Collins v. Commissioner of Social Security
Filing
18
REPORT AND RECOMMENDATIONS - It is recommended that the Commissioner's decision that Plaintiff was not disabled and therefore not entitled to benefits under the Act be affirmed. Objections to R&R due by 1/25/2013. Signed by Magistrate Judge Michael R Merz on 1/7/2013. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MELVIN COLLINS,
:
Case No. 3:12-cv-089
Plaintiff,
-vs-
District Judge Herbert Walter Rice
Magistrate Judge Michael R. Merz
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
:
REPORT AND RECOMMENDATIONS
Plaintiff brought this action pursuant to 42 U.S.C. '405(g) for judicial review of the final
decision of Defendant Commissioner of Social Security (the "Commissioner") denying Plaintiff's
application for Social Security benefits. The case is now before the Court for decision after
briefing by the parties directed to the record as a whole.
Judicial review of the Commissioner's decision is limited in scope by the statute which
permits judicial review, 42 U.S.C. '405(g). The Court's sole function is to determine whether the
record as a whole contains substantial evidence to support the Commissioner's decision. The
Commissioner's findings must be affirmed if they are supported by "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402
U.S. 389, 401 (1971), citing, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938);
Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986).
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Substantial evidence is more than a mere scintilla, but only so much as would be required to
prevent a directed verdict (now judgment as a matter of law), against the Commissioner if this case
were being tried to a jury. Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988); NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
In deciding whether the Commissioner's findings are supported by substantial evidence,
the Court must consider the record as a whole. Hepner v. Mathews, 574 F.2d 359 (6th Cir. 1978);
Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6th Cir. 1984); Garner v.
Heckler, 745 F.2d 383 (6th Cir. 1984). However, the Court may not try the case de novo, resolve
conflicts in evidence, or decide questions of credibility. Garner, supra. If the Commissioner's
decision is supported by substantial evidence, it must be affirmed even if the Court as a trier of fact
would have arrived at a different conclusion. Elkins v. Secretary of Health and Human Services,
658 F.2d 437, 439 (6th Cir. 1981).
To qualify for disability insurance benefits (SSD), a claimant must meet certain insured
status requirements, be under age sixty-five, file an application for such benefits, and be under a
disability as defined in the Social Security Act, 42 U.S.C. ' 423. To establish disability, a
claimant must prove that he or she suffers from a medically determinable physical or mental
impairment that can be expected to result in death or has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. ' 423(d)(1)(A). Secondly, these
impairments must render the claimant unable to engage in the claimant's previous work or in any
other substantial gainful employment which exists in the national economy.
'423(d)(2).
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42 U.S.C.
The Commissioner has established a sequential evaluation process for disability
determinations. 20 C.F.R. '404.1520. First, if the claimant is currently engaged in substantial
gainful activity, the claimant is found not disabled. Second, if the claimant is not presently
engaged in substantial gainful activity, the Commissioner determines if the claimant has a severe
impairment or impairments; if not, the claimant is found not disabled. Third, if the claimant has a
severe impairment, it is compared with the Listing of Impairments, 20 C.F.R. Subpart P, Appendix
1. If the impairment is listed or is medically equivalent to a listed impairment, the claimant is
found disabled and benefits are awarded. 20 C.F.R. '404.1520(d). Fourth, if the claimant's
impairments do not meet or equal a listed impairment, the Commissioner determines if the
impairments prevent the claimant from returning to his regular previous employment; if not, the
claimant is found not disabled. Fifth, if the claimant is unable to return to his regular previous
employment, he has established a prima facie case of disability and the burden of proof shifts to
the Commissioner to show that there is work which exists in significant numbers in the national
economy which the claimant can perform. Bowen v. Yuckert, 482 U.S. 137, 145, n.5 (1987).
Previously, based on his application for benefits under the Act, Plaintiff received a closed
period of disability and disability benefits from February 15, 1986, through January, 1991. See
PageID 160. The present matter involves Plaintiff’s application for SSD which he filed on June 11,
2009. PageID 147-50. In that application, Plaintiff alleged disability from January 2, 2001, due to
depression, back pain, diabetes, and hypertension. PageID 147, 164. The Commissioner denied
Plaintiff’s application initially and on reconsideration. PageID 41, 42, 102-04, 106-08.
Administrative law Judge Howard Treblin held a hearing, PageID 83-97, following which he
determined that Plaintiff is not disabled. PageID 65-74. The Appeals Council denied Plaintiff’s
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request for review, PageID 58-60, and Judge Treblin’s decision became the Commissioner’s final
decision. See Kyle v. Commissioner of Social Security, 609 F.3d 847, 854 (6th Cir. 2010).
In determining that Plaintiff is not disabled, Judge Treblin found that he last met the
insured status requirements of the Act on June 20, 2005. PageID 67, ¶ 1. Judge Treblin then found
that through his date last insured, Plaintiff had the following medically determinable impairments:
feet impairment, hypertension, diabetes mellitus, Barrett’s esophagus, gastritis, and depressive
disorder and that although there are clinical signs and findings documented in the record showing
that Plaintiff had those impairments during the period under adjudication, they neither singly nor
in combination caused more than minimal functional limitation. Id., ¶ 3. Judge Treblin also found
that through his date last insured, Plaintiff did not have an impairment or combination of
impairments that significantly limited his ability to perform basic work-related activities for
twelve consecutive months and therefore he did not have a severe impairment or combination of
impairments. Id., ¶ 4. Judge Treblin concluded that Plaintiff was not disabled at any time from
January 2, 2001, his alleged onset date, through June 20, 2005, the date last insured and therefore
was not entitled to benefits under the Act. PageID 73.
The record contains a copy of Plaintiff’s voluminous treatment notes from Daymont
Behavioral Health Care dated February 5, 2001, through January 24, 2011. PageID 226-78;
358-86; 666-91; 1516-30. Those records reveal that over time, Plaintiff received mental health
treatment at Daymont for major depression, recurrent. Id.
On August 7, 2007, Dr. Kuruvilla, Plaintiff’s treating psychiatrist at Daymont, reported
that she first saw Plaintiff on May 11, 2005, although he had been under the care of other
psychiatrists at Daymont since 1987. PageID 392-96. Dr. Kuruvilla also reported that Plaintiff’s
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affect was shallow and constricted, his mood stayed euthymic, dealing with people made him very
guarded and consequently he isolated himself, he was paranoid in his thinking, was oriented, and
that his concentration appeared normal. Id. Dr. Kuruvilla reported further that Plaintiff’s memory
was intact, he displayed concrete thinking, was of average intelligence, had very superficial insight
and normal judgment, had a fair response to medications, was able to remember and understand
directions although orders or directions from others made him very anxious, was able to
concentrate although he could not persist at tasks and complete them in a timely fashion, and that
he was able to maintain attention. Id. Dr. Kuruvilla noted that Plaintiff’s abilities with respect to
social interaction, adaption, and reacting to pressure in work-settings were very poor. Id.
Dr. Kuruvilla reported on January 6, 2011, that Plaintiff had not worked for many years, his
abilities to make occupational adjustment were good to fair to poor, he isolated himself and did not
interact with others often, he was very quiet and preoccupied with his own thoughts most of the
time, his abilities to make personal-social adjustments were good to fair, he was not motivated to
do any work-related activities, and that he was not sure that he could handle any benefits in his
own best interest. Id.
The record contains a copy of the voluminous office notes of treating physician Dr.
Kominiarek dated November 9, 2007, through January 3, 2011. PageID 325-54; 708-1530. Those
records reveal that over time, Dr. Kominiarek treated Plaintiff for various medical conditions
including ankle and back pain. Id.
On July 9, 2009, Dr. Kominiarek reported that he had been treating Plaintiff since 200 [sic],
for ankle and back pain, that he had limited flexion, extension, and rotation of his spine, muscle
weakness, reflex abnormalities, muscle spasms, and muscle atrophy of his lower back, and that he
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used a cane. PageID 325-26.
Dr. Kominiarek reported on December 2, 2010, that Plaintiff was able to lift/carry up to ten
pounds frequently, stand/walk and sit each for less than one hour in an eight-hour day and for less
than one hour without interruption, could never climb, balance, stoop, crouch, kneel, or crawl, and
that his abilities to see, hear, reach, handle, finger, feel, and push/pull were affected by his
impairments. PageID 692-706. Dr. Kominiarek also reported that Plaintiff should not be exposed
to heights, moving machinery, chemicals, temperature extremes, vibration, dust, noise, fumes, and
humidity, and that he was unable to perform sedentary, light, or medium work. Id. Dr. Kominiarek
opined that Plaintiff was unable to perform normal labor and that his (Dr. Kominiarek’s) opinion
as to Plaintiff’s abilities was supported by his findings on physical examination. Id. Dr.
Kominiarek also opined that Plaintiff was not able to perform any work-related mental activities
and that he had marked restrictions of activities of daily living, marked difficulties in maintaining
social functioning, and marked deficiencies of concentration, persistence, or pace. Id.
In his Statement of Errors, Plaintiff alleges that the Commissioner erred by rejecting his
treating psychiatrist’s and treating physician’s opinions. Doc. 11. Plaintiff also alleges that the
Commissioner erred by failing to find that he has a severe physical impairment and by failing to
find that he was entirely credible. Id.
A key question in this case is the severity of any of Plaintiff's impairments before the
expiration of his insured status. A social security disability claimant bears the ultimate burden of
proof on the issue of disability. Richardson v. Heckler, 750 F.2d 506, 509 (6th Cir. 1984) (citation
omitted). The claimant's specific burden is to prove that he was disabled on or before the last date
on which he met the special earnings requirement of the Act. Id. (citation omitted); Moon v.
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Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990). Post insured status evidence of a claimant's
condition is generally not relevant. Bagby v. Harris, 650 F.2d 836 (6th Cir. 1981); see also, Bogle v.
Secretary of Health and Human Services, 998 F.2d 342 (6th Cir. 1993). However, such evidence
will be considered if it establishes that an impairment existed continuously and in the same degree
from the date the insured status expired. Johnson v. Secretary of Health and Human Services,
679 F.2d 605 (6th Cir. 1982). As noted above, Plaintiff's last met the insured status requirement of
the Act on June 20, 2005. Therefore, Plaintiff must establish that he became disabled on or before
that date.
AIn assessing the medical evidence supporting a claim for disability benefits, the ALJ must
adhere to certain standards.@ Blakley v. Commissioner of Social Security, 581 F.3d 399, 406 (6th
Cir. 2009). AOne such standard, known as the treating physician rule, requires the ALJ to
generally give greater deference to the opinions of treating physicians than to the opinions of
non-treating physicians because
these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant=s] medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical
findings alone of from reports of individual examinations, such as
consultative examinations or brief hospitalizations.
Id., quoting, Wilson v. Commissioner of Social Security, 378 F.3d 541, 544, (6th Cir. 2004),
quoting, 20 C.F.R. ' 404.1527(d)(2).
AThe ALJ >must= give a treating source opinion controlling weight if the treating source
opinion is >well supported by medically acceptable clinical and laboratory diagnostic techniques=
and is >not inconsistent with the other substantial evidence in [the] case record.=@ Blakley, 581
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F.3d at 406, quoting, Wilson, 378 F.3d at 544. AOn the other hand, a Social Security Ruling1
explains that >[i]t 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.=@
Blakley, supra, quoting, Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2, 1996). AIf the ALJ
does not accord controlling weight to a treating physician, 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.@ Blakley,582 F.3d at 406, citing, Wilson, 378
F.3d at 544, citing 20 C.F.R. ' 404.1527(d)(2).
AClosely associated with the treating physician rule, the regulations require the ALJ to
>always give good reasons in [the] notice of determination or decision for the weight= given to the
claimant=s treating source=s opinion.@
Blakley, 581 F.3d at 406, citing, 20 C.F.R.
'404.1527(d)(2). AThose good reasons must be >supported by the evidence in the case record, and
must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source=s medical opinion and the reasons for that weight.=@ Blakley, 581 F.3d
at 406-07,citing, Soc.Sec.Rule 96-2p, 1996 WL 374188 at *5. AThe Wilson Court explained the
two-fold purpose behind the procedural 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
FN 1. Although Social Security Rulings do not have the same force and effect as statutes or regulations, A[t]hey are
binding on all components of the Social Security Administration@ and Arepresent precedent, final opinions and orders
and statements of policy@ upon which the agency relies in adjudicating cases. 20 C.F.R. ' 402.35(b).
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administrative bureaucracy that she is not, unless some reason for
the agency=s decision is supplied. Snell v. Apfel, 177 F.3d 128, 134
(2nd 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.
Blakley, 581 F.3d at 407, citing, Wilson, 378 F.3d at 544.
ABecause the reason-giving
requirement exists to ensure that each denied claimant received fair process, the Sixth Circuit has
held that an ALJ=s >failure to follow the procedural requirement of identifying the reasons for
discounting the opinions and for explaining precisely how those reasons affected the weight= given
>denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified
based upon the record.=@ Blakley, supra, quoting, Rogers v. Commissioner of Social Security., 486
F.3d 234, 253 (6th Cir. 2007)(emphasis in original).
In August, 2009, and again in January 6, 2011, Dr. Kuruvilla, Plaintiff’s treating
psychiatrist, essentially opined that was disabled by his mental impairment. Although Judge
Treblin accorded “some weight” to Dr. Kuruvilla’s August, 2009, he determined, inter alia, that
Dr. Kuruvilla’s opinion did not relate to any time prior to the expiration of Plaintiff’s insured
status. PageID 72-73.
First, Dr. Kuruvilla offered her August, 2009, opinion more than four years after Plaintiff’s
insured status expired and her January, 2011, opinion about five and one-half years after the
expiration of Plaintiff’s insured status. In addition, Dr. Kuruvilla did not relate either of those
opinions back to any time prior to June 20, 2005, when Plaintiff’s insured status expired. Although
acknowledging that Plaintiff had received treatment from other mental health care providers at
DayMont since 1987, Dr. Kuruvilla did not rely on or cite to any of those prior treating sources
records or opinions to support a conclusion that her opinion related back to the relevant period.
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Further, Dr. Kuruvilla reported that she began treating Plaintiff in May, 2005, only one month
prior to the expiration of Plaintiff’s insured status.2
Under these facts, the Commissioner did not err by rejecting Dr. Kuruvilla’s opinions on
the basis they do not relate to any time prior to the expiration of Plaintiff’s insured status.
Plaintiff also alleges that the Commissioner erred by rejecting treating physician Dr.
Kominiarek’s opinion.
On December 2, 2010, Dr. Kominiarek reported that Plaintiff was limited in his abilities to
perform exertional activities in that he was able to lift/carry up to ten pounds frequently,
stand/walk and sit each for less than one hour in an eight-hour day and for less than one hour
without interruption, could never climb, balance, stoop, crouch, kneel, or crawl, and that his
abilities to see, hear, reach, handle, finger, feel, and push/pull were affected by his impairments.3
In choosing to give Dr. Kominiarek’s opinion little, if any, weight, Judge Treblin found that, like
Dr. Kuruvilla’s opinion, Dr. Kominiarek’s opinion did not relate to a time prior to the expiration of
Plaintiff’s insured status. PageID 73.
Dr. Kominiarek offered his opinion as to Plaintiff’s residual functional capacity in
December, 2010, more than five years after the expiration of Plaintiff’s insured status. In addition,
the record reveals that Dr. Kominiarek did not begin to treat Plaintiff until November 9, 2007,
more than two years after the expiration of Plaintiff’s insured status. Further, similar to Dr.
Kuruvilla’s opinions, Dr. Kominiarek’s opinion does not relate back to any time prior to the
expiration of Plaintiff's insured status. While it is arguable, as Judge Treblin noted, that Plaintiff’s
2
The record contains an inconsistency as to when Dr. Kuruvilla began treating Plaintiff. In August, 2009, Dr.
Kuruvilla reported that she began treating Plaintiff on May, 2005. PageID 392. However, in January, 2011, Dr.
Kuruvilla reported that she began treating Plaintiff in February, 2006. PageID 1382.
3
Dr. Kominiarek also reported that Plaintiff was not able to perform any work-related mental activities. However,
Plaintiff’s abilities with respect to is alleged mental impairment is outside Dr. Kominiarek’s area of expertise.
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impairments and his residual functional capacity have worsened over time, Judge Treblin properly
rejected Dr. Kominiarek’s opinion that Plaintiff was limited by his impairments at any time before
his insured status expired.
Plaintiff argues next that the Commissioner erred by failing to find that he was credible.
It is, of course, for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses,
including that of the claimant. Rogers v. Commissioner of Social Security, 486 F.3d 234, 247
(6th Cir. 2007)(citations omitted). An administrative law judge=s credibility findings are entitled to
considerable deference and should not be lightly discarded. See, Villarreal v. Secretary of Health
and Human Services, 818 F.2d 461 (6th Cir. 1987); Casey v. Secretary of Health and Human
Services, 987 F.2d 1230 (6th Cir. 1993). Determination of credibility related to subjective
complaints rests with the ALJ and the ALJ=s opportunity to observe the demeanor of the claimant
is invaluable and should not be discarded lightly. Gaffney v. Bowen, 825 F.2d 98 (6th Cir. 1987).
However, the ALJ is not free to make credibility determinations based solely upon an
Aintangible or intuitive notion about an individual=s credibility.@ Rogers, supra (citation omitted).
Rather, such determination must find support in the record.
Id.
Whenever a claimant=s
complaints regarding symptoms or their intensity and persistence are not supported by objective
medical evidence, the ALJ must make a determination of the credibility of the claimant in
connection with his or her complaints Abased on a consideration of the entire case record.@ Id.
The entire case record includes any medical signs and lab findings, the claimant=s own complaints
of symptoms, any information provided by the treating physicians and others, as well as any other
relevant evidence contained in the record. Id. Consistency between a claimant=s symptom
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complaints and the other evidence in the record tends to support the credibility of the claimant
while inconsistency, although not necessarily defeating, should have the opposite effect. Id.
In Felisky v. Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994), the Court set out seven (7)
factors which the ALJ is to consider when evaluating a claimant=s subjective complaints. The
Court derived those factors from 20 C.F.R. ' 404.1529(c)(3). Id.
However, while the Felisky
Court applied each of the factors in the case before it, Felisky does not require that the ALJ
engage in such an extensive analysis in every decision. Bowman v. Chater, No. 96-3990, 1997
WL764419 at *4 (6th Cir. Nov. 26, 1997). It does require that in addition to objective medical
evidence the ALJ consider non-medical factors. Id.
Social Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996), (“SSR 9607p”), provides
that the Commissioner may not disregard a claimant=s subjective statements concerning his ability
to work Asolely because they are not substantiated by objective medical evidence@. See, Saddler
v. Commissioner of Social Security, No. 98-5440, 1999 WL 137621 at *2 (6th Cir. Mar. 4,
1999)[173 F.3d 429 table], citing, SSR 96-7p. SSR 96-7p directs the Commissioner to provide
Aspecific reasons@ for making a credibility determination. See, Spicer v. Apfel, No. 00-5687, 2001
WL 845496 at *1 (6th Cir. July 16, 2001).
In rejecting Plaintiff’s subjective complaints and allegations, Judge Treblin considered
other, non-medical evidence. PageID 71-72. For example, Judge Treblin noted that Plaintiff
stopped working for reasons not related to any alleged impairment to wit, Plaintiff testified that he
stopped working because he retired after working for his employer for thirty years. PageID 71.
Judge Treblin also noted that Plaintiff did not apply for benefits under the Act until after he retired
in 1999 and was collecting retirement benefits. Id. Judge Treblin’s finding is consistent with the
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record. PageID 87-88. In addition, Judge Treblin considered Plaintiff’s activities and determined
that they were inconsistent with a claim of total disability. PageID 71. Specifically, Judge Treblin
noted that Plaintiff watched television, drove, took his wife shopping, went outside daily, spent
time with his brothers, and belonged to a motorcycle group. Id; see PageID 90; 171-78; 179-86;
245.
Under these facts, the Commissioner had an adequate basis for rejecting Plaintiff’s
subjective complaints and allegations.
The Court=s duty on appeal is not to re-weigh the evidence, but to determine whether the
decision below is supported by substantial evidence. See, Raisor v. Schweiker, 540 F.Supp. 686
(S.D.Ohio 1982). The evidence "must do more than create a suspicion of the existence of the fact
to be established. ... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from it is one of fact for the jury." LeMaster v.
Secretary of Health and Human Services, 802 F.2d 839, 840 (6th Cir. 1986), quoting, NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939). The Commissioner's decision
in this case is supported by such evidence.
It is therefore recommended that the Commissioner's decision that Plaintiff was not
disabled and therefore not entitled to benefits under the Act be affirmed.
s/ Michael R. Merz
United States Magistrate Judge
January 7, 2013
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
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with this Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
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 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
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