IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRANDON S. KILLORAN, 

Plaintiff, 

 Civil Action 2:18-cv-00449 

 Judge Sarah D. Morrison 

 v. Chief Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, Brandon S. Killoran (“Plaintiff”), brings this action under 42 U.S.C. §§ 405(g) 

and 1383(c)(3) for review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying his application for Social Security Disability Insurance benefits 

(“SSDI”). This matter is before the United States Magistrate Judge for a Report and 

Recommendation on Plaintiff’s Statement of Errors (ECF No. 9), the Commissioner’s 

Memorandum in Opposition (ECF No. 16), Plaintiff’s Reply (ECF No. 19), and the 

administrative record (ECF No. 7). For the following reasons, it is RECOMMENDED that the 

Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision. 

I. BACKGROUND 

Plaintiff initially filed for disability insurance benefits on June 4, 2013, alleging disability 

beginning April 4, 2008. (R. at 93.) The claim was denied initially on October 24, 2013, and 

upon reconsideration on February 3, 2014. (Id.) Upon request, a hearing was held on March 19, 

2014, in which Plaintiff, who was not represented by counsel, appeared and testified. (Id.) 
2 

Kathryn A. Atha, a vocational expert, also appeared and testified at the hearing. (Id.) On July 

24, 2014, Administrative Law Judge Earl Cates issued a decision finding that Plaintiff was not 

disabled at any time from April 4, 2008, the alleged onset date, through the date of the decision. 

(R. at 90–103.) 

Plaintiff then again applied for disability benefits on December 22, 2015, alleging 

disability beginning October 1, 2015. (R. at 248–49.) On February 19, 2016, Plaintiff changed 

his alleged disability onset date to July 25, 2014. (R. at 250–51.) Plaintiff’s claim was denied 

initially and upon reconsideration. (R. at 128.) Upon request, a hearing was held on September 

19, 2016, in which Plaintiff, who was not represented by counsel, appeared and testified. (R. at 

32–65.) Connie O’Brien, a vocational expert, also appeared and testified at the hearing. (R. at 

58–63.) On November 18, 2016, Administrative Law Judge Paul Yerian issued a decision 

finding that Plaintiff was not disabled at any time from July 25, 2014, the alleged onset date, 

through December 31, 2014, the date last insured. (R. at 125–142.) On February 28, 2017, 

Administrative Law Judge Yerian’s decision was vacated by the Appeals Council, which found 

that the date last insured was December 31, 2015, not December 31, 2014, meaning the decision 

did not adjudicate the period between January 1, 2015 and December 31, 2015. (R. at 146–48.) 

Plaintiff then appeared and testified, without representation by counsel, at a supplemental 

hearing before of Administrative Law Judge Yerian on May 10, 2017. (R. at 67–89.) Carl 

Hartung, a vocational expert, also appeared and testified at the hearing. (R. at 86–89.) Before 

Administrative Law Judge Yerian issued a decision, he retired, and Administrative Law Judge 

Jeannine Lesperance was assigned to Plaintiff’s case. (R. at 244.) On November 22, 2017, 

Administrative Law Judge Lesperance issued a decision finding that Plaintiff was not disabled at 

any time after July 25, 2014, the alleged onset date. (R. at 6–26.) On March 9, 2018, the 
3 

Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the 

Commissioner’s final decision. (R. at 1.) Plaintiff then timely commenced the instant action. 

(ECF No. 1.) 

II. HEARING TESTIMONY 

A. Plaintiff’s Testimony 

At the September 19, 2016 hearing in front of Administrative Law Judge Paul Yerian, 

Plaintiff, who was not represented by counsel, testified that he was born in 1978, was righthanded, was about six feet tall, and weighed approximately two-hundred pounds. (R. at 39–40.) 

Plaintiff further testified that he was not married and did not have children. (R. at 40.) Plaintiff 

stated he lived in a one-story house by himself. (Id.) He further stated his brother helps him and 

that his brother is “staying permanently for the most part to help [him] around the house.” (Id.) 

Plaintiff testified that he has a driver’s license, owns a vehicle, and drives it on average two to 

three times a week. (R. at 40–41.) Plaintiff further testified that the farthest distance he typically 

drives at one time is “maybe” twenty miles. (R. at 41.) 

Plaintiff testified that he was a high school graduate and has a Veterans Affairs (“VA”) 

pension for disability. (Id.) In discussing his job history, Plaintiff testified that he worked at 

Staples in 2000 for “about five months” as a merchandiser, which involved “stocking shelves, 

helping customers, [and] work[ing] the cash registers to check out the customers.” (R. at 42.) 

Plaintiff further testified that he would unload delivery trucks and the maximum weight he lifted 

at the job was “probably roughly 50 pounds.” (Id.) 

Plaintiff next discussed working at Global Trade Alliance in 2003. (R. at 43.) Plaintiff 

testified that he worked in the body shop but had “some issues with management” and was 

transferred to the maintenance department which he ran “for a number of months.” (Id.) 
4 

Plaintiff testified that he worked at Showcase Motors in Arizona in 2004 and 2005 where he was 

hired “to open a reconditioning shop for reconditioning automobiles.” (Id.) In that role Plaintiff 

stated that he was the manager and had hire and fire authority as well as ordering supplies and 

“set[ting] up the entire shop from the ground up for the dealership.” (R. at 44.) Plaintiff then 

discussed working for Wells Fargo in 2010 for three to four months. (R. at 44–45.) Plaintiff 

testified that he worked as a phone banker and “took care of customer accounts over the phone.” 

(R. at 45.) Plaintiff further testified that in this job he was seated most of the day and did not do 

any lifting. (Id.) Plaintiff next discussed working for both ADS1 and Autozone in 2015, though 

not at the same time. (R. at 46.) At Autozone, Plaintiff testified that he worked as a commercial 

delivery driver. (Id.) 

Plaintiff testified that he could not work from July 2014 to December 2014 because of the 

“same issues [he is] dealing with today.” (R. at 46–47.) Plaintiff further testified that he has 

lower back pain on both sides, shooting pains down his legs, a “fire sensation” down his legs, 

back, and neck, a sensation “like bugs crawling on [his] skin,” a ringing in the ears called 

tinnitus, a traumatic brain injury, and a PTSD diagnosis. (R. at 47.) Plaintiff stated that the low 

back pain is present all the time. (Id.) Plaintiff further stated that yard work would aggravate his 

back pain. (R. at 48.) Plaintiff also stated that the shooting pain in his legs happens every day. 

(Id.) Plaintiff stated that yard work, doing dishes, and general housework aggravates his leg 

pain. (Id.) Plaintiff testified that the tinnitus occurs “on average 5-6 times a day in either ear.” 

(R. at 49.) Plaintiff also testified that doctors have told him he gets confused “especially in very 

extreme situations” due to his traumatic brain injury. (R. at 50.) Plaintiff further testified that 

 1

 ADS refers to the company “Alliance Data Retail Services.” (See R. at 282, 286.) 
5 

his depression and PTSD can interfere with his ability to interact with other people. (R. at 50–

51.) 

Plaintiff testified that he has been using a cane for approximately six months on the VA’s 

suggestion. (R. at 53–54.) He also testified that he wears a back brace. (R. at 54.) Plaintiff 

stated that when he first moved into his apartment in Ohio in, approximately, October 2014 he 

had to do “a little bit of extra cleaning and yard work” because the property “wasn’t the best.” 

(R. at 54–55.) Plaintiff further stated that he did his own shopping but occasionally would go 

with his sister or brother to the store. (R. at 55.) Plaintiff indicated that his brother was helping 

him and did most of the shopping. (Id.) 

At the May 10, 2017 supplemental hearing in front of Administrative Law Judge Paul 

Yerian, Plaintiff, who was not represented by counsel, again testified that he worked at Staples 

for about five months in 2000 as a merchandiser. (R. at 76.) Plaintiff further testified that he 

was on his feet the whole day in that job and would typically have lifted boxes of paper weighing 

fifty to sixty pounds. (R. at 77.) Plaintiff next testified that he worked full-time for Global 

Trade Alliance doing work on cars. (Id.) Plaintiff stated he worked at Wells Fargo in 2010 for 

three to four months doing customer service over the phone. (R. at 78.) Plaintiff further stated 

that for that job he sat most of the day and did computer work. (Id.) Plaintiff next testified that 

in 2015 he worked for Autozone for about four months where he did delivery of auto supplies 

and sometimes loaded the truck himself. (Id.) Plaintiff further testified that he had problems 

with coworkers at Autozone including “several instances where it almost came down to a fight 

within the workplace.” (R. at 84.) Plaintiff testified that he also worked at ADS where he 

handled collections. (R. at 78.) He indicated that at ADS he did not have problems with 

coworkers and did not really socialize inside or outside the workplace. (R. at 84.) Plaintiff 
6 

stated that his biggest problem was dealing with the customers “cussing at [him] and trying to 

refrain from cussing back.” (Id.) Plaintiff confirmed that he has not worked since then. (R. at 

78.) 

Plaintiff explained that since the September 2016 hearing he had undergone neck surgery 

for spinal stenosis. (R. at 79.) Plaintiff further testified that he had a “bulging disk that was 

pressing up against [his] spinal cord causing all kind[s] of muscle spasms and nerve irritation 

causing the pain shooting down [his] left arm and shoulder.” (Id.) Plaintiff stated this problem 

was present before January 1, 2016 and that it made it “nearly impossible” to use the left side of 

his body. (Id.) Plaintiff testified that he was able to go back to work in 2015 by “work[ing] 

through the pain as much as [he] could” but he “can’t do it anymore.” (R. at 80.) 

Plaintiff testified that in his lower back he has “sharp pains shooting” around his sides 

and down his legs. (Id.) Plaintiff further testified the pain comes from strenuous work or 

walking for a long period of time. (Id.) Plaintiff stated that night terrors make him twist and 

turn in his sleep, so he wakes up feeling like he has “been hit by a truck” because of the low back 

pain. (Id.) Plaintiff testified that because of his PTSD he experiences flashbacks to his time in 

Iraq when he was in the military, night terrors, and problems with fireworks. (R. at 81.) Plaintiff 

further testified that he is single and does not “have much of a social life.” (Id.) 

Plaintiff stated that the only thing that had changed since the first ALJ’s decision on July 

24, 2014 was his neck and shoulder issue. (R. at 82.) Plaintiff further stated that from July 2014 

to January 20152

 his neck condition did not get worse, but that he “had the same problems the 

entire time.” (Id.) Between July 2014 and January 2016, Plaintiff testified that the biggest 

 2

 The ALJ may have meant to say January 2016, or the record may incorrectly indicate that the 

ALJ stated January 2015. The ALJ was required to consider the time until the Plaintiff’s date 

last insured, which was December 31, 2015. 
7 

problem that would have prevented him from working was his neck, but all his problems are “so 

close.” (R. at 83.) 

B. Vocational Expert Testimony 

Connie O’Brien testified as the vocational expert (“VE”) at the September 2016 hearing. 

(R. at 58–63.) The VE testified that Plaintiff’s past work included composite, cashier stocker, 

light; pallet jack operator, medium; auto body repairer, medium; auto body repair along with 

auto body shop manager, light; and phone solicitor, sedentary. (R. at 60.) ALJ Paul Yerian 

asked the VE to assume an individual with Plaintiff’s age, education, and past work experience 

who could perform the requirements of sedentary work except that they cannot climb ladders, 

ropes, and scaffolds, cannot work around hazards such as unprotected heights or dangerous 

machinery, can occasionally climb ramps and stairs, can occasionally stoop, kneel, crouch, and 

crawl, can have exposure to moderate noise, can perform simple, repetitive tasks as well as some 

moderately complex tasks where there are infrequent changes in work duties or processes that do 

not involve a fast assembly line pace, strict production quotas, or more than occasional contact 

with others. (R. at 61.) 

The VE testified that the hypothetical individual could perform the work of an addresser, 

sedentary; document specialist, sedentary; and inspector, sedentary. (R. at 61–62.) The VE 

further testified than a typical employer’s tolerance for absenteeism is less than one day per 

month, including such factors as tardiness and early departure. (R. at 62.) The VE also testified 

that a typical employer’s tolerance for time spent off task is that if an individual is off task for 

ten percent or more of the time that would be work preclusive. (Id.) 

The ALJ asked the VE to assume the first hypothetical again, but in addition to assume 

that the individual could have contact with supervisors or coworkers no more than twenty 
8 

percent of the workday and could have no direct interaction with the public. (Id.) The VE 

testified that assuming those limitations, the individual would be precluded from work. (R. at 

62–63.) The ALJ asked the VE to assume the first hypothetical again, but in addition to assume 

the individual can only maintain attention and concentration for one-hour segments before being 

off task and would be off task for at least five minutes at a time. (R. at 63.) The VE testified that 

assuming those limitations, there would be no impact on the ability to do competitive work 

because workers get a break every two hours. (Id.) The ALJ asked the VE to assume the first 

hypothetical again, but in addition to assume the individual requires redirection from supervisors 

daily in order to return to task or follow instructions or procedures. (Id.) The VE testified that 

assuming those limitations, the individual would be precluded from work. (Id.) 

Cart Hartung testified as the vocational expert (“VE”) at the May 2017 supplemental 

hearing in front of ALJ Paul Yerian. (R. at 86–89.) The VE testified that Plaintiff’s job at 

Staples would be considered sales attendant, light/medium. (R. at 87.) The VE also testified that 

he would put Plaintiff’s auto body work at the heavy level because quarter panels weigh more 

than fifty pounds, as do bumpers. (R. at 87–88.) The VE further testified that he did not think 

there was enough supervision in the auto body work position to raise it to the level of a 

managerial position. (R. at 88.) 

III. RECORD EVIDENCE 

A. State Agency Review 

On February 17, 2016, after reviewing the record, William Bolz, M.D. found that there 

was insufficient evidence to evaluate Plaintiff’s claim. (R. at 107–15.) On April 19, 2016, Anne 

Prosperi, D.O. reviewed the record and affirmed Dr. Bolz’s assessment. (R. at 116–24.) 

 
9 

B. Department of Veterans Affairs 

On May 8, 2009, based on a claim for military service connected compensation received 

on January 15, 2009, the Department of Veterans Affairs (“VA”) assigned a thirty percent 

service connection to Plaintiff’s PTSD and a ten percent service connection to Plaintiff’s 

traumatic brain injury. (R. at 354–55.) The VA further determined that Plaintiff’s following 

conditions were not related to his military service, so no service connection could be granted: 

shoulder pain, back pain, hearing loss, tinnitus claimed as ringing in the ears, and stroke. (R. at 

355.) Finally, the VA determined that Plaintiff’s overall or combined rating was forty percent.3

On February 25, 2012, based on a claim for military service connected compensation 

received on January 7, 2012, the VA assigned a forty percent service connection to Plaintiff’s 

chronic lumbar strain, a thirty percent service connection to Plaintiff’s migraine headaches, and a 

ten percent service connection to Plaintiff’s tinnitus claimed as ringing in the ears. (R. at 360–

61.) The VA further determined that Plaintiff’s service connected condition of PTSD with 

traumatic brain injury to include syncope had worsened, so the VA granted an increase to 

seventy percent.4

 (R. at 361.) The VA also determined that Plaintiff’s stroke remained unrelated 

to his military service, and no new or material evidence had been submitted for the medical 

condition, so no service connection could be granted.5

 (Id.) Finally, the VA determined that 

Plaintiff’s overall or combined rating was ninety percent. (R. at 362.) 

 3

 The VA document indicated that the VA does not add the individual percentages of each 

condition to determine a combined rating. (R. at 355.) Instead, the VA uses a combined rating 

table that considers the effect from the most serious to the least serious conditions. (Id.) 

4

 The original assigned percentage was thirty percent. (R. at 361.) 

5

 The VA defined “new and material evidence” in the following way: 

 “Evidence, including written or oral statements, means that we have not considered it 

before as new evidence.” 

 “Material means it applies to the specific issue you are claiming.” 

(R. at 362.)
10 

On March 10, 2016, the Department of Veterans Affairs reported to Plaintiff that he was 

entitled to individual unemployability, effective beginning on October 1, 2015, because he “is 

unable to secure or follow a substantially gainful occupation as a result of service-connected 

disability.” (R. at 568.) The effective date starts the day after a claimant has last been employed. 

(Id.) Because Plaintiff had worked at ADS until September 30, 2015, his individual 

unemployability benefit became effective on October 1, 2015. (Id.) The VA indicated that 

Plaintiff’s PTSD and major depressive disorder were found to cause deficiencies in most areas, 

including work, and that he was “unable to tolerate mediocrity, easily develop interpersonal 

conflicts, [ ] [has] a loss of motivation and energy to perform[,] . . . [has] strained concentration, 

social alienation, suspicion of others, and panic.” (Id.) 

The VA also assigned a new service-connected percentage to Plaintiff’s lumber strain of 

twenty percent.6

 (R. at 569.) The VA indicated that “[a] higher evaluation of 40 percent is not 

warranted for lumbosacral strain unless the evidence shows: favorable ankylosis of the entire 

thoracolumbar spine; or, forward flexion of the thoracolumbar spine 30 degrees or less.” (R. at 

570.) The VA’s assignment of seventy percent service connection to Plaintiff’s PTSD with 

traumatic brain injury to include syncope and major depressive disorder remained the same. (Id.) 

The VA’s assignment of thirty percent service connection to Plaintiff’s migraine headaches also 

remained the same. (R. at 572.) Finally, the VA’s assignment of ten percent service connection 

to Plaintiff’s tinnitus claimed as ringing in the ears also remained the same. (Id.) 

C. Plaintiff’s Letter 

After the May 10, 2017 hearing, Plaintiff sent a handwritten letter to Administrative Law 

Judge Paul Yerian which stated the following: 

 6

 The original assigned percentage was forty percent. (R. at 569.) 
11 

Dear Mr. Yerian, 

I am disappointed and feeling misled by the letter and evidence that I have received 

from you recently. At the end of the hearing on May 10th, 2017 you had stated that 

I would be given a decision by the beginning of August 2017. What you have sent 

is not a decision, but rather an opinion of an individual that I have never met nor 

had any medical care from. I have already established that a major issue with my 

case was the fact that the Department of Veterans Affairs had not kept thorough 

records of my medical impairments. What I do have documented is the fact that, 

as per my March 10, 2016 decision letter from the VA, stated that because of my 

multiple impairments the Dept. of Veterans Affairs have determined individual 

unemployability effective date October 1st, 2015. The evidence I submitted at my 

May 10th, 2017 hearing with you. Though maybe not one individual impairment 

would qualify me to be disabled the combination of my impairments do qualify me 

to be considered disabled by the Social Security Administration according to the 

Code of Federal Regulations 416.920(D). The combination of my impairments has 

and will prevent me from obtaining gainful employment, and practicing healthy 

social relations, not to mention the pain and suffering I have endured and continue 

to endure. It has been established that I have impairments that have lasted for 12 

consecutive months or more, and are likely to last for 12 consecutive months. 

Based on the evidence I am considered disabled, according to the Code of Federal 

Regulations 416.920(D), because of my multiple impairments. 

I prefer not to waste anymore time on this matter by arguing symantics [sic] and 

believe it is your duty to grant a decision in my favor on this case. 

Sincerely, 

Brandon Killoran 

(R. at 393.) 

D. Vocational Interrogatory 

On September 26, 2017, vocational expert (“VE”) Carl Hartung submitted a Vocational 

Interrogatory about Plaintiff at the direction of ALJ Jeannine Lesperance. (R. at 394, 402–08.) 

The VE indicated there was sufficient evidence to allow him to form an opinion of Plaintiff’s 

vocational status. (R. at 402.) The VE was directed to assume Plaintiff had past relevant work 

as follows: 

 
12 

Employer DOT Title DOT Code SVP Actual 

SVP 

DOT 

Exert 

Level 

Actual 

Exert 

Level 

Wells 

Fargo 

Bank N/A 

Customer 

service 

representative 

205.362-026 6 3 Light Sedentary 

Staples Sales 

attendant 

299.677-010 2 Light Medium 

Show Case 

Motors 

Auto body 

repairer

807.381-010 7 Medium Heavy 

(Id.) 

The VE was first asked to assume the following: 

Assume a hypothetical individual who was born on January 23, 1978, has at least a 

high school education and is able to communicate in English as defined in 20 CFR 

404.1564 and 416.964, and has work experience as described in [the above table]. 

Assume further that this individual has the residual functional capacity (RFC) to 

perform light work as defined in 20 CFR 404.1567(b) except that he can 

occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, 

frequently push and/or pull with the upper and low extremities, never climb ladders, 

ropes or scaffolds, never work around hazards (such as unprotected heights or 

exposure to moving mechanical parts), and cannot engage in occupational driving. 

Mentally, this individual can perform simple and moderately complex tasks at an 

average pace, without strict time and production demands. He can interact 

occasionally with coworkers and supervisors but work duties should generally be 

capable of being performed independently without teamwork or tandem work, and 

should not require interaction with the general public. He can adapt to occasional 

changes in work duties. 

(R. at 403.) The VE indicated that the hypothetical individual could not perform any of 

Plaintiff’s past work. (Id.) However, the VE noted that the individual could perform the jobs of 

marker, labeler, and housekeeping cleaner. (R. at 404.) 

 The VE was next asked to assume the following: 

Now assume a hypothetical individual who was born on January 23, 1978, has at 

least a high school education and is able to communicate in English as defined in 

20 CFR 404.1564 and 416.964, and has work experience as described in [the above 

table]. Assume further that this individual has the residual functional capacity 

(RFC) to perform a reduced range of sedentary work as defined in 20 CFR 

404.1567(a) except that he can lift and carry 10 pounds frequently and 20 pounds 

occasionally. He can occasionally climb ramps and stairs, balance, stoop, kneel, 
13 

crouch, and crawl, frequently push and/or pull with the upper and low extremities, 

never climb ladders, ropes or scaffolds, never work around hazards (such as 

unprotected heights or exposure to moving mechanical parts), and cannot engage 

in occupational driving. Mentally, this individual can perform simple and 

moderately complex tasks at an average pace, without strict time and production 

demands. He can interact occasionally with coworkers and supervisors but work 

duties should generally be capable of being performed independently without 

teamwork or tandem work, and should not require interaction with the general 

public. He can adapt to occasional changes in work duties. 

(Id.) The VE indicated that the hypothetical individual could not perform any of Plaintiff’s past 

work. (R. at 405.) However, the VE noted that the individual could perform the jobs of 

addresser, document preparer, and spotter. (Id.) The VE further indicated that if assuming the 

same hypotheticals, but with the additional limitation that the individual can work in an 

environment with any degree of consistent noise rated “loud” or less (i.e., moderate, quiet), but 

cannot work in an environment with sudden or unexpected loud noises such as one using 

fireworks, or the intermittent use of explosives, this would not change the VE’s prior answers. 

(R. at 406.) Finally, the VE indicated that the total time off task tolerated by most employers in 

an unskilled work setting would not be more than ten percent or greater, and the amount of 

absenteeism tolerated by most employers in an unskilled work setting would be less than one day 

per month. (R. at 408.) 

E. Jonathan W. Nusbaum, M.D. 

On June 23, 2017, ALJ Yerian requested Dr. Nusbaum’s professional opinion in 

connection with Plaintiff’s claim. (R. at 621.) In July 2017, Dr. Nusbaum completed a “Medical 

Source Statement of Ability to do Work-Related Activities (Physical)” about Plaintiff. (R. at 

623–27.) Dr. Nusbaum opined that Plaintiff could sit for up to two hours at one time without 

interruption and stand and walk for up to thirty minutes at one time without interruption. (R. at 

623.) Dr. Nusbaum further opined that Plaintiff could sit for a total of six hours in an eight-hour 
14 

work day and stand and walk for a total of two hours in an eight-hour work day. (Id.) Dr. 

Nusbaum opined that Plaintiff did not require the use of a cane to ambulate. (Id.) 

Dr. Nusbaum indicated that Plaintiff could frequently do the following with both his right 

and left hands: reaching (overhead), reaching (all other), handling, fingering, feeling, and 

push/pull. (R. at 624.) Dr. Nusbaum further indicated that Plaintiff could frequently use his 

right or left foot to operate foot controls. (Id.) Dr. Nusbaum opined that Plaintiff could 

occasionally climb stairs, ramps, ladders, or scaffolds. (R. at 625.) Furthermore, Dr. Nusbaum 

opined that Plaintiff could never tolerate exposure to unprotected heights, moving mechanical 

parts, or operating a motor vehicle. (R. at 626.) Dr. Nusbaum also opined that Plaintiff could 

frequently tolerate exposure to humidity and wetness; dust, odors, fumes, and pulmonary 

irritants; extreme cold; extreme heat; vibrations; and loud noise (heavy traffic). (Id.) 

Additionally, Dr. Nusbaum indicated that February 1, 2015 was the date on which the limitations 

he found were first present and that the limitations he found have lasted or will last for twelve 

consecutive months. (R. at 627.) Finally, Dr. Nusbaum indicated that there was sufficient 

objective medical and other evidence to allow him to form opinions about the nature and severity 

of the Plaintiff’s impairments during the relevant time period. (R. at 629.) 

IV. ADMINISTRATIVE DECISION 

On November 22, 2017, Administrative Law Judge Lesperance issued her decision. (R. 

at 6–26.) At step one of the sequential evaluation process,7 the ALJ found that Plaintiff had not 

 7

 Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 
15 

engaged in substantial gainful activity since July 25, 2014, the alleged onset date. (R. at 14.) 

The ALJ found that Plaintiff has the following severe impairments: degenerative disc disease of 

the cervical and lumbar spine, migraine headaches, a post-traumatic stress disorder, and a 

depressive disorder. (Id.) The ALJ further found that Plaintiff did not have an impairment or 

combination of impairments that meets or medically equals the severity of one of the listed 

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15.) 

At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional 

capacity (“RFC”) as follows: 

[Plaintiff] had the residual functional capacity to perform light work as defined in 

20 CFR 404.1567(b) except the [Plaintiff] could occasionally climb ramps and 

stairs, stoop, kneel, crouch, crawl and balance. The [Plaintiff] could frequently 

push and/or pull with the bilateral upper and lower extremities. The [Plaintiff] 

could perform tasks that did not involve climbing ladders, ropes, or scaffolds, 

occupational driving, or exposure to hazards (such as unprotected heights and 

moving mechanical parts). Mentally, the [Plaintiff] could perform simple and 

moderately complex tasks at an average pace, without strict time and production 

demands. He could interact occasionally with coworkers and supervisors, but 

duties should generally be capable of being performed independently without 

teamwork or tandem work, and should not require interaction with the general 

public. The [Plaintiff] could adapt to occasional changes in work duties. He could 

work in environments with any degree of consistent noise rated “loud” or less (i.e., 

moderate, quiet), but could not work in environments with sudden or unexpected 

loud noises (such as fireworks or the intermittent use of explosives). 

(R. at 18.) 

 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant's residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster 

v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
16 

Relying on the VE’s testimony, the ALJ concluded that Plaintiff is unable to perform any 

of his past relevant work. (R. at 24.) The ALJ found that considering Plaintiff’s age, education, 

work experience, and RFC, there are jobs that exist in significant numbers in the national 

economy that Plaintiff can perform. (R. at 25.) She therefore concluded that Plaintiff was not 

disabled under the Social Security Act from July 25, 2014, through the date of the administrative 

decision. (R. at 26.) 

V. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 
17 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision 

of the Commissioner will not be upheld where the [Social Security Administration] fails to 

follow its own regulations and where that error prejudices a claimant on the merits or deprives 

the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of 

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

VI. ANALYSIS 

Plaintiff puts forth two assignments of error. First, Plaintiff asserts that the ALJ failed to 

properly evaluate the findings from the Department of Veterans Affairs in violation of SSR 06-

3P. (ECF No. 9, at pg. 5.) Second, Plaintiff asserts that the ALJ erred in failing to hold a 

supplemental hearing. (Id. at 8.) 

A. Department of Veterans Affairs Findings 

“Social Security regulations provide that ‘a determination made by another agency that [a 

claimant is] disabled . . . is not binding on [the Commissioner].’” LaRiccia v. Comm’r of Soc. 

Sec., 549 F. App’x 377, 387–88 (6th Cir. 2013) (citing 20 C.F.R. § 404.1504); see also Ritchie v. 

Comm’r of Soc. Sec., 540 F. App’x 508, 510 (6th Cir. 2013) (“[A] disability rating by the 

Veterans Administration is only one factor to be considered in making a social security disability 

finding.”). The relevant regulation provides as follows: 

A decision by any nongovernmental agency or any other governmental agency 

about whether you are disabled or blind is based on its rules and is not our decision 

about whether you are disabled or blind. We must make a disability or blindness 

determination based on social security law. Therefore, a determination made by 

another agency that you are disabled or blind is not binding on us. 

20 C.F.R. § 404.1504. 
18 

The Commissioner may find another agency’s determination relevant, “depending on the 

similarities between the rules and standards each agency applies to assess disability.” Id. at 388 

(citing SSR 06-03p, 2006 WL 2329939, at *7 (August 9, 2006) (“[B]ecause other agencies may 

apply different rules and standards than we do for determining whether an individual is disabled, 

this may limit the relevance of a determination of disability made by another agency.”)). 

Nonetheless, “[w]hile it is clear an ALJ must consider the VA’s disability rating, the Sixth 

Circuit has not specified the precise weight a VA disability rating should receive when an ALJ 

makes a Social Security disability determination.” Joseph v. Berryhill, No. 3:16-cv-02259, 2017 

WL 3736787, at *5 (N.D. Ohio August 30, 2017). Importantly, an ALJ must explain the 

consideration given to the other agency’s determination in her decision regardless of the weight 

afforded to the other agency’s determination. Id. (citation omitted). 

Here, the ALJ addressed the VA disability rating as follows: 

I have taken note that the Department of Veterans Affairs has determined that the 

claimant is totally and permanently disabled in part due to his chronic lumbar strain, 

posttraumatic stress disorder with traumatic brain injury and syncope, and major 

depressive disorder; and unable to secure or follow a substantially gainful 

occupation as a result of his service-connected disability (Exhibits B3F and B11E). 

However, I assign little weight to the Department of Veterans Affairs 

determination. In addition to being inconsistent with the evidentiary record in 

totality, as discussed above, the disability determination processes utilized by the 

Department of Veterans Affairs and the Social Security Administration are 

fundamentally different. The Department of Veterans Affairs does not make a 

function-by-function assessment of an individual’s capabilities (i.e., determine the 

claimant’s residual functional capacity) or determine whether the claimant can 

perform either his past relevant work or other work that exists in significant 

numbers in the national economy as is required by the Regulations. The VA 

expresses disability as a percentage of diminished earning capacity. These 

percentage values vary with the severity of the veteran’s medical condition applied 

to a hypothetical average person’s ability to earn income. In contrast, SSA does 

not assess degrees of disability. Rather, SSA determines whether a claimant is 

disabled or blind (see 20 CFR 404.1501). To meet SSA’s definition of disability, 

a claimant must have a severe impairment that prevents him or her from performing 

past relevant work or any other substantial gainful work that exists in the national 

economy. Thus, a disability rating by the Department of Veterans Affairs is of little 
19 

probative value in these proceedings. Therefore, I assign little weight to this 

determination. Consistent with Agency policy, however, I have considered all VA 

records in the record in reaching my decision. 

(R. at 23.) Plaintiff asserts that it was improper for the ALJ to discredit the VA’s findings 

“simply because the VA uses a different standard of disability than the Social Security 

Administration.” (ECF No. 9, at pg. 5.) Specifically, Plaintiff asserts that the ALJ’s evaluation 

was in violation of SSR 06-3p.8

 “SSR 06-3p addresses the evaluation of opinions from sources other than acceptable 

medical sources, and provides that ‘[o]pinions from these medical sources . . . are important and 

should be evaluated on key issues such as impairment severity and functional effects, along with 

the other relevant evidence in the file.” Dowler v. Comm’r of Soc. Sec., No. 3:13-cv-920, 2014 

WL 1097921 *27 (N.D. Ohio, March 18, 2014). An ALJ may assign an opinion no weight, so 

long as she takes it into consideration. Id. Here, the ALJ did not violate SSR 06-3p. She 

assigned the VA determination “little weight” because she found it to be inconsistent with the 

evidentiary record in totality and because, unlike the Social Security Administration, the VA 

does not make a “function-by-function assessment” of Plaintiff’s capabilities. (R. at 23.) 

Although Plaintiff asserts that it was improper to discredit the VA’s findings based on 

differing standards, the ALJ appropriately considered the discrepancies between the two agencies 

analyses. See Cantrell v. Colvin, No. 3:13-cv-00235, 2015 WL 926640 *17 (M.D. Tenn. March 

4, 2015) (noting that an ALJ is not bound by the VA’s determination because the VA and Social 

Security Administration have different standards for determining disability); see also Miller v. 

Comm’r of Soc. Sec., No. 1:16-cv-1441, 2018 WL 1516847, at *5 (W.D. Mich. March 28, 2018) 

 8

 SSR 06-3p was rescinded effective March 17, 2017. 82 Fed. Reg. 15263-01. Here, because 

Plaintiff’s claim was filed prior to the effective date, SSR 96-6p still applies in this case. 
20 

(overruling plaintiff’s contention of error that the ALJ’s consideration of the VA disability award 

was inadequate because the ALJ found that the standards for VA disability are “very different” 

from those of the Social Security Administration). Here, the ALJ committed no error in her 

evaluation in this regard. It is therefore RECOMMENDED that Plaintiff’s contention of error 

based on the ALJ’s evaluation of the Department of Veterans Affairs findings be 

OVERRULED. 

B. Supplemental Hearing 

Ultimately, the responsibility for ensuring that every claimant receives a full and fair 

hearing lies with the ALJ. Richardson v. Perales, 402 U.S. 389, 411 (1971); Lashley v. Sec’y of 

Health & Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983). However, the ALJ “must not 

become a partisan and assume the role of counsel[.]” Lashley, 708 F.2d at 1051. When a 

claimant appears without counsel, “the ALJ has a duty to exercise a heightened level of care and 

assume a more active role in the proceedings.” Id. (internal quotations and citation omitted). 

The ALJ must be “especially diligent in ensuring that favorable as well as unfavorable facts and 

circumstances are elicited.” Id. at 1052. (citation omitted). 

However, 

[t]here is no bright line test for determining when the administrative law judge has 

assumed the role of counsel or failed to fully develop the record. The determination 

in each case must be made on a case by case basis. On appeal [the Court of Appeals 

for the Sixth Circuit] has indicated that it will ‘scrutinize the record with care’ 

where the claimant appeared before the administrative law judge without counsel. 

See Holden v. Califano, 641 F.2d 405, 408 (6th Cir. 1981). This special scrutiny, 

however, does not always result in reversal. Id. It is clear that a claimant may 

waive his statutory right to counsel. 20 C.F.R. § 404.971. 

Id.; see also Duncan v Sec’y of Health & Human Servs., 801 F.2d 847, 856 (6th Cir. 1986) 

(“[E]ven though we scrutinize with care the administrative record when a claimant appears 

without counsel, the mere fact that a claimant was unrepresented is not grounds for reversal.”). 
21 

Instead, each case must be examined on its own merits “to determine whether the ALJ failed to 

fully develop the record and therefore denied the claimant a full and fair hearing.” Duncan, 801 

F.2d at 856. 

 Here, Plaintiff asserts that “[t]he record as a whole and the circumstances surrounding 

this case should have required additional development on the part of the ALJ, or at the very least, 

a supplemental hearing.” (ECF No. 9, at pg. 9.) Specifically, Plaintiff argues two points. First, 

Plaintiff contends that because the ALJ “discredited every piece of opinion evidence of record,” 

“it is impossible to understand how [she] settled at her [RFC determination].” (Id.) Second, he 

maintains that the ALJ improperly used his letter written to ALJ Yerian to determine that he 

wished to proceed without a supplemental hearing. (Id. at 10.) Because Plaintiff addresses his 

second point first, the Court turns to this assertion first as well. (See id. at 9–12.) 

 By letter dated October 6, 2017, ALJ Lesperance informed Plaintiff that ALJ Yearian had 

retired and informed him that she was the new ALJ assigned to his case. (R. at 244.) ALJ 

Lesperance notified Plaintiff of changes to the exhibits in the record and specifically indicated 

that if he objected to any of the exhibits in his record or wished to present argument that exhibits 

that had been removed should be admitted, he should send notice in writing within ten days of 

receiving the letter. (Id.) ALJ Lesperance also explained that because she was not adding 

information to his file, “but simply clarifying the changes to the Exhibit list,” he was not entitled 

to a supplemental hearing based on that notice. (Id.) Nevertheless, she explained that Plaitniff 

could “still ask for a supplemental hearing based on the letter dated October 2, 2017 . . . advising 

[him] of the Vocational Expert response to interrogatories.” (Id.) Plaintiff failed to respond to 

either the October 2, 2017 or the October 6, 2017 letters or otherwise request a supplemental 

hearing. 
22 

 Plaintiff asserts that the October 2, 2017 and October 6, 2017 letters were insufficient to 

provide him with notice that he could request a supplemental hearing. (See ECF No. 9, at pg. 

10.) Plaintiff further asserts that “[t]here is no evidence that there was any attempt made to make 

sure the unrepresented [Plaintiff] understood what was going on in his case.” (Id.) Plaintiff 

maintains that this is “especially troubling” given that he was “deemed disabled” by the 

Department of Veterans Affairs “primarily due to PTSD with a traumatic brain injury and major 

depression.” (Id.) Plaintiff’s argument fails. 

 ALJ Lesperance considered that ALJ Yerian previously proffered an interrogatory 

opinion from medical expert, Dr. Nusbaum (R. 621-33), and that she proffered an interrogatory 

opinion from a vocational expert to Plaintiff with no objection. (R. 10, 402-10.) Both of these 

letters outlined Plaintiff’s right to request a supplemental hearing and an opportunity to submit 

written comments or statements. (R. 239-40, 409-10.) The October 2, 2017 and October 6, 2017 

letters explicitly indicate his right to request a supplemental hearing. (R. at 244, 409.) 

Moreover, the October 2, 2017 letter also indicates that if he made a request for a supplemental 

hearing it would be granted unless the ALJ received additional records that supported a fully 

favorable decision. (R. at 409.) The ALJ reasonably concluded that despite at least two 

opportunities to request a supplemental hearing, Plaintiff failed to so. 

 At both hearings before ALJ Yerian Plaintiff declined to exercise his right to 

representation. (R. at 35, 70–71.) When a plaintiff is advised of his right to counsel, expresses 

an understanding of that right, and advises the ALJ that he wants to proceed without an attorney, 

he has been adequately informed of his right to legal representation. Miller, 2018 WL 1516847 

at *3 (citing Johnson v. Comm’r of Soc. Sec., 97 F. App’x 539, 542 (6th Cir. 2004) (finding 

claimant was adequately informed of his right to counsel)). Although Plaintiff points to his 
23 

PTSD, traumatic brain injury, and depression as reasons that the ALJ should have held another 

hearing, the record does reflects that he was capable of presenting an effective case and able to 

understanding the whole of the proceedings. See Miller, 2018 WL 1516847 at *3 (“While 

plaintiff was without counsel and arguably unfamiliar with hearing procedures, the record does 

not reflect that he was incapable of presenting an effective case.”). 

Plaintiff provided numerous records from the VA and advised the ALJ during his 

multiple hearings of his limitations and past work history. (See, e.g., R. at 41–51, 76–83, 354–

67.) During the hearing, Plaintiff articulated his understanding of the evidence, regulations and 

the hearing procedures. (R. at 70-86, 393.) Because the hearing transcript reflects that he ably 

articulated his position, and because he did not respond to either of the two written notices 

providing him the opportunity to request a supplemental hearing, the Undersigned concludes that 

the ALJ fully and fairly developed the record and did not have a special duty to hold a 

supplemental hearing. See Miller, 2018 WL 1516847 at *3 (finding the ALJ did not have a 

special duty to develop the record for plaintiff given the records submitted by plaintiff and that 

the hearing transcript indicated plaintiff was able to explain his position to the ALJ). 

Plaintiff also asserts that ALJ Lesperance improperly relied on and misinterpreted the 

letter he sent to ALJ Yerian after the May 10, 2017 hearing. (ECF No. 9, at pg. 11.) ALJ 

Lesperance indicated the following regarding her determination that a supplemental hearing was 

not necessary in her November 22, 2017 decision: 

I considered the guidance provided in HALLEX I-2-8-40 and determined that I did 

not require a supplemental hearing to make a decision. In deciding that another 

hearing is not necessary, I specifically find that no additional live testimony is 

needed to fully evaluate the case. The previous Administrative Law Judge had 

obtained medical expert evidence via interrogatory (Exhibit B8F). I obtained 

vocational expert testimony via interrogatory (B17E). This evidence was proffered 

to the claimant with no objection. In fact, the claimant specifically submitted a 

letter to the record suggesting that he did not want to have another hearing (“I prefer 
24 

not to waste any more time on this matter”) and asked that the Hearing Office issue 

a prompt decision. Given that several post-hearing items were proffered, the 

claimant was offered several opportunities to ask for a supplemental hearing but 

did not do so. Thus, reading HALLEX I-2-8-40 in conjunction with HALLEX I2-5-57 and HALLEX I-2-5-42 (an “ALJ can use interrogatories at any time (point) 

during the hearing process”), I determined that, considering the claimant’s response 

to our proffers and the completeness of the file, I did not require a supplemental 

hearing to adjudicate the case. I reviewed the entire record and listened to the 

hearing testimony and find that the case is ripe for adjudication on the current 

record. 

(R. at 10.) 

Plaintiff argues that the ALJ made an improper assumption based on Plaintiff’s statement 

in his letter. (ECF No. 9, at pg. 11.) Yes, Plaintiff did not respond to either opportunity to 

request a supplemental hearing, and indeed had already undergone a supplemental hearing before 

ALJ Yerian on May 10, 2017. On this record, the Undersigned finds that the ALJ reasonably 

concluded that another hearing was not necessary. 

 Plaintiff argues that a supplemental hearing was necessary because in assessing his 

limitations, “failed to rely on any medical opinions.” (ECF No. 9, at pg. 12.) But, the RFC 

determination is a legal decision, as opposed to a medical one, and its development is a decision 

that solely within the discretion of the ALJ. 20 C.F.R. § 404.1527(e)(2); see Coldiron v. Comm’r 

of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (“The Social Security Act instructs that the 

ALJ—not a physician—ultimately determines a claimant’s RFC.”) (citations omitted). 

 The ALJ noted that she reviewed the entire record and listened to the hearing testimony 

She explained the reasons she did not fully adopt any medical opinion and how she assessed 

Plaintiff’s limitations in rendering her assessment of his RFC. (R. at 18-24.) The ALJ discussed 

the evidence that supported her conclusion that Plaintiff was not disabled. Despite Plaintiff’s 

implied assertion that the ALJ acted as a medical expert, the record as a whole reveals that the 

ALJ fulfilled her responsibility of weighing the evidence and assessing Plaintiff’s RFC. See Poe 
25 

v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. Aug. 18, 2009) (an “ALJ does not 

improperly assume the role of a medical expert by assessing the medical and non-medical 

evidence before rendering a residual functional capacity finding”). The Undersigned concludes 

that the record contained sufficient evidence for her decision and the ALJ did not err by not 

holding a supplemental hearing. 

Still, Plaintiff argues that because ALJ Yerian requested additional evidence from Dr. 

Nusbaum after the May 10, 2017 hearing, “additional development was necessary.” (ECF No. 9, 

at pg. 13.) Plaintiff provides no support for this assertion. Indeed, the opposite argument could 

be made as easily—that no additional evidence beyond that from Dr. Nusbaum was necessary 

because ALJ Yerian, who had held two hearings with Plaintiff, only sought this limited 

additional evidence. In any event, ALJ Lesperance reviewed the evidence from Dr. Nusbaum 

which informed her determination that an additional hearing was unnecessary. 

 Plaintiff then asserts that it was improper for the ALJ to assign “little weight” to Dr. 

Nusbaum’s opinion. (Id. at 14.) Plaintiff fails to support this assertion. The basis for Plaintiff’s 

argument appears to be as follows: 

Here, ALJ Lesperance appeared to believe that Dr. Nusbaum was incorrectly 

relying on evidence that was dated prior to the date last insured when formulating 

his opinions. ALJ Lesperance’s belief, mistaken or not, is just another reason why 

additional development was warranted, or at least, a supplemental hearing should 

have been held. Dr. Nusbaum was hired by Social Security to personally review 

[Plaintiff’s] medical record. As such, Dr. Nusbaum was considered an expert in 

Social Security disability evaluation. SSR 96-6p. Thus, Dr. Nusbaum was well 

versed in the importance of date last insured. He would not be much of an expert 

otherwise. 
26 

(Id.)

9

 Apparently, Plaintiff asserts that ALJ Lesperance could not question whether Dr. 

Nusbaum correctly arrived at his conclusions because he is an expert. Indeed, Plaintiff does not 

assert that ALJ Lesperance is wrong, but simply complains that her reasoning, whether 

“mistaken or not,” demonstrated that a supplemental hearing should have been held. This 

unsupported argument is not persuasive. For all of these reasons, it is therefore 

RECOMMENDED that Plaintiff’s contention of error based on the ALJ’s decision not to hold a 

supplemental hearing be OVERRULED. 

VII.CONCLUSION 

In sum, from a review of the record as a whole, the Undersigned concludes that 

substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is 

RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM

the Commissioner’s decision. 

PROCEDURE ON OBJECTIONS 

If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

 9

 SSR 96-6p was rescinded and replaced by SSR 17-2p effective March 27, 2017. Here, because 

Plaintiff’s claim was filed prior to the effective date, SSR 96-6p still applies in this case. 
27 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

Date: July 29, 2019 /s/ Elizabeth A. Preston Deavers_________ 

 ELIZABETH A. PRESTON DEAVERS 

CHIEF UNITED STATES MAGISTRATE JUDGE