McNier v. Commissioner of Social Security
Filing
14
REPORT AND RECOMMENDATIONS re 2 Complaint filed by Judith A McNier - IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioners non-disability finding be found supported by substantial evidence, and AFFIRMED; 2. Pro se Plaintiffs request for a Senten ce Six remand be DENIED; and 3. This case be CLOSED on the Courts docket. Objections to R&R due by 2/22/2016. Signed by Magistrate Judge Michael J. Newman on 2/3/16. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JUDITH A. McNIER,
Plaintiff,
Case No. 3:14-cv-380
vs.
COMMISSIONER OF
SOCIAL 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 SUPPORTED BY SUBSTANTIAL EVIDENCE, AND
AFFIRMED; (2) PRO SE PLAINTIFF’S REQUEST FOR A SENTENCE SIX REMAND
BE DENIED; 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 Disability Insurance Benefits (“DIB”). This case is before the Court upon pro se
Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc.
13), the administrative record (doc. 6),2 and the record as a whole.
Because Plaintiff is
proceeding pro se, her filings and arguments are liberally construed in her favor.
Franklin v.
Rose, 765 F.2d 82, 84-85 (6th Cir. 1985) (citations omitted).
1
Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record (doc. 6) will refer only to
the PageID number.
I.
A.
Procedural History
Plaintiff filed for DIB on January 4, 2011 alleging a disability onset date of October 1,
2005. PageID 350-52. Plaintiff claims disability as a result of a number of impairments
including, inter alia, a cervical spine disorder, an affective disorder, and an anxiety-related
disorder. PageID 70.
After initial denials of her application, Plaintiff received a hearing before ALJ
Christopher L. Dillon on June 4, 2013, where Plaintiff appeared with counsel. PageID 198-222.
The ALJ subsequently issued a written decision finding Plaintiff not “disabled.” PageID 182-90.
Specifically, the ALJ’s findings were as follows:
1.
The claimant last met the insured status requirements of the Social
Security Act on December 31, 2009;
2.
The claimant has not engaged in substantial gainful activity during the
period from her alleged onset date of October 1, 2005 through her date last
insured of December 31, 2009 (20 CFR 404.1571, et seq);
3.
Through the date last insured, the claimant had the following impairments
that are severe in combination: cervical spine disorder, right carpal tunnel
syndrome (CTS), obesity, affective disorder, anxiety-related disorder (20
CFR 404.1520(c));
4.
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526);
5.
Prior to the date last insured, the claimant retained the [residual] functional
capacity [“RFC”] for work that involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10
pounds; pushing or pulling similar amounts; standing, walking, and sitting
for 6 hours each; no climbing of ropes/ladders/scaffolding; no more than
occasional ability to perform all other postural activity; no more than
frequent reaching but no reaching above shoulder level; no more than
frequent handling and fingering with the dominant right upper extremity;
2
no exposure to hazards, such as moving machinery and unprotected
heights; no operation of a motor vehicle; no more than occasional
interaction with supervisors, coworkers, and the public; no more than
simple, routine, repetitive tasks performed with adequate persistence that
only requires regularly scheduled breaks but with a pace and stress
tolerance that allows for no production quotas.
6.
Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565);
7.
The claimant was born [in] 1963 and was 46 years old, which is defined as
a younger individual age 18-49, on the date last insured (20 CFR
404.1563).
8.
The claimant has a high school education and is able to communicate in
English (20 CFR 404.1564).
9.
Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 404.1568).
10.
Through the date last insured, considering the claimant’s age, education,
work experience, and [RFC], there were jobs that existed in significant
numbers in the national economy that the claimant could have performed
(20 CFR 404.1569 and 404.1569(a)).
11.
The claimant was not under a disability, as defined in the Social Security
Act, at any time from October 1, 2005, the alleged onset date, through
December 31, 2009, the date last insured (20 CFR 404.1520(g)).
PageID 184-90 (numbering of findings altered for clarity).
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 165-67.
See Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff,
proceeding pro se, then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435
(6th Cir. 2007).
3
B.
Evidence of Record
In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case.
PageID 187-88.
Plaintiff, in her Statement of Errors, discusses the medical
evidence of record as put forth by the ALJ and, additionally, attaches medical evidence to her
filing. Doc. 10 at PageID 924-53. Except as otherwise noted, the Court incorporates the ALJ’s
recitation of the evidence and addresses the evidence submitted with Plaintiff’s Statement of
Errors when relevant to this Report and Recommendation.
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. 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
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
(brackets added).
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
4
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 DIB, 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 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?
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?
5
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. Comm’r of Soc. Sec., 109 F.3d 270,
274 (6th Cir. 1997).
III.
The Court liberally construes pro se Plaintiff’s Statement of Errors to argue that many of
the ALJ’s findings are not supported by substantial evidence, including those regarding: Step
One of the sequential benefits analysis; her alleged onset date; a vision impairment; the RFC as it
pertains to lifting and walking/sitting/standing restrictions; her termination; and evidence of
mental impairments. Doc. 10 at PageID 924-27. In addition, Plaintiff attaches medical evidence
to her Statement of Errors that “counteract[s] specific statements within the [ALJ] decision” that
ultimately found her not disabled. Id. at PageID 924. The Court considers pro se Plaintiff’s
submission of these records an implicit request for a Sentence Six remand under 42 U.S.C.
§ 405(g). See Martin v. Comm’r of Soc. Sec., No. 3:13cv1166, 2014 WL 2114690, at *3 (N.D.
Ohio May 20, 2014).
A.
Sentence Six Remand
Initially, the Court addresses the issue of remand pursuant to Sentence Six of 42 U.S.C.
§ 405(g). “To obtain a [S]entence-[S]ix remand, a claimant has the burden to establish that there
is (1) new evidence; (2) which is material; and (3) that there is good cause for the failure to
submit it to the ALJ.” Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 717 (6th Cir. 2013)
(citation omitted).
The Court is strongly committed to reaching the merits of every case,
particularly Social Security disability cases where there is a possibility that a plaintiff is entitled
to benefits. See Goldsmith v. Comm’r of Soc. Sec., No. 3:12-cv-191, 2013 WL 3989642, at *5
6
(S.D. Ohio Aug. 2, 2013). If there were a reasonable and legitimate basis for such a remand, the
Court would grant such a request. The Court, however, is constrained by the United States
Supreme Court’s opinion in Melkonyan v. Sullivan, 501 U.S. 89 (1991), that holds a Sentence
Six remand is permitted only when, inter alia, the medical records in question are “material” to
the question of Plaintiff’s disability. See Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483-88
(6th Cir. 2006).
Plaintiff submits 34 pages of medical records in support of her Statement of Errors. Doc.
10 at PageID 924; doc. 10-1; doc. 10-2; doc. 10-3; doc. 10-4; doc. 10-5; doc. 10-6; doc. 10-7;
doc. 10-8. The vast majority of these records, however, were part of the administrative record
before the ALJ3 and, therefore, do not constitute “new” evidence and cannot be the basis for a
Sentence Six remand. See Lee, 529 F. App’x at 717. The only “new” evidence Plaintiff submits
consists of undated records, namely one urgent care note documenting “crying [and] anxiety”
and another record showing, inter alia, “crying spells [and] thoughts of death,” and a diagnosis
of post-traumatic stress disorder (“PTSD”). Doc. 10-7 at PageID 946, 950-51. The records
submitted also contain mental health treatment notes from 2014, i.e., records concerning
treatment five years after Plaintiff’s date last insured (“DLI”). Id. at PageID 947-49.
In order to qualify for DIB, a claimant must “establish the onset of disability prior to the
expiration or his [or her] insured status[,]” i.e., prior to his or her DLI. Garner v. Heckler, 745
F.2d 383, 390 (6th Cir. 1984) (citation omitted) (emphasis in original). Consequently, medical
evidence concerning a time after a claimant’s DLI “is only minimally probative.” Jones v.
3
Compare doc. 10-1 at PageID 928 with PageID 444; compare doc. 10-2 at PageID 929 with
PageID 803; compare doc. 10-3 at PageID 930-33 with PageID 544-45, 470-71; compare doc. 10-4 at
PageID 934-35 with PageID 784-85; compare doc. 10-5 at PageID 936-40 with PageID 426-27, 442;
compare doc. 10-6 at PageID 940-45 with PageID 377-78, 454-55, 518-19; compare doc. 10-8 at PageID
952-53 with PageID 528-29.
7
Comm’r of Soc. Sec., No. 96-2173, 1997 WL 413641, at *1 (6th Cir. July 17, 1997) (citation
omitted). Such evidence can “only [be] considered to the extent it illuminates a claimant’s health
before the expiration of his or her insured status.” Id. (citation omitted). Plaintiff fails to make
any argument in this regard or otherwise demonstrate how the records presented are “material” -particularly in light of the ALJ’s acknowledgement that Plaintiff’s mental health deteriorated in
the years following her DLI. PageID 186, 188.
Accordingly, the undersigned recommends that Plaintiff’s implicit request for a Sentence
Six remand be denied. Cf. Sustaita v. Comm’r of Soc. Sec., No. 1:08-CV-566, 2009 WL
3153157, at *6 (W.D. Mich. Sept. 25, 2009) (denying a Sentence Six remand, in part, on the
basis that Plaintiff “fails to discuss, let alone demonstrate, the materiality and good cause
necessary for such a remand”); see also Blair v. Comm’r of Soc. Sec., No. 3:13-cv-105, 2014 WL
3732959, at *7 (S.D. Ohio July 25, 2014).
B.
Whether Specific ALJ Findings Are Supported by Substantial Evidence
Next, Plaintiff argues that many of the ALJ’s findings are unsupported by substantial
evidence. Doc. 10 at PageID 924-27. The undersigned addresses each argument in turn.
1.
Step One
Plaintiff first argues that the ALJ unreasonably found, at Step One of the sequential
benefits analysis, that she had not engaged in substantial gainful activity from her alleged onset
date until her DLI. Doc. 10 at PageID 924-25. However, as noted by the Commissioner, a
finding that Plaintiff engaged in substantial gainful activity during the relevant time period
would have doomed her DIB claim at the outset. Barnhart, 475 F.3d at 730. Regardless,
Plaintiff testified that she had not worked since her alleged onset date.
Accordingly, the undersigned finds no error at Step One.
8
PageID 205-06.
2.
Alleged Onset Date
Next, Plaintiff argues that the ALJ erred in determining her alleged onset date, i.e.,
October 1, 2005, because her symptoms began in 1999 when she suffered a workplace injury.
Doc. 10 at PageID 925. However, in her application for DIB, Plaintiff stated that her disabling
condition began on October 1, 2005, and neither Plaintiff nor her attorney challenged the
October 1, 2005 onset date when the ALJ raised it at the administrative hearing. PageID 198,
350. Further, Plaintiff repeatedly stated that she worked 40 hours per week from 1999, i.e., when
she sustained her injury, until October 2005. PageID 205-06, 387, 392-93. Accordingly, the
undersigned finds the ALJ’s determination of Plaintiff’s alleged onset date supported by
substantial evidence.
3.
Vision Impairment
Plaintiff claims that the ALJ unreasonably concluded that there was no “mention in the
record that [Plaintiff] had vision problems” prior to her DLI in finding that she did not have a
“severe” vision impairment at Step Two. Doc. 10 at PageID 925; PageID 185. In so arguing,
Plaintiff cites to a May 2005 treatment note identifying, inter alia, “blurred vision.” Doc. 10 at
PageID 925; doc. 10-2 at PageID 929; PageID 803. Even assuming, arguendo, that the ALJ
overlooked this note, the undersigned finds any such error harmless. There is no indication that
Plaintiff’s “blurred vision” -- noted on a single occasion -- “significantly limit[ed] [her] physical
. . . ability to do basic work activities” during the relevant time period. 20 C.F.R. § 404.1520(c)
(defining “severe” impairment).
Even after Plaintiff’s DLI, there is no medical opinion
suggesting that Plaintiff has vision-related limitations. Based on the foregoing, the undersigned
finds no reversible error with regard to the ALJ’s analysis of any potential vision-related
impairment.
9
4.
Lifting Restriction
Plaintiff claims that the ALJ erroneously found that she had the capacity to lift 20 pounds
frequently. Doc. 10 at PageID 925. However, the ALJ never concluded that she was capable of
lifting 20 pounds frequently. See PageID 186, 188. In fact, the ALJ specifically stated:
[t]he combination of [Plaintiff’s] cervical spine disorder is exacerbated by her
obesity and her right carpal tunnel syndrome, and require that she be restricted to
lifting or carrying no more than 20 pounds occasionally, though she can
frequently lift or carry objects weighing up to 10 pounds.
PageID 188 (emphasis added). Therefore, the undersigned finds no merit to Plaintiff’s argument
in this regard.
5.
Standing, Walking, Sitting Limitations
Next, Plaintiff contends the ALJ’s finding -- that she can stand, walk, and sit for six hours
each -- is unsupported by substantial evidence. Doc. 10 at PageID 925. In so arguing, Plaintiff
references: (1) part of her treating physician Shadida Aziz-Khan, M.D.’s April 2013 opinion;
(2) March 2004 and April 2006 opinions from her treating physician, Katherine McKee, M.D.;
and (3) medical records from Martin Betram, M.D., Dr. McKee, and Dr. Aziz-Khan. Doc. 10 at
PageID 925; doc. 10-3 at PageID 930-33; doc. 10-4 at PageID 935; PageID 544-45, 470-71, 78487.
First, Plaintiff claims the ALJ erred because Dr. Aziz-Khan opined that she is limited to
sitting, standing, and walking only one hour each in an eight hour workday. Doc. 10 at PageID
925; PageID 785. However, the ALJ rejected Dr. Aziz-Khan’s opinion because it was provided
over three years after Plaintiff’s DLI, and there was no indication that Dr. Aziz-Khan treated
Plaintiff prior to her DLI. PageID 188. The undersigned finds no error in the ALJ’s analysis of
Dr. Aziz-Khan’s opinion. See Jones, 1997 WL 413641, at *1 (citations omitted).
10
Second, Plaintiff argues that the ALJ’s RFC finding is contradicted by two opinions from
Dr. McKee, which show that her functional capabilities decreased from 2004 to 2006. Doc. 10 at
PageID 925; doc. 10-3 at PageID 930-33; PageID 544-45, 470-71. However, as noted by the
Commissioner, the ALJ adopted the limitations in Dr. McKee’s more restrictive 2006 opinion -including, inter alia, a restriction to occasional lifting of 20 pounds and a prohibition from
reaching above shoulder level. See PageID 186, 544. Further, and notably, in both opinions Dr.
McKee opined that Plaintiff could “continuously” stand, walk, and sit. PageID 544, 471.
Finally, Plaintiff alleges -- without citing to any specific record -- that “medical records
from [Drs. Betram, McKee, and Aziz-Khan] show a link between [her] neck pain and the
progression of arthritis which led to an increase in lower back pain causing[] leg pain, leg, ankle,
[and] feet swelling[.]” Doc. 10 at PageID 925. A thorough review of the record reveals one
potentially relevant piece of evidence -- a June 27, 2007 treatment note from Dr. McKee stating:
[s]he is also complaining of still a lot of swelling in her feet and ankles . . . . We
have changed quite a few of her medications, and I am wondering if she is having
difficulty with that. I have adjusted her Lyrica down to 75 mg 4 times a day and
taking her Flexeril t.i.d. and Trazodone 150 at h.s. We had also changed her
Naprosyn 500 b.i.d. after stopping her Celebrex. Any number of these things
could be possibly causing some of the swelling in her feet and ankles, like the
Naprosyn and Lyrica.
PageID 440. This treatment note does not, however, undermine the ALJ’s RFC finding because
it fails to connect Plaintiff’s neck pain to her feet and ankle swelling. See id. Furthermore, Dr.
McKee opined on the same day that Plaintiff had no restrictions with standing, walking, or
sitting. PageID 435.
11
Based on the foregoing, the undersigned finds the ALJ’s RFC determination regarding
Plaintiff’s walking, standing, and sitting limitations supported by substantial evidence.4
6.
Plaintiff’s Employment Termination
Plaintiff next argues the ALJ erroneously found that she was terminated in October 2005
because of unexcused absences. Doc. 10 at PageID 925-26. According to Plaintiff, she was
terminated because her employer did not have work for her. Id. However, Plaintiff testified that
“the doctor took me off work for a week, and while I was off they said I was terminated because
I didn’t call in[.]” PageID 206. Based on this testimony, the undersigned finds no error in this
regard.
7.
Mental Impairments
Finally, Plaintiff appears to challenge several of the ALJ’s mental-health related findings.
Doc. 10 at PageID 926. In this regard, the ALJ found that Plaintiff’s
depression and anxiety are not well documented in the record, but her testimony is
corroborated to some extent by the records of Dr. Aziz[-Khan], her presentation at
the hearing, and her documented treatment with Zoloft. The claimant did not
indicate any particular difficulties getting along with coworkers, supervisors, or
the public, but she has been restricted to occasional interaction to accommodate
diminished stress tolerance due to anxiety and depression. Furthermore, due to
the impact of her mental impairments on her ability to focus and concentrate, she
has been restricted to simple, routine, repetitive tasks that require only regularly
scheduled breaks, but that is not fast-paced and that does not require production
quotas.
PageID 188. The undersigned finds no merit to Plaintiff’s argument because she does not
explain what limitations the ALJ erred in excluding, or point to any evidence within the
To the extent Plaintiff argues that a 2014 treatment note stating “client having pain in tailbone
interfering with sitting [and] standing” supports greater restrictions, the undersigned finds no merit to
Plaintiff’s contention. See doc. 10 at PageID 925; doc. 10-7 at PageID 947. This evidence postdates
Plaintiff’s DLI by nearly five years; was not in the record before the ALJ; and gives no indication that
Plaintiff was limited in her ability to sit, stand, or walk during the relevant time period.
4
12
applicable time period suggesting that she has additional mental-health related restrictions. See
doc. 10 at PageID 926.
Plaintiff also challenges the ALJ’s finding, at Step Three, that her mental impairments
did not meet or medically equal Listings §§ 12.04 and 12.06 for affective disorders and anxietyrelated disorders. Doc. 10 at PageID 926; PageID 185-86; 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 12.04, 12.06. The ALJ found that Plaintiff had no restriction in activities of daily living;
moderate difficulties in social functioning and concentration, persistence, and pace; and had
experienced no episodes of decompensation of extended duration.
PageID 185.
Plaintiff
challenges these findings by detailing her difficulties with daily activities and interacting with
the public, but cites to no medical evidence supportive of a disability finding at Step Three. See
doc. 10 at PageID 926. Plaintiff has the burden of proving that she meets or equals all of the
criteria of a listed impairment, Evans v. Sec’y of Health & Human Servs., 820 F.2d 161, 164 (6th
Cir. 1987), and she has not done so here. Accordingly, her final argument should be overruled.
IV.
For the foregoing reasons, the Court finds Plaintiff’s assignments of error unmeritorious.
IT IS THEREFORE RECOMMENDED THAT:
1.
The Commissioner’s non-disability finding be found supported by substantial
evidence, and AFFIRMED;
2.
3.
Date:
Pro se Plaintiff’s request for a Sentence Six remand be DENIED; and
This case be CLOSED on the Court’s docket.
February 3, 2016
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
13
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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