Lee v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioner's non-disability finding be vacated; 2. No finding be made as to whether Plaintiff James D. Lee was under a disability within the meaning of the Social Security Ac t; 3. This matter be REMANDED to the Social Security Administration under Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and 4. The case be TERMINATED on the docket of this Courtre 2 Complaint filed by James Lee. Objections to R&R due by 2/29/2016. Signed by Magistrate Judge Sharon L. Ovington on 2/12/16. (pb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES D. LEE,

:

Plaintiff,

:
Case No. 3:14cv00291

vs.

:

CAROLYN W. COLVIN,
Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff James D. Lee brings this case challenging the Social Security

Administration’s denial of his application for Disability Insurance Benefits. He asserts
here, as he did before the administration, that he has been under a benefits-qualifying
disability – starting on May 1, 2011 – due to upper and lower back pain, scoliosis,
numbness in his hand and other places, a back injury, arthritis, depression, anxiety, lack of
strength, and obsessive compulsive disorder. (Doc. #6, PageID #s 197-98, 243).
After various administrative proceedings, Administrative Law Judge (ALJ)
Elizabeth A. Motta, denied Plaintiff’s application based on her conclusion that Plaintiff’s

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

impairments did not constitute a “disability” within the meaning of the Social Security
Act. Following denial by the Appeals Council, Plaintiff commenced this action under 42
U.S.C. §405(g).
The case is presently before the Court upon Plaintiff’s Statement of Errors (Doc.
#9), the Commissioner’s Memorandum in Opposition (Doc. #12), Plaintiff’s Reply (Doc.
#13), the administrative record (Doc. #6), and the record as a whole.
II.

Background
A.

Plaintiff’s Profile and Testimony

Plaintiff was 41 years old on his alleged disability onset date, placing him in the
category of a “younger person” for purposes of resolving his application for benefits. See
20 C.F.R. § 404.1563(c). He obtained a GED and is considered to have at least a high
school education. He also had training in welding. His past employment has involved
work as a janitor and injection molding machine operator.
At his administrative hearing on March 18, 2013, Plaintiff testified that he lives
with his wife and 19-year-old son. Plaintiff testified that he drives “as needed.” (Doc. #6,
PageID# 66). If he drives for a long time, his leg goes numb and he is unable to
walk for a few minutes.
Plaintiff last worked at Delphi as a janitor in factory services. There were days in
this job when he was “hurting.” Id. at 79. He stopped working when the local Delphi
plant closed (in 2008). Id. at 67. He tried working as a handyman in 2011, but “it didn’t
work out” due pain in his arm, leg, and neck, along with numbness in his thumb and
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finger. Id. at 67-68.
Plaintiff’s neck problems began in 2003/2004 time period. He had a hernia at that
time and noticed that anytime he “did anything physical,” if he exerted himself, his hernia
would bulge. He started getting pain in his arm, leg, and neck. Id. at 68. Plaintiff
described his pain as shooting from his spine into his arms and legs. It was worse on his
right side. Id. at 80. He also has numbness in the fingers of his right hand. Id. at 69.
Plaintiff explained that Dr. Taha recommended he undergo a fusion surgery for his
neck. Dr. Taha told him, however, that even with surgery, he would “never be able to do
physical labor again.” Id. at 70. Plaintiff also testified that he was scared to have a spinal
fusion because he knows people who have had fusions which made them worse. He also
noted that he was uncertain who could take care of him after having such surgery.
Plaintiff also testified to problems in his mid-to-low back, which radiated to his
right leg and arm. He explained that if he takes medication, he can lift a bag of groceries if
he “strain[s]” himself. Id. at 77. He estimated that he can lift about five or ten pounds. Id.
at 77. He noted there are days when he does “too much, walk too much or bend - bending over really bothers me.” Id. at 71. He estimated that he could stand for ten to
fifteen minutes at a time but would likely “pay for it the next day.” Id. at 72. He further
testified that the most comfortable position for him is sitting with his knees bent up again a
counter or a wall. He spends approximately three to five hours every day elevating his
legs. Id. at 85-86.
As to his daily activities, Plaintiff testified that he uses the microwave and can
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stand and wash dishes if there are only a few of them. Id. at 72. He estimated he can
stand for ten to fifteen minutes, if he is able to move around or lean back. He has tried to
vacuum a few times but it does not go well due to the pushing and leaning. Id. at 72-73.
He has tried to mow his lawn but cannot do it for a long period of time before his leg goes
numb and the pressure builds up in his spine. Id. at 73. He spends most of his day
watching television. Id. at 75.
Plaintiff testified that he goes to the grocery store with his mother, because she is
elderly, or with his son. He testified that he feels comfortable going places with his son,
but has “always had a nerve problem since I was a kid. I had trauma....” Id. at 73-74. He
was “jumped when [he] was a kid .... and [he] just [doesn’t] trust people.” Id. at 76. He
testified he never goes to his sons activities and has never gone to places (e.g., church,
clubs, etc.) on a regular basis. Id. at 74. Sometimes, he does not want to talk to anyone,
even his wife and children. Id. And he does not like to be around crowds. Id. at 76.
Plaintiff acknowledged that he has problems with irritability and anger. Id. at 84.
He dreads answering the phone when it rings because he believes something bad has
happened. But, if he does not answer the phone when it rings, he feels like he missed
something important. Id. at 87. He is also forgetful, particularly when under stress. Id. at
81. He feels worthless, lacks an appetite, and has trouble sleeping. Id. Concentration is
also a problem. He often gets lost when watching a television program. Id. at 88. He
experiences panic attacks a couple times each week where he feels pressure in his chest
and loses track of what is happening around him. Id. at 84. He has had suicidal thoughts,
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although his medication has helped. Id. at 81-82. When his physical pain is worse, his
emotional problems increase. Id. at 84-85.
B.

Medical Evidence

The administrative record contains many medical records plus opinions from
treating and non-treating medical sources. A detailed description of those records and
opinions is unnecessary because the undersigned has reviewed the entire administrative
record and because the ALJ and counsel for the respective parties have discussed the
relevant records concerning Plaintiff’s physical and mental impairments with citations to
specific evidence.
III.

“Disability” Defined and the ALJ’s Decision
The Social Security Administration provides Disability Insurance Benefits to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 423(a)(1)(D). The term
“disability” – as defined by the Social Security Act – has specialized meaning of limited
scope. It encompasses “any medically determinable physical or mental impairment” that
precludes an applicant from performing a significant paid job – i.e., “substantial gainful
activity.”2 42 U.S.C. § 423(d)(1)(A); see Bowen, 476 U.S. at 469-70.
To determine whether Plaintiff was under a benefits-qualifying disability, ALJ

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In addition, the impairment must be one “which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A).

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Motta applied the Social Security Administration’s five-step sequential evaluation
procedure. See 20 C.F.R. § 404.1520(a)(4). The ALJ’s more pertinent findings arose at
steps two through five.
At step two, the ALJ concluded that Plaintiff had the severe impairments of lumbar
degenerative disc disease; cervical degenerative disc disease; and affective disorder with
features of anxiety and depression. Id. at 45.
At step three, the ALJ concluded that Plaintiff’s impairments or combination of
impairments did not meet or equal the criteria in the Commissioner’s Listing of
Impairments, including Listings 1.04 and 12.04. Id. at 46.
At step four, the ALJ concluded that the most Plaintiff could do in a work
environment despite his impairments, i.e., his residual functional capacity, consisted of the
following:
[Plaintiff] has the residual functional capacity to perform light work
... subject to the following limitations: lifting up to [twenty] pounds
occasionally and [ten] pounds frequently; standing/walking limited to
combined total of four hours out of an eight hour workday; no climbing
ropes, ladders or scaffolds; no exposure to hazards, such as moving or
dangerous machinery or working at unprotected heights; no exposure to
vibration; only occasional postural activities, such as climbing stairs/ramps,
balancing, stooping, kneeling, crouching and crawling; only occasional
reaching overhead bilaterally but reaching in other directions limited to
frequently; no exposure to extreme cold; simple, repetitive tasks; low stress
work with no strict production quotas or fast-paced work and only routine
work with few changes in the work setting; and only occasional contact
with the public, coworkers and supervisors.
Id. at 48. The ALJ also concluded at step four that Plaintiff could not perform his past
relevant work. Id. at 52.
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The ALJ found at step 5 that there are a significant number of jobs available in the
national economy that Plaintiff can perform. The sum and substance of the ALJ’s
sequential evaluation ultimately led her to conclude that Plaintiff was not under a benefitsqualifying disability from May 1, 2011, through the date of the decision.
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 Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 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. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708,
722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
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 Soc. Sec., 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; see Gentry, 741 F.3d
at 722.
The second line of judicial inquiry – reviewing for correctness the ALJ’s legal
criteria – may result in reversal even when the record contains substantial evidence
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supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746.
V.

Discussion
Plaintiff argues that the ALJ’s reasons for discounting his treating primary care

physician’s opinions are flawed, unsupported, or unreasonable. Plaintiff further argues
that the ALJ’s findings with regard to the opinion of his treating nurse practitioner, Misty
McDowell, are unreasonable.
The Commissioner contends, “The ALJ complied with the law by providing by
providing ‘good reasons’ for discounting Dr. Fromist’s [sic; meaning, Dr. Fronista’s]
unsupported assessment, and Nurse McDowell’s non-medical opinion, and giving more
weight to the opinions of the state agency reviewing physicians’s [sic] assessments as well
as the consultive examination preformed [sic] by Dr. Kramer.” (Doc. #12, PageID #724).
Social Security Regulations require ALJs to weigh acceptable medical source
opinions by first considering their status on a relationship hierarchy, then by weighing the
opinions on “progressively more rigorous tests ... as the ties between the source of the
opinion and the individual become weaker....” Soc. Sec. Ruling 96-6p, 1996 WL 374180,
*2; see Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013).
At its apex, the hierarchy requires ALJs to “[g]enerally, ... give more weight to
opinions from [the applicant’s] treating sources ....” 20 C.F.R. §404.1527(c)(2). One level
down on the hierarchy finds the opinions of examining physicians and psychologists.
Here, the regulations state, “Generally, we give more weight to the opinion of a source
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who has examined you [the applicant] than to the opinion of a source who has not
examined you.” Id. at §404.1527(c)(1). Resting on the bottom level of the hierarchy are
the opinions of non-examining physicians and psychologists, id. at §404.1527(e),
including state-agency physicians and psychologists. Despite their lowly hierarchical
position, state-agency physicians and psychologists are considered “experts in the Social
Security disability programs ...,” and their opinions “may be entitled to greater weight than
the opinions of treating or examining sources.” Soc. Sec. Rul. 96-6p, 1996 WL 374180,
*2, *3 (July 6, 1996).
Returning to treating medical sources, their opinions might be entitled to
controlling weight under the treating physician rule. This occurs only when the treating
source’s opinion is both well supported by medically acceptable data and not inconsistent
with other substantial evidence of record. Gayheart, 710 F.3d at 376; see 20 C.F.R.
§404.1527(c)(2). If the ALJ “does not give a treating-source opinion controlling weight,
then the opinion is weighed based on the length, frequency, nature, and extent of the
treatment relationship, as well as the treating source’s area of specialty and the degree to
which the opinion is consistent with the record as a whole and is supported by relevant
evidence.” Gayheart, 710 F.3d at 376.
Unlike treating physicians, “opinions from nontreating and nonexamining sources
are never assessed for ‘controlling weight.’ The Commissioner instead weighs these
opinions based on the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion is not deemed
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controlling. Other facts ‘which tend to support or contradict the opinion’ may be
considered in assessing any type of medical opinion.” Id.; see 20 C.F.R. §§
404.1527(c)(3)-(6).
Plaintiff’s treating primary-care physician, Dr. Fronista, provided his opinions in
October 2012. (Doc. #6, PageID #s 445-47). He has treated Plaintiff since at least
January 2004 and throughout the alleged period of disability. See id. at 326-32, 351-56,
462-87, 606-07. Dr. Fronista’s diagnoses for Plaintiff have included spinal stenosis, spinal
spondylosis, and anxiety. See id. at 328-31, 351-56, 462-69. He has treated Plaintiff’s
pain and his mental-health difficulties, prescribing medications including Vicodin, Soma,
and Xanax. See id. at 328-31, 351-56, 462-69, 606-07. Dr. Fronista’s records recount
Plaintiff’s reports of back pain and anxiety throughout the relevant period. See id. at 329,
353, 356, 607. The record, moreover, contains treatment notes from Dr. Fronista dating
back to January 2004. See id. at 326-32, 351-56, 462-87, 606-07. Dr. Fronista is also
listed as the requesting provider on the reports concerning Plaintiff’s objective medical
imaging.
Dr. Fronista opined in October 2012 that Plaintiff could lift five pounds on an
occasional basis and no weight frequently. Id. at 446. He further opined that Plaintiff
could stand for fifteen minutes at a time, sit for fifteen minutes at a time, and work for one
hour per work day. Id. Dr. Fronista believed that Plaintiff’s anxiety and depression
markedly limited his ability to withstand the stresses and pressures of ordinary work
activity. Id. And, according to Dr. Fronista, Plaintiff’s psychological problems aggravate
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or exacerbate his experience of pain.
The ALJ rejected Dr. Fronista’s opinions as follows:
In October 2012, Dr. Harry Fronista, a family doctor, concluded that
Plaintiff was disabled and unemployable. No controlling or deferential
weight will be given to this opinion. Dr. Fronista provided minimal
objective support for his opinion. Furthermore, the limitations given by Dr.
Fronista are not consistent with the claimant’s activities of daily living nor
are they consistent with the minimal amount of treatment he has received for
his back condition.
Id. at 51.
This limited paragraph is problematic because it fails to contain “good reasons” for
not crediting Dr. Fronista’s opinions with controlling weight, under the treating physician,
under the remaining regulatory factors. The ALJ incorrectly focused on the quality of Dr.
Fronista’s explanation, saying that he “provided minimal objective support for his
opinion.” Id. This, however, skipped a critical question under the treating physician rule:
Whether Dr. Fronista’s opinion was “well-supported by clinical and laboratory diagnostic
techniques ....” 20 C.F.R. §404.152(c)(2). By not addressing this question, the ALJ
weighed treating physician Dr. Fronista’s opinion under the same legal criteria applicable
to non-treating medical sources’ opinions. This constituted error because it directly
conflicts with the different legal criteria applicable to different types of medical sources in
the regulation’s medical-source hierarchy. If the ALJ meant that Dr. Fronista’s opinions
are not well supported by objective medical evidence or findings, the ALJ did not
elaborate. Without further elaboration, this reason for rejecting Dr. Fronista’s opinion is
ambiguous. Cf. Gayheart, 710 F.3d at 377 (“the conclusion that Dr. Onady’s opinions ‘are
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not well-supported by any objective findings’ is ambiguous. One cannot determine
whether the purported problem is that the opinions rely on findings that are not objective
(i.e., that are not the result of medically acceptable clinical and laboratory diagnostic
techniques, see 20 C.F.R. § 404.1527(c)(2)), or that the findings are sufficiently objective
but do not support the content of the opinions.).
Next, the ALJ’s finding that Dr. Fronista’s opinion is inconsistent with Plaintiff’s
“minimal amount of treatment” is unreasonable. (Doc. #6, PageID #51). The record
reflects that Plaintiff has been taking extra-strength Vicodin daily for years. See id. at
328-31, 351-56, 462-69, 606-07. He has also undergone multiple medical-imaging and
EMG tests in an attempt to help diagnose and better treat his spinal problems. See id. at
316-19, 459-60, 600-05. His doctors have told him he needs spinal fusion surgery. Id. at
67, 69, 88-89, 309-10. Plaintiff’s treatment is not so “minimal” to reasonably find it
“inconsistent with” Dr. Fronista’s opinions. This is especially true when the treatingphysician rule’s reference to “not inconsistent” evidence does not require absolute parity
or support for the physician’s opinions from all portions of the record. Rather, it simply
requires that other evidence does not directly contradict or conflict with the opinion. See
Soc. Sec. Ruling 96-2p, 1996 WL 374188, *3 (July 2, 1996) (The term “not inconsistent”
is “used to indicate that a well-supported treating source medical opinion need not be
supported directly by all of the other evidence (i.e., it does not have to be consistent with
all the other evidence) as long as there is no other substantial evidence in the case record
that contradicts or conflicts with the opinion.”).
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The ALJ’s final reason for rejecting Dr. Fronista’s opinions – his opinions conflict
with Plaintiff’s daily activities – is not supported by substantial evidence. Plaintiff
correctly contends that the ALJ significantly mischaracterized or over-generalized
Plaintiff’s testimony. The ALJ determined:
[Plaintiff] testified that he is able to drive. He can use the microwave.
He can do dishes. He mows the lawn. He grocery shops. He is able to
bathe himself. He helps care for two dogs. Although he testified that he
could only lift ten pounds, this is somewhat inconsistent with the ability to
do yard work such as mowing.
(Doc. #6, PageID #50). Although the ALJ finds that Plaintiff “is able to drive” and “can
do dishes,” she overlooked his testimony that his performance of these activities is
significantly limited by his impairments. He testified, “[I]f I drive very far, my leg goes
numb,” and he can wash dishes “if it’s just a few of them. I don’t stand there very long …
10, 15 minutes, and then I get uncomfortable.” Id at 71-72 . Similarly, the ALJ’s assertion
that Plaintiff’s lifting limitations are undermined by his “ability to do yard work such as
mowing” overlooks that Plaintiff testified, “I can walk behind the mower some, but then –
and that’s not too much because I’ll end up – my leg goes numb or I’ll get a lot of pressure
on me.” Id. at 73. Plaintiff, moreover, did not testify that mowing required him to lift
anything. Id. Perhaps most glaring, while the ALJ finds that Plaintiff “helps care for two
dogs,” Plaintiff did not say this. See id. at 75. He instead testified that his family owns
two dogs, and he gets a sense of security from having them in the house, without
mentioning who in his family takes care of them. Id. In light of these aspects of Plaintiff’s
testimony, substantial evidence does not support the ALJ’s evaluation of Plaintiff’s daily
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activities. And, in turn, substantial evidence fails to support the ALJ’s reliance on
Plaintiff’s daily activities as a reason to reject Dr. Fronista’s opinions.
The Commissioner’s contention that the ALJ properly relied on Dr. Kramer’s
opinions about Plaintiff’s mental work abilities lacks merit. The ALJ noted that Dr.
Kramer, a one-time examiner, “did not find significant limitations ...” (Doc. #6, PageID
#50). To the extent the ALJ credited Dr. Kramer’s opinion about Plaintiff’s lack of
significant mental limitations, the ALJ did so without weighing Dr. Kramer’s opinions
under any of the required factors. The ALJ thus failed to apply the correct legal criteria to
Dr. Kramer’s opinions. See id.; see also Soc. Sec. Ruling 96-6p, 1996 WL 374180, *2
(explaining that opinions from state agency psychological consultants and other program
psychologists can be given weight only when the factors of supportability, consistency,
specialization, and other pertinent factors are considered.).
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3
VI.

Remand Is Warranted
A remand is appropriate when the ALJ’s decision is unsupported by substantial

evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand warranted by an ALJ’s failure to follow the

3

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis
of Plaintiff’s challenge to the ALJ’s evaluation of Nurse McDowell’s opinions, and the ALJ’s use of GAF
scores, is unwarranted.

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regulations arises, for example, when the ALJ failed to provide “good reasons” for
rejecting a treating medical source’s opinions, see Wilson, 378 F.3d at 545-47; failed to
consider certain evidence, such as a treating source’s opinions, see Bowen, 478 F.3d at
747-50; or failed to provide specific reasons supported by substantial evidence for finding
the plaintiff to lack credibility, Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. §405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky, 35 F.3d at 1041. The latter is warranted
where the evidence of disability is overwhelming or where the evidence of disability is
strong while contrary evidence is weak. Faucher v. Sec’y of Health & Humans Servs., 17
F.3d 171, 176 (6th Cir. 1994).
A remand for an award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and because the evidence of a disability is not
strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is
entitled to an Order remanding this matter to the Social Security Administration pursuant
to sentence four of §405(g) due to problems set forth above. On remand, the ALJ should
be directed to: (1) re-evaluate the record under the legal criteria set forth in the
Commissioner’s Regulations, Rulings, and as required by case law; and (2) determine
anew whether Plaintiff was under a disability and thus eligible for DIB.
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Accordingly, the case should be remanded to the Commissioner and the ALJ for
further proceedings consistent with this Report and Recommendations.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner's non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff James D. Lee was under a
“disability” within the meaning of the Social Security Act;

3.

This matter be REMANDED to the Social Security Administration under
Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent
with this Report and Recommendations, and any decision adopting this
Report and Recommendations; and

4.

The case be TERMINATED on the docket of this Court.

February 12, 2016

s/ Sharon L. Ovington
Sharon L. Ovington
Chief 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 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.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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