IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

James Spears, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0725

Commissioner of Social : JUDGE ALGENON L. MARBLEY

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, James Spears, filed this action seeking review of

a decision of the Commissioner of Social Security denying his

application for disability insurance benefits. That application

was filed on December 21, 2007, and alleged that plaintiff became

disabled on May 18, 2007.

After initial administrative denials of his application,

plaintiff was given a hearing before an Administrative Law Judge

on May 20, 2010. In a decision dated August 11, 2010, the ALJ

denied benefits. That became the Commissioner’s final decision

on June 13, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on October 15, 2012. Plaintiff filed his

statement of specific errors on November 16, 2012. The

Commissioner filed a response on December 20, 2012. Plaintiff

filed a reply brief on January 4, 2013, and the case is now ready

to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 53 years old at the time of the

administrative hearing and who has an eleventh grade education,

testified as follows. His testimony appears at pages 56-72 of

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the administrative record.

Plaintiff testified that he suffered a heart attack in 1992. 

In 2007, he underwent a defibrillator implantation. It is that

condition which prevents him from working. He has been told by

his doctor to exercise and he does so on occasion, but has fewer

sharp chest pains if he does not exercise.

In response to questions from his attorney, plaintiff said

that his last job was in 2007, driving a gasoline truck. He did

that for more than twenty years. That job involved lifting from

ten to twenty pounds.

Plaintiff experienced fatigue on a daily basis. In a

typical day, he made breakfast, did dishes, and watched

television. He also cooked simple meals and spent time talking

to family members on the telephone. He was able to practice

casting a fly rod. He could lift up to twenty pounds, but not

repetitively. He has found that washing the car or doing yard

work was too strenuous. He napped twice a day and spent a good

deal of time lying down. Even when working, he had the feeling

at times of being dizzy or ready to pass out, based on his heart

going out of rhythm. That caused him to work sporadically

throughout the week rather than in concentrated blocks of time.

III. The Medical Records

The medical records in this case are found beginning on page

194 of the administrative record. The pertinent records can be

summarized as follows.

Plaintiff was admitted to Berger Hospital in Circleville on

May 19, 2007 after a fainting spell at dinner. His admitting

diagnoses were syncope and collapse. He underwent a series of

tests to determine the cause. Plaintiff reported that he had

been doing 3 miles on a treadmill 4-5 times per week without

chest pain or shortness of breath. The assumption was that he

suffered from a scar-related arrhythmia. Notes also showed

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episodes of bradycardia. A heart catheterization was done which

showed left ventricular systolic dysfunction consistent with

ischemic cardiomyopathy. He was transferred to Mount Carmel West

Hospital in Columbus for implantation of an internal

defibrillator. (Tr. 194-294). A follow-up note from November 5,

2007 showed that plaintiff had done well since the implantation,

reporting no chest pain, shortness of breath, claudication or

fatigue. (Tr. 314). 

Plaintiff saw Dr. Nichols on February 22, 2008 for purposes

of determining if he could return to work as a commercial driver. 

He also told Dr. Nichols he was doing well. He apparently had

one self-correcting episode of non-sustained ventricular

tachycardia the previous November. However, based on Ohio and

federal safety regulations, Dr. Nichols concluded that someone

with a defibrillator or a diagnosis of syncope could not drive

commercially. (Tr. 339). In March, 2008, Dr. Gahman, a state

agency reviewer, examined the records and concluded that

plaintiff could do light work with a restriction on heights,

hazardous machinery, and no commercial driving. (Tr. 353). 

Another state agency reviewer, Dr. Albert, later confirmed that

conclusion. (Tr. 368).

Plaintiff followed up again with Dr. Handel, his

cardiologist, on May 5, 2008. Up to that time, his defibrillator 

had never discharged, but he reported that upon working two to

three hours, he developed severe fatigue and shortness of breath. 

It was noted that his last cardiac catheterization showed an

ejection fraction of less than 35%. Dr. Handel stated that

“[p]resently, he is not able to continue gainful employment due

to continued symptoms and his need to rest at least [one-half]

hour for every two hours of physical activity.” He also did not

think plaintiff was a candidate for rehabilitation “because of

his marked disabilities and low ejection fraction.” (Tr. 362).

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Plaintiff was referred to Dr. Baig by Dr. Handel for

consultation on a number of occasions. In May, 2008, Dr. Baig

reported that a physical examination was normal and that the

implanted device was functioning well. There had been two

episodes of ventricular arrhythmias, the longest of which lasted

for two seconds. Plaintiff’s coronary artery disease and

ischemia were both described as stable. (Tr. 366-67). Plaintiff

continued to see Dr. Handel. One note from 2009 shows that he

was doing well without complaints of chest pain, shortness of

breath or fatigue. (Tr. 384). Another showed that he reported

some mild shortness of breath on exertion and that he had one

episode of chest pain in the last six months. In that note, Dr.

Handel repeated his statement about plaintiff’s need to rest a

half hour every two hours during physical activity due to

fatigue. (Tr. 387).

Plaintiff took a cardiac stress test on November 20, 2009. 

The results showed that he was able to exercise for nine minutes

and 42 seconds and to achieve a maximum heart rate of 152 bpm. 

There was no stress-induced ischemia. The calculated ejection

fraction was 31%, which was characterized as a moderate overall

reduction in left ventricular ejection fraction and global left

ventricular function. (Tr. 393). Finally, Dr. Handel wrote a

letter describing plaintiff to be functional Class II-III of the

New York Heart Association, which plaintiff contends is

consistent with being comfortable at rest but developing fatigue

upon exertion. (Tr. 406).

 IV. The Vocational Testimony

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

administrative hearing. Her testimony begins at page 72 of the

record. She characterized plaintiff’s past work as a fuel oil

delivery driver, which plaintiff performed at the light

exertional level. That job is semi-skilled.

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Ms. Kaufman was asked some questions about a hypothetical

person who could perform the exertional demands of light work,

with some restrictions on climbing and exposure to hazardous

machinery or unprotected heights, and also lacking the ability to

operated motorized vehicular equipment. With those restrictions,

that person could, in Ms. Kaufman’s view, not do plaintiff’s past

work. However, someone with those restrictions could do a good

range of light and sedentary work, including about seventy

percent of the light occupations, which translated to 52,000 jobs

in the regional economy. Jobs such as cashier, sales attendant,

and cleaner would fall into that category. If the person needed

to change positions between sitting and standing every thirty

minutes, the job base would be reduced significantly, but twenty

percent of the light jobs would still be available. If the

person could lift but not carry twenty pounds, that percentage

went down to ten percent, and it went down to under five percent

if the person had both of those restrictions. No work would be

available to someone who would be off task for 30 minutes every

two hours, however. 

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 14

through 25 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

December 31, 2012. Next, plaintiff had not engaged in

substantial gainful activity from his alleged onset date of May

18, 2007 through the date of the decision. As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had

severe impairments including a remote history of myocardial

infarction and percutaneous translumenal coronary angioplasty,

status post internal cardiac defibrillator implantation for

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ventricular tachycardia, ischemic cardiomyopathy, coronary artery

disease, congestive heart failure, borderline type II diabetes

mellitus, hyperlipidemia, and nicotine dependency. The ALJ also

found that these 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 but with restrictions on climbing

ropes, ladders or scaffolds, working around hazardous machinery

or unprotected heights, and operating motorized vehicular

equipment. The ALJ determined that, with these restrictions,

plaintiff could not perform his past relevant work, but he could

perform those jobs identified by the vocational expert, such as

cashier, sales attendant, and cleaner, and that significant

numbers of such jobs existed in the regional, state and national

economies. Consequently, the ALJ concluded that plaintiff was

not entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises two

issues. He argues that the ALJ erred in failing to accord proper

weight to the opinions of the treating specialists, and that the

ALJ did not properly evaluate his subjective complaints of pain

given his documented heart condition. The Court generally

reviews the administrative decision of a Social Security ALJ

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

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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).

As to plaintiff’s first assignment of error, here, the ALJ

explained his decision to give little weight to Dr. Handel’s

report about plaintiff’s need to rest for one-half hour during

every two hours of exertion in this fashion:

The May 21, 2008 opinion by Dr. Handel that the

claimant was not a candidate for rehabilitation or

employment due to his marked disabilities and low

ejection fraction (Exhibit 10F), is entitled to very

little weight. Ordinarily, treating source opinions

are to be given controlling weight if well supported by

medically acceptable clinical and laboratory diagnostic

techniques and not inconsistent with the other

substantial evidence.... The physical residual

functional capacity assessed by Dr. Handel is not only

inconsistent with the overall objective medical

evidence, including the doctors (sic) previous

examinations and treatment notes, it is inconsistent

with his examination and assessment performed on the

same day his opinion was made.... It appears that the

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doctor relied quite heavily on the subjective reports

of symptoms and limitations reported by the claimant

and seemingly accepted uncritically as true most, if

not all, of what the claimant reported. Given the

foregoing, the residual functional capacity assessed by

Dr. Handel is not an accurate representation of the

claimant’s physical residual functional capacity

status. As the residual functional capacity assessed

by Dr. Handel is not an accurate representation of the

claimant’s physical residual functional capacity

status, it is therefore entitled to little weight.

Further, a November 21, 2008 office visit note shows

that even though having “done well from a cardiac

standpoint” the claimant’s denial of any “chest pain,

palpitations, syncope or transient ischemic attacks,”

the claimant continued to rest at least thirty minutes

every two hours when he does any physical activity

because of marked fatigue” (Exhibit 16F). Despite

argument by the claimant’s attorney at the hearing that

Dr. Handel’s notes was (sic) the equivalent of a

medical source statement of prescribed limitations, the

undersigned finds that his notes were merely a

recitation of the claimant’s stated symptoms and his

own response to those symptoms.

Tr. 19. Plaintiff asserts that this assessment is erroneous,

while the Commissioner argues that it is both an adequate

statement of reasons for rejecting Dr. Handel’s report and that

it is properly supported by the record.

It has long been the law in social security disability cases

that 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. 20 C.F.R.

§404.1527(d); see also Lashley 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). However, 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.

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1990). The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations

performed by non-treating medical sources, and may consider the

claimant’s activities of daily living. Cutlip v. Secretary of

HHS, 25 F.3d 284 (6th Cir. 1994). No matter how the issue of the

weight to be given to a treating physician’s opinion is finally

resolved, the ALJ is required to provide a reasoned explanation

so that both the claimant and a reviewing Court can determine why

the opinion was rejected (if it was) and whether the ALJ

considered only appropriate factors in making that decision. 

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

2004).

Plaintiff does not appear to be arguing that the rationale

provided by the ALJ does not meet the articulation requirement

explained in cases such as Wilson and Rogers v. Comm’r of Social

Security, 486 F.3d 234, 242 (6th Cir. 2007), but rather that the

reasons given by the ALJ for according only slight weight to Dr.

Handel’s (and also Dr. Baig’s) opinions are not supported by the

record. More specifically, plaintiff contends that Dr. Handel’s

opinion, rather than being inconsistent with his own treatment

notes and the overall medical record, is “very much supported by

the objective medical findings ....” Plaintiff’s Statement of

Errors, Doc. 8, at 8. He cites to the multiple tests showing an

ejection fraction of less than 35%, the fact that testing

reported by Dr. Handel on May 20, 2010 showed severe hypokinesis

of multiple segments of plaintiff’s heart muscle, and the fact

that both Dr. Handel and Dr. Baig rated plaintiff’s condition as

either functional class II or functional class III of the New

York Heart Association.

Taking this last statement first, the record before the

Court does not appear to explain what such a rating means. 

However, to the extent that the Court may take judicial notice

with regard to that matter from the American Heart Association’s

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website (www.heart.org), Class II functional capacity describes

“[p]atients with cardiac disease resulting in slight limitation

of physical activity. They are comfortable at rest. Ordinary

physical activity results in fatigue, palpitation, dyspnea or

anginal pain,” and Class III describes “Patients with cardiac

disease resulting in marked limitation of physical activity. 

They are comfortable at rest. Less than ordinary activity causes

fatigue, palpitation, dyspnea or anginal pain.” It appears to be

plaintiff’s argument that even if his degree of functionality is

Class II, which involves, by definition, only “slight” limitation

of physical activities, he would be limited to sedentary work,

and would therefore be considered disabled.

One major problem with this argument is that neither Dr.

Baig nor Dr. Handel ever equated this classification with the

ability or inability to perform any specific work activity. It

is somewhat of a stretch to conclude that someone who becomes

fatigued to some unknown degree when doing any activity other

than resting cannot do even a limited range of light work, as

opposed to being capable of only sedentary work, and the record

does not compel such a finding on the ALJ’s part. In other

words, the ALJ did not have to treat the bald statement by either

doctor that plaintiff’s condition was Class II or Class II-III as

an opinion of disability or an opinion of limitation to solely

sedentary work without a physician specifically saying so. Cf.

Ray v. Sun Life & Health Ins. Co., 752 F.Supp. 2d 1229 (N.D. Ala.

2010)(physician equated Class I or II functionality with being

able to perform a range of light work). That means that there is

no opinion from Dr. Baig that would translate into functional

limitations consistent only with light work, and that the only

statements from Dr. Handel which the ALJ might have had to

construe as treating source opinions inconsistent with light work

were the two statements he made about how much rest plaintiff

needed while performing physical activity.

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Taking those statements in reverse order, the second of

them, found in Dr. Handel’s report of November 21, 2008, reads in

full as follows: “He still continues to rest a (sic) least [onehalf] hour every 2 hours when he does any physical activity

because of marked fatigue.” The ALJ refused to consider this

statement as an opinion from a treating source as to work-related

limitations because it merely recited what plaintiff reported, as

opposed to what Dr. Handel thought was the impact of plaintiff’s

heart condition. A reasonable person could reach this

conclusion. The statement is clearly descriptive, and it must

have been based on plaintiff’s own self-report, because there is

nothing in the notes to indicate that Dr. Handel actually

observed plaintiff engaging in physical activity for any length

of time. However, it is also duplicative of the statement in the

earlier notes, which the ALJ did treat as an opinion, so any

error in the way the ALJ characterized this statement is

harmless.

In the earlier office note, dated May 5, 2008, Dr. Handel

phrased his statement slightly differently, saying: “Presently,

he is not able to continue gainful employment due to continued

symptoms and his need to rest at least [one-half] hour for every

two hours of physical activity.” (Tr. 362). Assuming this to

reflect Dr. Handel’s own opinion as to plaintiff’s physical

capabilities, the ALJ rejected it for two reasons - because of a

perceived inconsistency with the medical evidence, and because it

appeared to be drawn heavily from plaintiff’s own self-report and

not based specifically on any medical procedure or clinical test.

As with the November, 2008 statement, it does appear that

the primary source of information which Dr. Handel relied on for

this opinion was plaintiff’s own report of what occurred when he

attempted physical activity. The statement is found in the

section of the notes labeled “History of Present Illness,” which

usually reflects what a patient tells his or her doctor about

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what is happening. The results of the examination which took

place that date, and the doctor’s impressions, are reported

elsewhere. The examination was essentially normal except for the

EKG showing “evidence of an old extensive anterior wall MI.” The

defibrillator appeared to be working as intended and delivering

“good long term results.” Dr. Handel did state that plaintiff

was not currently a candidate for employment due to “marked

disabilities,” but he did not provide any functional capacity

assessment beyond that found in the statement about how often

plaintiff rested during physical activity. Again, it is fair to

conclude that this statement was primarily derived from the

plaintiff himself, and to the extent that the ALJ had good

reasons to discount the plaintiff’s credibility - the subject of

his second assignment of error - the ALJ was also entitled to

give reduced weight to any medical opinion which relied on the

plaintiff’s self-reported symptoms. See, e.g., Hatfield v.

Comm’r of Social Security, 2012 WL 2504283, *7 (S.D. Ohio June

28, 2012), adopted and affirmed Case No. 2:11-cv-341 (S.D. Ohio

August 7, 2012), citing McGlothin v. Comm’r of Social Security,

299 Fed. Appx. 516 (6th Cir. October 31, 2008).

It is less clear that the ALJ had a reasonable basis for

concluding that Dr. Handel’s views about plaintiff’s work

abilities was unsupported either by Dr. Handel’s treatment notes

or other medical evidence of record. The medical evidence is

clear that plaintiff had heart damage from his prior myocardial

infarction and that his ejection fraction consistently fell below

35%. Although no physician commented expressly on the

significance of that finding, it is substantially lower than

normal and close to the finding needed to establish disability

under the Listing of Impairments. Dr. Gahman did not comment on

that finding in his report, and he appeared to believe that

plaintiff’s report of symptoms (at least up to that point, which

was in March, 2008) was consistent with the medical evidence. 

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Dr. Albert, who reviewed and affirmed Dr. Gahman’s residual

functional capacity finding, would have had the benefit of Dr.

Handel’s May, 2008 report, however, and he apparently did not

think that anything in that reported warranted limiting plaintiff

to sedentary work. That is at least some evidence that one state

agency physician found some inconsistency between Dr. Handel’s

reported findings and his evaluation (if, indeed, it was his

opinion) that plaintiff could not do any work or, at most,

sedentary work. Consequently, the ALJ’s conclusion that there is

such an inconsistency has some support in the record as well. 

Given that both of the reasons he gave for discounting Dr.

Handel’s statement find support in the record, the Court cannot

alter the ALJ’s decision about how much weight should have been

afforded to Dr. Handel’s opinion unless it finds that the ALJ did

not have good reasons to find plaintiff to be less than fully

credible. The Court now turns to that question.

A social security ALJ is not permitted to reject allegations

of disabling symptoms, including pain, solely because objective

medical evidence is lacking. Rather, the ALJ must consider other

evidence, including the claimant's daily activities, the

duration, frequency, and intensity of the symptoms, precipitating

and aggravating factors, medication (including side effects),

treatment or therapy, and any other pertinent factors. 20 C.F.R.

§404.1529(c)(3). Although the ALJ is given wide latitude to make

determinations about a claimant’s credibility, the ALJ is still

required to provide an explanation of the reasons why a claimant

is not considered to be entirely credible, and the Court may

overturn the ALJ’s credibility determination if the reasons given

do not have substantial support in the record. See, e.g.

Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994).

Here, the ALJ concluded that plaintiff’s reports of

disabling symptoms could not be accepted in full because, first,

plaintiff’s doctors had advised him to exercise, and it was he

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who made the decision not to do so. Second, he identified a

variety of daily activities which were not completely consistent

with the inability to do any physical activities. Third, there

are a number of medical records indicating that he was doing well

and did not have symptoms of shortness of breath or fatigue. 

Fourth, he was able, at one point, to exercise on a treadmill to

a fairly substantial degree. These are all the kinds of factors

which the ALJ is both entitled to and required to consider, and

they all find some support in the record. 

Plaintiff argues, however, that he should have been

considered to be fully credible because he had sought medical

treatment for his heart condition beginning in 1992 and that he

consistently made efforts to obtain relief from his symptoms. He

asserts that the ALJ simply ignored this portion of the evidence. 

Other than that specific argument, however, his memorandum merely

repeats the testimony he gave at the hearing without stating why

the ALJ erred in not accepting it in full. See Plaintiff’s

Statement of Errors, Doc. 8, at 13.

It is true that plaintiff has an extensive longitudinal

history of treatment for his heart condition. Much of that

history, however, predates his alleged onset of disability date. 

After he stopped working, the major issue for which he sought

treatment was his arrhythmia, and the records show that the

defibrillator largely corrected that problem. Even Dr. Handel’s

notes show that he was following up with plaintiff to determine

the functioning of the defibrillator in addition to rendering

treatment - and there was not much available treatment - for the

continued effects of plaintiff’s 1992 heart attack. In short,

this history of seeking treatment is not so compelling as to

undermine the ALJ’s credibility determination, which, as the

Court has found, followed a correct analytical path and also

relied on evidence which a reasonable person could have construed

as a basis for discounting plaintiff’s testimony to some extent.

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In this case, the issue is not whether plaintiff has severe

impairments or whether they affect his ability to do some work

activities. The question is how much they affect him. The ALJ

and the state agency doctors did not think he was precluded from

doing a modified range of light work. Although both plaintiff

and Dr. Handel apparently thought otherwise, the ALJ, relying on

evidence in the record, did not give full weight to their views. 

On this record, that is a decision a reasonable person could have

reached. That being so, under the substantial evidence standard

which the Court applies here, the ALJ’s decision must be

affirmed.

VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

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

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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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