Opinion
C/A No.: 6:20-cv-01245-DCC-KFM
03-03-2021
Kimberly Brunson Coulter, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on July 7, 2015, alleging that she became unable to work on September 3, 2014 (Tr. 256-59). The application was denied initially (Tr. 78-89) and on reconsideration (Tr. 91-103) by the Social Security Administration. On March 15, 2016, the plaintiff requested a hearing (Tr. 140-41). On March 22, 2018, an administrative hearing was held at which the plaintiff, represented by counsel, and Arthur Schmitt, an impartial vocational expert, appeared and testified in North Charleston, South Carolina (Tr. 51-77). On August 8, 2018, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 108-22). The plaintiff filed a request for review with the Appeals Council on August 27, 2018 (Tr. 200-01). On May 20, 2019, the Appeals Council remanded the case back to the ALJ (Tr. 123-26). The Appeals Council directed the ALJ to give further consideration to the plaintiff's maximum residual functional capacity ("RFC") and provide specific references to the record in support thereof (Tr. 124-25). The Appeals Council further directed the ALJ to further evaluate the opinions of state agency medical consultants and to explain the weight given to their opinions (Tr. 124-25). Third, the Appeals Council directed the ALJ to obtain supplemental evidence from a vocational expert to clarify the demands of the plaintiff's past work and/or the effect of the assessed limitations on the occupational base (Tr. 124-25). On October 1, 2019, a second administrative hearing was held at which the plaintiff, represented by counsel, and Tonetta Watson-Coleman, an impartial vocational expert, appeared and testified in North Charleston, South Carolina (Tr. 33-49). On November 6, 2019, the ALJ considered the case de novo and found that the plaintiff was not under a disability through the date last insured as defined in the Social Security Act, as amended (Tr. 16-31). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on February 4, 2020 (Tr. 2-4). The plaintiff then filed this action for judicial review (doc. 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on March 31, 2018.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of September 3, 2014 through her date last insured of March 31, 2018 (20 C.F.R. § 404.1571, et seq.).
(3) Through the date last insured, the claimant had the following severe combination of impairments: status post fracture of upper extremity, obesity, and disorder of the nervous system (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform less than the full range [of] sedentary work[] as defined in 20 C.F.R. § 404.1567(a) except that she can occasionally push and/or pull with her non-dominant upper extremity. The claimant can occasionally climb ramp and/or stairs, as well as occasionally stoop, kneel, crouch, and crawl. She can never climb ladders, ropes, or scaffolds. The claimant can have occasional exposure to extreme heat and cold, wetness, humidity, and hazards. The claimant can perform no overhead lifting.
(6) Through the date last insured, the claimant was capable of performing past relevant work as a loan officer. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant was not under a disability, as defined in the Social Security Act, at any time from September 3, 2014, the alleged onset date, through March 31, 2018, the date last insured (20 C.F.R. § 404.1520(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to properly assess a treating physician opinion by Ryan Nobles, M.D. (doc. 12 at 9-12); (2) issuing a decision inconsistent with the record evidence (id. at 12-14); (3) failing to appropriately evaluate the plaintiff's subjective complaints (id. at 14-15); and (4) failing to appropriate evaluate the plaintiff's fibromyalgia (id. at 15-16). The Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 13 at 9-15). For the reasons set forth in more detail below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
Medical Source Statements
As noted, the plaintiff argues that the ALJ failed to appropriately account for the opinion of her treating pain management physician, Dr. Nobles (doc. 12 at 9-12). The regulations require that all medical opinions in a case be considered. 20 C.F.R. § 404.1527(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. § 404.1527(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. § 404.1527(c)(1)-(5); see also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for applications, filed before March 27, 2017 ("old rules"). See 20 C.F.R. § 404.1527. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. § 404.1520c; see also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017).
Recently, the Fourth Circuit reiterated the treating physician rule, explaining that it "requires that ALJs give 'controlling weight' to a treating physician's opinion on the nature and severity of the [plaintiff's] impairment if that opinion is (1) 'well-supported by medically acceptable clinical and laboratory diagnostic techniques' and (2) 'not inconsistent with the other substantial evidence' in the record." Arakas v. Comm'r, 983 F.3d 83, 106 (4th Cir. 2020). The court went on to note that a treating physician opinion "must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record." Id. at 107 (emphasis in original) (citations omitted).
The record contains a medical source statement by Dr. Nobles, dated June 28, 2017 (Tr. 610). In the medical source statement, Dr. Nobles noted that he had been treating the plaintiff for two years for neuropathic pain in her left upper extremity secondary to a distal radius fracture. Dr. Nobles noted that the plaintiff had intermittent neuropathic symptoms in her right hand as well. The plaintiff experienced burning pain, sensitivity to touch, and was unable to use her wrist for most daily activities. The plaintiff was prescribed gabapentin, Percocet, and trazodone, which caused the plaintiff to experience sedation, confusion, and could cause impaired thinking. Left stellate ganglion blocks and left ultrasound guided brachial plexus blocks only provided intermittent pain relief. Dr. Nobles opined that the pain limited the plaintiff's ability to perform daily activities as well as that the plaintiff would continue to require intermittent nerve blocks and possibly a spinal cord stimulator for pain control (Tr. 610).
The ALJ considered the opinion by Dr. Nobles and assigned Dr. Nobles' opinion little weight, noting:
I accord little weight to the opinion of pain management specialist Ryan Nobles, M.D., who reported on June 28, 2017, that the [plaintiff's] pain limited her ability to perform normal daily activities. Dr. Nobles reported that the [plaintiff] would need additional intermittent nerve blocks for pain control and that she might need a spinal cord stimulator, if her pain became unresponsive to the current treatment regimen[.] Dr. Nobles' opinion does not indicate what the [plaintiff] can and cannot do in terms of work-related limitations. He did note that the [plaintiff] took up to four Percocet a day as well as [t]razodone for sleep, medications which could cause the [plaintiff] to experience sedation, confusion, and might impair her thinking during the day (Exhibit 4F).(Tr. 23-24).
The plaintiff argues that the ALJ's decision violates the treating physician rule because it does not evaluate Dr. Nobles' opinion in accordance with the appropriate factors. The undersigned agrees. As an initial matter, as emphasized by the Court of Appeals in Arakas, opinions from treating providers "must be given controlling weight unless" they are based on medically unacceptable techniques or contradicted by substantial evidence in the record. Arakas, 983 F.3d at 107. Here, the ALJ's decision does not indicate that Dr. Nobles' opinion is based upon unacceptable clinical or laboratory diagnostic techniques or that Dr. Nobles' opinion is contradicted by substantial evidence in the record; instead, it rejects the opinion because Dr. Nobles did not indicate what the plaintiff could do in functional terms (Tr. 23-24). This rejection of Dr. Nobles opinion fails to recognize Dr. Nobles' opined limitations with respect to the plaintiff's left upper extremity as well as the effects of pain and medication side effects on the plaintiff's ability to engage in work, especially skilled work (Tr. 610).
Moreover, because the ALJ determined that Dr. Nobles' opinion was not entitled to controlling weight, the ALJ's opinion analysis is in error because she failed to utilize the factors set forth in 20 C.F.R. § 404.1527(c) in determining the amount of weight that Dr. Nobles' opinion should be accorded. For example, while the ALJ's decision recognizes Dr. Nobles as a pain management specialist, it does not discuss the plaintiff's longitudinal treatment relationship with Dr. Nobles (who treated the plaintiff regularly since at least 2015). Additionally, the ALJ's decision also fails to address the supportability and consistency of Dr. Nobles' opinion.
Dr. Nobles' opinion is supported by his treatment records. During his treatment of the plaintiff, Dr. Nobles diagnosed muscle spasm, complex regional pain syndrome ("CRPS") type 1 in the left upper extremity, and neuropathic pain. Dr. Nobles' treatment of the plaintiff included numerous physical examinations and diagnostic procedures, including ongoing medication management, nerve blocks (including a left stellate ganglion block that was not effective, and supraclavicular nerve blocks with steroid that were effective for 3-5 days), and occupational therapy (Tr. 630-32, 637-39, 649-52, 655-56, 683-84, 718-20, 726-27, 755-56). The ongoing treatment and medication management by Dr. Nobles supports his opined limitation regarding the plaintiff's functioning. Moreover, even though some of the plaintiff's treatment could be characterized as conservative, Dr. Nobles' opinion specifically noted that he was not sure that these treatments would be effective long-term (Tr. 610).
The noted difficulties with daily activities and medication side effects opined by Dr. Nobles are consistent with other record evidence, including function reports completed by the plaintiff on July 31, 2015, and November 12, 2015 (Tr. 308-15, 326-33). For example, the function reports indicate that the plaintiff is unable to complete her own personal care routine (including using the restroom, showering, shaving, putting on clothes) secondary to pain and limited range of motion ("ROM") in her left arm. She also noted that she could eat on her own, but could not cut her own food. The plaintiff had to be reminded to take medicine (and sometimes to bathe) and could not leave the house alone for long periods of time because she could not go to the restroom by herself. The plaintiff reported trouble in both function reports with lifting, reaching, walking, stair climbing, memory, completing tasks, concentrating, and using hands. By the time the plaintiff completed the second function report, she also had trouble with squatting, bending, standing, sitting, kneeling, understanding, following instructions, and getting along with others. Following written and verbal instructions would be difficult secondary to medication side effects and trouble remembering (with respect to verbal instructions) (Tr. 308-15, 326-33). Dr. Nobles' opinion that the plaintiff would be unable to use her wrist for most daily activities as well as the effects of her medications (confusion, sedation, possible impaired thinking) is consistent with the plaintiff's function reports.
Treatment records from the plaintiff's other treating providers are likewise consistent with Dr. Nobles' limitations. For example, treatment notes from Michael Hillegass, III, M.D. (who took over the plaintiff's pain management treatment in 2017), note that the plaintiff's CRPS worsened, spreading to both arms. They also detail the waxing and waning nature of the plaintiff's CRPS and its effect on her ability to engage in activities of daily living ("ADLs") (even prior to a second fall by the plaintiff in September 2018), noting on only three occasions benign examination findings (Tr. 760, 856, 908). The remainder of Dr. Hillegass' treatment records note abnormal examination findings (see Tr. 757 (noting hyperalgesia and allodynia on her right arm and left arm to the level of forearm), 948-49 (noting allodynia over left elbow and upper arm with a positive straight leg raise on the right), 1020 (noting antalgic gait, allodynia over left elbow and upper arm, and positive straight leg raise on the right), 1141 (noting allodynia over left elbow and upper arm with good ROM in the left upper arm, and an antalgic gait), 1228 (noting an antalgic gait, allodynia over left elbow and upper arm with good ROM with left upper arm), 1274 (noting antalgic gait, allodynia over left elbow and upper arm with good ROM)). Indeed, Dr. Hillegass issued a medical source statement in 2019, which opined limitations consistent with those of Dr. Noble (Tr. 810). Dr. Hillegass' opinion also noted that nerve blocks, physical therapy, and occupational therapy were not effective at treating the plaintiff's pain, as forecasted by Dr. Nobles' opinion (compare Tr. 610 with Tr. 810).
Hyperalgesia is defined as an "increased sensitivity to pain or enhanced intensity of pain sensation." See Hyperalgesia, Merriam-Webster Medical Dictionary, https://www.merriam-webster.com/medical/hyperalgesia (last visited March 1, 2021).
Allodynia is defined as "pain resulting from a stimulus (such as a light touch of the skin) which would not normally provoke pain." See Allodynia, Merriam-Webster Medical Dictionary, https://www.merriam-webster.com/dictionary/allodynia (last visited March 1, 2021).
The ALJ's decision rejects Dr. Hillegass' opinion because it is dated after the plaintiff's date last insured; however, the ALJ's rejection of Dr. Hillegass' opinion does not include an indication that she considered the Court of Appeals' decision in Bird v. Comm'r, 699 F.3d 337, 341 (4th Cir. 2012). Bird, 699 F.3d at 341-44 (noting that ALJs should give "retrospective consideration to the" records postdating the plaintiff's date last insured that can provide information regarding functioning predating a plaintiff's date last insured).
Further, treatment records from Harriett Hansen, D.O., are consistent with Dr. Nobles' opined limitations. Some of Dr. Hansen's treatment records include benign examination findings (Tr. 406-12, 723-24, 776-77, 881-83, 976-781, 189-91). However, others note mild edema in the bilateral lower extremities, myalgias requiring rheumatology labs, tenderness at 18 points (14 points on one occasion), painful movement, diminished sensation to light touch in lower extremities, positive Romberg's, as well as tenderness along posterior ribs on the left and mid-axillary line (Tr. 401-05, 633-34, 685-86, 692-93, 712-14, 762-64). Dr. Hansen also completed a functional capacity examination ("FCE") of the plaintiff that noted limitations in the plaintiff's left upper extremity. Dr. Hansen noted that the plaintiff's left upper extremity had a limited ROM, although the passive ROM was greater than the active ROM (Tr. 617-18). Grip strength dynamometer readings were much lower than norms (right - 65.8; left 57.3), with 5-level readings of 22-30-25-25-25 on the right and 15-25-30-15-20 on the left (Tr. 617-18). Consistent with Dr. Nobles, Dr. Hansen opined that the plaintiff's pain, weakness, and low fatigue threshold affected the plaintiff's ability to complete ADLs as well as certain activities during the FCE (Tr. 612). Likewise, during occupational therapy from November 21, 2014, to February 27, 2015, when the plaintiff was discharged because her healing had plateaued (even though she had not met all of the occupational therapy goals), the plaintiff's ROM was limited secondary to pain and osteoarthritis (especially in the joints of the left thumb) (Tr. 415-18, 420-23, 426-42, 445-60, 462-80).
The ALJ's decision only accords the FCE performed by Dr. Hansen partial weight, finding it relied too heavily on the plaintiff's subjective complaints and that it was based upon a one-time examination of the plaintiff (see Tr. 24); however, the ALJ appears to have missed that Dr. Hansen was one of the plaintiff's treating providers (see Tr. 401-12, 633-34, 685-86, 692-93, 712-14, 723-24, 762-64, 776-77, 881-83, 977-78, 1190-91).
Moreover, upon examination by Ryan Weldon, M.D., (rheumatologist) on February 23, 2016, the plaintiff had point tenderness along her spine, paraspinal tenderness with multiple tenderpoints above and below her waist, and tenderness in her metacarpophalangeal and proximal interphalangeal joints with no synovitis. Dr. Weldon noted that the plaintiff likely had fibromyalgia, as even though she had inflammation, other impairments could account for those findings, such as her urticaria (Tr. 641-48). Upon examination by Craig Woodard, M.D., (neurologist), the plaintiff's abnormal examination findings included mild instability in the temporomandibular joint ("TMJ") region noted on jaw opening/closing, mild increased tone in the posterior cervical paraspinal muscles bilaterally with normal ROM, trace ankle edema and tenderness bilaterally, tenderness to left upper extremity, slight guarding and giveaway weakness in left upper extremity secondary to pain, and mild reduced vibratory sensation in the toes. Dr. Woodard opined that the plaintiff's gait imbalance and unsteadiness was likely related to fibromyalgia, her medications, and possibly early diabetic neuropathy (Tr. 715-18). The above record evidence appears consistent with Dr. Nobles' opinion that the plaintiff would have difficulty with ADLs as well as that she would experience confusion, sedation, and possibly impaired thinking as a result of her medications.
The Commissioner argues that the ALJ explained that Dr. Nobles' decision was discounted based upon the plaintiff's conservative long-term opiate treatment and limited objective physical findings (doc. 13 at 10-11). However, the portion of the ALJ's decision referenced by the Commissioner is the ALJ's paragraph concluding the RFC analysis, not the ALJ's discussion of Dr. Nobles' opinion (see Tr. 24). Moreover, although the plaintiff continued long-term opiate treatment, continuing and persistent pain required regular medication adjustments and the plaintiff's longitudinal medical records contain more than "limited objective physical findings" (doc. 13 at 10). Although the ALJ retains the authority to weigh medical opinions - and is not required to discuss every factor set forth in the regulations - it is legally insufficient for the ALJ's decision to recite some facts, ignore others, and make conclusory statements in support of the partial disregard for medical opinions provided by treating providers, such as Dr. Nobles. "A necessary predicate to engaging in substantial evidence review is a record" that adequately explains the ALJ's findings and reasoning. Dowell v. Colvin, C/A No. 1:12-cv-1006, 2015 WL 1524767, at *4 (M.D.N.C. Apr. 2, 2015) (requiring that the ALJ "build a logical bridge between the evidence and his conclusions") (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Accordingly, this case should be remanded so that the ALJ may properly weigh Dr. Nobles' medical opinion under the applicable standards and explain the reasons for the weight given to Dr. Nobles' opinion.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). The ALJ is specifically instructed to evaluate the plaintiff's fibromyalgia in accordance with the Court of Appeals' guidance in Arakas. See Arakas, 983 F.3d at 101-02. As such, on remand, the ALJ is to also take into consideration the plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
As such, based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge March 3, 2021
Greenville, South Carolina
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).