Graham v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANIEL ALLEN GRAHAM, ) CASE NO. 1:23-cv-00574-JDA

)

Plaintiff,

) U.S. MAGISTRATE JUDGE

) JENNIFER DOWDELL ARMSTRONG

v.

)

) MEMORANDUM OPINION AND

COMMISSIONER OF SOCIAL

) ORDER

SECURITY,

)

Defendant, )

I. INTRODUCTION

Plaintiff Daniel Allen Graham (“Mr. Graham”) seeks judicial review of the final decision

of the Commissioner of Social Security (“the Commissioner”) denying his application for

Disability Insurance Benefits (“DIB”). (ECF No. 1). This matter is before me pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3). The parties have consented to the jurisdiction of this Court pursuant to

28 U.S.C. § 636(c) and Local Rule 73.1. For the reasons set forth below, the Court AFFIRMS the

Commissioner’s decision.

II. PROCEDURAL HISTORY

On July 12, 2020, Mr. Graham filed an application for DIB, alleging a disability onset date

of March 1, 2020. (Tr. 188-89.)1 Mr. Graham previously filed a disability application, but that

application was dismissed in June 2018. (Tr. 84.) Mr. Graham’s application relates to gout,

degenerative disc disease of the cervical spine, hypertension, obesity, anxiety, and PTSD. (See Tr.

116, 122.) His application was denied initially and upon reconsideration. (Tr. 113-17, 119-22.) Mr.

1 The administrative transcript (“Tr.”) appears at ECF No. 4 on CM/ECF.

Graham requested a hearing before an administrative law judge (“ALJ”). (Tr. 124-25.) Due to the

COVID-19 pandemic, an ALJ held a telephone hearing on December 17, 2021. (Tr. 37-83.) Mr.

Graham, represented by counsel, and a vocational expert (“VE”) testified at the hearing. (Id.) The

ALJ issued a written decision on January 20, 2022, finding Mr. Graham was not disabled under

the meaning of the Social Security Act. (Tr. 20-32.) The ALJ’s decision became final on January

20, 2023, when the Appeal Council declined further review. (Tr. 1.)

On March 19, 2023, Mr. Graham filed his Complaint, challenging the Commissioner’s

final decision. (ECF No. 1.) Mr. Graham asserts the following assignments of error:

(1) The ALJ erred at Step Three of the Sequential Evaluation when he failed to

comply with the relevant Social Security Rulings 17-2p and 19-2p, and find that

the combination of Plaintiff’s obesity, degenerative disc disease, and gout

equaled a Listing.

(2) The ALJ committed harmful error when he failed to properly apply the criteria

of Social Security Ruling 16-3p and failed to find that the intensity, persistence,

and limiting effects of Plaintiff’s symptoms, including pain, precluded him

from engaging in substantial gainful activity on a full-time and sustained basis.

(3) The ALJ committed harmful error at Step Four of the Sequential Evaluation

when he erroneously found that Plaintiff could perform the past relevant work.

(ECF No. 6, PageID#406.)

III. BACKGROUND INFORMATION

A. Personal, Education, and Vocational Experience

Mr. Graham was born in 1965, and he was 55 years old on the alleged disability onset date.

(Tr. 31.) He completed two years of college. (Id.) He lives with his girlfriend. (Tr. 45.) His past

relevant work was employment as a special police officer, driving instructor, first responder, and

police officer. (Tr. 30.)

B. Relevant Statements and Hearing Testimony

1. Mr. Graham’s Function Reports

In August 2020, Mr. Graham completed an Adult Function Report. He stated he could not

sit, stand, walk, or lift his right arm at chest level due to nerve damage. (Tr. 221.) He also stated

that he had PTSD, which caused difficulty sleeping and excessive daytime somnolence. (Id.) He

reported that he has difficulty bending to put on socks and pants. (Tr. 222.) He reported that he is

able to drive and travels to places by car. (Tr. 224.) He stated that he can pay attention for a “long”

time. (Tr. 225.)

In November 2021, Ms. Wendy Surgoine, Mr. Graham’s girlfriend, completed an Adult

Third Party Function report for Mr. Graham. Ms. Surgoine reported that Mr. Graham can no longer

stand for over 10 minutes without pain. (Tr. 267.) She also reported that Mr. Graham cannot bend

to put his socks on and has difficulty standing in the shower. (Tr. 268.) She further reported that

Mr. Graham is able to drive and ride in a car. (Tr. 270.) She stated that Mr. Graham has severe

pain in his back and joints and numbness in his right leg. (Tr. 272.) She did not report that Mr.

Graham had any issues with concentration. (See id.) She reported that Mr. Graham uses a cane

when a gout attack happens. (Tr. 273.)

2. Mr. Graham’s Hearing Testimony

Mr. Graham was 56 years old at the time of the hearing. (Tr. 45.) He testified that he worked

about 10 hours weekly at a driving school. (Tr. 45-46.) He reported that he helped his friend who

worked at the driving school by performing job duties that include advertising, talking to parents,

writing policies, making calls, and doing some in-car driving with student drivers for no longer

than an hour at a time. (Tr. 47-48.)

Mr. Graham testified that he is unable to work due to recurrent, chronic grout that makes

it painful to walk. (Tr. 60.) His gout attacks typically last between a week to 10 days. (Id.) He

reported “having a cane.” (Id.) He also reported that his gout caused permanent joint damage and

deformity in his feet. (Id.) He testified that his gout spread in the previous year to his elbows,

knees, thumb, and wrist. (Tr. 60-61.) When he began having gout attacks, he would go to the doctor

or the emergency room. (Tr. 62-63.) He takes medication for gout, but he stated that the only

medication that offers some relief is Trazadone. (Tr. 63.) He testified, however, that he still

experiences pain and swelling. (Id.)

Mr. Graham stated that he is also unable to work due to compression in his lower back that

makes his right thigh numb. (Tr. 61.) He testified that he can only stand for about 30 minutes

before needing to sit. (Id.) He further testified that his doctor told him that he would probably have

permanent numbness. (Tr. 63.) He also stated he had compression in his neck that aggravates his

arm. (Tr. 61.) He stated that medications do not help improve these conditions. (Id.) Mr. Graham

testified that his PTSD makes it difficult for him to sleep due to nightmares and sweat. (Id.) He

stated that he was not treating with anyone beyond his primary care physician for his PTSD. (Tr.

64.)

Mr. Graham discussed his daily activities. He does laundry sometimes. (Tr. 61.) He

reported that he loves doing household chores and is “very obsessive with cleaning.” (Tr. 62.) He

stated, however, that he has been unable to vacuum for the last 8 to 12 months prior to the hearing

because he experiences radiating pain that turns into numbness down his leg. (See Tr. 62.) He also

added that he is unable to bear weight on either side of his body if he has a gout attack in his feet

or knees. (See id.)

Mr. Graham alleged that he is unable to perform certain aspects of his job as a driving

instructor. (Tr. 65.) Specifically, Mr. Graham stated that he cannot sit in a car for prolonged periods

due to his back conditions. (Id.) He also alleged that he cannot use the secondary brake for a vehicle

when he has a gout attack. (Id.)

3. Vocational Expert’s Hearing Testimony

The VE testified that Mr. Graham performed the following past relevant work: driving

instructor, special police officer, first responder, and police officer. (Tr. 30.) The ALJ first asked

the VE whether a hypothetical individual with Mr. Graham’s age, education, and vocational

experience could perform work at the light exertional level if additionally limited to frequently

climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; frequently balancing,

stooping, kneeling, crouching, and crawling; and never working at unprotected heights and near

moving mechanical parts. (Tr. 72.) The VE testified that this individual would be able to perform

Mr. Graham’s past relevant work as a driving instructor and special police officer as it is generally

classified in the Dictionary of Occupational Titles (“DOT”), but not his other positions. (See Tr.

72-73.) The ALJ then asked the VE if any other occupations existed that require skills acquired in

Mr. Graham’s past relevant work, but no additional skills. (Tr. 73.) The VE stated that the

individual, with his transferable skills, could perform work as a desk police officer, security guard,

and radio dispatcher (Tr. 73-74.)

The ALJ next asked the VE whether the same individual from the first hypothetical could

perform work if further limited to only occasional use of foot controls with the right foot. (Tr. 75.)

The VE stated that her testimony would remain the same for this hypothetical. (Tr. 75-76.)

Mr. Graham’s counsel asked whether the individual could perform past relevant work if

limited to occasionally interacting with the public. (Tr. 80.) The VE opined that this would not

prevent the individual from performing past relevant work. (Id.) Mr. Graham’s counsel then asked

if this limitation would impact the transferability of skills. (Id.) The VE opined that this would

have an effect because the ability to communicate and interface socially is “paramount” to the

individual’s past relevant work. (Id.)

Mr. Graham’s counsel then asked the VE if the individual could perform work if he would

be off task due to pain symptoms 20% of the time on 50% of the workdays. (Tr. 80.) The VE

opined that it would be work preclusive if an individual was off task over 10% of the time. (Tr.

81.) Mr. Graham’s counsel also asked whether it would be work-preclusive if the individual was

absent three days per month. (Id.) The VE opined that this would be work-preclusive. (Id.) Finally,

Mr. Graham’s counsel asked whether the individual could perform work if he required a cane for

ambulation and balance. (Id.) The VE opined that a cane would not affect the individual’s ability

to perform work as a dispatcher, but it would affect his ability to perform work as a security guard

or desk police officer. (Id.) The VE also opined that the individual would not be able to perform

past relevant work. (Id.)

C. Relevant Non-Medical/Medical Opinion Evidence

1. State Agency Opinions

a. Physical Consultants

In October 2021, Gerald Klyop, M.D., a state agency reviewing physician, reviewed Mr.

Graham’s record at the initial level of consideration. (Tr. 95-96.) Dr. Klop opined that Mr. Graham

could perform work at the light exertional level. (Tr. 95-96.) Specifically, Dr. Klyop found that

Mr. Graham was limited to lifting, carrying, and pulling 20 pounds occasionally and 10 pounds

frequently, and further limited Mr. Graham to standing/walking for no more than six hours and

siting for six hours out of an eight-hour workday. (Tr. 95.) Dr. Klyop also limited Mr. Graham to

frequently climbing ramp and stairs, balancing, stooping, kneeling, crouching, and crawling, and

never climbing ladders, ropes, or scaffolds. (Id.) Dr. Klyop found that Mr. Graham had no

manipulative limitations but should avoid all exposure to hazards. (Tr. 96.) Finally, Dr. Klyop

found that Mr. Graham did not meet or medically equal Listing 14.09 and or any other listing. (Tr.

293.) In June 2021, Lynne Torello, M.D., affirmed Dr. Klyop’s findings. (Tr. 102, 104-06.)

b. Psychological Consultants

In March 2021, Cindy Matyi, Ph.D., found that Mr. Graham had no more than mild

limitations in any area of mental functioning, had no severe mental impairments, and had no

limitations due to his mental health. (Tr. 92-93.) Aracelis Rivera, Psy.D., affirmed Dr. Matyi’s

findings. (Tr. 101-02.)

2. Charles Misja, Ph.D.

In March 2021, Mr. Graham underwent a one-time consultative examination with Dr.

Misja. (Tr. 344-48.) Mr. Graham walked with a normal gait and did not use an assistive device.

(Tr. 345.) He reported no psychiatric hospitalizations and denied problems with anger and

irritability. (Id.) He reported a diagnosis of PTSD and said he had nightmares. (Id.) Mr. Graham

drove himself to the appointment, dressed appropriately, was friendly and cooperative, and made

good eye contact. (Tr. 346.) He had normal speech and was easy to understand. (Id.) He reported

anxiety in crowds, small areas, and jails. (Id.) He also reported difficulty falling asleep and staying

asleep, in part due to nightmares. (Tr. 347.) There was no evidence of hallucinations, delusions,

grandiosity, or aggression. (Id.) There was no evidence of any thought disturbance. (Id.) Mr.

Graham was given three words to remember and remembered all of them after five minutes. (Tr.

247.) He also successfully performed serial sevens (counting down from 100 by sevens). (Id.) Mr.

Graham’s intelligence was in the average range, and he had good insight and judgment. (Tr. 347.)

Dr. Misja identified Mr. Graham as an “excellent candidate for a rehabilitative effort.” (Id.) Dr.

Misja opined that the longitudinal effects of Mr. Graham’s mental impairments have imposed

minimal deficits in his ability to engage in the four broad areas of mental functioning. (Tr. 348.)

D. Relevant Medical Evidence

On January 7, 20217, Mr. Graham underwent a consultative examination with Dr. Freeland

Ackley. Dr. Ackley observed that Mr. Graham exhibited a positive straight leg raising test results

on the right side of his lumbar spine. (Tr. 292.) Mr. Graham, however, also had full range of motion

in his lumbar spine, was able to ambulate with a normal unassisted gait, and could perform lower

extremity functional capacity tests. (Id.)

On December 17, 2019, Mr. Graham met with Dr. Katherine Ayers. (Tr. 311-315.) He

reported he had gout affecting his left knee. (Tr. 311.) He had begun taking Allopurinol, a

preventative medication, in October 2019. (Tr. 320.)

On February 15, 2020, Mr. Graham saw a physician’s assistant and complained of sinus

congestion. (Tr. 352.) The treatment notes indicate that Mr. Graham has a history of gout affecting

his left knee. (Tr. 353.) On examination, Mr. Graham was alert, oriented, and cooperative,

displayed appropriate mood and affect, and was in no acute distress. (Tr. 355.) He had a normal

gait and denied any numbness, tingling, or weakness. (Tr. 352, 355.)

On September 2, 2020, Mr. Graham complained of neck pain at a medical appointment.

(Tr. 378.) He reported he stopped power lifting over the previous year due to pain. (Id.) He denied

any depression or anxiety. (Id.) Examination revealed normal mood and affect, normal gait, full

range of motion in his arms, and tenderness to the right shoulder and neck area, but no neurological

deficits. (Tr. 380.)

On January 13, 2021, Mr. Graham attended an appointment with a nurse practitioner. (Tr.

367.) The nurse practitioner noted that Mr. Graham was seen a few months earlier for pain

radiating from his neck down through his arms, but that the Flexeril he was prescribed at that time

helped and “almost resolved [his] symptoms.” (Id.) The nurse practitioner recommended a repeat

x-ray and a referral for physical therapy to assess the nature and severity of his cervical spine with

reported radiculopathy in his arms and fingers, but Mr. Graham declined. (Id.) On examination,

Mr. Graham was alert and oriented, exhibited normal mood and effect, and was in no acute distress.

(Tr. 370-71.) He displayed normal gait and no neurological deficits. (Id.)

On February 10, 2021, Mr. Graham attended a follow-up appointment regarding his blood

pressure. (Tr. 363.) On examination, he had edema in his lower extremity. (Id.) At a February 15,

2021, appointment, Mr. Graham’s examination revealed Mr. Graham had normal gait and normal

mood and affect. (Tr. 355.) He was alert and oriented times three and in no acute distress. (Id.)

On March 5, 2021, Mr. Graham underwent a one-time consultative examination by Dr.

Misja. (Tr. 344-48.) The summary of this examination is located in the “Non-Medical/Medical

Opinion Evidence” of this Memorandum Opinion and Order. At this examination, Mr. Graham

was observed walking with a normal gait and without an assistive device. (Tr. 345.) After

examination, Dr. Misja concluded that the longitudinal effects of Mr. Graham’s mental

impairments have imposed minimal deficits on his ability to engage in the four broad areas of

mental functioning. (Tr. 348.)

On March 10, 2021, Mr. Graham complained of right finger numbness in his right finger,

but no pain or discomfort. (Tr. 357.) He was found to have paresthesia in his right hand. (Id.)

On June 16, 2021, Mr. Graham had a follow-up appointment regarding his blood pressure.

(Tr. 382.) He denied any “issues or concerns” at the appointment. (Id.) The physical examination

revealed Mr. Graham was alert and in no acute distress, had normal gait, had normal mood and

affect, and was oriented to person, place, and time. (Tr. 385.)

IV. THE ALJ’S DECISION

The ALJ first determined that Mr. Graham met the insured status requirements of the Social

Security Act through September 30, 2025. (Tr. 22.) The ALJ then determined Mr. Graham has not

engaged in substantial gainful activity since March 1, 2020, the alleged disability onset date. (Id.)

The ALJ found that Mr. Graham had the following severe impairments: gout; degenerative disc

disease of cervical spine; hypertension; and obesity. (Tr. 22-23.) However, the ALJ found that

none of these impairments—individually or in combination—met or medically equaled the

severity of a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1.

The ALJ determined that Mr. Graham could perform work at the light exertional level,

except that he can lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; sit,

stand, and walk for 6 hours out of an 8-hour workday; climb ramps and stairs frequently; never

climb ladders, ropes, or scaffolds; balance, stoop, kneel, crouch, and crawl frequently; and never

work at unprotected heights or near moving mechanical parts. (Tr. 27-30.) The ALJ further

determined that Mr. Graham is capable of performing past relevant work as a special police officer

and a driving instructor as generally performed and classified in the DOT. (Tr. 30-31.) The ALJ

found that these occupations do not require the performance of work-related activities precluded

by Mr. Graham’s RFC. (Id.) The ALJ also determined that Mr. Graham has acquired transferable

work skills from his past relevant work and could perform work as a desk police officer and

security guard. (Tr. 31-32.) Accordingly, the ALJ concluded that Mr. Graham was not disabled

within the meaning of the Social Security Act since his application date through the date of the

ALJ’s decision. (Tr. 32.)

V. LAW AND ANALYSIS

A. Standard of Review

“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v. Comm’r

of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007) (citing Abbott

v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir. 1986)

(en banc)). The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.

Comm’r of Soc. Sec., 615 F. App. 315, 320 (6th Cir. 2015) (quoting Cole v. Astrue, 661 F.3d 931,

937 (6th Cir. 2011)); see also 42 U.S.C. § 405(g). “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 v. Comm’r of Soc. Sec., 486 F.3d

234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). If the

Commissioner’s decision is supported by substantial evidence, it must be affirmed, “even if a

reviewing court would decide the matter differently[.]” Cutlip, 25 F.3d at 286; Kinsella v.

Schweiker, 708 F.2d 1058, 1059-60 (6th Cir. 1983).

In addition to considering whether the Commissioner’s decision was supported by

substantial evidence, the Court must determine whether the Commissioner applied proper legal

standards. Failure of the Commissioner to apply the correct legal standards as promulgated by the

regulations is grounds for reversal. See, e.g., White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th

Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported

by substantial evidence, however, a decision of the Commissioner will not be upheld where the

SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or

deprives the claimant of a substantial right.”).

Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence

in the record to support the decision, [where] the reasons given by the trier of fact do not build an

accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp.

2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)

(alteration in original)).

B. Standard for Disability

The Social Security regulations outline a five-step sequential evaluation process that the

ALJ must use in determining whether a claimant is disabled: (1) whether the claimant is engaged

in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or

combination of impairments; (3) if so, whether that impairment, or combination of impairments,

meets or equals any of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) if not, whether

the claimant can perform her past relevant work in light of his RFC; and (5) if not, whether, based

on the claimant’s age, education, and work experience, he can perform other work found in the

national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v); Combs v. Comm’r of Soc. Sec., 459 F.3d

640, 642-43 (6th Cir. 2006). The claimant bears the ultimate burden of producing sufficient

evidence to prove that he is disabled and, thus, entitled to benefits. 20 C.F.R. § 404.1512(a).

Specifically, the claimant has the burden of proof in Steps One through Four. Walters v. Comm’r

of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at Step

Five to establish whether the claimant has the RFC to perform available work in the national

economy. Id.

C. Analysis

1. The ALJ Properly Determined that Mr. Graham Did Not Medically

Equal Listings 14.09, 1.15, and 1.18.

Mr. Graham first argues that the ALJ erred by not finding that his “recurrent gout attacks”

medically equaled Listing 14.09 (inflammatory arthritis). (ECF No. 6, PageID#414.) He next

argues that the ALJ committed reversible error by not considering his obesity in combination with

his other impairments of degenerative disc disease and gout, which led to the ALJ’s failure to find

Mr. Graham met or medically equaled Listings 1.15 and 1.18. (Id. at PageID#414-415.)

In response, the Commissioner argues that Mr. Graham’s Listing 14.09 argument lacks

merit because the ALJ explicitly considered Mr. Graham’s chronic pain from inflammatory

arthritis as part of his Listing 14.09 analysis; Mr. Graham failed to present medical evidence

demonstrating equivalency; and no medical source found Mr. Graham medically equaled Listing

14.09. (ECF No. 8, PageID#434-35.) The Commissioner also contends that Mr. Graham’s obesity

argument has “simply no support…in the record.” (Id. at PageID#436.) Specifically, the

Commissioner asserts that the ALJ thoroughly discussed Mr. Graham’s obesity and determined

that his obesity, along with his other impairments, did not satisfy the severity or medical

equivalency standard of Listings 1.15, 1.18, and/or 14.09. (Id. (citing Tr. 26.)) The Commissioner

also notes that no medical source found Mr. Graham met or medically equaled Listings 1.15 or

1.18, and that Mr. Graham “makes no attempt to carry his burden showing otherwise.” (Id.) The

Commissioner’s arguments are well-taken for the following reasons.

a. Mr. Graham Does Not Meet His Burden in Demonstrating That

His Impairment Medically Equals Listing 14.09.

At Step Three, a claimant has the burden to show that he has an impairment or combination

of impairments that meets or medically equals the criteria of an impairment listed in 20 C.F.R. §

404, Subpart P, Appendix 1. Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); 20 C.F.R. §

404.1520(a)(4)(iii). If the claimant meets all of the criteria of a listed impairment, he is disabled;

otherwise, the evaluation proceeds to Step Four. 20 C.F.R. § 404.1520(d)-(e); Bowen v. Yuckert,

482 U.S. 137, 141 (1987); see also Rabbers v. Comm’r of SSA, 582 F.3d 647, 653 (6th Cir. 2009)

(“A claimant must satisfy all of the criteria to meet the listing.”).

In evaluating whether a claimant meets or equals a listed impairment, an ALJ must

“actually evaluate the evidence, compare it to [the relevant listed impairment], and give an

explained conclusion, in order to facilitate meaningful judicial review.” Reynolds v. Comm’r of

Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011) (noting that, without such analysis, it is impossible

for a reviewing court to determine whether substantial evidence supported the decision).

The ALJ “need not discuss listings that the [claimant] clearly does not meet, especially

when the claimant does not raise the listing before the ALJ.” See Sheeks v. Comm’r of SSA, 544 F.

App’x 639, 641 (6th Cir. 2013). “If, however, the record raises a substantial question as to whether

the claimant could qualify as disabled under a listing, the ALJ should discuss that listing.” Id. at

641; see also Reynolds, 424 F. App’x at 415-16 (holding that the ALJ erred by not conducting any

Step Three evaluation of the claimant’s physical impairments, when the ALJ found that the

claimant had the severe impairment of back pain).

“A claimant must do more than point to evidence on which the ALJ could have based his

finding to raise a ‘substantial question’ as to whether he satisfied a listing.” Smith-Johnson v.

Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014) (quoting Sheeks, 544 F. App’x at 641-

42)). “Rather, the claimant must point to specific evidence that demonstrates he reasonably could

meet or equal every requirement of the listing.” Id. (citing Sullivan v. Zebley, 493 U.S. 521, 530

(1990)). “Absent such evidence, the ALJ does not commit reversible error by failing to evaluate a

listing at Step Three.” Id. at 433; see also Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366

(6th Cir. 2014) (finding harmless error when a claimant could not show that he could reasonably

meet or equal a listing’s criteria).

Mr. Graham’s Listing 14.09 argument fails for two reasons. First, Mr. Graham states that

the “ALJ failed to consider whether [his] gout was medically equal” to Listing 14.09. (ECF No. 6,

PageID#414.) Yet, a plain reading of the ALJ’s decision reveals the ALJ explicitly considered Mr.

Graham’s gout in his Listing 14.09 analysis. Specifically, the ALJ noted that “[Mr. Graham] has

experienced chronic pain from inflammatory arthritis (i.e., gout)” as part of his analysis regarding

whether Mr. Graham met or medically equaled Listing 14.09. (Tr. 25.)

Second, Mr. Graham fails to explain how his impairment is medically equal to Listing

14.09. (See ECF No. 6, PageID#414.) Specifically, Mr. Graham, represented by counsel, fails to

identify which part of Listing 14.09, i.e., parts A, B, C, or D, he allegedly satisfies or how his cited

evidence establishes every requirement of the Listing. (Id.)2 As stated above, it is the claimant’s

burden at Step Three to prove that an impairment medically equals a listing. See Lusk v. Comm’r

of Soc. Sec., 106 F. App’x 405, 411 (6th Cir. 2004). To meet that burden, a claimant must “present

specific medical findings that satisfy the various tests listed in the description of the applicable

impairment or present medical evidence which describes how the impairment has such

equivalency.” Thacker v. Soc. Sec. Admin., 93 F. App’x 725, 728 (6th Cir. 2004) (emphasis added).

Merely citing to diagnoses of gout and experienced related pain does not satisfy this

burden. (ECF No. 6, PageID#414 (citing Tr. 303, 311, 320, 323, 353, 358, 364, 368, 379, 383.))

2 Arguably, Mr. Graham’s cursory Listing 14.09 argument should be waived. See McPherson v. Kelsey, 125 F.3d

989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the

most skeletal way, leaving the court to ... put flesh on its bones.”) (internal citations omitted); Cheuvront v. Comm’r

of Soc. Sec., No. 5:19-cv-00360, 2019 WL 7049106, at *15 (N.D. Ohio Dec. 23, 2019) (noting that plaintiff

“arguably forfeited” argument that he met or medically equaled a listing by “articulating some criteria for the

listings, but omitting specific references to record evidence that would support a finding that he met all the criteria”)

(emphasis in original). For the sake of completeness, however, the Court will consider the argument.

A diagnosis alone says nothing about the severity of an impairment. Despins v. Comm’r of Soc.

Sec., 257 F. App’x 923, 930 (6th Cir. 2007) (“The mere existence of…impairments…does not

establish that [the plaintiff] was significantly limited from performing basic work activities for a

continuous period of time.”); Higgs. v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere

diagnosis of arthritis, of course, says nothing about the severity of the condition.”); Asbury v.

Comm’r of Soc. Sec., No. 14-CV-13339, 2016 WL 739658, at *3 (E.D. Mich. Feb. 25, 2016)

(“[D]iagnoses themselves generally do not establish disability; rather, disability is determined by

the functional impairments caused by the diagnosis or condition.... And a diagnosis of a condition,

without more, does not speak to the severity of the condition or the functional limitations

associated with it.”). Accordingly, the Court finds that this argument lacks merit.

b. The ALJ Appropriately Evaluated the Impact of Obesity on Mr.

Graham’s Related Impairments in Analyzing Whether His

Impairments Medically Equaled Listings 1.15 and 1.18.

Mr. Graham’s remaining argument—that the ALJ committed reversible error by not

considering his obesity in combination with his other impairments, which led to the ALJ’s failure

to find Plaintiff met or medically equaled Listings 1.15 and 1.18—lacks merit for similar reasons.

The ALJ here, over the course of four paragraphs, discussed what the regulations require him to

do when assessing the combined effects of obesity with regard to his impairments. The ALJ

specifically noted that he found that Mr. Graham’s BMI ranged between 35 and 35.9, but the ALJ

determined that Mr. Graham did not satisfy “the requisite severity or medical equivalency standard

of Listings 1.15, 1.18, and/or 14.09 with consideration to the guidance on obesity in the Listings.”

(Tr. 26 (emphasis added)). And Mr. Graham does not present any medical opinions corroborating

obesity-related limitations to satisfy his burden. See Hollinger v. Comm’r of Soc. Sec., No. 1:23-

CV-00418-BYP, 2024 WL 310715, at *9 (N.D. Ohio Jan. 11, 2024) (finding plaintiff did not

satisfy burden where no medical opinion or state agency opinion corroborated plaintiff’s claims of

obesity-related limitations), report and recommendation adopted, 2024 WL 310092 (N.D. Ohio

Jan. 26, 2024); Farrell v. Comm’r of Soc. Sec., No. 1:22-CV-02020-SL, 2023 WL 6882788, at *9

(N.D. Ohio Oct. 3, 2023) (same), report and recommendation adopted, 2023 WL 6879848 (N.D.

Ohio Oct. 18, 2023).

Finally, Mr. Graham offers no clear explanation or argument as to how his obesity would

have made the combination of his impairments medically equal Listings 1.15 and 1.18.

Specifically, Mr. Graham appears to merely conclude, without pointing to any record evidence,

that his obesity would have greater impact on his degenerative disc disease and gout. (See ECF

No.6, PageID#415.) What further frustrates Mr. Graham’s argument is his failure to even reference

the specific criteria of the Listings that he would meet. (See id.) Thus, even if the ALJ had erred

in his obesity analysis, the ALJ’s failure would be, at worst, harmless error because Mr. Graham

does not demonstrate the record raises a substantial question as to whether he met a Listing. See

Cheuvront v. Comm’r of Soc. Sec., No. 5:19-CV-00360, 2019 WL 7049106, at *17 (N.D. Ohio

Dec. 23, 2019). Accordingly, the Court finds that this sub-claim lacks merit.

2. Substantial Evidence Supports the ALJ’s SSR 16-3p Subjective

Symptom Evaluation.

Mr. Graham contends that the ALJ improperly applied the SSR 16-3p criteria when he

failed to find that the intensity, persistence, and limiting effects of Mr. Graham’s symptoms

precluded him from engaging in substantial gainful activity on a full-time and sustained basis.

(ECF No. 6, PageID#416.) Additionally, he argues that the ALJ failed to account for his pain

related to gout flares and disabling pain that would interfere with his ability to sustain work

activity. (Id. at PageID#417-18.) Thus, Mr. Graham contends that it is “clear” that he satisfied the

SSR 16-3p criteria, and that the ALJ failed to articulate “any supportable rationale” that Mr.

Graham’s statements were not entirely consistent with the medical evidence. (Id. at PageID#419

(citing Tr. 27.)) The Commissioner disagrees. (ECF No. 9, PageID#436-40.)

Evaluating an individual’s subjective symptoms is a two-step process. SSR 16-3p, 2017

WL 5180304, at *3. First, the ALJ must consider whether the individual has a medically

determinable impairment that could reasonably be expected to produce the alleged symptoms. Id.

The ALJ must then evaluate the intensity and persistence of the individual’s symptoms and

determine the extent to which they limit the individual’s ability to perform work-related activities.

Id. At the second step, the ALJ may consider evidence directly from the claimant, or gleaned from

other medical and non-medical sources (such as family and friends). Id.

An ALJ must consider all evidence in the record to evaluate the limiting effects of the

claimant’s symptoms, including the daily activities, the nature of the alleged symptoms, efforts

made to alleviate the symptoms, the type and efficacy of treatments, and other factors regarding

the claimant’s functional limitations. Avery v. Comm’r of Soc. Sec., No. 1:19-CV-1963, 2020 WL

2496917, at *11 (N.D. Ohio May 14, 2020). The ALJ must also determine the “extent to which

the symptoms can reasonably be accepted as consistent with the objective medical and other

evidence in the individual’s record.” Id.

An ALJ is not required to accept a claimant’s subjective complaints, Jones v. Comm’r of

Soc. Sec., 336 F. 3d 469, 476 (6th Cir. 2003), and need not “make explicit credibility findings as

to each bit of conflicting testimony, so long as his factual findings as a whole show that he

implicitly resolved such conflicts.” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th

Cir. 2006). But the regulations require the ALJ to evaluate a claimant’s symptoms, and the

explanation must be “sufficiently specific to make clear to the individual and to any subsequent

reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that

weight.” Rogers, 486 F.3d at 248; see also SSR 16-3p, 2017 WL 5180304, at *10.

The ALJ does not need to use any “magic words,” so long as it clear from the decision as

a whole why the ALJ reached a specific conclusion. See Christian v. Comm’r of Soc. Sec., No.

3:20-CV-01617-JDG, 2021 WL 3410430, at *17 (N.D. Ohio Aug. 4, 2021). The ALJ’s evaluation

of subjective evidence receives great deference from a reviewing court. Baumhower v. Comm’r of

Soc. Sec., No. 3:18-CV-0098, 2019 WL 1282105, at *2 (N.D. Ohio Mar. 20, 2019). Absent

compelling reason, a court may not disturb the ALJ’s analysis of the claimant’s subjective

complaints, and the conclusions drawn from it. Id. (internal quotations and citations omitted).

Here, a review of the ALJ’s decision reveals that the ALJ considered the entire record,

based his findings on multiple relevant factors, and provided “specific reasons for the weight given

to the individual’s symptoms.” SSR 16-3p, 2017 WL 5180304, at *10. For example, the ALJ

discussed the location, duration, frequency, and intensity of Mr. Graham’s symptoms. Notably,

contrary to Mr. Graham’s assertion, the ALJ discussed Mr. Graham’s statements that he cannot

work because of his “chronic” gout and musculoskeletal impairments throughout the decision. (Tr.

22, 25, 27.)

The ALJ, however, also discussed examination findings that demonstrated inconsistencies

with those statements. See 20 C.F.R. § 404.1529(c)(2); SSR 16-3p, 2017 WL 5180304, at *5

(“[O]bjective medical evidence is a useful indicator to help make reasonable conclusions about the

intensity and persistence of symptoms…”). Although the discussion was not specifically repeated

in the SSR 16-3p analysis, the Court reads the ALJ’s decision as a whole and with common sense.

See Buckhanon ex rel. J.H. v. Astrue, 368 F. App’x 674, 678-79 (7th Cir. 2010) (observing that

the ALJ’s rationale need not come in “tidy packaging” and that courts must “read the decision as

a whole and with common sense”). Specifically, the ALJ discussed examination findings where

Mr. Graham demonstrated a normal gait, did not walk with an assistive device, denied numbness,

tingling, and weakness, exhibited full range of motion in his arms, and exhibited no neurological

deficits. (Tr. 25, 28-29; see Tr. 345, 352, 355, 370-71, 380, 385.) Thus, Mr. Graham’s argument

that the ALJ did not consider how his pain affected his ability to walk is refuted by a reading of

the ALJ’s decision.

Next, the ALJ also considered Mr. Graham’s statements that his PTSD and anxiety

prevented him from working. (Tr. 22-23.) But the ALJ also noted that Mr. Graham did not see a

mental health professional at all during the relevant period. (Tr. 22.) An ALJ may reasonably

consider a claimant’s lack of mental health treatment in setting forth a RFC determination where,

as here, there is no evidence connecting the claimant’s lack of treatment to the mental health

disorder itself. Greene v. Comm’r of Soc. Sec., No. 18-1507, 2019 WL 4579223, at *9 (N.D. Ohio

July 3, 2019).

Notably, Mr. Graham’s sole mental health evaluation in the record was unremarkable. (Tr.

29.) The ALJ also discussed that the state agency psychologists, as well as Dr. Misja, found that

Mr. Graham had no severe mental impairments and no mental limitations. (Tr. 29; see Tr. 92-93,

102, 104-06, 348.) To the extent that Mr. Graham alleges that the ALJ failed to consider how his

pain interfered with his ability to maintain attention (see ECF No. 6, PageID#418), Mr. Graham’s

own statements to Dr. Misja directly contradict this allegation. Indeed, Mr. Graham reported to

Dr. Misja that he had no problems with attention and concentration. (Tr. 348.) Notably, there were

no problems with attention noted during the examination. (Id.)

The ALJ also considered the effectiveness of Mr. Graham’s medication and treatment that

Mr. Graham received for relief of his pain and related symptoms. 20 C.F.R. § 404.1529(c)(3)(iv)

(ALJ may consider the “type, dosage, effectiveness, and side effects of any medication [the

claimant] take[s] or ha[s] taken to alleviate [his] pain or other symptoms.”). For example, the ALJ

observed that, in January 2021, Mr. Graham used Flexeril for radiating pain from his neck down

through his arms and the medication “helped and almost resolved [his] symptoms.” (Tr. 25; see

Tr. 367.)

The ALJ also discussed that Mr. Graham refused a referral for physical therapy. (Tr. 25;

see Tr. 367.) A claimant’s noncompliance with physical therapy is an appropriate factor that the

ALJ may rely upon to evaluate a claimant’s subjective statements. See Simpson v. Comm’r of Soc.

Sec., No. 1:14-cv-801, 2016 WL 74420, at *11 (S.D. Ohio Jan. 6, 2016) (holding that because

“[t]he record does not show that plaintiff followed through on her treating orthopedist’s

suggestions despite her complaints of disabling pain” the ALJ was reasonable in discounting the

claimant’s complaints). The ALJ even considered Mr. Graham’s testimony regarding cane usage

but determined that there is no evidence in the record that substantiated Mr. Graham was ever

prescribed a cane or other assistive device (Tr. 28.) The ALJ also noted that Mr. Graham’s mental

health was stable with Lexapro/Citalopram, and he did not seek out any additional mental health

services. (Tr. 22-23.)

Finally, the ALJ considered Mr. Graham’s activities of daily living and how they

contradicted his allegations regarding his mental conditions. See 20 C.F.R. § 404.1529(c)(3)(1);

see also Temples v. Comm'r of Soc. Sec., 515 F. App'x 460, 462 (6th Cir. 2013) (stating that an

ALJ properly considered a claimant's ability to perform day-to-day activities in determining

whether his testimony regarding his pain was credible). Specifically, the ALJ noted that Mr.

Graham worked part-time at a driving school where he helped with advertising, talking to parents,

writing policies, making calls, and some in-car driving with student drivers. (Tr. 28; see Tr. 47-

48).

In sum, the ALJ considered the conflicting evidence in the record and Mr. Graham’s

testimony. Here, the ALJ provided sufficient, clear reasons demonstrating why the intensity,

persistence, and limiting effects of Mr. Graham’s subjective symptoms were not as severe as

alleged. Instead of directly confronting the ALJ’s reasoning, Mr. Graham presents testimony and

some pieces of evidence that he believes supports an alternative interpretation and concludes that

the ALJ “failed to articulate any supportable rationale.” (ECF No. 6, PageID#419.) But “[p]ointing

to evidence demonstrating another feasible interpretation does not establish the ALJ’s decision is

not supported by substantial evidence.” See Dornan v. Comm’r of Soc. Sec., No. 1:22-CV-02244-

JRA, 2023 WL 8789168, at *11 (N.D. Ohio Dec. 4, 2023), report and recommendation adopted,

2023 WL 8780713 (Dec. 19, 2023). Indeed, “[e]ven if this Court were to find that evidence could

support an alternative conclusion, [the Court] must affirm if the credibility determination is

supported by substantial evidence.” See Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 533

(6th Cir. 2014). The Commissioner enjoys a “zone of choice” within which to decide cases without

risking being second-guessed by a court. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730

F.2d 1147, 1150 (8th Cir. 1984)).

By discussing the location, frequency, and duration of Mr. Graham’s symptoms, normal or

unremarkable objective findings, noncompliance with treatment, lack of treatment for mental

health conditions, the effectiveness of treatment, and activities of daily living, the ALJ built an

“accurate and logical bridge” between the evidence of record and the result. Fleischer, 774

F.Supp.2d at 877. Thus, Mr. Graham does not establish a “compelling reason” for this reviewing

court to disturb the ALJ’s credibility determination. Smith v. Halter, 307 F.3d 377, 379 (6th Cir.

2001). Accordingly, the Court finds that this argument lacks merit.

3. The ALJ Reasonably Found that Mr. Graham Could Perform His Past

Relevant Work.

Finally, Mr. Graham alleges that “the ALJ committed harmful error at [S]tep [F]our of the

sequential evaluation process when he erroneously found that Plaintiff could perform his past

relevant work.” (ECF No. 6, PageID#421.) He asserts that he cannot perform his past relevant

work because his “problems with his right lower extremity and his recurring gout … did not

support a finding that he could perform work at the light level of exertion.” (Id.) Specifically, Mr.

Graham argues that the ALJ failed to consider his need for an assistive device in his RFC

determination. (Id. at PageID#421-22.) He also argues that the ALJ failed to consider his anxiety

and PTSD at later steps in the sequential evaluation process when forming the RFC determination.

(Id. at PageID#421.) Thus, he argues that the ALJ failed to consider the totality of his impairments,

rendering the ALJ’s reliance on the VE testimony that Mr. Graham had transferable work skills to

other occupations not supported by substantial evidence. (Id. at PageID#422-23.) These arguments

are not well-taken.

First, the Court notes that Mr. Graham conflates arguments involving distinct steps of the

sequential evaluation process in this assignment of error.3 Mr. Graham asserts that the ALJ erred

at Step Four because Mr. Graham allegedly cannot perform his past relevant work. (Id.) Thus, Mr.

Graham argues that his “problems with his right lower extremity and his recurring gout … did not

3 Courts in the Northern District of Ohio have previously cautioned Mr. Graham’s counsel to refrain from

combining disparate challenges and arguments regarding the sequential disability evaluation process together in a

single assignment of error. See, e.g., Dellarco v. Comm’r of Soc. Sec. Admin., No. 4:22-CV-00962-PAB, 2023 WL

3324833, at *9 n.6 (N.D. Ohio Apr. 20, 2023) (Armstrong, M.J.), report and recommendation adopted sub nom.

Dellarco v. Comm’r of Soc. Sec., 2023 WL 3320142 (N.D. Ohio May 8, 2023); Overstreet v. Comm’r of Soc. Sec.,

No. 1:21-cv-2062, 2022 WL 15524729, at *11 n.9 (N.D. Ohio Oct. 11, 2022) (Grimes, M.J.), report and

recommendation adopted, 2022 WL 15522981 (N.D. Ohio Oct. 27, 2022); Klapp v. Comm’r of Soc. Sec. Admin.,

No. 5:20-CV-02850-JDG, 2022 WL 310228, at *15 n.5 (N.D. Ohio Feb. 2, 2022) (Greenberg, M.J.).

support a finding that he could perform work at the light level of exertion.” (Id.) But this argument

is a Step Three argument, not a Step Four argument. As the ALJ noted, “before considering [S]tep

[F]our … I must first determine the claimant’s residual functional capacity.” (Tr. 21 (citing 20

C.F.R. § 404.1520(e) (emphasis added))).

Next, I agree with the Commissioner that Mr. Graham, “merely rehashes arguments” (ECF

No. 9, PageID#440) already raised in his previous assignments of error. Specifically, Mr. Graham

argues that the ALJ “found a cane would be necessary for balance during a gout attack, but the

ALJ failed to include the need for an assistive device in his RFC.” (ECF No. 6, PageID#422.) This

assertion misstates the ALJ’s decision. In fact, the ALJ pointed out that Mr. Graham “testified he

used a cane to accommodate his recent” gout flare up. (Tr. 28.) The ALJ then found that

“longitudinal evidence in the record fail[ed] to establish a continuous period of diminished

ambulation that would reduce the claimant’s residual functional capacity to sedentary exertional

work activities since his alleged onset date.” (Id.). The ALJ pointed to the objective

musculoskeletal and neurological findings, Mr. Graham’s own reported ameliorative effects from

Flexeril, and Mr. Graham’s failure to undergo physical therapy as support for the reduced range

of light work in the RFC determination. (Id.)

Further, Mr. Graham fails to meet his burden in demonstrating that his cane is medically

necessary. SSR 96-9p states that in order “[t]o find that a hand-held assistive device is medically

required, there must be documentation establishing the need for a hand-held assistive device to aid

in walking or standing, and describing the circumstances for which it is needed (i.e., whether all

the time, periodically, or only in certain situations; distance and terrain; and any other relevant

information).” 1996 WL 374185, at *7. Here, Mr. Graham fails to point to any medical evidence

supporting a need for a cane beyond his own testimony. (See ECF No. 6, PageID#417 (citing Tr.

273); 421-22.) A claimant’s testimony “does not qualify as ‘medical documentation establishing

the need for a cane under SSR 96-9p.’” Golden v. Berryhill, No. 1:18CV00636, 2018 WL 7079506,

at *18 (N.D. Ohio Dec. 12, 2018), report and recommendation adopted sub nom. Golden v.

Comm’r of Soc. Sec., 2019 WL 415250 (N.D. Ohio Feb. 1, 2019); Barnes v. Comm’r of Soc. Sec.,

No. 5:21-CV-01688-JDA, 2023 WL 2988346, at *8 (N.D. Ohio Mar. 22, 2023) (finding that

testimony of the claimant and claimant’s mother that the claimant used a cane or walker at

“virtually all times” did not qualify as medical documentation establishing the need for a cane

under SSR 96-9p); see also White v. Saul, No. 1:20-cv-236, 2021 WL 1145463, at *8 (N.D. Ohio

Mar. 25, 2021) (“Numerous court decisions have considered a plaintiff’s testimony regarding the

use of assistive devices, but found it unavailing when the record lacked supporting medical

documentations demonstrating the requirement for such a device.”). Thus, Mr. Graham fails to

establish the ALJ committed reversible error—or any error—for failing to include the need for a

cane in Mr. Graham’s RFC.

Mr. Graham’s remaining argument, i.e., that the ALJ failed to consider Mr. Graham’s

anxiety at PTSD at later steps in the sequential evaluation process, lacks merit. Indeed, the ALJ’s

decision again suggests the opposite conclusion. As discussed in detail above, the ALJ considered

Mr. Graham’s mental health impairments throughout the decision. (See Tr. 22-23, 25-26, 28-29).

While discussing these mental health impairments, the ALJ noted that Mr. Graham did not see a

mental health professional at any point during the relevant period, exhibited unremarkable results

at his evaluation with Dr. Misja, and had normal mental health findings by his primary care

providers, and every medical source in the record opined that he had no mental limitations. (Tr.

22-23, 28-29; see Tr. 345-47, 355, 370-71, 378, 380.)

Mr. Graham’s argument constitutes an improper invitation to engage in de novo review of

his claim. It is not a reviewing court’s role to “try the case de novo, nor resolve conflicts in

evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.

1984); Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 648 (6th Cir. 2011). Accordingly, the Court

finds Mr. Graham’s arguments that the ALJ erred in finding he could perform light work lack

merit.

VI. RECOMMENDATION

Based on the foregoing, the Court AFFIRMS the Commissioner’s final decision

DENYING Mr. Graham’s application for DIB.

Dated: February 13, 2024 s/ Jennifer Dowdell Armstrong

Jennifer Dowdell Armstrong

U.S. Magistrate Judge

VII. NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b) within

fourteen (14) days after being served with a copy thereof, and failure to file

timely objections within the fourteen (14) day period shall constitute a waiver

of subsequent review, absent a showing of good cause for such failure. Such

party shall file with the Clerk of Court, and serve on the Magistrate Judge and all

parties, written objections which shall specifically identify the portions of the

proposed findings, recommendations, or report to which objection is made and the

basis for such objections. Any party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. The District

Judge to whom the case was assigned shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the Magistrate Judge. The District Judge need

conduct a new hearing only in such District Judge’s discretion or where required

by law, and may consider the record developed before the Magistrate Judge,

making a determination on the basis of the record. The District Judge may also

receive further evidence, recall witnesses or recommit the matter to the Magistrate

Judge with instructions.

Id. (emphasis added).

Failure to file objections within the specified time may forfeit the right to appeal the

District Court’s order. Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019).

Objections must be specific and not merely indicate a general objection to the entirety of the

report and recommendation; a general objection has the same effect as would a failure to

object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, objections should focus on specific concerns and not merely restate

the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same

argument that was presented to the Magistrate Judge without specific objections ‘wastes

judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates

Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, at *2 (W.D. Ky. June 15,

2018) (quoting Howard). The failure to assert specific objections may in rare cases be

excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79

(6th Cir. 2019).