Wiggins v. Commissioner of Social Security Administration

Filing 12

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS 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 re 2 Complaint filed by Waco Wiggins Objections to R&R due by 11/5/2015. Signed by Magistrate Judge Michael J. Newman on 10/19/15. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
WACO S. WIGGINS,
Plaintiff,

Case No.: 3:14-cv-360

vs.
COMMISSIONER OF
SOCAL SECURITY,

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

Defendant.
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
This is a Social Security disability benefits appeal. At issue is whether the is whether the
Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income
(“SSI”).2

This case is before the Court upon Plaintiff’s Statement of Errors (doc. 8), the

Commissioner’s memorandum in opposition (doc. 11), the administrative record (doc. 6),3 and
the record as a whole.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Decision and Entry to DIB regulations are
made with full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.

I.
A.

Procedural History

Plaintiff filed for DIB and SSI on February 9, 2011 alleging a disability onset date of
December 31, 1998. PageID 281-88. Plaintiff claims disability as a result of a number of mental
impairments including, inter alia, anxiety, attention deficit hyperactivity disorder (“ADHD”),
bipolar disorder, and obsessive compulsive disorder (“OCD”). PageID 83.
After initial denials of his applications, Plaintiff received hearings before ALJ Jessica
Inouye on July 19, 2012 and May 14, 2013. PageID 100-44. The ALJ issued a written decision
on June 11, 2013 finding Plaintiff not disabled. PageID 80-92. Specifically, the ALJ’s findings
were as follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2000.

2.

The claimant has not engaged in substantial gainful activity since
December 31, 1998, the alleged onset date (20 CFR 404.1571 et
seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments: anxiety,
borderline personality disorder, [ADHD], attention deficit disorder
(ADD), bipolar disorder, and traits of [OCD] (20 CFR 404.1520(c)
and 416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity [“RFC”]
to perform a full range of work at all exertional levels but with the
following non-exertional limitations: this work should be
unskilled, simple, routine, and repetitive. The work should not
require any strict production standards, such as a high, fast-paced
type of assembly line. The work should be predictable and routine,
meaning not more than occasional changes in the work and not
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more than occasional decision making in the types of tasks that the
claimant will perform as a part of the work. Further, the claimant
should be limited to avoiding concentrated exposure to unprotected
heights and dangerous, moving machinery.
6.

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

7.

The claimant was born [in] 1975 and was 23 years old, which is
defined as a younger aged individual 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).

8.

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

9.

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

10.

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

11.

The claimant has not been under a disability, as defined in the
Social Security Act, from December 31, 1998, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).

PageID 82-92.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 53-55.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).

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B. Evidence of Record
In her decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 83-91. Plaintiff, in his Statement of Errors, sets forth a detailed summary of
the record evidence. Doc. 8 at PageID 962-69. The Commissioner, in response, defers to the
ALJ’s recitation of the relevant medical evidence and presents no specific objection to Plaintiff’s
summary. Doc. 11 at PageID 988. Accordingly, except as otherwise noted in this Report &
Recommendation, the undersigned incorporates Plaintiff’s undisputed summary and the ALJ’s
recitation of the evidence.
II.
A. Standard of Review
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. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (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
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] 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

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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 [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
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, 475 F.3d at 730, the complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s 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

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under the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th
Cir. 1997).
III.
On appeal, Plaintiff argues that the ALJ erred in: (A) weighing the medical opinion
evidence; and (B) finding him not fully credible. Doc. 8 at PageID 961.
A.

Medical Opinion Evidence

Plaintiff first claims that the ALJ erred in assessing the opinion of his treating psychiatrist
Sarita Mahajan, M.D.4 “[T]he Commissioner’s regulations establish a hierarchy of acceptable
medical source opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at
*9 (S.D. Ohio Jan. 30, 2013). Treating physicians and psychologists top the hierarchy. Id.
“Next in the hierarchy are examining physicians and psychologists, who often see and examine
claimants only once.” Id. “[N]on-examining physicians’ opinions are on the lowest rung of the
hierarchy of medical source opinions.”

“The regulations provide progressively more

Id.

rigorous tests for weighing opinions as the ties between the source of the opinion and the
individual [claimant] become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2,
1996)).
“An ALJ is required to give controlling weight to ‘a treating source’s opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s)’ if the opinion ‘is well-

4

Plaintiff also argues that the ALJ erred in granting great weight to consultative examiner Donald
Kramer, Ph.D.’s opinion, yet not adopting one of his limitations -- that Plaintiff “may need additional
supervision compared to co-workers[,]” PageID 826 -- into the RFC determination. Doc. 8 at PageID
977. The Commissioner argues, inter alia, that this part of Dr. Kramer’s opinion cannot be considered a
functional limitation because it is speculative, and, regardless, that the RFC adequately accounted for
Plaintiff’s distractibility (the “underlying limitation” behind this aspect of Dr. Kramer’s opinion). Doc.
11 at PageID 993. Finding error in the ALJ’s analysis of Dr. Mahajan’s opinion, the undersigned makes
no finding with regard to this alleged error. On remand, the ALJ shall specifically address the “additional
supervision” element of Dr. Kramer’s opinion while appropriately weighing all medical opinion evidence
and determining anew Plaintiff’s RFC.

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supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” LaRiccia v. Comm’r of
Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013) (citation omitted) (alterations in original). This
requirement is known as the “treating physician” rule. Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 406 (6th Cir. 2009) (citation omitted).

Greater deference is given to treating source

opinions “since these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your 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[.]” 20 C.F.R. § 404.1527(c)(2); see also Blakley, 581
F.3d at 406. Thus, an ALJ must give controlling weight to a treating source if the ALJ finds the
treating physician’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).
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.” Blakley, 581 F.3d at 406-07.
“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.
Thus, 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,

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consistency of the opinion with the record as a whole, and any specialization of the treating
physician.” Id. at 406; see also 20 C.F.R. § 404.1527(c).5 In addition, unless the opinion of the
treating source is entitled to controlling weight, an ALJ must “evaluate all medical opinions
according to [these] factors, regardless of their source[.]” Walton v. Comm’r of Soc. Sec., No.
97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).
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 significance.” 20 C.F.R. § 404.1527(d)(3); see
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (stating that “[t]he
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).
In May 2013, after treating Plaintiff for three months, Dr. Mahajan diagnosed Plaintiff
with bipolar and anxiety disorders, and opined that he has no limitations in regard to activities of
daily living; slight limitations in maintaining social functioning; moderate limitations in
concentration, persistence, or pace; and moderate limitations in regard to episodes of

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12 CV 3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of” 20 C.F.R.
§ 404.1527. Id.
5

8

deterioration and decompensation in work.6 PageID 955, 957. Dr. Mahajan also assigned a
Global Assessment of Functioning (“GAF”)7 score of 60, and found that Plaintiff would likely be
absent from work as a result of his mental impairments approximately three days per month. Id.
In weighing Dr. Mahajan’s opinion, the ALJ assigned it “some weight” because:
parts of the opinion are vague and conclusory. For example, the opinion of
the claimant’s marked episodes of deterioration or decompensation in work
is not fully supported by Dr. Mahajan’s own objective findings, the
remainder of her opinion or the overall evidence in the record. It is also
inconsistent with the findings of improvement and the assessed GAF of 60
in the same opinion.
PageID 89.
The undersigned agrees with Plaintiff that the ALJ erred in assessing, and ultimately
discounting, Dr. Mahajan’s opinion. Initially, the Court notes that the ALJ failed to mention the
concept of controlling weight or set forth the required analysis. See Wilson, 378 F.3d at 544; 20
C.F.R. § 404.1527(c)(2). Because of the ALJ’s failure in this regard, the Court cannot determine
Whereas “moderate” functional limitations are “non-disabling,” see Sims v. Comm’r of Soc.
Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” and “extreme” limitations are suggestive of
disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(C) et seq.
7
GAF is a tool used by health-care professionals to assess a person’s psychological, social, and
occupational functioning on a hypothetical continuum of mental illness. Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. 2000) (“DSM-IV”). “The most recent (5th) edition of the
Diagnostic and Statistical Manual of Mental Disorders does not include the GAF scale.” Judy v. Colvin,
No. 3:13cv257, 2014 WL 1599562, at *11 (S.D. Ohio Apr. 21, 2014); see also Diagnostic and Statistical
Manual of Mental Disorders 16 (5th ed. 2013) (“DSM-V”) (noting recommendations “that the GAF be
dropped from [DSM-V] for several reasons, including its conceptual lack of clarity . . . and questionable
psychometrics in routine practice”). As set forth in the DSM-IV, however, a GAF of 31-40 indicates
“[s]ome impairment in reality testing or communication,” or “major impairment in several areas, such as
work or school, family relations, judgment, thinking or mood (e.g.,…avoids friends, neglects family, and
is unable to work).” DSM-IV at 34. A GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. A GAF score of 51-60 is
indicative of “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks)”
or “moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).” Id. A GAF score of 61 to 70 indicates “[s]ome mild symptoms (e.g., depressed
mood and mild insomnia)” or “some difficulty in social, occupational, or school functioning . . . but
generally functioning pretty well.” Id. A GAF score of 71 to 80 indicates “no more than slight
impairment in social, occupational, or school functioning (e.g., temporarily falling behind in
schoolwork).” Id.
6

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whether she undertook the “two-step inquiry” required when analyzing treating source opinions.
See note 5 supra; see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir.
2013); Chrismon v. Colvin, 531 F. App’x 893, 900 (10th Cir. 2013). The lack of explanation
regarding the “controlling weight [analysis] hinders a meaningful review of whether the ALJ
properly applied the treating-physician rule that is at the heart of this regulation.” Gayheart, 710
F.3d at 377 (citations omitted). Such failure amounts to error. See Aytch v. Comm’r of Soc. Sec.,
No. 3:13-cv-135, 2014 WL 4080075, at *5 (S.D. Ohio Aug. 19, 2014) (citation omitted).
Even assuming, arguendo, the ALJ adequately conducted the controlling weight test -which the undersigned concludes she did not -- the ALJ nevertheless failed to provide good
reasons for discounting the weight accorded to Dr. Mahajan’s opinion. The reasons given by the
ALJ for according the opinion “some” weight, see PageID 89, relate only to Dr. Mahajan’s
finding regarding Plaintiff’s marked episodes of decompensation or deterioration in work. Id.
However, Dr. Mahajan never noted “marked” limitations and, instead, opined that Plaintiff was
“moderately” limited in regard to episodes of decompensation or deterioration. PageID 857.
Accordingly, the ALJ’s reasoning is inapplicable to the opinion actually given by Dr. Mahajan.
The Commissioner argues that such error is “inconsequential” because the ALJ’s
rationale for not accepting this limitation “is valid whether the degree of episodes of
decompensation indicated was moderate or marked.” Doc. 11 at PageID 989. However, the
ALJ’s critique related specifically to a “marked” limitation, and “it is the opinion given by an
administrative agency rather than counsel’s ‘post hoc rationale’ that is under the Court’s
consideration.” Romig v. Astrue, No. 1:12-cv-1552, 2013 WL 1124669, at *6 (N.D. Ohio Mar.
18, 2013) (citations omitted).

10

In addition to such error, the ALJ also failed to give any reason for rejecting other parts
of Dr. Mahajan’s opinion including, importantly, her opinion regarding Plaintiff’s potential,
disabling absenteeism -- i.e., that Plaintiff would be absent from work approximately three times
per month. PageID 957; see also PageID 128 (wherein the VE testified that “[n]o more than one
unscheduled absence a month . . . would be tolerated” in the unskilled jobs identified). In fact,
the ALJ incorrectly believed that Dr. Mahajan “indicat[ed] the claimant would be absent from
work less than once a month.” PageID 89. To the extent that the ALJ’s opinion could be read to
discount Dr. Mahajan’s absenteeism limitation as “vague and conclusory,” absent any specific
explanation by the ALJ, such conclusory critique is insufficient to discount a work-preclusive
limitation -- particularly where the VE testified that Plaintiff could not perform the identified
jobs if he were to miss three days of work per month. See PageID 128.
Based upon the foregoing, the undersigned finds that the ALJ failed to properly assess
and give good reasons, supported by substantial evidence, for discounting the opinion of
Plaintiff’s treating psychiatrist.

See Blakley, 581 F.3d at 409-10 (holding that “the

Commissioner must follow his own procedural regulations in crediting medical opinions”).
Accordingly, the ALJ’s non-disability finding must be reversed.
B.

Credibility Assessment

In his second assignment of error, Plaintiff contends that the ALJ improperly found him
less than fully credible. Doc. 8 at PageID 977-79. Finding remand warranted based upon the
ALJ’s failure to properly assess and weigh Dr. Mahajan’s opinion, the undersigned makes no
finding with regard to this alleged error. Instead, Plaintiff’s credibility -- along with all medical
source opinions of record -- should be assessed anew on remand.

11

IV.
When the ALJ’s non-disability determination is not supported by substantial evidence,
the Court must determine whether to remand the matter for rehearing or to order the award of
benefits. Generally, benefits may be awarded immediately “only if all essential factual issues
have been resolved and the record adequately establishes a plaintiff’s entitlement to benefits.”
Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v.
Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of
disability is strong and opposing evidence is lacking in substance, so that remand would merely
involve the presentation of cumulative evidence, or where proof of disability is overwhelming.
Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
In this case, evidence of disability is not overwhelming, as there are conflicting medical
opinions in the record regarding Plaintiff’s limitations. See PageID 152-55, 194-96, 820-26,
828-31, 955-57. Accordingly, the undersigned concludes that remand for further proceedings is
proper and need occur. On remand, the ALJ should reassess all of the medical opinion evidence
and determine anew Plaintiff’s credibility and disability status.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’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.

12

Date: October 19, 2015

s/ Michael J. Newman
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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