,
or other documented history of restrictive functioning due to severity level of pain.” Tr. 28
(emphasis added). Thus, the ALJ looked not only for objective test results, but also for clinical
findings or medical opinions to support Plaintiff’s claims of disabling pain, and found none.
The ALJ’s conclusion is supported by substantial evidence. Plaintiff has not presented
any clinical findings or medical records showing that her fibromyalgia related pain is disabling.
To the contrary, though Plaintiff’s primary care physician, Dr. Moore, opined that Plaintiff could
not do physical work, he stated it was “because of her back and hips,” without mention of any
fibromyalgia pain. Tr. 308. Further, Dr. Hawkins, a rheumatologist, diagnosed Plaintiff with
fibromyalgia, but did not impose any work restrictions, and instead recommended that Plaintiff
do aerobic exercise and strength training. Tr. 232. In addition, Dr. Goren, the Medical Expert,
opined that Plaintiff’s fibromyalgia did not restrict her work exertional abilities. See tr. 476-77.
Finally, the Court notes that the ALJ did indeed account for Plaintiff’s fibromyalgia
diagnosis by limiting her to light work and adding postural restrictions to her RFC. See tr. 28.
In sum, the Court finds that the ALJ reasonably evaluated Plaintiff’s subjective
complaints, and determined that her fibromyalgia related pain did not render her disabled. See
20 C.F.R. §§ 404.1529, 416.929.

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IT IS THEREFORE RECOMMENDED THAT:
1.

The ALJ’s non-disability finding be found supported by substantial evidence, and
AFFIRMED; and

2.

This case be CLOSED.

s/Michael J. Newman

July 17, 2012

United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See United States v.
Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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