Valentine v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Cresondra Valentine - IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioners final non-disability determination be affirmed; and 2. The case be terminated on the docket of this Court. Objections to R&R due by 8/6/2012. Signed by Magistrate Judge Sharon L Ovington on 0/18/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CRESONDRA VALENTINE,
Plaintiff,

:
:
Case No. 3:11cv00250

vs.

:

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

:
:
:

REPORT AND RECOMMENDATIONS1

I.

INTRODUCTION
Plaintiff Cresondra Valentine brings this case challenging the Social Security

Administration’s denial of her applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits (DIB). Plaintiff protectively filed2 her SSI and DIB
applications on July 28, 2006, asserting that she has been under a “disability” since
August 17, 2000. (PageID## 143-45, 146-50). Plaintiff claims to be disabled by
depression, a back injury, and anxiety. (See PageID# 179).

1

Attached hereto is NOTICE to the parties regarding objections to this Report and Recommendations.

2

A protective filing date is the date a claimant first contacted the Social Security Administration
about filing for disability benefits. It may be used to establish an earlier application date than when the
Social Security Administration received the claimant’s signed application. See http://www.ssa.gov/glossary.

1

After various administrative proceedings, Administrative Law Judge (ALJ) Janice
M. Bruning denied Plaintiff’s applications based on her conclusion that Plaintiff’s
impairments did not constitute a “disability” within the meaning of the Social Security
Act. (PageID## 44-52). The ALJ’s nondisability determination and the resulting denial
of benefits later became the final decision of the Social Security Administration. This
Court has jurisdiction to review the administrative denial of her applications. See 42
U.S.C. §§405(g), 1383(c)(3).
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #11), the
Commissioner’s Memorandum in Opposition (Doc. #13), Plaintiff’s Reply (Doc. #17),
the administrative record (Doc. # 9), and the record as a whole.
II.

BACKGROUND
A.

Plaintiff’s Vocational Profile and Testimony

Plaintiff was 31 years old on her alleged disability onset date, which defined her as
a “younger individual” for purposes of resolving her DIB and SSI claims. See 20 C.F.R.
§§404.1563(c); 416.963(c)3; see also PageID# 174. Plaintiff testified at the
administrative hearing that she had not completed high school and had not obtained a
GED, with her highest level of education being the eleventh grade. (PageID## 62-63).
She has past relevant employment as an assembler. (PageID# 181).

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The remaining citations will identify the pertinent DIB Regulations with full knowledge of the
corresponding SSI/DIB Regulations.

2

Plaintiff testified that, prior to the hearing, she had not recently seen a psychologist
or mental health specialist (PageID# 66), but she acknowledged she sometimes had
feelings of low self-esteem. (Id.). Plaintiff further indicated that she had difficulty
concentrating, thinking, and focusing, and suffers from memory loss. (Id.). Plaintiff
testified that she was taking medications for her depression and anxiety (id.); was
paranoid and delusional sometimes, thinking “that somebody might be behind (her) or
following (her)” (PageID# 67); had crying spells approximately four or five times a week
(id.); and had been hospitalized once in the last two years due to her depression and
anxiety symptoms. (Id). Plaintiff indicated she drank alcohol two weeks prior to the
hearing, and testified she had not “ever” had treatment for alcohol or drug abuse. (Id.).
Plaintiff reported that she was unable to sleep through the night due to having
nightmares and night sweats. (PageID# 70). Plaintiff testified that she “sometime(s)”
had difficulty with personal care and there were some days when she did not take a
shower. (Id.). Plaintiff also testified that she did not socialize with family or friends, talk
on the phone, attend church, go out to eat, or attend recreational events. (PageID## 7172).
Plaintiff explained that she felt she cannot work because she was choked on her
job in August 2000 and “slung and put into a machine at work.” (PageID# 73). She
testified that every time she attempts to socialize or engage with people she “just can’t do
it.” (Id.). She further testified that her back goes out and then she is so stressed that her

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stomach “knots”, which leads to an anxiety/panic attack. (Id.). She again noted that she
felt somebody was following or watching her, and doing things to her. (Id.).
B.

Medical Opinions

Mary Ann Jones, Ph.D.
In October 2006, Plaintiff was evaluated by Mary Ann Jones, Ph.D., at the request
of the Ohio Bureau of Disability Determination (BDD). (PageID## 389-94). Plaintiff
presented experiencing symptoms consistent with the diagnosis of major depression
recurrent (possibly with psychotic features) and a generalized anxiety disorder. (PageID#
392). Plaintiff reported that the reason she was unable to work was because of her
constant pain and tendency to be paranoid about her coworkers. She has had several jobs
from which she was fired because of her inability to get along with others and tendency to
respond intemperately when minimally provoked. She indicated that she experienced
anxiety attacks and mood swings.
During the mental status examination, Plaintiff was very agitated and was unable
to be still for much of the interview. She cried throughout and described significant
difficulties interacting appropriately with others. Plaintiff described a fairly minimal
activity level and noted that her children are responsible for the basic household chores.
She reported that she managed her own money, watched television, and interacted with
neighbors. She presented with marginal information, judgment, and common sense
regarding her ability to live independently, make important decisions concerning her
future, and to manage her own funds.
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Dr. Jones diagnosed Plaintiff with depression, recurrent (with possible psychotic
features), generalized anxiety, and alcohol abuse in remission. Dr. Jones opined that
Plaintiff’s mental ability to relate to others, including fellow workers and supervisors, is
moderately impaired. She found that Plaintiff would not be able “to relate sufficiently to
coworkers and supervisors on any sustained basis (two or more hours at a time).”
(PageID# 393). Dr. Jones also found that Plaintiff was apparently able to relate
adequately to her family and to store clerks with her activities of daily living in order to
complete basic household chores and childcare activities. (Id.). Dr. Jones also concluded
that because of social withdrawal, Plaintiff did “not appear appropriate for jobs requiring
sustained public interaction.” (PageID# 394).
Dr. Jones also opined that Plaintiff was moderately impaired in regards to her
ability to understand, remember, and follow instructions. Dr. Jones opined that Plaintiff
was “capable of comprehending and completing simple, routine ADL [activities of daily
living] tasks at home and in the community.” (PageID# 394). Plaintiff was found to be
mildly impaired as to her ability to maintain attention, concentration and persistence to
perform routine tasks, and moderately impaired in connection with her ability to
withstand the stress and pressures associated with day to day work activity. (Id.).
Vinod K. Patwa, M.D.
On May 18, 2007, Plaintiff was evaluated by psychiatrist, Vinod K. Patwa, M.D.,
on referral from her family physician. (PageID## 473-76). After examining Plaintiff, Dr.
Patwa diagnosed her with bipolar affective disorder- nonspecific, panic disorder, and
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prolonged post traumatic stress disorder (PTSD). (PageID# 475). Dr. Patwa noted that
Plaintiff had somatic manifestations of panic attacks and multiple phobias, her memory
did not seem to reveal any gross deficit in recent or remote events, and her judgment and
insight were intact. Dr. Patwa changed Plaintiff’s medication, she was advised to engage
in psychotherapy and to refrain completely from alcohol and/or drugs, or “none of this
treatment is going to be of any benefit to her.” (Id.).
Alice Chambly, Psy.D.
Dr. Chambly reviewed the record and completed a Mental Residual Functional
Capacity Assessment and a Psychiatric Review Technique form on November 6, 2006 on
behalf of the Ohio BDD. (PageID## 395-412). She indicated that Plaintiff had mild
restriction of activities of daily living; moderate difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration, persistence or pace; and
no episodes of decompensation of an extended duration. (PageID# 409). She further
determined that the evidence did not establish the presence of the “C” criteria in Listing §
12.02 (Organic Mental Disorders), § 12.03 (Schizophrenic, Paranoid and Other Psychotic
Disorders), or § 12.04 (Affective Disorders). See PageID# 410; see also 20 C.F.R. Pt.
404, Subpt. P, App.1, §§ 12.02-.04. Dr. Chambly opined that Plaintiff “is likely still
abusing substances” and “retain[ed] the ability to complete a range of simple, routine
tasks requiring only superficial contact with others.” (PageID# 397).
C.

Vocational Expert Testimony

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In addition to Plaintiff, a vocational expert (VE), Lee O. Knutson, testified at the
administrative hearing. He classified Plaintiff’s past work as a cashier, housekeeper, fast
food worker, telemarketer, waitress, and mail sorter – but noted “all this was very brief.”
(PageID# 76). He testified that Plaintiff’s only past relevant work experience was her
work as an assembler at Daimler Chrysler in 2000, which the VE testified was medium
and unskilled. (Id.).
He was asked to assume that Plaintiff could work at the medium exertional level
“but she’s not to come in contact with the public for work related purposes, only
occasional contact with coworkers and supervisors and is limited to unskilled, four-step
tasks that are simple and repetitive.” (Id.). With those restrictions, the VE testified that
Plaintiff could perform her previous job as an assembler at Chrysler. (Id.).
The VE also testified that Plaintiff could perform the requirements of other
unskilled medium work, such as assembler (38,700 jobs), inspector/checker/weigher
(3,100 jobs), and hand packer (16,000 jobs); unskilled light work such as assembler
(45,000 jobs), inspector/checker/weigher (13,000 jobs), and hand packer (21,000
jobs); and unskilled sedentary occupations such as bench assembler (5,500 jobs),
inspector/checker/weigher (4,600 jobs), and hand packer (2,700 jobs). (PageID## 7678).
III.

ADMINISTRATIVE REVIEW
A.

“Disability” Defined

To be eligible for SSI or DIB a claimant must be under a “disability” within the
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definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The
definition of the term “disability” is essentially the same for both DIB and SSI. See
Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory
meaning, a “disability” includes only physical or mental impairments that are both
“medically determinable” and severe enough to prevent the applicant from (1) performing
his or her past job and (2) engaging in “substantial gainful activity” that is available in the
regional or national economies. See Bowen, 476 U.S. at 469-70 (1986).
A DIB/SSI applicant bears the ultimate burden of establishing that he or she is
under a disability. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997); see Wyatt v.
Secretary of Health & Human Services, 974 F.2d 680, 683 (6th Cir. 1992); see also
Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
B.

ALJ Bruning’s Decision

ALJ Bruning resolved Plaintiff’s disability claim by using the five-Step
sequential evaluation procedure required by Social Security Regulations. See PageID##
45-46; see also 20 C.F.R. § 404.1520(a)(4). Her pertinent findings began at Step 2 of the
sequential evaluation where she concluded that Plaintiff had the following severe
impairments: bipolar disorder, somatoform disorder and alcohol dependence disorder.
(PageID# 46).
The ALJ concluded at Step 3 that Plaintiff did not have an impairment or
combination of impairments that met or equaled the criteria in the Commissioner’s
Listing of Impairments. (PageID# 47).
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At Step 4, the ALJ concluded that Plaintiff retained the residual functional
capacity (RFC) to perform a full range of work at all exertional levels but with the
following non-exertional limitations: no public contact and occasional contact with
coworkers and supervisors. (PageID# 48).
The ALJ concluded at Step 4 that Plaintiff is capable of performing her past
relevant work as an assembler. This work does not require the performance of workrelated activities precluded by Plaintiff’s RFC. (PageID# 51).
At Step 5, the ALJ concluded that Plaintiff could perform a significant number of
jobs in the national economy. (PageID## 51-52).
The ALJ’s findings throughout her sequential evaluation led her to ultimately
conclude that Plaintiff was not under a disability and was therefore not eligible for DIB or
SSI. (PageID# 52).
IV.

JUDICIAL REVIEW
Judicial review of an ALJ’s decision proceeds along two lines: “ whether the ALJ

applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r. of Social Security, 581 F.3d 399, 406 (6th Cir.
2009); see Bowen v. Comm’r. of Soc. Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r. of Social Security, 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r. of Soc. Sec., 203 F.3d 388, 389-90 (6th
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Cir. 1999). Instead, the ALJ’s factual findings are upheld if the substantial-evidence
standard is met – that is, “if a ‘reasonable mind might accept the relevant evidence as
adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r
of Social Security, 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at
241.
The second line of judicial inquiry – reviewing for correctness the ALJ’s legal
criteria – may result in reversal even if the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r. of Social Security, 582 F.3d
647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746. “[E]ven if supported by substantial
evidence, ‘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 in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r. of Social Security, 378 F.3d 541,
546-47 (6th Cir. 2004)).
V.

DISCUSSION
A.

Plaintiff’s Contentions

Plaintiff does not challenge the ALJ’s evaluation of the medical evidence or her
assessment of Plaintiff’s RFC. (Doc. # 11, PageID## 754-58). Rather, Plaintiff
challenges the ALJ’s evaluation of the vocational evidence. Plaintiff contends that the
ALJ erroneously determined at Step 4 that Plaintiff could perform her past work.
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Plaintiff argues “there is nothing in the record to suggest that Plaintiff can locate a job as
an assembler in which she has no contact with the public and only occasional contact with
her co-workers and supervisors.” (PageID# 757).
Plaintiff also argues that the ALJ did not meet her burden to prove that Plaintiff
could perform other work. Plaintiff argues “there is no testimony in the record to suggest
that an actual job exists that Plaintiff could perform given her lack of education, lack of
training and mental limitations.” (Id.). Plaintiff contends that “[i]n the absence of such
evidence and in the absence of evidence that would support a finding that Plaintiff could
perform the essential functions of the job with her aforementioned limitations, the
Commissioner has clearly failed to meet his aforementioned burden.” (PageID# 758).
B.

Analysis
1.

Plaintiff argues the ALJ erred at Step 4 when she determined that she could
perform her past position as an assembler, provided that she has no contact with the
public and only occasional contact with coworkers and supervisors. (Doc. #11, PageID#
756). Plaintiff contends she “cannot function in any setting that requires her to have any
contact with co-workers or authority figures,” and “there is no evidence, not even a
scintilla, to suggest that there is an assembly line position anywhere in the Country on
which Plaintiff could work given her conditions.” (Id.) (emphasis in original).

Plaintiff

does not, however, challenge the ALJ’s evaluation of the medical evidence or her
assessment of Plaintiff’s RFC. (PageID## 754-58).
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An ALJ makes a residual functional capacity determination in deciding whether a
claimant is disabled. The RFC finding is an “assessment of the claimant’s remaining
capacity for work” once his or her limitations have been taken into account. 20 C.F.R. §
404.1545. It is “a more complete assessment of her physical and mental state and should
include an ‘accurate[ ] portray[al] [of her] individual physical and mental
impairment[s].’” Varley v. Secretary of Health & Human Servs., 820 F .2d 777, 779 (6th
Cir. 1987); Myers v. Weinberger, 514 F.2d 293, 294 (6th Cir.1975) (per curiam); Howard
v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002).
When a vocational expert testifies, the ALJ asks the expert to assume certain facts
about the claimant’s work abilities. The facts in this hypothetical are the ALJ's residual
functional capacity findings. The ALJ must accurately state each limitation that affects
the claimant’s ability to work. If there is not substantial evidence supporting the
limitations the ALJ includes in the hypothetical to the vocational expert, then the expert’s
testimony is not substantial evidence supporting the Commissioner’s decision denying
benefits. Howard, 276 F.3d at 240-42. If a limitation that substantially affects the
claimant’s ability to work is established by uncontroverted medical evidence, it is error
for the ALJ to omit this limitation from the hypothetical given. Id. at 242.
Here, the ALJ concluded that Plaintiff had mild restrictions in activities of daily
living; and moderate difficulties with regard to social functioning and concentration,
persistence or pace. (PageID## 47-48). The ALJ found that Plaintiff would be limited to
no public contact and occasional contact with coworkers and supervisors. (PageID# 48).
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The ALJ based her determination of Plaintiff’s RFC on the opinions of Dr. Jones and Dr.
Chambly. (PageID## 49-50).
There is no apparent error in the ALJ’s evaluation of the medical evidence. The
medical evidence Plaintiff submitted took the form of treatment notes, forms, and similar
records rather than actual opinions of her treating physicians or psychiatrist regarding her
condition. (See PageID## 261-386, 430-749). In the absence of any treating
physician/psychiatrist opinions, the ALJ was justified in relying heavily on the
consultative examination performed by Dr. Jones and the file review performed by Dr.
Chambly, who offered the only actual “opinions” appearing in the record. (PageID##
389-94, 395-412). See Wilson, 378 F.3d at 544; see also Peebles v. Chater, 85 F.3d 629
[table], 1996 WL 229528 (6th Cir. May 6, 1996) [“in the absence of any evidence from
treating physicians . . . the ALJ was required to rely on the reports of the consulting
physician.”].
The regulations expressly provide that the responsibility for deciding a claimant’s
residual functional capacity rests with the administrative law judge when cases are
decided at an administrative hearing. Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633
(6th Cir. 2004)(citations omitted); 20 C.F.R. §§ 404.1546, 404.1527(e)(2). However, the
RFC assessment of the ALJ is supported by the “claimant’s medical record as a whole,
consideration of the factors presented at 20 CFR §§ 404.l529(c)(3) and 416.929(c)(3) and
Social Security Ruling 96-7p, and of the claimant’s testimony.” (PageID## 50-51).
In her hypothetical posed to the VE, the ALJ asked him to consider an
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individual who is “not to come in contact with the public for work related purposes, only
occasional contact with coworkers and supervisors and is limited to unskilled, four-step
tasks that are simple and repetitive.” (PageID# 76). Plaintiff maintains that there is
nothing in the record to suggest that Plaintiff can locate a job as assembler in which she
has no contact with the public and only occasional contact with her coworkers and
supervisors. (Doc. # 11, PageID# 757). Plaintiff adds, “[w]orking on an
assembly line by its very nature calls for regular and consistent interaction with other
employees on the line and the line supervisor.” (Id.). Plaintiff contends “[p]erhaps most
importantly, there is no evidence that Plaintiff can function in a situation that she is
required to have ‘occasional’ contact with her co-workers and supervisors.” (Id.).
However, Plaintiff has not offered any evidence to show that she could not function in
such a situation, or that the V.E. was incorrect regarding the availability of assembler
positions with the limitations set forth above. Plaintiff has not met her burden of showing
that she is no longer able to perform the type of work she had done in the past. See
Bowen v. Yuckert, 482 U.S. 137, 146-47, n.5 (1987). Furthermore, there are no medical
opinions to confirm her contention, and it is well settled that a hypothetical question to a
VE need not include unsubstantiated complaints. See Casey v. Secretary of Health &
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); see also Anthony v. Astrue, 266 F.
App’x at 451, 461 (6th Cir 2008); Myatt v. Comm’r of Soc. Sec., 251 Fed. Appx. 332, 336
(6th Cir. 2007). The VE does not determine a claimant’s medical restrictions or how they

14

impact on the claimant's residual functional capacity – that is the ALJ’s job as noted
above.
Accordingly, substantial evidence supports the ALJ’s finding that Plaintiff could
perform her past work as an assembler. The ALJ did not err at Step 4.
2.
The ALJ correctly determined Plaintiff is capable of performing her past work as
an assembler, and therefore could have determined at Step 4 Plaintiff was not disabled
and ended her decision at that point. Nonetheless, the ALJ alternatively found there were
other jobs available for Plaintiff in the national economy, considering Plaintiff’s age,
education, work experience and residual functional capacity. (Doc. #9-2, PageID# 51).
Plaintiff asserts that the ALJ’s Step 5 finding is without substantial evidentiary support in
the record. Plaintiff contends there is no testimony in the record to suggest that an actual
job exists that Plaintiff could perform given her lack of education, lack of training, and
mental limitations. (Doc. # 11, PageID# 757). Although the Court need not reach this
issue because the ALJ’s finding that Plaintiff could still perform her past work is
supported by substantial evidence, the Court nonetheless notes, as discussed below, the
ALJ’s finding at Step 5 that other jobs were available for Plaintiff is also supported by
substantial evidence.
At Step 5 of the sequential evaluation process, the burden shifts to the
Commissioner “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational
15

profile.” Jones v. Comm’r v. Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The
Commissioner may meet his burden through reliance on a vocational expert’s testimony
in response to a hypothetical question. To constitute substantial evidence in support of
the Commissioner’s burden, the hypothetical question posed to the vocational expert must
accurately reflect the claimant’s physical and mental limitations. See Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010); see also Howard, 276 F.3d at 241; Varley,
820 F.2d at 779.
The ALJ based her decision at Step 5 in part on the opinions of the VE, who
testified that 149,600 medium, light and sedentary jobs were available in the regional and
national economies for a person with Plaintiff’s limitations. (PageID## 76-78). The fact
that the Step 5 jobs identified by the VE may also have some occasional interaction with
coworkers and supervisors, does not necessarily imply a requirement in excess of
Plaintiff’s ability. The vocational expert was competent to testify that a number of
positions exist that Plaintiff could perform, and there is nothing in the record that would
have caused the ALJ to question the accuracy of, or foundation for, that testimony. The
question is whether a reasonable person could have concluded, based on this record, that
the VE’s testimony was worthy of belief. The Court finds substantial basis for the ALJ’s
decision on this issue.
Accordingly, for all the above reasons, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s final non-disability determination be affirmed; and,
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2.

The case be terminated on the docket of this Court.

July 18, 2012
s/Sharon L. Ovington
Sharon L. Ovington
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)(C), (D), (E), or (F). 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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