Brumbaugh v. Commissioner of Social Security Administration

Filing 15

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ'S NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED. Objections to R&R due by 12/12/2013. Signed by Magistrate Judge Michael J Newman on 11/25/13. (pb1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JUDY A. BRUMBAUGH,
Plaintiff,

Case No.: 3:12-CV-309

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.
REPORT AND RECOMMENDATION 1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) THIS CASE BE CLOSED
This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Supplemental Security Income (“SSI”).

This case is before the Court upon

Plaintiff’s Statement of Specific Errors (doc. 9), the Commissioner’s Memorandum in
Opposition (doc. 13), Plaintiff’s Reply (doc. 14), the administrative record, 2 and the record as a
whole.
I. BACKGROUND
A. Procedural History
Plaintiff filed for SSI on February 26, 2007, alleging a disability onset date of June 1,
2005. Tr. 27. Plaintiff claims she is disabled due to a number of impairments including
degenerative disc disease of the cervical spine and Parkinson’s Disease. Tr. 29.
1

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

After initial denials of her applications, Plaintiff received a hearing before ALJ David
Redmond. Tr. 566-84. ALJ Redmond issued a written decision on May 20, 2010 finding
Plaintiff not “disabled.” Tr. 27-36. Specifically, ALJ Redmond’s Findings were as follows:
1.

The claimant has not engaged in substantial gainful activity since February
26, 2007, the application date (20 CFR § 416.971, et seq.);

2.

The claimant has the following severe impairments: degenerative disc
disease of the cervical spine and Parkinson’s Disease (20 CFR § 416.920
(c));

3.

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

4.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity [“RFC”] to perform light
work as defined in 20 CFR § 416.967(b) except that she is limited to
lifting a maximum of 10 pounds, is limited to occasional fingering with
either hand, cannot work at unprotected heights, around moving
machinery, or other dangerous instrumentalities, and is limited to minimal
personal contacts. [3]

5.

The claimant is unable to perform any past relevant work (20 CFR
§ 416.965); [4]

2

Hereafter, citations to the administrative record will refer only to the transcript page number as
“Tr.” Additionally, Plaintiff’s pertinent medical records have been adequately summarized in her
Statement of Errors and the administrative decision, see doc. 9 at PageID 59-68 and tr. 27-36, and the
Court will not repeat them here. Where applicable, the Court will identify the medical evidence relevant
to its decision.
3
A claimant’s RFC is the most physical exertion a claimant can perform in the workplace despite
his or her impairments and any related symptoms, such as pain. 20 C.F.R. § 416.945(a). The assessment
is based on all relevant evidence in the record and the claimant’s ability to meet the physical, mental,
sensory, and other requirements for work as described in 20 C.F.R. § 416.945(b), (c), and (d).
4
The Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very
heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work “involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds” and “requires a good deal of walking or standing, or…sitting most of the time with some pushing
and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light work is
presumed also able to perform sedentary work. Id. Sedentary work “involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.” Id. § 404.1567(a).

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6.

The claimant was born on June 25, 1963, and was 43 years old at the time
of the hearing, which defines her as a younger individual, age 18-49, on
the date the application was filed (20 CFR § 416.963);

7.

The claimant has a limited education and is able to communicate in
English (20 CFR § 416.964);

8.

Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR § 416.968);

9.

Considering the claimant’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national economy
that the claimant can perform (20 CFR § 416.969, and 416.969(a)); and

10.

The claimant has not been under a disability, as defined in the Social
Security Act, since February 26, 2007, the date the application was filed
(20 CFR § 416.920(g)).

Tr. 29-36 (brackets and footnote added).
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. 24-26; see
Casey v. Sec’y of H.H.S., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely
appeal on September 18, 2012.
B. Plaintiff’s Hearing Testimony
At the administrative hearing, Plaintiff testified before the ALJ that she is forty-seven
years old, weighs 230 pounds, and completed the tenth grade. Tr. 569, 571. Plaintiff stated that
she lives with her husband and brother-in-law. Id. She has never held a driver’s license. Tr.
570. Plaintiff stopped working in 2003 when she was laid off, and has not worked since. Tr.
571.
Plaintiff testified that she experiences pain in her legs. Tr. 577. She walks slowly, and is
limited to standing or walking for up to fifteen minutes at a time. Tr. 577-79. She also testified
that she can sit for twenty minutes at a time, but sitting in a chair causes leg pain. Tr. 577.

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Plaintiff testified that her lifting capabilities are limited to “about a gallon of milk,” but that her
hands are “shaky.” Tr. 579. Plaintiff experiences shaking in both hands and is able to write, but
she has difficulty grasping and using a writing instrument. Id. She also testified that she has
difficulty manipulating buttons or tying laces on her shoes, and requires assistance when getting
dressed. Id. Plaintiff recently developed swelling in her legs. Tr. 580. The swelling is
intermittent, and is exacerbated by extended periods of standing. Id. Plaintiff testified that she
has difficulty concentrating, and is easily distracted. Id.
On a typical day, Plaintiff does light household chores, watches television, and goes to
bed around 11:00 p.m. Tr. 578. Plaintiff testified that she can perform household chores only
with the assistance of her husband. Tr. 577. She is able to cook simple dishes and load the
washing machine, but is unable to load clothes into the dryer. Tr. 578. Although Plaintiff
attends church occasionally, she sits in the back of the congregation so that she can stand up
periodically as needed. Tr. 581.
C. Medical Expert Testimony
Hershel Goren, M.D., a medical expert (“ME”), also testified at the hearing after
reviewing Plaintiff’s medical records. 5 Tr. 571. The ME testified that Plaintiff has Parkinson’s
Disease, first diagnosed in 2007 by Bassel F. Shneker, M.D., and confirmed in a letter from John
Novak, M.D. in December of that same year. Tr. 572. The ME related the symptoms of
5

There are three types of medical sources: non-examining sources; non-treating (but examining)
sources; and treating sources. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010). Dr. Goren
is a non-examining source. As a general matter, an opinion from a treating source is given the most
weight (and possibly controlling weight if certain criteria are satisfied), and an opinion from an examining
source is given more weight than that from a non-examining source. Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 375 (6th Cir. 2013). In weighing all medical opinions, the ALJ must consider the
following factors: the examining relationship (if any); the length, nature and extent of the treatment
relationship (if any); supportability of the opinion; consistency of the opinion with the record as a whole;
the specialization of the source; and any other relevant factors which tend to support or contradict the
opinion. Id.; see also 20 C.F.R. § 404.1527(c).

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Parkinson’s Disease, such as slurred speech, tremors, and fatigue. Tr. 575-76. The ME also
testified that Plaintiff was treated with standard Parkinson’s medicines, and that the record
reflected her condition had somewhat improved. Tr. 572. The ME acknowledged, however, that
such treatments have side effects such as drowsiness, low blood pressure, and hallucinations. Tr.
572, 576. The ME discussed Plaintiff’s other treating physicians, including her primary care
physician, Guillermo G. Trevino, M.D. Tr. 573. The ME relayed Dr. Trevino’s assessment that
Plaintiff’s functionality was at a less than sedentary level, but stated that Dr. Trevino did not do
an examination that “would allow him to come to any conclusions at all” on the date in question.
Id. The ME also discussed determinations by other physicians who had treated Plaintiff and
classified her capabilities at less than sedentary.

Id.

The ME similarly discounted these

determinations as not supported by the medical record. See Tr. 572-73.
The ME opined that Plaintiff’s symptoms did not meet any Listings, individually or in
combination, and opined that Plaintiff is doing well and suffers from no other severe
impairments besides Parkinson’s. Id. Further, he testified that Plaintiff’s RFC would allow her
to carry twenty pounds occasionally and ten pounds frequently, and that she had no other
exertional restrictions.

Id. Postural restrictions identified by the ME included no climbing or

balancing, no unprotected heights, and only occasional fingering with either hand. Tr. 574.
Finally, the ME addressed an MRI showing Plaintiff’s spinal stenosis. 6 Tr. 575. He testified that
an MRI of Plaintiff’s cervical spine was performed in 2007 and stenosis was present at that time.
Id. However, the ME testified that Plaintiff exhibited no functional impairments related to the
spinal stenosis diagnosis. Id.
6

Spinal stenosis is the “narrowing of the vertebral canal, nerve root canals, or intervertebral
foramina of the lumbar spine caused by encroachment of bone upon the space; symptoms are caused by
compression of the cauda equine and include pain, paresthesias, and neurogenic claudication.” Dorland’s
Illustrated Medical Dictionary 1795 (31st ed. 2007).

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D. Vocational Expert Testimony
Vanessa Harris, a vocational expert (“VE”), also testified at the hearing. Tr. 581-83. The
ALJ proposed a hypothetical regarding Plaintiff’s RFC to the VE. Tr. 582-83. The VE testified
as to Plaintiff’s prior work as a horticultural worker and confirmed that Plaintiff could no longer
perform such work. Tr. 581. The VE was then asked about a hypothetical person of Plaintiff’s
age, education, and work experience. Id. The VE outlined limitations to the hypothetical
person’s ability to lift; to be on their feet for extended periods of time; to work near moving
machinery, around unprotected heights, or other dangerous instrumentalities; as well as an
inability to fully use their hands, or have many personal contacts. Tr. 582. The VE concluded
that such an individual, like Plaintiff, could perform 4,500 light jobs in the regional economy,
including positions as a box sealing inspector, garment sorter, and marker. Id.
II. APPLICABLE LAW
A. Substantial Evidence Standard
The Court’s inquiry on a Social Security 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. § 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, 362 (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

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disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ 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). “[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 suffer from a medically
determinable physical or mental impairment that can be expected to result in death or that has
lasted, or can be expected to last, for a continuous period of not less than twelve months. 42
U.S.C. § 1382c(a)(3)(A). The impairment must render the claimant unable to engage in the work
previously performed or in any other substantial gainful employment that exists in the national
economy. 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner’s administrative regulations require a five-step sequential evaluation
for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any
step ends the ALJ’s review, see 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?

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4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp. 2d 816, 818
(S.D. Ohio 2001). 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).
III. OPINION AND ANALYSIS
On appeal, Plaintiff argues the ALJ erred by: (1) rejecting the opinions of her treating
physicians; and (2) challenging her disability allegations on credibility grounds. For the reasons
that follow, the Court finds the ALJ’s decision is not supported by substantial evidence, and
merits reversal. 7
A. The Treating Physician Rule
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 or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.’”
7

In light of the Court's favorable decision on Plaintiff's argument concerning the weight afforded
to her treating physicians, see infra, the Court need not determine whether or not the ALJ’s credibility
assessment is supported by substantial evidence. Nonetheless, having carefully reviewed this claim and
recognizing that an ALJ's credibility findings are entitled to considerable deference and should not be
lightly discarded, see Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir.1993), the
Court finds this assignment of error unpersuasive.

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Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting 20 C.F.R.
§ 404.1527(d)(2)). Thus, an ALJ must give controlling weight to a treating source if the ALJ
finds the treater’s opinion well-supported by medically acceptable evidence and not inconsistent
with other substantial evidence in the record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)).
Closely associated with the treating physician rule is the “good reasons rule,” which
“require[s] 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.” Blakely, 581 F.3d at 406 (citing 20
C.F.R. § 404.1527(d)(2)). “Those 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.’”
Id. at 406-07. When the ALJ declines to give controlling weight to a treating physician’s
assessment, “the ALJ must still determine how much weight is appropriate by considering a
number of factors, including the length of treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any specialization of the treating
physician.” Id. The ALJ’s failure to adequately explain the reasons for the weight given a
treating physician’s opinion “denotes a lack of substantial evidence, even where the conclusion
of the ALJ may be justified based upon the record.” Id. at 407.
As an initial matter, the Court acknowledges that an ALJ is not required to accept a
physician’s conclusion that his or her patient is “unemployable.” Whether a person is disabled
within the meaning of the Social Security Act is an issue reserved to the Commissioner, and a
treating physician’s opinion -- that his or her patient is disabled -- is not “give[n] any special

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significance.” 20 C.F.R. § 404.1527; see Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. 2004) (“The determination of disability is ultimately the prerogative of the Commissioner,
not the treating physician”). However, “[t]here remains a presumption, albeit a rebuttable one,
that the opinion of a treating physician is entitled to great deference.” Hensley v. Astrue, 573
F.3d 263, 266 (6th Cir. 2009) (citation omitted).
B. The ALJ Erred in Rejecting Plaintiff’s Treating Physicians’ Opinions
In his sparsely worded opinion, the ALJ failed to provide an adequate justification for
declining to give controlling or even deferential weight to the opinions of Plaintiff’s treating
physicians. See Blakely, 581 F.3d at 406. The ALJ did not discuss Plaintiff’s treating physicians
by name, mentioning them only briefly at the end of his assessment, stating: “the record contains
several medical source opinions purporting to establish disability on the part of the
claimant….However[,] as confirmed by the testimony of Dr. Goren [the ME], those statements
are not supported by the objective clinical findings of record.” Tr. 34. Beyond this conclusory
statement, the ALJ failed to provide any articulable reasons for declining to afford deference to
Plaintiff’s treating physicians. See tr. 31-34. The ALJ stated that “some adjudicative weight is
given to the treating source opinions,” but that ultimately Plaintiff’s treating physicians’ opinions
were not “entitled to controlling, deferential, or even significant weight as to the ultimate issue of
the claimant’s disability status.” Tr. 34. Aside from a rehashing of the ME’s opinion and this
statement, the ALJ did not address the factors which must be considered when evaluating the
treaters’ opinions. Id. The ALJ did not discuss, for example, specific instances of treatment by
the physicians that Plaintiff regularly visited, or their findings, with any detail. Tr. 33-34. Nor
did the ALJ give definitive reasons for his discounting of the treaters’ opinions. Tr. 31-34. He
merely noted that the regulations provide that an ALJ “is not bound by conclusory statements of

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doctors, particularly where they are unsupported by detailed objective criteria and
documentation, or are inconsistent with the documentation that does exist.” Tr. 34 (citations
omitted). The ALJ’s failure to explain more “denotes a lack of substantial evidence, even where
the conclusion of the ALJ may be justified based upon the record.” Blakely, 581 F.3d at 407.
The ALJ’s opinion is also silent regarding the other 20 C.F.R. § 404.1527 factors—
including, inter alia, the length of the treatment relationship; the frequency of examination; and
the treater’s specialization and experience. Although the ALJ listed the factors he was required
to consider, he did not apply these factors to the record before him. Tr. 34. Without such
analysis, or any significant discussion of Plaintiff’s treating physicians, the Court is unable to
meaningfully review the ALJ’s finding that the treater’s opinions are not entitled to deferential or
controlling weight. Accord McHugh v. Astrue, No. 1:10-cv-734, 2011 WL 6130824, at *4 (S.D.
Ohio Nov. 15, 2011) (As a rule, the ALJ must build an accurate and logical bridge between the
evidence and his [or her] conclusion… When an ALJ fails to mention relevant evidence in his or
her decision, the reviewing court cannot tell if significant probative evidence was not credited or
simply ignored) (brackets added; internal quotations and citations omitted). The ALJ’s failure to
meaningfully review the applicable factors deprives the Court of its opportunity to consider
whether the ALJ provided “good reasons” for giving less than controlling weight to the findings
of Plaintiff’s treating physicians. Blakely, 581 F.3d at 406-07.
Finally, the ALJ, without good reasons or meical basis for doing so, went beyond the
recommendation of Plaintiff’s treating physicians and the ME, and improperly made his own
RFC finding regarding Plaintiff’s ability to lift. Tr. 32. The ME testified that Plaintiff could lift
twenty pounds occasionally and ten pounds frequently. Id. Dr. Trevino, on the other hand,
opined that Plaintiff could lift or carry no more than five pounds at a time, and thus could not

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perform sedentary work.

Tr. 415, 437.

In his decision, the ALJ seemingly adopts the

recommendation of the ME, but goes further than the ME’s suggestion stating, “given the nature
of the claimant’s impairments and the weight of the evidence, it is reasonable find [sic] a greater
lifting restriction,” determining that the Plaintiff should not lift more than ten pounds at a time,
as opposed to the ME-recommended twenty pound limitation. Tr. 32. This suggestion is not
supported by the record. The Sixth Circuit has previously held that while the ALJ may have
some background and expertise, he may not supplant his opinion regarding limitations or
abilities for that of a physician. Hall v. Celebrezze, 314 F.2d 686, 689 (6th Cir. 1963). The
ALJ’s assessment of Plaintiff’s capabilities cannot serve to replace the recommendations of the
treating physician or even a medical expert; this determination must be left to the medical
professionals, not to the ALJ. See also Perkins v. Comm’r of Soc. Sec., Case No. 3:12-CV-153,
2013 WL 4518656, at *9 (S.D. Ohio Aug. 26, 2013).
Because the ALJ failed to consider the factors listed in 20 C.F.R. § 404.1527 in
determining the weight to give Plaintiff’s treating physicians, failed to adequately discuss his
discrediting of Plaintiff’s treating physicians’ opinions, and incorrectly supplanted his own
findings for those of Plaintiff’s treaters and the ME, the ALJ’s non-disability finding is not
supported by substantial evidence. Accord Blakely, 581 F.3d at 406-07. The ALJ’s decision
thus warrants reversal under Sentence Four of 42 U.S.C. § 405(g) and remand for
reconsideration of Plaintiff’s RFC.

On remand, the ALJ shall consider anew the medical

evidence of record and properly analyze that evidence under the controlling Social Security
regulations.

Such review of Plaintiff’s treating physicians shall apply the good reasons

requirement. See Wilson, 378 F.3d at 544 (citing 20 C.F.R. § 404.1527(d)(2)) (“We will always

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give good reasons in our notice of determination or decision for the weight we give [claimant’s]
treating source’s opinion”).
IV. RECOMMENDATION
For the foregoing reasons, the Court finds Plaintiff’s first assignment of error meritorious,
and the ALJ’s decision unsupported by substantial evidence.
IT IS THEREFORE RECOMMENDED THAT:
1.

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

2.

This matter be REMANDED to the Commissioner under the Fourth
Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this
opinion; and

3.

This case be CLOSED.

November 25, 2013

s/ Michael J. Newman
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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is 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.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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