UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANGELA R. CLAYTON,

CASE NO. 15-12249

Plaintiff, DISTRICT JUDGE MARIANNE O. BATTANI

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGMENT (Docs. 11, 13)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence does 

not support the Commissioner’s determination that Plaintiff is not disabled. Accordingly, 

IT IS RECOMMENDED that Plaintiff’s Motion for Summary Judgment (Doc. 11) be 

GRANTED, the Commissioner’s Motion (Doc. 13) be DENIED, and that this case be 

REMANDED for administrative reconsideration under sentence four of § 405(g).

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to the undersigned magistrate judge for the purpose of 

reviewing a final decision by the Commissioner of Social Security (“Commissioner”)

denying Plaintiff’s claims for the Disability Insurance Benefits (“DIB”) program of Title 

II, 42 U.S.C. § 401 et seq. and the Supplemental Security Income (“SSI”) program of 

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Title XVI, 42 U.S.C. § 1381 et seq. (Doc. 6; Tr. 1-3). The matter is currently before the 

Court on cross-motions for summary judgment. (Docs. 11, 13.)

Plaintiff Angela Clayton was 50 years old at the most recent administrative 

hearing. (Tr. 33, 60.). Her applications for benefits were initially denied on September 

18, 2012. (Tr. at 137, 138.) The Commissioner considered disorders of the back, 

discogenic and degenerative, as a potential basis for disability, finding the evidence of 

COPD insufficient. (Id.) Plaintiff requested a hearing before an Administrative Law 

Judge (“ALJ”), which took place before ALJ Kevin Falls on February 5, 2014. (Tr. at 58-

95.) A previous hearing was held on September 21, 2009, and a decision dated November 

20, 2009, found Plaintiff not disabled as of the date of the decision. (Tr. 29-57, 96-108.) 

Plaintiff, represented by attorney Robert McDonald, testified, as did vocational expert 

(“VE”) Judith Findora. (Tr. 60.) On March 28, 2014, the ALJ issued a written decision in 

which he found Plaintiff not disabled. (Tr. 9-28.) On June 13, 2015, the Appeals Council 

denied review. (Tr. 1-5). Plaintiff filed for judicial review of that final decision on June 

22, 2015. (Doc. 1). 

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). The district court’s review is 

restricted solely to determining whether the “Commissioner has failed to apply the 

correct legal standard or has made findings of fact unsupported by substantial evidence in 

the record.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) 

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(internal citations omitted). Substantial evidence is “more than a scintilla of evidence but 

less than a preponderance; it is such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotations omitted).

The Court must examine the administrative record as a whole, and may consider 

any evidence in the record, regardless of whether it has been cited by the ALJ. See 

Walker v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). 

The Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide 

questions of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 

(6th Cir. 1994). If the Commissioner’s decision is supported by substantial evidence, “it 

must be affirmed even if the reviewing court would decide the matter differently and 

even if substantial evidence also supports the opposite conclusion.” Id. at 286 (internal 

citations omitted).

C. Framework for Disability Determinations

Under the Act, “DIB and SSI are available only for those who have a ‘disability.’”

Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means the inability

to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment 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 

[twelve] months.

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42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI). The 

Commissioner’s regulations provide that disability is to be determined through the 

application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial 

gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment 

or combination of impairments that “significantly limits . . . 

physical or mental ability to do basic work activities,” benefits 

are denied without further analysis.

Step Three: If the claimant is not performing substantial 

gainful activity, has a severe impairment that is expected to 

last for at least twelve months, and the severe impairment 

meets or equals one of the impairments listed in the 

regulations, the claimant is conclusively presumed to be 

disabled regardless of age, education or work experience.

Step Four: If the claimant is able to perform his or her past 

relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her 

past relevant work, if other work exists in the national 

economy that plaintiff can perform, in view of his or her age, 

education, and work experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 

534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the 

existence and severity of limitations caused by [his or] her impairments and the fact that 

she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r of 

Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden transfers to the Commissioner if 

the analysis reaches the fifth step without a finding that the claimant is not disabled. 

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Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the 

Commissioner is required to show that “other jobs in significant numbers exist in the 

national economy that [the claimant] could perform given [his or] her RFC [residual 

functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

Following the five-step sequential analysis, the ALJ found Plaintiff not disabled 

under the Act. (Tr. 23-24.) The ALJ found at Step One that Plaintiff met the insured 

status requirements through December 31, 2007, and had not engaged in substantial 

gainful activity following the alleged onset date, July 3, 2012. (Tr. 14.) At Step Two, the 

ALJ concluded that Clayton had the following severe impairments: “degenerative disc 

disease of the cervical and lumbar spines, degenerative joint disease of the right hip, 

rheumatoid arthritis, and chronic obstructive pulmonary disease[.]” (Tr. 15.) At Step 

Three, the ALJ found that Plaintiff’s combination of impairments did not meet or equal 

one of the listed impairments. (Tr. 16-17.) The ALJ then found that Plaintiff had the 

residual functional capacity (“RFC”) to perform a limited range of light work. (Tr. 17-

22.) At Step Four, the ALJ found that Plaintiff was not able to return to her past relevant 

work as an assembler. (Tr. 22.) At Step Five, the ALJ found that Plaintiff could perform 

several positions which exist in substantial numbers in the national economy. (Tr. 22-23.)

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E. Governing Law

As indicated above, a decision dated November 20, 2009, found Plaintiff not 

disabled as of the date of the decision. (Tr. 96-108.) Although neither party argued the 

issue, in the Sixth Circuit, a prior decision by the Commissioner can preclude relitigation 

in subsequent cases. 

When adjudicating a subsequent disability claim with an unadjudicated 

period arising under the same title of the Act as the prior claim, adjudicators 

must adopt such a finding from the final decision by an ALJ or the Appeals 

Council on the prior claim in determining whether the claimant is disabled 

with respect to the unadjudicated period unless there is new and material 

evidence relating to such a finding or there has been a change in the law, 

regulations or rulings affecting the finding or the method for arriving at the 

finding.

AR 98-4(6), 1998 SSR LEXIS 5, at *9, 1998 WL 283902, at *3 (acquiescing to 

Drummond v. Commissioner, 126 F.3d 837 (6th Cir. 1997)). The regulations also 

explicitly invoke res judicata: An ALJ can dismiss a hearing where “res judicata applied 

in that we have a previous [final] determination or decision under this subpart about your 

rights.” 20 C.F.R. §§ 404.957, 416.1457. Collateral estoppel is the branch of res judicata 

applied in this context. As the Third Circuit explained, res judicata formally “consists of 

two preclusion concepts: issue preclusion and claim preclusion.” Purter v. Heckler, 771 

F.2d 682, 689 n.5 (3d 1985); see also Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 1998) 

(Posner, J.) (discussing the “collateral estoppel branch of res judicata” in social security 

cases). Claim preclusion prevents renewing a judgment on the same cause of action; issue 

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preclusion, or collateral estoppel is less expansive: “foreclosing relitigation on all matters 

that were actually and necessarily determined in a prior suit.” Purter, 771 F.2d at 689 n.5. 

The res judicata effect of past ALJ decisions is actually a form of collateral 

estoppel precluding reconsideration of discrete factual findings and issues. See Brewster 

v. Barnhart, 145 F. App’x 542, 546 (6th Cir. 2005) (“This Court will apply collateral 

estoppel to preclude reconsideration by a subsequent ALJ of factual findings that have 

already been decided by a prior ALJ when there are no changed circumstances requiring 

review.”). The Commissioner’s internal guide explains the different issues and factual 

findings precluded by res judicata under Drummond. Soc. Sec. Admin., Hearings, 

Appeals, and Litigation Law Manual, § I-5-4-62, 1999 WL 33615029, at *8-9 (Dec. 30, 

1999). These include the RFC and various other findings along the sequential evaluation 

process, such as “whether a claimant’s work activity constitutes substantial gainful 

activity,” whether she has a severe impairment or combination of impairments, or 

whether she meets or equals a listing. Id.

Evidence of “changed circumstances” after the prior decision allows the ALJ to 

make new findings concerning the unadjudicated period without disturbing the earlier 

decision. See Bailey ex rel. Bailey v. Astrue, No, 10-262, 2011 U.S. Dist. LEXIS 110437, 

2011 WL 4478943, at *3 (E.D. Ky. Sept. 26, 2011) (citing Drummond, 126 F.3d at 842-

43). In other words, even though the first ALJ did not make any findings concerning later 

periods, her decision still applies to those periods absent the requisite proof. Thus, as 

applied in this Circuit, the AR 98-4(6) and Drummond essentially create a presumption 

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that the facts found in a prior ruling remain true in a subsequent unadjudicated period 

unless “there is new and material evidence” on the finding. See Makinson v. Colvin, No. 

5: 12CV2643, 2013 U.S. Dist. LEXIS 110513, 2013 WL 4012773, at *5 (N.D. Ohio Aug. 

6, 2013) (adopting Report & Recommendation) (“[U]nder Drummond and AR 98-4(6), a 

change in the period of disability alleged does not preclude the application of res

judicata.” (citing Slick v. Comm’r of Soc. Sec., No. 07-13521, 2009 U.S. Dist. LEXIS 

3653, 2009 WL 136890, at *4 (E.D. Mich. Jan. 16, 2009))); cf. Randolph v. Astrue, 291 

F. App’x 979, 981 (11th Cir. 2008) (characterizing the Sixth Circuit’s rule as creating a 

presumption); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (“The claimant, in 

order to overcome the presumption of continuing nondisability arising from the first 

administrative law judge’s findings of nondisability, must prove ‘changed circumstances’ 

indicating a greater disability.” (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 

1985))). 

In Drummond, for example, the court held that the first ALJ’s RFC applied to a 

subsequent period unless the circumstances had changed. 126 F.3d at 843; see also Priest 

v. Soc. Sec. Admin., 3 F. App’x 275, 276 (6th Cir. 2001) (noting that in order to win 

benefits for a period after a previous denial, the claimant “must demonstrate that her 

condition has so worsened in comparison to her condition [as of the previous denial] that 

she was unable to perform substantial gainful activity”); Casey v. Sec’y of Health & 

Human Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993) (same). The Sixth Circuit made 

this clear in Haun v. Commissioner of Social Security, rejecting the argument that 

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Drummond allowed a second ALJ to examine de novo the unadjudicated period following 

the first denial. 107 F. App’x 462, 464 (6th Cir. 2004).

To overcome the presumption that the claimant remains able to work in a 

subsequent period, the claimant must proffer new and material evidence that her health 

declined. The Sixth Circuit has consistently anchored the analysis on the comparison 

between “circumstances existing at the time of the prior decision and circumstances 

existing at the time of the review . . . .” Kennedy v. Astrue, 247 F. App’x 761, 768 (6th 

Cir. 2007). In a case predating Drummond, the court explained. “[W]hen a plaintiff 

previously has been adjudicated not disabled, she must show that her condition so 

worsened in comparison to her earlier condition that she was unable to perform 

substantial gainful activity.” Casey, 987 F.2d at 1232-33. Later, it reiterated, “In order to 

be awarded benefits for her condition since [the previous denial], Priest must demonstrate 

that her condition has . . . worsened in comparison to her [previous] condition . . . .” 

Priest, 3 F. App’x at 276. The ALJ must scan the medical evidence “with an eye toward 

finding some change from the previous ALJ decision . . . .” Blackburn v. Comm’r of Soc. 

Sec., No. 4:1-cv-58, 2012 U.S. Dist. LEXIS 183493, 2012 WL 6764068, at *5 (E.D. 

Tenn. Nov. 14, 2012), Report & Recommendation adopted by 2013 U.S. Dist. LEXIS 

550, 2013 WL 53980, at *1 (Jan. 2, 2013). That is, the evidence must not only be new 

and material, but also must show deterioration. Drogowski v. Comm’r of Soc. Sec., No. 

10-12080, 2011 U.S. Dist. LEXIS 115925, 2011 WL 4502988, at *8 (E.D. Mich. July 12, 

2011), Report & Recommendation adopted by 2011 U.S. Dist. LEXIS 110609, 2011 WL 

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4502955, at *4 (Sept. 28, 2011). In Drogowski, for example, the court rejected the 

plaintiff’s argument that a report met this test simply because it was not before the first 

ALJ. 2011 WL 4502988 at *2, 8-9. These decisions make clear that the relevant change 

in circumstances is not a change in the availability of evidence but a change in Plaintiff’s 

condition. 

Res judicata is not a complete bar on reconsidering prior decisions or 

determinations: the regulations provide two mechanisms for such reexamination that 

escape the doctrine’s effects. Purter, 771 F.2d at 691-93 (discussing reopening as an 

exception to claim preclusion). The first, less important to res judicata case law, occurs 

just after the initial determination, when the claimant’s first step in the review process is 

sometimes a request for “reconsideration” of that decision. 20 C.F.R. §§ 404.907, 

416.1407. 

The more critical and complicated mechanism is reopening a prior ALJ decision. 

The regulations allow the Commissioner, through an ALJ or Appeals Council, to peel 

back the determination or decision and revise it. 20 C.F. R. §§ 404.987, 404.992, 

416.1487, 416.1492. The claimant or the Commissioner can initiate the process. Id. The 

reopening of a determination or decision can occur “for any reason” within twelve 

months of the notice of the initial determination, but “good cause” must exist if the 

reopening occurs within two years of the initial determination for SSI claims and four

years for DIB claims. Id. §§ 404.988, 416.1488. A DIB claim can also be reopened at any 

time under a few scenarios not relevant to the instant case. Id. § 404.988(c). Good cause 

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exists, among other reasons, if “[n]ew and material evidence is furnished” for either type 

of claim, SSI or DIB. Id. §§ 404.989, 416.1489. If a determination or decision is 

reopened, res judicata does not apply. Kaszer v. Massanari, 40 F. App’x 686, 690 (3d 

Cir. 2002). 

The decision whether to reopen, unless it implicates a colorable constitutional 

issue, evades judicial review: courts can only review the Commissioner’s final decisions 

made after a hearing. 42 U.S.C. § 405(g); Califano v. Sanders, 430 U.S. 99, 108-09 

(1977) (holding that Commissioner’s decision not to reopen is unreviewable). A decision 

not to reopen does not meet those requirements. However, courts can review the case “to 

determine whether res judicata has been properly applied to bar the pending claim or 

whether, even though res judicata might properly have been applied, the prior claim has 

nevertheless been reopened.” Tobak v. Apfel, 195 F.3d 183, 187 (3d Cir. 1999); see also 

Kaszer, 40 F. App’x at 690 (“But ‘we will examine the record to determine whether or 

not a reopening has occurred.’” (quoting Coup v. Heckler, 834 F.2d 313, 317 (3d Cir. 

1987))). Implicit reopenings occur, with unfortunate frequency, where the ALJ does not 

explicitly reopen the case, but crafts a decision that appears to constructively do so. Gay 

v. Comm’r of Soc. Sec., 520 F. App’x 354, 358 (6th Cir. 2013). As the Sixth Circuit 

lamented, 

If an ALJ intends to reopen prior decisions, he or she should say so, say why, 

and cite the appropriate regulation that permits reopening. If an ALJ intends 

instead to adjudicate only the subsequent period in light of changed 

circumstances, he or she should make this approach clear and cite the 

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appropriate cases and acquiescence rulings. Regardless of which path the 

ALJs take, they must clearly state their approach. 

Id. The ALJ’s decision there was too muddled to determine whether it worked a 

reopening, and consequently the court remanded. Id. at 358-59; see also Haddix v. 

Astrue, No. 10-30, 2010 U.S. Dist. LEXIS 120887, 2010 WL 4683766, at *1-4 (E.D. Ky. 

Nov. 12, 2010) (remanding where ALJ’s decision was unclear). 

Constructive reopenings are found where the ALJ reviewed the entire record 

including the portions from the already adjudicated period, and decided “the merits of the 

claim.” Tobak, 195 F.3d at 186. Thus, the Sixth Circuit found a reopening where the ALJ 

considered the entire period “in light of the new evidence . . . .” Wilson v. Califano, 580 

F.2d 208, 212 (6th Cir. 1978). An additional factor that could lead to finding an implicit 

reopening is the ALJ’s failure to discuss the prior determination or the res judicata

doctrine. See Martin v. Comm’r of Soc. Sec., 82 F. App’x 453, 455 (6th Cir. 2003); Crady 

v. Sec’y of Health & Human Servs., 835 F.2d 617, 620 (6th Cir. 1987). Nonetheless, an 

ALJ’s review of old or new evidence does not necessarily signify a constructive 

reopening, for such a review would be required to decide against reopening as well as for 

it. See Girard v. Chater, 918 F. Supp. 42, 44-45 (D.R.I. 1996). The ALJ’s discussion of 

new evidence likewise might relate to her independent determination of whether to grant 

benefits in the unadjudicated period, again indicated no reopening occurred. See id. at 44.

The ability to reopen, it must be recalled, is a power the regulations grant, thus 

whether it is done explicitly or implicitly it must meet certain requirements. 20 C.F.R. §§ 

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404.987-404.996, 416.1487-416.1494. Chief among these is the two year (SSI) and four 

year (DBI) time limits for good cause reopenings. Id. §§ 404.988, 416.1488. 

Consequently, an ALJ is powerless to reopen a claim outside these periods and 

constructive reopenings beyond them are barred. See Glazer v. Comm’r of Soc. Sec., 92 

F. App’x 312, 315 (6th Cir. 2004) (“The concept of constructive reopening cannot extend 

beyond the scope of authority granted under the regulations. Because more than four 

years had passed since the denial of the original application, the Commissioner could not 

have constructively reopened Glazer’s case.” (citations omitted)). 

F. Analysis 

In the instant case, it is not clear what approach the ALJ took with respect to the 

2009 decision. There are three possibilities. First, the ALJ could have decided that res 

judicata barred consideration of the second application. Although he acknowledged the 

doctrine, the ALJ did not adopt the previous ALJ’s holdings; instead, he conducted his 

own thorough review of the record, and found, among other things, severe impairments 

(Tr. 15, 101) and an RFC that differed from the 2009 decision (Tr. 17-22, 102-04.).

Second, the ALJ could have decided that changed circumstances, or new and 

material evidence, did exist, which would permit the ALJ to consider the merits of 

plaintiff’s claim from November 20, 2009. See Drummond, 126 F.3d at 842-43. In this 

instance, it would be appropriate for him to review the previous ALJ’s decision and 

medical records prior to November 20, 2009. Kennedy, 247 F. App’x at 768 (6th Cir. 

2007.) The ALJ would not review the case de novo, but would determine whether 

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Plaintiff’s “condition so worsened in comparison to her earlier condition that she was 

unable to perform substantial gainful activity.” Casey, 987 F.2d at 1232-33. Res judicata 

would apply to the previous adjudication, and those findings would remain undisturbed. 

Bailey, 2011 WL 4478943, at *2. ALJ Fallis states his RFC conclusion, explains his 

findings, refers to the Drummond standard (Tr. 18,) but then states the “evidence of 

record shows that there has been a change in claimant’s condition since the prior decision 

and that the substantial evidence of record supports the aforementioned residual 

functional capacity.” (Id.) So, the ALJ found a change that he argues supports a new RFC 

finding but he does not discuss or support whether the evidence was new and material, or 

whether it showed deterioration of Plaintiff’s condition such that the prior decision would 

not have preclusive effect. Drogowski, supra. Thus it is clear that he did not properly 

apply the changed circumstances approach.

Third, the ALJ could have constructively reopened Plaintiff’s first application by 

reviewing it on the merits. See Tobak, 195 F.3d at 186. However, ALJ Fallis did not 

review the merits of the 2009 decision and expressly stated that he did not reopen that 

decision. (Tr. 12.)

In light of the ALJ’s failure to analyze Plaintiff’s claim under the res judicata

standards, meaningful review is not possible and this error cannot be considered 

harmless. Wummel v. Comm’r of Soc. Sec., No. 12-14860, 2013 WL 6842571, at *7 (E.D. 

Mich. Dec. 27, 2013). Accordingly, I suggest the case be remanded under sentence four 

of § 405(g). In light of this recommendation, Plaintiff’s issues regarding the RFC and 

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treating physician opinions need not be addressed. (Doc. 11.) Bailey ex rel. Bailey v. 

Astrue, No. 10-262-DLB, 2011 WL 4478943, at *5 (E.D. Ky. Sept. 26, 2011) (“Without 

more clarity from the ALJ, it is impossible to give meaningful review of either party’s 

objections. The ALJ may choose one of three paths when considering a second 

application for disability benefits . . . . Regardless of the path the ALJ chooses, his 

opinion must clearly articulate his rationale so that the court may give meaningful 

judicial review. Because he has failed to do so, remand is warranted.”). 

G. Conclusion

For the reasons stated above, the Court RECOMMENDS that Plaintiff’s Motion 

for Summary Judgment (Doc. 11) be GRANTED, the Commissioner’s Motion (Doc. 13) 

be DENIED, and that this case be REMANDED for administrative reconsideration 

under sentence four of § 405(g). 

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may serve 

and file specific written objections to the proposed findings and recommendations. A 

party may respond to another party’s objections within 14 days after being served with a 

copy.” Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1.) Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 

140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981.) The 

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parties are advised that making some objections, but failing to raise others, will not 

preserve all the objections a party may have to this Report and Recommendation. Willis 

v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit 

Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. 

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. 

Any objection must recite precisely the provision of this Report and Recommendation to 

which it pertains. Not later than 14 days after service of an objection, the opposing party 

may file a concise response proportionate to the objections in length and complexity. Fed. 

R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d.) The response must specifically address each 

issue raised in the objections, in the same order, and labeled as “Response to Objection 

No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections 

are without merit, it may rule without awaiting the response.

Date: May 20, 2016 S/ patricia t. morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record. 

Date: May 20, 2016 By s/Kristen Krawczyk 

 Case Manager 

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