IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Shawn Patrick Krieger, :

Plaintiff, :

v. : Case No. 2:12-cv-884

 : JUDGE JAMES L. GRAHAM

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Shawn Patrick Krieger, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his application for supplemental security income (SSI). 

That application was filed on September 29, 2005, and alleged

that plaintiff became disabled on May 15, 2004.

After initial administrative denials of his application,

plaintiff was given a vidoeconference hearing before an

Administrative Law Judge on October 28, 2008. On January 20,

2009, the ALJ issued a decision denying benefits. On review, the

Appeals Council remanded the case for a new hearing. A second

administrative hearing was held on July 1, 2011. Plaintiff

appeared telephonically because, at that point, he was

incarcerated. In a decision dated July 27, 2011, the ALJ denied

benefits. That became the Commissioner’s final decision on June

28, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on January 18, 2013. Plaintiff filed his

statement of specific errors on March 15, 2013. The Commissioner

filed a response on May 16, 2013. Plaintiff filed a reply brief

on June 3, 2013, and the case is now ready to decide.

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II. Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 39 years old at the time he allegedly

became disabled and who has a high school education, testified as

follows. His testimony appears at pages 564-595 and pages 607-

623 of the administrative record.

At the first administrative hearing, plaintiff testified

that he graduated from high school but spent a good bit of time

in various institutions, and that he had also spent a year in

prison. He had worked at an Applebee’s restaurant for several

years and experienced some difficulty dealing with people. He

could not longer do that job due to hearing problems. He also

worked for a contractor but left due to personality clashes with

the owner. Many years before, he worked as a parts clerk at an

auto dealer. 

Plaintiff explained that he had problems with depression and

was being treated for that illness. His depression had caused

him to attempt suicide and he was hospitalized at least once

after a suicide attempt. He also suffered from irritable bowel

syndrome for which he took three kinds of medications. He had

diabetes but was not insulin-dependent. Additionally, he got

migraine headaches on rare occasions.

In addition to these conditions, plaintiff testified to pain

in his neck on a regular basis and said that his low back would

go out on occasion. He took Ultram for pain.

Plaintiff’s household activities consisted of cooking,

shopping, and other chores, which he was able to do when he was

not sick. He was unable to function about one week out of every

month. On a good day, he had an unlimited ability to sit, but on

a bad day he would not sit at all. He could also stand and walk

without difficulty when he was not sick or depressed. He had

some numbness in his left hand. He did not have an active social

life. He stressed that he had never been able to function well

in the real world due to his psychological problems. 

At the second administrative hearing, plaintiff testified

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that he received monthly medical and psychological treatment at

his institution, Madison Correctional. He had previously been

treated at a free clinic in Toledo for diabetes, high blood

pressure, high cholesterol, chronic back pain, and psychological

issues. 

Plaintiff confirmed that his last job was at Applebee’s. He

left that job when he moved back to Toledo to take care of his

aunt. He was able to do most household chores for her but could

not do outside jobs such as mowing the lawn due to his back

problems. He thought he could lift 20 pounds and did not have

much trouble walking. He did have some pain in his upper back

which at times caused him problems with his elbows and hands. He

regularly experienced numbness in his left hand. He had recently

been severely depressed but had gotten better with new

medication. 

Plaintiff testified to having had problems with marijuana

and cocaine. He had several years of sobriety but relapsed in

2008. He thought that his depression would interfere with going

to work every day, noting that he had never been able to sustain

employment very long. 

III. The Medical Records

The medical records in this case are found beginning on page

167 of the administrative record. The Court summarizes the

pertinent records as follows. Most of the Court’s focus will be

on the records relating to plaintiff’s psychological condition,

since that appears to be the primary basis for his claim of

disability, but the Court will also describe the records which

pertain to plaintiff’s physical condition. The pages in the

administrative record (that is, the transcript, or Tr.) where

these various medical reports appear will be noted after each

record or set of records is described.

The records relating to psychological difficulties begin as

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early as 2004. That year, plaintiff was seen by Rescue Mental

Health Services based on his own referral, when he reported

thoughts of suicide. He also reported a very extensive substance

abuse history. He was diagnosed with an adjustment disorder, an

antisocial personality disorder, and polysubstance abuse. He was

then hospitalized. At that time, he denied any physical problems

other than irritable bowel syndrome. When his mood was

stabilized he was discharged with recommendations that he stay

sober and seek counseling. (Tr. 167-73).

Plaintiff was seen by a consultative examiner, Dr. Bhaiji,

on December 19, 2005. At that time, he said he neither drank nor

used drugs. The only conditions diagnosed were a possible ear

infection or sinus infection, questionable diabetes, and nonspecific psychiatric disorders. Dr. Bhaiji did not think

plaintiff would have any difficulty with work-related physical

activity but he might have problems hearing, speaking and

traveling. He also recommended a psychiatric evaluation. (Tr.

193-95).

Plaintiff was evaluated by a consultative psychiatric

examiner as well. The examiner, Dr. Pinsky, prepared a report on

January 5, 2006. Plaintiff reported that he had been having

psychological symptoms since he was eleven, that he had been

hospitalized on three or four occasions, and that he had

previously attempted suicide. He said he had no contact with his

parents, child, or sister, and that he had been sober since

September, 2004. He also said that medication helped with his

depression and that he could concentrate if he needed to. Dr.

Pinsky diagnosed major depression, rated plaintiff’s GAF at 60,

and concluded that he could do simple repetitive tasks but might

have difficulty sustaining them. (Tr. 201-20). A state agency

reviewer also evaluated plaintiff’s mental capacity and generally

agreed with what Dr. Pinsky reported, noting that plaintiff was

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moderately limited in his ability to maintain attention and

concentration and to complete a workday or work week without

interruption from psychologically-based symptoms. (Tr. 203-09).

There are a number of notes from Harbor Behavioral

Healthcare from July, 2004 to January, 2007. The initial intake

assessment included impressions of depression and antisocial

personality disorder with self-medication through drugs and

alcohol. Individual therapy was recommended, as was medication. 

In December of 2005, plaintiff was placed on a trial of

Wellbutrin. That same month, his substance abuse was described

as in early full remission. Notes from 2006 generally show that

plaintiff made some improvement, although he expressed

frustration and depression at times, and that at one point he

reported doing some fishing and feeling cheerful. (Tr. 215-67). 

An additional fifty pages of notes from that facility, covering

the next eighteen months, are found at Tr. 307-57. They are

similar to the earlier notes and reflect that plaintiff was

“focused and goal directed in his presentation” during group

therapy sessions. He expressed some boredom with having time on

his hands and was thinking at one point about doing volunteer

work. He did report continuing nausea and experienced some

depression when his mother died. He also felt stress when his

therapist retired.

Plaintiff was treated at St. Vincent Mercy Medical Center in

2006 following what he described as an injury at work. He was

limited to light work (twenty pound lifting limit) at that time. 

See, e.g., Tr. 404-05.

Plaintiff had a psychiatric hospitalization on May 13, 2009,

which lasted for a week. He had stated he was despondent and

thought about killing himself. At that time, he was not taking

his medications. He responded well to medication and was

discharged in stable condition. (Tr. 488-530).

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A state agency reviewer filled out a physical residual

functional capacity form on March 28, 2006. In it, he said that

plaintiff did not have any exertional, postural, visual,

manipulative, or environmental limitations but that he did have

some communicative limitations due to his hearing deficit. (Tr.

541-48).

The only other medical record is a report from Dr.

Feinsilver, the medical expert who testified at the second

administrative hearing. In that report, Dr. Feinsilver (who did

not interview plaintiff but only reviewed the records) rated

plaintiff’s ability to maintain concentration, persistence and

pace as mildly impaired, his ability to perform activities of

daily living as moderately impaired, and his ability to maintain

social functioning as moderately to markedly impaired. He

specifically pointed out that the history of arrests and legal

problems indicated problems with antisocial behavior. He thought

drugs and alcohol played a part in this issue to some extent. As

far as specific limitations were concerned, Dr. Feinsilver said

that plaintiff had only a poor ability to deal with complex

instructions, a fair ability to maintain attention and

concentration, a fair ability to keep to a schedule and maintain

attendance, and a fair to poor ability to deal with work stress. 

Dr. Feinsilver ruled out any jobs with significant interaction

with the general public or coworkers, and said plaintiff could do

only jobs which involved simple, repetitive tasks performed apart

from the general public. (Tr. 549-57).

IV. The Medical Testimony

As noted, Dr. Feinsilver testified as a medical expert at

the second administrative hearing. Dr. Feinsilver is a

psychiatrist. His testimony can be found beginning at page 623

of the administrative record.

Dr. Feinsilver stated that he reviewed all of the pertinent

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records and that, based on those records, he believed that

plaintiff suffered from a depressive disorder, a personality

disorder, and a substance abuse disorder. None of them met or

equaled any impairment described in the Listing of Impairments. 

He also referred to his report, noting that plaintiff’s

psychological impairments were either mild or moderate except for

his social functioning. He was not asked any additional

questions about the conclusions he reached in his report.

 V. The Vocational Testimony

A vocational expert, Ms. Williams, also testified at the

second administrative hearing. Her testimony begins at page 627

of the record. 

She said that plaintiff’s past work as a server was light

and unskilled. His work for a contractor, which included laying

carpet, was heavy and had an SVP (meaning “Specific Vocational

Preparation”) of 7. Laying floors would be medium with an SVP of

6, and general construction work was heavy with an SVP of 4. It

should be noted that these last three jobs, with SVPs of between

four and seven, are considered either skilled or semi-skilled. 

Ms. Williams was asked questions about a hypothetical

individual with these abilities: the person could work at the

light exertional level (lifting twenty pounds occasionally and

ten pounds frequently), could only feel with the left hand on a

frequent basis, did not have fine hearing ability, could do only

simple, routine work with no production rate or fast-paced work,

could have only occasional and superficial interaction with the

public and coworkers, and could not work in tandem with others. 

With those restrictions, the person could not do any of

plaintiff’s past work. However, the person could, if he or she

was of plaintiff’s age and had his vocational background, work as

an assembler, machine operator or inspector. Limits on the

ability to reach overhead more than frequently or to flex the

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neck repetitively would not reduce the number of such jobs

available. However, if the person were absent more than one day

per month, employment would be ruled out. 

VI. The Administrative Law Judge’s Decision

The most recent Administrative Law Judge’s decision, and the

one under review in this case, appears at pages 13 through 23 of

the administrative record. The important findings in that

decision are as follows.

The Administrative Law Judge found, first, that plaintiff

had not engaged in substantial gainful activity after his

application date of September 29, 2005. As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had

severe impairments including hearing loss, diabetes, major

depression, alcohol dependence, irritable bowel syndrome,

polysubstance abuse, antisocial personality disorder, and

degenerative disc disease. The ALJ also found that plaintiff’s

impairments did not, at any time, 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 light work. However, he also had some

restrictions on the type of light work he could do. With those

restrictions, plaintiff was limited to frequent feeling with his

left hand and no jobs requiring fine hearing capabilities and to

simple routine work that is goal oriented rather than production

paced (i.e. no fast pace). Also, he could tolerate only

occasional interaction with the general public and with

coworkers, with all interaction being superficial in nature, and

he could not do cooperative tasks with coworkers. He could

frequently reach overhead bilaterally but he could not do jobs

requiring repetitive rotation, flexion, or extension of the neck. 

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The ALJ found that, with these restrictions, plaintiff could not

do any of his past work, but that he could perform those jobs

identified by the vocational expert such as assembler, machine

operator, and inspector. The ALJ also found that such jobs

existed in significant numbers in both the national and state

economies. Consequently, the ALJ concluded that plaintiff was

not entitled to benefits. 

VII. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors (or brief on the

merits), plaintiff raises the following issues: (1) that the ALJ

erred in his findings about plaintiff’s daily activities; and (2)

that the ALJ erred by relying on answers from the vocational

expert which were based on improper hypothetical questions. In

support of his first claim, he focuses primarily on the records

relating to his psychological impairments and also argues that

Dr. Feinsilver’s opinion should not have been relied on because

he was not a treating source. In support of his second claim, he

argues that the vocational expert was not asked about

psychological limitations. He also has asked the Court to direct

the Madison Correctional Institution to produce his mental and

physical records which have been kept since 2009. He has

repeated this request in his reply memorandum.

VIII. Discussion

The Court does not decide social security appeals afresh. 

Rather, it is required to give a level of deference or respect to

the decision made at the administrative level by the ALJ. The

Court reviews any claims of error in the ALJ’s decision using

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

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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

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).

A. Plaintiff’s Claims of Error

Plaintiff’s second argument does not appear to be supported

by the record. The vocational expert was asked to assume certain

psychological limitations on plaintiff’s ability to work,

including his need to avoid any significant contact with others

(either the general public or coworkers) in the workplace, his

inability to do jobs that required the performance of more than

simple, routine tasks, and his need to work at a job which was

not fast-paced or production oriented. These were the

limitations which Dr. Feinsilver said resulted from plaintiff’s

depression and antisocial personality disorder. The process

which the ALJ followed - first obtaining a medical opinion on

what kind of limitations flow from certain psychological

conditions, and then asking questions of a vocational expert that

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incorporate those limitations - is precisely how the ALJ is

supposed to proceed. 

The process is well-explained in one of the regulations

which applies to SSI claims, 20 C.F.R. §416.945. That regulation

requires the Commissioner to assess a claimant’s residual

functional capacity - that is, “what [the claimant] can do in a

work setting” - based on “all the relevant evidence in [the] case

record.” §416.945(a)(1). As far as mental limitations are

concerned, the Commissioner must “assess the nature and extent of

[the claimant’s] mental limitations and restrictions,”

§416.945(c), which is different from determining what conditions

a claimant suffers from; it is what effect those conditions have

on the claimant’s ability to do work-type functions. As

§416.945(c) also explains, the types of limitations which might

exist would include “limitations in understanding, remembering

and carrying out instructions, and in responding appropriately to

supervision, coworkers, and work pressures in a work setting

....” Those are exactly the type of limitations which the ALJ

used in his hypothetical question. Consequently, the ALJ

followed the applicable regulation by looking at the medical

evidence to determine if plaintiff had severe psychological

impairments (which he did) and then deciding how those

impairments affected “what [plaintiff] can do in the work

setting.” Once the ALJ made that decision, he was allowed to ask

the vocational expert if someone who could do what plaintiff

could do would be employable, and the record reflects that the

ALJ did just that.

However, as the Court of Appeals has said, “[i]n order for a

vocational expert's testimony in response to a hypothetical

question to serve as substantial evidence in support of the

conclusion that a claimant can perform other work, the question

must accurately portray a claimant's physical and mental

impairments.” Ealy v. Comm’r of Social Security, 594 F.3d 504,

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516 (6th Cir. 2010). This brings the Court back to plaintiff’s

first argument - that the assessment done by Dr. Feinsilver was

not an accurate portrayal of plaintiff’s psychological

limitations, and that the ALJ erred in relying on it. For the

following reasons, the Court cannot agree with plaintiff on this

point.

It is true that the law and regulations give special weight

to the opinions of treating sources on the issue of what a social

security claimant is or is not able to do. See 20 C.F.R.

§416.927(c)(2)(“If we find that a treating source's opinion on

the issue(s) of the nature and severity of your impairment(s) is

well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in your case record, we will give it

controlling weight”). However, in this case there was no

treating source opinion on the issue of what kind of work-related

limitations were caused by plaintiff’s mental impairments. When

that is the case, §416.927(e) requires ALJs to “consider opinions

of State agency medical or psychological consultants, other

program physicians and psychologists, and other medical experts,”

who are, according to §46.927(e)(2)(I), considered to be “highly

qualified” and “experts in Social Security disability

evaluation.” The regulation (416.927(e)(2)(ii)) goes on to say

that:

When an administrative law judge considers findings of

a State agency medical or psychological consultant or

other program physician, psychologist, or other medical

specialist, the administrative law judge will evaluate

the findings using the relevant factors in paragraphs

(a) through (d) of this section, such as the

consultant's medical specialty and expertise in our

rules, the supporting evidence in the case record,

supporting explanations the medical or psychological

consultant provides, and any other factors relevant to

the weighing of the opinions. 

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Assuming the ALJ does this correctly, the ALJ may then rely on

what these consultants or experts have to say. See, e.g.,

Hoskins v. Comm’r of Social Security, 106 Fed. Appx. 412, 415

(6th Cir. Aug. 6, 2004) (“State agency medical consultants are

considered experts and their opinions may be entitled to greater

weight if their opinions are supported by the evidence”).

The key question in this case, then, is whether the various

assessments of plaintiff’s mental ability to work - assessments

made by Dr. Pinsky, by the state agency reviewer, and by Dr.

Feinsilver - are supported by the evidence. Here is what the ALJ

said about that.

The ALJ considered all of the evidence about plaintiff’s

mental impairment. He read and analyzed the written statement

provided by plaintiff’s aunt, which confirmed that plaintiff had

suffered from mental problems throughout his life but also showed

that he was able to work for significant periods of time (such as

at Applebee’s) in spite of those problems. (Tr. 18-19). The ALJ

noted that plaintiff was consistently given a GAF score of 60

during his counseling at Harbor Behavioral Services, which

indicates either moderate symptoms or moderate difficulties in

social functioning. (Tr. 20). The ALJ gave this rating

“significant weight.” He attributed a lower GAF score, when

plaintiff was hospitalized in 2009, to plaintiff’s relapse into

drug use. The ALJ also gave great weight to Dr. Pinsky’s opinion

that plaintiff could work with some psychologically-caused

limitations, noting that it was consistent with other evidence,

including Dr. Feinsilver’s opinion. (Tr. 20). The ALJ also gave

great weight to Dr. Feinsilver’s opinion, commenting that Dr.

Feinsilver “had the opportunity to review all of the claimant’s

medical records and his opinion is generally consistent with the

record as a whole.” (Tr. 21).

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The ALJ accurately represented the state of the record in

his analysis. As the Court’s summary of the record shows, no one

expressed the opinion that plaintiff was totally disabled due to

his mental impairments. The record reflects that plaintiff was

able to work at various times, that his hospitalizations were

influenced, at least in part, by drug use, that he did fairly

well in counseling, that his condition was helped by medication,

and that he had never decompensated in a work setting. The

record also shows that both Dr. Pinsky and Dr. Feinsilver were

specialists in mental health issues, that both considered the

available records, and that both thought that although plaintiff

had some severe impairments, he could still perform adequately in

jobs where his impairments were taken into account. The ALJ was

allowed to rely on these professionals, especially in the absence

of any evidence to the contrary. Because a reasonable person,

reviewing this record, could have come to the same conclusion as

the ALJ, by law that conclusion is supported by “substantial

evidence.” Also, by law, this Court cannot substitute its own

judgment for that of the ALJ when the ALJ’s decision is

adequately supported by the record. “In deciding whether to

affirm the Commissioner's decision, it is not necessary that this

court agree with the Commissioner's finding, as long as it is

substantially supported in the record.” Rogers v. Comm’r of

Social Security, 486 F.3d 234, 241 (6th Cir. 2007). As the

Court’s analysis of the ALJ’s decision demonstrates, that is the

case here. 

B. Prison Medical Records

The only other issue which plaintiff has raised (and which

the Commissioner’s memorandum does not address) is the production

of plaintiff’s records of treatment while he has been

incarcerated at the Madison Correctional Institution. Plaintiff

asserts that the prison officials will not produce them, and he

has asked this Court to order their production.

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There are several problems with this request given the fact

that it has been made in a case in which no prison official is a

party. Ordinarily, any order from a court directing a non-party

to produce documents must be preceded by the service of a

subpoena for those documents; otherwise, the Court has no

jurisdiction to order the non-party to take any action. See,

e.g., Highland Tank & Mfg. Co. V. PS Intern., Inc., 227 F.R.D.

374, 379 (W.D. Pa. 2005) (“Rule 45 is the only discovery method

whereby information may be obtained from a nonparty to the

suit”). No such subpoena has been requested or issued in this

case. 

Further complicating the issue, discovery of any sort -

whether directed to parties or nonparties - is not permitted in a

social security appeal, because the Court’s review of the ALJ’s

decision in such a case is limited to the existing record. As

this Court has previously recognized,

Requests for discovery are not common in social

security disability cases. Such cases are ordinarily

decided based upon the record of administrative

proceedings which occur before the Secretary. According

to 42 U.S.C. § 405(g), the Court's review is based upon

“a certified copy of the transcript of the record

including the evidence upon which the findings and

decision complained of are based.” 

Dawson v. Sullivan, 136 F.R.D. 621, 622 (S.D. Ohio 1991). If

additional evidence is to be obtained, it must be done following

a remand to the Commissioner. Igonia v. Califano, 568 F.2d 1383, 

1389 (D.C. Cir. 1987). That kind of remand, ordered under

sentence six of 42 U.S.C. §405(g), is justified only if there is

new and material evidence which the ALJ did not have the chance

to consider, and if there is good cause for the claimant’s

failure to submit the evidence during the original administrative

proceeding. “The party seeking a remand bears the burden of

showing that these two requirements are met.” Hollon ex rel.

Hollon v. Comm’r of Social Security, 447 F.3d 477, 483 (6th Cir.

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2006). 

Plaintiff has not suggested in any way how his institutional

treatment records might shed new light on the question of

disability. Under Ohio law, “[t]here is an established procedure

by R.C. 5120.21(C)(2) which provides inmates access to their

medical records.” State ex rel. Arnold v. Belmont Corrections

Infirmary, 123 Ohio App. 3d 183, 185 (Belmont Co. App. 1997). As

this Court said in Dearing v. Mahalma, 2012 WL 524438, *3 (S.D.

Ohio Feb. 16, 2012), “[i]n order to merely review his or her own

medical records, a prisoner must complete a form and schedule an

appointment.” See also ODRC Policy Number 07-ORD-11(VI)(F),

which provides that “[o]ffenders wishing to review their personal

current active medical record may do so once each quarter by

sending a request in writing to the institution Health Care

Administrator” and that “[t]he Health Care administrator will

arrange a convenient time for the offender to review his or her

medical record.” The policy also permits the inmate to take

notes during the review. 

Had plaintiff reviewed his records under this policy and

provided the Court with some evidence (perhaps by way of an

affidavit or declaration under penalty of perjury) that those

records contain information which might have influenced the ALJ

to decide plaintiff’s SSI application differently, there would

then be a question about whether a sentence six remand should be

ordered. However, that has not happened. The Court is simply

powerless to order a sentence six remand when it is completely in

the dark as to the content of any additional records which might

be presented to the ALJ. The Court notes, parenthetically, that

if plaintiff is complaining that he has followed the ODRC policy

but has been denied access to his records, he might have a state

court remedy to enforce the regulation, but it would, of course,

be subject to any requirements that he exhaust the prison

grievance procedure and otherwise qualify for relief. These are

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not issues which can be addressed in the context of an SSI appeal

in a federal court.

 IX. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that the Court

enter judgment in favor of the defendant Commissioner of Social

Security.

X. 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

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