IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Christopher E. Ash, Sr., :

Plaintiff, :

v. : Case No. 2:11-cv-135

 : JUDGE ALGENON L. MARBLEY

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Christopher E. Ash, Sr., filed this action

seeking review of a decision of the Commissioner of Social

Security partially denying his applications for social security

disability benefits and for supplemental security income. Those

applications were filed on May 9, 2006, and alleged that

plaintiff became disabled on May 1, 2003. 

After initial administrative denials of his claim, plaintiff

was given a hearing before an Administrative Law Judge on April

28, 2009. In a decision dated June 9, 2009, the ALJ denied

benefits for the time period between May 1, 2003 and November 17,

2008, during which plaintiff’s age category was either “younger

individual age 18-44" or “younger individual age 45-49,” but

granted benefits from November 17, 2008 forward, when plaintiff’s

age category became “closely approaching advanced age.” That

determination became the Commissioner’s final decision on

December 15, 2010, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on July 18, 2011. Plaintiff filed his

statement of specific errors on September 19, 2011, to which the

Commissioner responded on December 19, 2011. Plaintiff filed a

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reply brief on January 6, 2012, and the case is now ready to

decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 30 through 73 of the record. Plaintiff, who was 50

years old at the time of the hearing and is a high school

graduate with some college, testified as follows.

Plaintiff’s last job was seasonal employment through a

temporary agency. Before that, he worked for several months for

a company which made fiberglass boat covers, a job which required

him to be on his feet all day and to lift up to 30 pounds. He

had also worked on and off for 30 years as a basketball coach,

and worked as a pressman for a printing company and as an

inspector at a car parts factory. 

Plaintiff testified that various factors have prevented him

from working, including his weight, his knees and some

psychological difficulties. He first received mental health

treatment in 2002, and had been receiving counseling continuously

since 2006. His knees were his worst physical problem, and he

had undergone knee surgery three times. The temporary job he

performed in 2005 involved twelve-hour shifts, and his knees and

feet were affected by that work. However, he left that job only

when the temporary assignment ended. He had also had a heart

procedure recently, and was staring to feel better.

Because of his knees, plaintiff said that both walking and

standing affect him. He could walk for fifteen minutes at a time

but standing in one place was painful, even for ten or fifteen

minutes. He could sit as long as he had room to stretch out his

legs and as long as he could get up every 30 to 40 minutes. He

was experiencing tingling and numbness in his right hand due to

carpal tunnel syndrome, and occasionally would drop things. He

could do routine lifting, such as a bag of groceries or the

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trash, but could not bend at the knees and had trouble climbing

stairs. Walking on uneven ground was also problematic. 

Plaintiff identified a problem with alcohol, beginning about

1999 or 2000. He also developed a cocaine habit, but had not

used since 2005, nor had he drunk alcohol since 2008. He

described his mental state as a lack of patience with others and

an adverse response to pressure. He has been in fights and has

had difficulty getting along with people at work. Occasionally

he has spells of anger or rage. 

In a typical day, plaintiff would watch one of his children

before school, watch television or nap, care for the child again

from noon until mid-afternoon, read, watch more television, and

sleep. He has difficulty sleeping at night due to worries and

naps on a daily basis. He does some small amount of grocery

shopping, usually with his caseworker, and washes dishes, but

does not do major grocery shopping or laundry. 

III. The Medical Records

The medical records in this case are found beginning on page

279 of the administrative record. The pertinent records can be

summarized as follows. Because plaintiff does not take issue

with the way in which the ALJ evaluated his physical impairments,

this summary will focus primarily on records relating to his

psychological impairments.

In 2006, plaintiff sought treatment for depression from

Moundbuilders Guidance Center. At that time, he was perceived as

struggling with both depression and alcoholism. He was referred

to AA and was to be assigned to a physician. He also began

attending individual psychotherapy sessions, and by June of that

year he had been sober for about a month. He apparently did not

follow through, however, on a recommendation for an intensive

outpatient program for chemical dependency.

In September of 2006, Dr. White, a consultative examiner,

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evaluated plaintiff at a clinical interview. He reported

symptoms of fatigue, changes in appetite and eating habits,

weight loss, feelings of helplessness and hopelessness, loss of

interest in activities, crying spells, isolation, and

irritability. He also described some anxiety and a history of

suicidal ideation with an attempt. He had been diagnosed in 2006

with alcohol and cocaine dependence. At the interview, plaintiff

was described as “bleary-eyed” and smelling of beer. He appeared

tired and his eye contact was poor. His ability to deal with

social situations appeared to be below average. He was diagnosed

with polysubstance abuse and an adjustment disorder as well as

antisocial personality disorder. Dr. White rated plaintiff’s GAF

at 60 and believed plaintiff could maintain attention,

concentration, persistence and pace to perform simple, repetitive

tasks, but would be somewhat impaired in his ability to relate to

others. He had only a mild impairment in his ability to

withstand the stress and pressure of work activity, and part of

that was attributed to his substance abuse disorder. (Tr. 358-

64).

A state agency reviewer, Dr. Casterline, reviewed

plaintiff’s records and reported that, from a psychological

viewpoint, plaintiff suffered from a depressive disorder, a

personality disorder, and a substance addiction disorder. She

thought he was moderately limited in his ability to understand,

remember, and carry out detailed instructions and in his ability

to complete a work day or work week without interruption from

psychologically-based symptoms, but any other limitations were

not significant. (Tr. 377-95). That assessment was affirmed by

another state agency reviewer, Dr. Orosz. (Tr. 460). 

There is a note in the file dated January 25, 2007 from Dr.

Borders, who apparently was the psychiatrist assigned to

plaintiff at the Moundbuilders Guidance Center. That note

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reflects diagnoses of major depression, moderate to severe,

intermittent explosive disorder, a history of alcohol dependency

in partial remission, and a history of cocaine dependence in full

remission. Plaintiff was to continue therapy with his counselor

and his medication was increased. (Tr. 406). A prior note rated

plaintiff’s GAF at 49, but at a high of 52 in the past year. 

(Tr. 412). 

There are some records indicating emergency room visits by

plaintiff in 2007 and 2008. They appear to relate to situations

where he had been drinking and made threats or suggestions

concerning harming himself. Counseling notes from 2008 reiterate

his diagnosis of major depression and intermittent explosive

disorder. Dr. Borders saw him on a number of occasions in 2008

and rated his GAF as ranging from 50-58. (See, e.g., Tr. 626,

627, 629, 631, 635. 637). Plaintiff’s depression was rated as

mild to moderate. In a note from August, 2007, Dr. Borders

stated that he was going to send in disability forms because he

believed that, due to agitation and depression, plaintiff could

not maintain a schedule and would be distracted by anyone in his

environment. (Tr. 638). That note concluded that plaintiff

“cannot work in any capacity.”

Dr. Forman apparently became plaintiff’s treating

psychiatrist in 2008. She completed a form for the Ohio

Department of Job and Family Services on January 29, 2009,

indicating diagnoses of major depression, recurrent; rule out

bipolar disorder; and intermittent explosive disorder. She also

listed his medications and certified his dependency on those

medications. She noted that her diagnoses were based on both

subjective and objective information, and said that his

conditions began in 2000 and that his anticipated date of

recovery was “indefinite.” She believed he was unable to perform

any type of work. (Tr. 729-30). She also prepared a functional

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capacity assessment indicating that he had marked or extreme

limitations in six areas of work-related functions, including the

ability to make it through a normal work day or work week without

interruptions from psychologically-based symptoms. (Tr. 727). 

IV. The Vocational Testimony

Ms. Daoud, a vocational expert, also testified at the

administrative hearing. Her testimony begins at page 71. She

testified that plaintiff’s past relevant work as a welder and

assembler is usually done at the medium exertional level,

although plaintiff may have performed it at the light level, and

it was skilled work. He also did a job that ranged from medium

to very heavy, which was unskilled, and had another skilled job,

quality control technician, which was light work. The molding

machine operator job was medium and skilled, as was the press

operator job, although, again, plaintiff may have done it at the

light exertional level. Finally, the temporary seasonal job,

packager, is medium and unskilled, and the coaching job is medium

and skilled. None of the job skills which plaintiff used would

transfer to sedentary work. 

Ms. Daoud was asked to assume that plaintiff could work at

the sedentary exertional level. If that were so, he could do a

number of sedentary unskilled jobs such as information clerk,

order clerk, or bookkeeper clerk. If he also were limited to

doing simple repetitive tasks where interaction with other

workers was limited, a number of jobs would still be available,

such as the bookkeeper clerk job, surveillance system monitor,

inspector, addressing clerk, and packager. There were about

150,000 such jobs nationally. Someone who had to stretch for two

to three minutes after forty minutes of sitting could still do

these jobs. A person who had some limitation on fingering done

with the dominant hand could not do the inspector or bookkeeping

clerk jobs, but could do some unskilled assembler jobs. Those

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jobs would number about 20 in the Columbus region and about 3,850

nationally. Finally, she testified that there was no real way to

break down these numbers between full-time and part-time jobs.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 13

through 24 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirements of the Social Security Act

through September 30, 2007, but not afterward. Second, the ALJ

found that plaintiff had not engaged in substantial gainful

activity from his alleged onset date of May 1, 2003 through the

date of the decision. As far as plaintiff’s impairments are

concerned, the ALJ found that plaintiff had severe impairments

including bilateral pes cavus deformity of the feet, bilateral

arthritis of the knees, periodic atrial fibrillations,

degenerative arthritis of the lumbar spine with narrowed disk

spaces at L2-3 and L3-4, depression not otherwise specified,

antisocial personality disorder, intermittent explosive disorder,

and polysubstance abuse. The ALJ also found that these

impairments did not meet or equal the requirements of any section

of the Listing of Impairments (20 C.F.R. Part 404, Subpart P,

Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform sedentary work as long as that work did not

require the use of foot controls, and if the work involved only

simple, repetitive tasks that had limited production pressures

and which did not involve more than limited contact with coworkers. These restrictions precluded plaintiff from performing

any of his past relevant work. However, based on the vocational

expert’s testimony, the ALJ found that prior to turning 50,

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plaintiff could perform a substantial number of jobs existing in

the national economy, such as bookkeeping clerk, surveillance

system monitor, inspector, machine packager, hand packager, and

addressing clerk. As a result, the ALJ concluded that plaintiff

had not demonstrated an entitlement to benefits for the time

period prior to November 17, 2008. After that date, he was

deemed disabled pursuant to Rule 201.14 of the Medical-Vocational

Guidelines found in 20 C.F.R. Part 404, Subpart P, Appendix 2,

and was awarded benefits, but this award applied only to his

supplemental security income claim and not his claim for

disability benefits due to the expiration of his insured status

on September 30, 2007.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises two

issues. First, he argues that the ALJ did not properly consider

all medical source information in accordance with SSR 96-2p and

20 C.F.R. §404.1527(d). Second, he asserts that the decision

made at step five of the sequential evaluation process - that

there were significant numbers of jobs which could be performed

by a person with plaintiff’s physical and psychological

limitations - was improperly based on consideration of part-time

jobs or otherwise not supported by substantial evidence. The

Court generally reviews the administrative decision under this

legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." 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) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

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scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

In support of his first claim of error, plaintiff identifies

two treating sources whose opinions, he argues, were not properly

evaluated. One is Dr. Forman, plaintiff’s treating psychiatrist

in 2008 and 2009, and the other is Dr. Borders, who provided

treatment from 2006 to 2008. Plaintiff makes two different

arguments about the way in which the ALJ dealt with these

opinions. As to Dr. Forman, he asserts that the ALJ erroneously

dismissed her opinion as irrelevant because it was not rendered

until 2009, a date after the ALJ decided plaintiff was disabled,

but that Dr. Forman actually discussed plaintiff’s impairments

going back to 2000. As to Dr. Borders, plaintiff argues that the

ALJ’s failure to address, or even acknowledge, the existence of

his opinion as to disability was erroneous.

A treating physician's opinion is entitled to weight

substantially greater than that of a nonexamining medical

advisor or a physician who saw plaintiff only once. Lashley

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v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983);

Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981). A

summary by an attending physician made over a period of time

need not be accompanied by a description of the specific

tests in order to be regarded as credible and substantial.

Bull v. Comm’r of Social Security, 629 F.Supp. 2d 768, 780-81

(S.D. Ohio 2008), citing Cornett v. Califano, No. C-1-78-433

(S.D. Ohio Feb. 7, 1979). 

A physician's statement that plaintiff is disabled is not

determinative of the ultimate issue. The weight given

such a statement depends on whether it is supported by

sufficient medical data and is consistent with other evidence

in the record. 20 C.F.R. §404.1527; Harris v. Heckler, 756 F.2d

431 (6th Cir. 1985). In evaluating a treating physician’s

opinion, the Commissioner may consider the extent to which that

physician’s own objective findings support or contradict that

opinion. Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v.

Secretary of HHS, 901 F.2d 1306 (6th Cir. 1990). The

Commissioner may also evaluate other objective medical evidence,

including the results of tests or examinations performed by nontreating medical sources, and may consider the claimant’s

activities of daily living. Cutlip v. Secretary of HHS, 25 F.3d

284 (6th Cir. 1994).

If not contradicted by any substantial evidence, a treating

physician's medical opinions and diagnoses are afforded complete

deference. Harris, 756 F.2d at 435. The Commissioner may have

expertise in some matters, but cannot supplant the medical

expert. Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963).

The "treating physician" rule does not apply to a one-time

examining medical provider, and the same weight need not be given

to such an opinion even if it favors the claimant. Barker v.

Shalala, 40 F.3d 789 (6th Cir. 1994).

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If the Commissioner does not give controlling weight to the

opinion of a treating physician, the Commissioner is required to

explain what weight has been assigned to that opinion, and why. 

Failure to articulate the reason for discounting such an opinion

with a level of specificity that allows the claimant to

understand why his physician’s views have not been accepted, and

to allow the Court to review the ALJ’s bases for making that

decision, is almost always reversible error. Rogers v. Comm’r of

Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Wilson v.

Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004).

Plaintiff’s characterization of the ALJ’s decision is

correct as it relates to the opinions of both Dr. Forman and Dr.

Borders. The ALJ stated that he gave “significant weight” to the

assessment done by Dr. Casterline, and some weight to the

consultative examination report prepared by Dr. White, in

determining plaintiff’s mental residual functional capacity. He

made no mention at all of Dr. Borders. The administrative

decision then concludes:

It is noted that there is no treating source evaluation

with respect to the claimant’s mental limitations until

January 2009. At that time, a medical functional

capacity assessment describing mental functioning was

completed by Dr. Forman. (Exhibit 32 F). Thus, during

the period of time up to November 17, 2008 when the

claimant was not disabled by his physical limitations

alone, there are no evaluations with respect to this

mental limitations to compete or compare with the

assessments described above.

(Tr. 20). 

This statement is clearly incorrect, and the Commissioner

does not really argue otherwise. However, the Commissioner

asserts that any error committed by the ALJ was harmless. For

the following reasons, the Court cannot accept that contention.

 Beginning with the more serious of the two errors - that

relating to the complete absence of any discussion of Dr.

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Borders’ opinion as to disability - the Commissioner offers two

reasons for treating this error as harmless. First, the

Commissioner claims that Dr. Borders cannot really be considered

a treating source at the time he rendered his opinion because he

had only seen plaintiff a few times up to that point. Second,

the Commissioner argues that this is the type of opinion which is

so patently devoid of support that it falls within Wilson’s

narrow exception dealing with when the failure to follow the

dictates of §404.1527(d) does not justify a remand for compliance

with that regulation’s mandatory terms. Neither of these

arguments is persuasive.

The concept of which doctors are “treating sources” is

subject to a regulatory definition found in 20 C.F.R. §404.1502.

That regulation provides that a treating source is “your own

physician, psychologist, or other acceptable medical source who

provides you, or has provided you, with medical treatment or

evaluation and who has, or has had, an ongoing treatment

relationship with you.” An ongoing treatment relationship exists

when “you see, or have seen, the source with a frequency

consistent with accepted medical practice for the type of

treatment and/or evaluation required for your medical

condition(s).” There appears to be no question that Dr. Borders

could qualify as a treating source under this regulation.

The first note in the file from Dr. Borders is dated

December 13, 2006. A nurse’s note shows that medication was

issued that day, (Tr. 410), and Dr. Borders’ note of January 5,

2007 indicates that he discussed various matters with plaintiff. 

That note also has a handwritten notation to the effect that

plaintiff could not work at that time because of his mood swings. 

(Tr. 411). As discussed above, Dr. Borders also met with

plaintiff on January 25, 2007. There are also a fair number of

treatment notes which post-date the August 29, 2007 opinion of

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disability. The August 29 treatment notes indicate that

plaintiff had discontinued treatment for a time for financial

reasons. The totality of the records show that plaintiff was in

counseling and treatment at Moundbuilders since sometime in 2006

and that Dr. Borders was his treating psychiatrist. It is

typical for patients who are in counseling to see social workers

or counselors more frequently than psychiatrists, who are more

likely to be involved in medication management than individual

counseling, so that the frequency with which Dr. Borders saw

plaintiff appears consistent with the usual practice for that

type of treatment. Consequently, to the extent that the

Commissioner argues that the ALJ was entitled to treat him as a

non-treating source (although the ALJ never made a specific

finding as to Dr. Borders’ status), the Court rejects that

argument. See, e.g., Cole v. Astrue, 661 F.3d 931 (6th Cir.

2011)(psychiatrist who saw claimant for medication management for

a two-year period from 2002 to 2004 was a treating source when

she rendered an opinion as to disability six months after the

relationship began); see also Puckett v. Comm’r of Social

Security, 2011 WL 4366665 (S.D. Ohio September 19, 2011)(holding

that a psychiatrist who saw the claimant infrequently due to the

fact that the claimant “was forced to receive his health care

from a free-clinic type facility where physicians come and go

with greater frequency than in a privately run facility” should

not be penalized for that, and that the psychiatrist’s access to

earlier treatment notes from the facility qualified him as a

treating source). At a minimum, the ALJ should have acknowledged

the existence of an issue about whether Dr. Borders was a

treating source and made findings on that issue, but that did not

happen here.

Given the fact that Dr. Borders either qualified as a

treating source, or that there was evidence from which that

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finding could have been made, it was incumbent on the ALJ to deal

with his opinion in some way. As the Commissioner notes, there

is a narrow exception to the requirement that the ALJ articulate

reasons for giving little or no weight to the view of a treating

source, but as the Court of Appeals has held, “the harmless-error

inquiry require[s] more than a showing that the claimant simply

had little chance of winning on the merits.” Bowen v. Comm’r of

Social Security, 478 F.3d 742, 747 (6th Cir. 2007). Bowen

regarded the complete failure even to mention a treating source’s

opinion as a significant “transgression” of §404.1527(d), and

held that the absence of “even a passing reference to [the

treating source’s] opinion in the ALJ's decision” does not allow

the court “to infer that the ALJ intended to indirectly attack

it,” thereby satisfying the regulatory goal that rejections of

opinions of treating sources be explained in some fashion for the

benefit of both the claimant and the reviewing court. Id. at

749. Finally, the Court agrees with plaintiff that Dr. Borders’

opinion is not so patently deficient that there is no chance the

ALJ would have given it any weight. For these reasons, a remand

for further consideration of this issue is required.

It is likely, though not certain, that the ALJ’s failure to

recognize that Dr. Forman also expressed an opinion as to

disability within the relevant time frame (i.e. prior to November

17, 2008) would independently require a remand. Again, the issue

here is not so much whether Dr. Forman’s view on that issue

should have been accepted by the ALJ, but whether it should have

been acknowledged and discussed in the administrative decision. 

The ALJ appears to have found that Dr. Forman was a treating

source (and she became one as early as November 24, 2008, see Tr.

620), and Dr. Forman clearly believed that plaintiff had suffered

from ongoing problems since 2000; she had access to his records

at Moundbuilders since 2006; and she said that his condition was

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disabling. Perhaps the reasons articulated by the Commissioner

in the memorandum filed in this Court would justify discounting

her view to some extent, but the ALJ neither articulated those or

any other reasons for doing so, instead concluding (erroneously)

that her opinion about disability did not relate back to time

frames prior to November 17, 2008. On remand, the Commissioner

will have an opportunity to address this matter as well.

The Court believes that it will also be helpful to address

the second assignment of error, which deals with the vocational

expert’s conceded inability to separate out the total job figures

she testified to between full-time and part-time employment. The

argument advanced by plaintiff in this case appears to have been

fairly uniformly rejected by the courts which have considered it. 

See, e.g., Liskowitz v. Astrue, 559 F.3d 736, 745 (7th Cir.

2009)(“Ruling 96-8p does not say, nor do we interpret it to

imply, that a VE may permissibly testify only as to the

availability of full-time jobs”); McNemar v. Commissioner of

Social Sec., 2011 WL 5586378 (N.D. Ohio Nov. 15, 2011). As

Liskowitz explains, the vocational expert may testify to a gross

number of jobs, without regard to whether they are full-time or

part-time, and if the expert “identifies a significant number of

jobs the claimant is capable of performing and this testimony is

uncontradicted (and is otherwise proper), it is not error for the

ALJ to rely on the VE's testimony.” Id. at 746. Especially

given the fact that the sources relied on by vocational experts

do not make the differentiation which plaintiff deems to be

crucial, as Liskowitz noted, the absence of such information is

“a sign that [the claimant] expects too much.” Id. at 745. 

Therefore, on remand, there is no need for the ALJ to revisit the

information provided by the vocational expert unless the residual

functional capacity finding changes in a way that would require

new vocational testimony to be given.

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VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

the case be remanded to the Commissioner for further proceedings,

pursuant to 42 U.S.C. §405(g), sentence four.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:11-cv-00135-ALM-TPK Doc #: 22 Filed: 04/17/12 Page: 16 of 16 PAGEID #: <pageID>