Opinion
5:21-CV-529-M
01-04-2023
KRISTEN BAREFOOT, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Kristin Barefoot (“Plaintiff”) filed this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of the denial of her application for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #17] be denied, Defendant's Motion for Judgment on the Pleadings [DE #20] be granted, and the Commissioner's decision be affirmed.
STATEMENT OF THE CASE
Plaintiff applied for DIB and SSI on June 28, 2019, with an alleged onset date of February 20, 2019. (R. 15, 254-60, 269-70.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 15, 125-28, 194, 201-02.) A telephonic hearing was held on April 27, 2021, before Administrative Law Judge (“ALJ”) James E. Williams, who issued an unfavorable ruling on July 8, 2021. (R. 12-84.) On October 25, 2021, the Appeals Council denied Plaintiff's request for review. (R. 1-6.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On December 28, 2021, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the “substantial evidence” inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Ha l v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). “If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Social Security Act (“the Act”). As a preliminary matter, the ALJ found Plaintiff met the insured status requirements of the Act through September 30, 2025. (R. 18.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since February 20, 2019, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff has the severe impairments of hemolytic anemias; pancreatitis; essential hypertension; obesity; depressive, bipolar and related disorders; anxiety and obsessive-compulsive disorders; and autism spectrum disorder. (Id.)
At step three, the ALJ concluded Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 21.) The ALJ expressly considered Listings 7.05, 12.04, 12.06, and 12.10, and SSR 19-2p in connection with Plaintiff's obesity. (R. 21-24.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff has
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) such that she can lift and carry 20 pounds occasionally and 10 pounds frequently, [sit] for 6 hours in an 8hour workday, stand for 6 hours in an 8-hour workday, walk for 6 hours in an 8-hour workday, and push or pull as much as she can lift and carry. Further, she can only occasionally have exposure to unprotected heights and moving mechanical parts. She can understand, remember, and carry out instructions by performing simple, routine and repetitive tasks but not at a production rate pace (e.g., assembly line work). She can make simple work-related decisions with frequent interaction with supervisors but only occasional interaction with coworkers and the public.(R. 24.) In making this assessment, the ALJ stated that she considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”) based on the requirements of 20 C.F.R. §§ 404.1529, 416.929, and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017) and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms “not entirely consistent with the medical evidence and other evidence in the record.” (R. 24-25.) At step four, the ALJ concluded that Plaintiff has no past relevant work. (R. 37.) At step five, the ALJ determined, based upon Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, namely: bundler (DOT #920.687-190), garment bagger (DOT #920.687-018), and marker (DOT #209.587-034). (R. 37.) The ALJ concluded that Plaintiff had not been disabled under the Act from February 20, 2019, Plaintiff's alleged onset date, through the date of the decision. (R. 38.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by
(A) failing to properly analyze whether Plaintiff met the Paragraph C criteria of Listings 12.04 and 12.06 (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #18] at 11-15); and
(B) failing to properly analyze and explain the weight assigned to the medical opinions of Plaintiff's treating psychiatrist as these relate to the Paragraph B criteria of Listings 12.04, 12.06, and 12.10 (id. at 15-23).
The Commissioner contends that ALJ Williams properly explained why Plaintiff did not meet the criteria for Listings 12.04, 12.06, and 12.10, and properly evaluated the opinions of Plaintiff's treating psychiatrist. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #21] at 6-13.) The undersigned agrees with the Commissioner for the reasons explained below and, therefore, recommends that the decision be affirmed.
A. Paragraph C Criteria of Listings 12.04 and 12.06
In determining whether a listing is met or equaled, an ALJ must consider all evidence in the case record about the claimant's impairments and the effects on the claimant. 20 C.F.R. §§ 404.1526(c), 416.926(c). Where a claimant has a severe impairment and the record contains evidence that symptoms related to the impairment “correspond to some or all of the requirements of a listing,” it is incumbent upon the ALJ to identify the listing and to compare the claimant's symptoms to each of the listing's requirements. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). While it may not always be necessary for the ALJ to perform a “step-by-step” analysis of the listing's criteria, the ALJ must evaluate the claimant's symptoms in light of the specified medical criteria and explain his rationale. Johnson v. Astrue, No. 5:08-CV-515-FL, 2009 WL 3648551, at *2 (E.D. N.C. Nov. 3, 2009). An ALJ's failure to compare a claimant's symptoms to the relevant listings or to explain, other than in a summary or conclusory fashion, why the claimant's impairments do not meet or equal a listing “makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013); see also Cook, 783 F.2d at 1173.
Listing 12.04, which applies to persons with depressive, bipolar, and related disorders, is met when someone satisfies the Paragraph A and Paragraph B criteria, or the Paragraph A and Paragraph C criteria. 20 C.F.R. Part 404, Subpart P, App. 1, §§ 12.00(A)(2); 12.04. Listing 12.06, which applies to persons with anxiety and obsessive-compulsive disorders, is similarly met when someone satisfies the Paragraph A and Paragraph B criteria, or the Paragraph A and Paragraph C criteria. 20 C.F.R. Part 404, Subpart P, App. 1, §§ 12.00(A)(2); 12.06. The Paragraph C criteria are an alternative to the Paragraph B criteria because the Commissioner recognizes that “mental health interventions may control the more obvious symptoms and signs” of a person's mental disorder. Id. at § 12.00(G)(1). Paragraph C requires that a person have a “serious and persistent” mental disorder, which has a medically documented history for at least two years, and evidence showing either that (i) the person relies, “on an ongoing basis, upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s), to diminish the symptoms and signs” of the mental disorder (known as the C1 criteria), or (ii) evidence that only “marginal adjustment” has been achieved despite diminished symptoms and signs of the mental disorder (known as the C2 criteria). Id. at § 12.00(G)(2) (explaining the Paragraph C criteria). The regulations explain that “marginal adjustment” means the person has minimal capacity to adapt to changes in her environment or to demands that are not already part of her daily life. Id. at § 12.00(G)(2)(c). Marginal adjustment is shown when “the evidence shows that changes or increased demands have led to exacerbation of [the person's] symptoms and signs and to deterioration in . . . functioning.” Id. An example is when a person has become unable to function outside of her home or a more restrictive setting without “substantial psychosocial supports.” Id. (cross-referencing § 12.00(D) for explanation of psychosocial supports). Such deterioration may have necessitated significant changes in medication or treatment, or even hospitalization. Id. Examples of psychosocial supports are also provided by regulation. Id. at § 12.00(D)(1).
The Paragraph A criteria include the medical criteria for each listing. 20 C.F.R. Part 404, Subpart P, App. 1, §§ 12.00(A)(2)(a); 12.04(A); 12.06(A). Paragraph B requires extreme limitation in one, or marked limitation in two, of the following areas of mental functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; or (4) adapting or managing oneself. Id. at §§ 12.04(B); 12.06(B). The areas of mental functioning identified in Paragraph B are further explained in 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(E).
Plaintiff argues that she meets the Paragraph C criteria for three reasons: (1) “the record contains treatment notes from mental health providers dating back to 2019 documenting ongoing treatment of [Plaintiff's] bipolar disorder, anxiety and OCD, for which she has been treated with multiple medications” (Pl.'s Mem. Supp. Mot. J. Pldgs. at 13); (2) “there is evidence of a highly structured setting, as the evidence shows that [Plaintiff] continues to live with her parents and husband, who she relies upon for essentially all social contact and for being able to go into public no more than 2 times a week” (id. (citing R. 53-54); and (3) there is evidence in the record of “minimal capacity to adapt to changes in her environment or demands” (Pl.'s Mem. Supp. Mot. J. Pldgs. at 14). Plaintiff contends the ALJ's evaluation of the Paragraph C criteria is conclusory and requires either an award of benefits or remand because “the evidence [cited by Plaintiff in support of the Paragraph C criteria] was before the ALJ, but the ALJ simply chose to state that the evidence did not exist under the ‘C' criteria.” (Pl.'s Mem. Supp. Mot. J. Pldgs. at 15.) The undersigned disagrees with Plaintiff.
Most of the text on these pages is opening remarks from Plaintiff's counsel as to why Plaintiff meets the Paragraph C criteria for Listing 12.06. (R. 53-54.) Towards the end of page 54, Plaintiff testified that she lives at home with her parents and husband. (R. 54.) Plaintiff's testimony regarding her public interactions and ability to go into public, as best the undersigned can determine, occurs on pages 66, 71, and 72 of the hearing transcript. (R. 66, 71-72.)
While Plaintiff is correct that ALJ Williams' explicit statement at Step Three of the sequential evaluation regarding the Paragraph C criteria is wanting (see R. 23 (ALJ's Paragraph C statement)), the totality of the ALJ's opinion shows sufficient consideration of the Paragraph C criteria and related evidence such that the undersigned can discern the ALJ's rationale. Cf. Radford, 734 F.3d at 295; see also Smith v. Astrue, 457 Fed.Appx. 326, 328 (4th Cir. 2011) (per curiam) (“Additionally, although the ALJ's explanation was cursory, we are satisfied that the ALJ considered the records Smith cites. Reading the ALJ's decision as a whole, substantial evidence supports the finding at step three . . . as the ALJ's analysis at subsequent steps of the evaluation are inconsistent with meeting Listing 1.02.”) (citing Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005)); Wynn v. Kijakazi, No. 2:20-CV-15-M, 2021 WL 5227359, at *4 (E.D. N.C. Aug. 12, 2021) (“In reviewing the ALJ's analysis, it is possible that even ‘[a] cursory explanation' at step three may prove ‘satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion.'” (quoting Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015))), mem. & recommendation adopted by 2021 WL 4443427 (E.D. N.C. Sept. 28, 2021). ALJ Williams summarized the treatment notes and medical records (R. 24-35), which Plaintiff generically references in her brief (see Pl.'s Mem. Supp. Mot. J. Pldgs. at 13-15), and Plaintiff does not identify any inaccurate statements by ALJ Williams regarding these notes and records (id.). Plaintiff does not identify any evidence that ALJ Williams failed to discuss. See Smith, 457 Fed.Appx. at 328. Further, the ALJ discussed the Paragraph C criteria when he evaluated the medical opinions of Dr. Martin Williams and explained why he did not fully credit Dr. Williams' opinions. (R. 35-36.) Lastly, while ALJ Williams did not explicitly confront whether Plaintiff's living environment at her parents' home constitutes a “highly structured setting” or whether Plaintiff has achieved only “marginal adjustment,” ALJ Williams noted (i) numerous instances of normal mental status examinations in the treatment records (R. 26-31), (ii) Plaintiff's ability to interact normally with authority figures (R. 22), (iii) Plaintiff's ability to shop, go out to eat, attend church, and go to the movies with family (R. 22, 36), and (iv) Plaintiff's moderate limitation in adapting or managing herself (R. 23 (citing numerous treatment notes)). This is sufficient to show the ALJ's rationale regarding the Paragraph C criteria and to meet the substantial evidence standard. Accordingly, Plaintiff's argument that reversal with an award of benefits or remand for more robust Paragraph C discussion should be rejected.
Consistent with Plaintiff's briefing (see Pl.'s Mem. Supp. Mot. J. Pldgs. at 12- 13), the undersigned will evaluate Plaintiff's argument regarding the ALJ's consideration of Dr. Williams' medical opinions in the next section as it pertains to the Paragraph B criteria.
Plaintiff's self-report (R. 319-31) about her home life does not appear to rise to the level of home-based psychosocial support explained in § 12.00(D)(1)(a) (“For example, family members administer your medication, remind you to eat, shop for you and pay your bills, or change their work hours so you are never home alone.”).
B. Medical Opinion Analysis and Paragraph B Criteria of Listings 12.04, 12.06, and 12.10
When evaluating medical opinions, the ALJ must consider factors set forth in 20 C.F.R. §§ 404.1520c(b), (c)(1)-(5); 416.920c(b), (c)(1)-(5). “The ALJ is not required to explain how she considered each of the relevant factors; instead, when articulating her finding about whether an opinion is persuasive, the ALJ need only explain how she considered ‘the most important factors' of supportability and consistency.” Corbin v. Kijakazi, No. 2:20-CV-60-M, 2022 WL 990487, at *2 (E.D. N.C. Mar. 31, 2022). Generally, the ALJ must explain how the evidence led to his conclusions. Arakas v. Comm'r of SSA, 983 F.3d 83, 95 (4th Cir. 2020) (“To pass muster, ALJs must ‘build an accurate and logical bridge' from the evidence to their conclusions.” (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016))); see also Mascio, 780 F.3d at 637 (remand is necessary when a reviewing court is “left to guess about how the ALJ arrived at his conclusions”).
A person can meet Listing 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), or 12.10 (autism spectrum disorder) by satisfying the Paragraph A and Paragraph B criteria for each listing. 20 C.F.R. Part 404, Subpart P, App. 1, §§ 12.00(A)(2); 12.04; 12.06; 12.10. The Paragraph A criteria include the medical criteria for each listing. 20 C.F.R. Part 404, Subpart P, App. 1, §§ 12.00(A)(2)(a); 12.04(A); 12.06(A); 12.10(A). Paragraph B requires extreme limitation in one, or marked limitation in two, of the following areas of mental functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; or (4) adapting or managing oneself. Id. at §§ 12.04(B); 12.06(B); 12.10(B). The areas of mental functioning identified in Paragraph B are further explained in 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(E).
Dr. Martin Williams, Plaintiff's treating psychiatrist, completed a mental impairment questionnaire expressing his opinions about Plaintiff's functional abilities, including his opinions regarding the Paragraph B criteria. (R. 2006-11.) The ALJ did not discuss Dr. Williams' opinions at step three but did during the subsequent RFC discussion. (R. 22-23, 35-36.) ALJ Williams explained that he found Dr. Williams' opinions only “partially persuasive” because (i) the opinions were mostly in check-box format without explanations or citations to the medical record, (ii) the explanations were mostly conclusory, except for notes about Plaintiff's distractibility and comfort around family members, (iii) the opinions were not well-supported by Dr. Williams' treatment notes, which showed generally normal mental status examinations and well-controlled mental health with medications, and (iv) the opinions were inconsistent with the medical evidence to the extent Plaintiff had not been hospitalized for psychiatric reasons and had only a single visit to the emergency department for anxiety. (R. 35-36 (citing R. 1230-65 (treatment notes), 1853-80 (treatment notes), 2006 & 2010 (mental impairment questionnaire), 2013-30 (treatment notes).)
Plaintiff's arguments regarding the evaluation of Dr. Williams' opinions are not persuasive. As to the ALJ's first reasons for discounting Dr. Williams' opinions, Plaintiff contends that (i) the check-box format “should have no bearing” on the persuasiveness of the opinions and notes that the opinions of the non-examining agency examiners are often in similar format, (ii) “the ALJ's statement that Dr. Williams did not provide[] explanation is simply not true” and that Dr. Williams explained his opinions, and (iii) the ALJ's criticism that Dr. Williams' explanations were mostly conclusory is “flawed and [] not a basis” for discrediting the doctor's opinions. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 19-20.) After reviewing the questionnaire form and the treatment notes from Dr. Williams, the undersigned cannot say that the ALJ's assessment is inaccurate. While there are handwritten notes and explanations included on the questionnaire form, the opinions regarding the listings criteria are brief or conclusory and never reference any portion of the medical record. (R. 2010-11.) Plaintiff's argument here is more about re-weighing the evidence than whether substantial evidence supports the ALJ's findings. See Mastro, 270 F.3d at 176; Sterling Smokeless Coal Co., 131 F.3d at 439-40.
Plaintiff disagrees with the ALJ's assessment that Dr. Williams' opinions are “not well supported by his own treatment notes that reveal generally normal mental status examinations” and mental health symptoms controlled with medications. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 20-21.) Plaintiff contends that (i) the treatment records and examinations show many positive signs and symptoms “when viewed completely[] and not just through the lens in support of non-disability”; (ii) the ALJ is incorrect that many mental status examinations had normal findings, “particularly given that psychiatric patient reports of functioning during period between treatment sessions are just as probative of the severity of one's psychological impairments as objective observation”; and (iii) Dr. Williams' opinions are consistent with other medical evidence. (Id.) The general problem with these arguments is that they ask the court to re-weigh the evidence. See Mastro, 270 F.3d at 176; Sterling Smokeless Coal Co., 131 F.3d at 439-40. More specifically, though, the treatment records cited by the ALJ do note normal mental status on many occasions and Plaintiff cites no evidence in Dr. Williams' treatment notes that is materially inconsistent with the ALJ's assessment. (R. 35; Pl.'s Mem. Supp. Mot. J. Pldgs. at 20.) Plaintiff also offers no authority to support the claim that patient self-reports of symptoms during the time between treatment sessions is “just as probative” as observations by medical professionals. Lastly, while it may be true that Dr. Williams' opinions were consistent in some ways with other medical evidence, that does not make the ALJ's assessment of the supportability of the opinions, see 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1), unsupported by substantial evidence.
Plaintiff's final argument finds fault with the ALJ's reliance on a lack of psychiatric hospitalizations. Plaintiff notes that there is no requirement that a claimant be hospitalized to meet a listing and contends that this is an invalid reason for discounting Dr. Williams' opinions. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 21-22.) Plaintiff is correct that a claimant can satisfy a listing without having to show evidence of psychiatric hospitalizations. However, such evidence would be relevant in the context of the Paragraph B criteria, at least as to a person's ability to adapt or manage herself, see § 12.00(E)(4). The undersigned can discern why the ALJ noted this as a reason for discounting Dr. Williams' opinions, and the regulations do not prohibit the ALG from considering this as a factor.
It would also appear relevant to the Paragraph C criteria. See 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(G)(2)(c).
In sum, the undersigned can discern the ALJ's rational for not fully crediting Dr. Williams' opinions. While different factfinders may have reached a different conclusion as to whether Plaintiff meets the Paragraph B criteria, substantial evidence supports the ALJ's findings and the ALJ applied the correct legal standards.
C ONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #17] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE #20] be GRANTED, and the Commissioner's decision be affirmed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 18, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Colins, 766 F.2d 841, 846-47 (4th Cir. 1985).