Opinion
Civil Action 6:23-cv-3821-BHH-KFM
06-05-2024
Crystal C.,[1] Plaintiff, v. Martin J. O'Malley,[2] Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States 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 Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g), 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI 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 February 8, 2011, alleging that she became unable to work on February 1, 2011 (Tr. 136-37). The plaintiff filed an application for supplemental security income (“SSI”) benefits on July 19, 2012, alleging that she became unable to work on July 1, 2010 (Tr. 138-45). The applications were denied initially (Tr. 1181-93, 1220-30) and on reconsideration (Tr. 1194-1219) by the Social Security Administration. On December 12, 2011, the plaintiff requested a hearing (Tr. 93-94). On December 14, 2012, an administrative hearing was held at which the plaintiff, represented by counsel, and Robert E. Brabham, Jr., an impartial vocational expert, appeared and testified in Columbia, South Carolina, before administrative law judge (“ALJ”) Walter C. Herin, Jr. (Tr. 28-77). On January 4, 2013, ALJ Herin 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. 12-27). 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 24, 2014 (Tr. 1-4).
On April 29, 2014, the plaintiff filed a complaint in the United States District Court for the District of South Carolina, and on September 23, 2015, the case was remanded to the Commissioner for further proceedings (Tr. 728-34). Coley v. Comm'rSoc. Sec. Admin., C/A No. 6:14-cv-01702-JMC, 2015 WL 5602606 (D.S.C. Sept. 23, 2015). On March 17, 2016, the Appeals Council issued an order remanding the matter to the ALJ to issue a new decision in accordance with the order and consolidating later-filed applications into the current matter (Tr. 737). On November 17, 2016, a second administrative hearing was held at which the plaintiff, represented by counsel, and Mr. Brabham, an impartial vocational expert, appeared and testified in Columbia, South Carolina, before ALJ Herin (Tr.622-82). On December 27, 2016, ALJ Herin 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. 599-621). 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 April 20, 2018 (Tr. 584-88).
On June 15, 2018, the plaintiff filed a second complaint in the United States District Court for the District of South Carolina, and on April 18, 2019, the case was remanded to the Commissioner for further proceedings (Tr. 1291-94). Coley v. Comm'r Soc. Sec. Admin., C/A No. 6:18-cv-01657-JMC, 2019 WL 1723602 (D.S.C. Apr. 18, 2019). On August 14, 2019, the Appeals Council issued an order remanding the matter for a new ALJ to issue a new decision in accordance with the order (Tr. 1297-98).
On March 3, 2020, a third administrative hearing was held at which the plaintiff, represented by counsel, and Jacqueline Kennedy-Merritt, an impartial vocational expert, appeared and testified in Columbia, South Carolina, before ALJ Brian Garves (Tr. 1147-80). On April 14, 2020, ALJ Garves 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. 1303-40). On October 4, 2022, the Appeals Council granted the plaintiff's request for review and issued an order remanding the matter to the ALJ to issue a new decision in accordance with the order (Tr. 1343-45).
On January 31, 2023, a fourth administrative hearing was held at which the plaintiff, represented by counsel, and Ashley Johnson, an impartial vocational expert, appeared and testified before ALJ Garves by telephone due to the COVID-19 pandemic (T r. 1115-46). On May 2, 2023, ALJ Garves considered the case de novo and issued a partially favorable decision, finding that the plaintiff was disabled for purposes of her SSI application beginning on January 1, 2022, but also finding that the plaintiff was not under a disability as defined in the Social Security Act, as amended, prior to the plaintiff's date last insured of September 30, 2015, for purposes of her DIB application and prior to January 1, 2022 (the established disability onset date) for purposes of her SSI application (Tr. 1067-1114). ALJ Garves' finding became the final decision of the Commissioner of Social Security pursuant to 20 C.F.R. §§ 404.984(d), 416.1484(d). The plaintiff then filed this action for judicial review (doc. 1).
In making the determination that the plaintiff is partially entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through September 30, 2015.
(2) The claimant has not engaged in substantial gainful activity since February 1, 2011, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq).
(3) Since the alleged onset date of disability, February 1, 2011, the claimant has had the following severe impairments: obesity, spine disorder, depressive disorder, fibromyalgia, adjustment disorder with mixed anxiety and depression, carpal tunnel syndrome, and connective tissue disease. Beginning on the established onset date of disability, January 1, 2022, the claimant has had the additional severe impairments of asthma and chronic obstructive pulmonary disease (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) Since February 1, 2011, the claimant has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that prior to January 1, 2022, the date the claimant became disabled, the claimant had the residual functional capacity of: can lift and carry 10 pounds occasionally and less than 10 pounds frequently; can sit for 6 hours in an eight-hour shift, can stand for 2 hours, and walk for 2 hours; can use hand controls frequently bilaterally; can use foot controls frequently bilaterally; can frequently reach overhead and all other directions bilaterally; can frequently handle and finger objects bilaterally; can occasionally climb ramps or stairs; can never climb ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; and can have occasional exposure to extreme cold, extreme heat, moisture, humidity, vibration, and to irritants such as odors, fumes, dust, gases, and poor ventilation; can have occasional exposure to hazards such as unprotected heights and moving machinery; can do no work outside; limited to simple, routine tasks and limited to making simple, work-related decisions; limited to environments with only routine changes in the work settings and duties; can have occasional interaction with supervisors; occasional interaction with co-workers and with the general public; and will need to be off-task 5 percent of the workday in addition to regularly-scheduled breaks.
(6) After careful consideration of the entire record, the undersigned finds that since January 1,2022, the claimant has had the residual functional capacity of: can lift and carry 10 pounds occasionally and less than 10 pounds frequently; can sit for 6 hours in an eight-hour shift, can stand for 2 hours, and walk for 2 hours; can use hand controls frequently bilaterally; can use foot controls frequently bilaterally; can frequently reach overhead and all other directions bilaterally; can frequently handle and finger objects bilaterally; can occasionally climb ramps or stairs; can never climb ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; and can have occasional exposure to extreme cold, extreme heat, moisture, humidity, vibration, and to irritants such as odors, fumes, dust, gases, and poor ventilation; can have occasional exposure to hazards such as unprotected heights and moving machinery; can do no work outside; limited to simple, routine tasks and limited to making simple, work-related decisions; limited to environments with only routine changes in the work settings and duties; can have occasional interaction with supervisors; occasional interaction with coworkers and with the general public; and will need to be off-task 20 percent of the workday in addition to regularly-scheduled breaks.
(7) Since February 1, 2011, the claimant has been unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(8) Prior to the established disability onset date, the claimant was a younger individual age 18-44. The claimant's age category has not changed since the established disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
(9) The claimant has at least a high school education (20 C.F.R. §§ 404.1564 and 416.964).
(10) Prior to January 1,2022, transferability of job skills is not material to the determination fo disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled” whether or not the claimant has transferable job skills. Beginning on January 1, 2022, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(11) Prior to January 1,2022, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. §§ 404.1569, 404.1569a, 416.969, and 416.969a).
(12) Beginning on January 1, 2022, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant can perform
(20 C.F.R. §§ 404.1560(c), 404.1566, 416.960(c), and 416.966).
(13) The claimant was not disabled prior to January 1,2022, but became disabled on that date and has continued to be disabled through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
(14) The claimant was not under a disability within the meaning of the Social Security Act at any time through September 30, 2015, the date last insured (20 C.F.R. §§ 404.315(a) and 404.320(b)).
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) and § 1382c(a)(3)(A), (H)(i), 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), 416.905(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 her past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her 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 the 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, who was 34 years old on the alleged disability onset date, seeks disability based upon physical and mental impairments that limit her ability to sit, stand, walk, and cause fatigue and pain. The plaintiff has past relevant work experience as a vocational training instructor (Tr. 1097). The plaintiff argues that ALJ Garves erred with respect to his determination that the plaintiff was not disabled prior to January 1,2022, the period prior to her established disability onset date by (1) failing to explain the residual functional capacity (“RFC”) findings relating to the plaintiff's obesity and fatigue (doc. 23 at 17-25); (2) failing to appropriately evaluate 2012 opinion evidence from Brian Cline, M.D. (id. at 25-31); and (3) failing to properly examine the plaintiff's subjective complaints based upon Social Security Ruling (“SSR”) 16-3p (id. at 31-34). The plaintiff requests that this matter be remanded with a direction that benefits be paid going back to her alleged onset date (id. at 34-35). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence, should be affirmed, and that additional benefits (for the time period prior to the established onset date of January 1, 2022) should not be awarded (doc. 24 at 7-19).
Because the decision by ALJ Garves is the one currently before the court, the remainder of the decision will refer to him as “the ALJ.”
Neither the plaintiff nor the Commissioner argues error with respect to the ALJ's determination that the plaintiff was disabled as of January 1,2022, for purposes of her SSI application.
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. §§ 404.1546(c), 416.946(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. §§ 404.1545(a)(3), 416.945(a)(3).
Social Security Ruling 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the
maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
In evaluating the plaintiff's case, the ALJ set forth the following RFC assessment with respect to the period in question, prior to the plaintiff's established disability onset date of January 1, 2022:
After careful consideration of the entire record, the undersigned finds that prior to January 1, 2022, the date the claimant became disabled, the claimant had the residual functional capacity of: can lift and carry 10 pounds occasionally and less than 10 pounds frequently; can sit for 6 hours in an eight-hour shift, can stand for 2 hours, and walk for 2 hours; can use hand controls frequently bilaterally; can use foot controls frequently bilaterally; can frequently reach overhead and all other directions bilaterally; can frequently handle and finger objects bilaterally; can occasionally climb ramps or stairs; can never climb ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; and can have occasional exposure to extreme cold, extreme heat, moisture, humidity, vibration, and to irritants such as odors, fumes, dust, gases, and poor ventilation; can have occasional exposure to hazards such as unprotected heights and moving machinery; can do no work outside; limited to simple, routine tasks and limited to making simple, work-related decisions; limited to environments with only routine changes in the work settings and duties; can have occasional interaction with supervisors; occasional interaction with co-workers and with the general public; and will need to be off-task 5 percent of the workday in addition to regularly-scheduled breaks.(Tr. 1077). The RFC assessment was followed by a discussion of the record evidence (Tr. 1077-96). As noted above, the plaintiff alleges that the ALJ failed to account for the plaintiff's obesity and fatigue in the RFC assessment (doc. 23 at 17-25).
Obesity
Social Security Ruling 19-2p requires that obesity be considered at each step of the sequential evaluation process. SSR 19-2p, Titles II and XVI: Evaluating Cases Involving Obesity, 2019 WL 2374244 (May 20, 2019). The plaintiff argues that the ALJ erred by failing to explain how the exacerbation of obesity affected the plaintiff's functioning (doc. 23 at 18-20). The court disagrees. As an initial matter, the plaintiff does not reference any record evidence missed by the ALJ in asserting that the ALJ failed to appropriately evaluate the plaintiff's obesity. Further, the plaintiff's argument appears to rely on the ALJ's failure to use certain “magic words” evincing that he considered the plaintiff's obesity, which is not required. Indeed, as noted by the plaintiff, the ALJ acknowledged the plaintiff's continued weight changes during the relevant period and then noted that the RFC assessment accounted for all the plaintiff's impairments in combination (Tr. 1077-96).
Moreover, with respect to the plaintiff's obesity, the ALJ's decision reflects meaningful consideration of the plaintiff's obesity at each step of the sequential evaluation process, as required by SSR 19-2p. For example, in evaluating the Listings that may be applicable to the plaintiff's case, the ALJ noted that he considered the plaintiff's obesity pursuant to SSR 19-2p and further noted that the plaintiff's obesity, in concert with her other impairments, did not meet or medically equal the requirements of a Listing (see Tr. 1074). In explaining the limitations in the RFC assessment, the ALJ also addressed the plaintiff's obesity in connection with her other impairments, noting that the plaintiff's obesity, along with her other impairments, was accounted for in the RFC assessment by limiting the plaintiff to a range of sedentary work (Tr. 1092-1102). Indeed, as recognized by the ALJ, the record evidence does not include any reference to the plaintiff's obesity affecting her functioning - and the plaintiff's function report made no mention of her obesity affecting her ability to sit, stand, walk, or otherwise work (see Tr. 1089-91, 1694-1701). For example, although the plaintiff mentioned in two letters that she had gained weight secondary to being unable to exercise, she did not indicate that her obesity was causing difficulty with sitting, standing, or walking (instead attributing those difficulties to her other impairments) (Tr. 187-88, 1680). In light of the above evidence, as noted by the ALJ, additional limitations were not warranted to account for the plaintiff's obesity. Based on the foregoing, substantial evidence supports the ALJ's evaluation of the plaintiff's obesity, and it should be affirmed.
Fatigue
Although somewhat conflated with other arguments, the plaintiff argues that the ALJ erred by not accounting for the plaintiff's fatigue in the RFC assessment (doc. 23 at 20-24). The court disagrees. First, the plaintiff's argument in support of this assertion of error largely references the ALJ's discussion of the plaintiff's treatment records and her reports of fatigue - meaning that the plaintiff is requesting that this court reweigh evidence considered by the ALJ and come to a different conclusion, which is beyond the purview of substantial evidence review. Further, the plaintiff's arguments all appear to boil down to a challenge to the 5% off-task limitation the ALJ provided to account for the plaintiff's nonexertional limitations, including her fatigue (doc. 23 at 23-24). As such, the undersigned will limit discussion of this assertion of error to the ALJ's explanation regarding the off-task RFC limitation.
Here, as noted, the plaintiff argues that the ALJ failed to explain how a 5% off-task limitation accounted for the plaintiff's complaints of fatigue (doc. 23 at 23-24). In support thereof, the plaintiff references fifteen treatment visits where she contends fatigue was reported or assessed, although these visits amount to less than fifty pages of the plaintiff's voluminous treatment records, which number almost 900 pages (doc. 23 at 23 (citing Tr. 240-44, 241, 280, 292, 294-96, 302-10, 355-56, 359-69, 381-84, 405, 942, 948, 986, 1036-38, 1047-50)). However, the ALJ examined the applicable records cited by the plaintiff (some of which were not during the relevant period) in explaining that the plaintiff did not require more than a 5% off-task limitation to account for her fatigue prior to the established disability onset date. For example, as recognized by the ALJ, he also limited the plaintiff to a range of sedentary work with a 5% off-task limitation to account for her reports of fatigue (Tr. 1092). Moreover, as noted by the ALJ, despite reports of fatigue by the plaintiff, her providers rarely noted problems with attention or concentration secondary to fatigue (Tr. 1080-92). Indeed, the records cited by the plaintiff noted subjective complaints of fatigue with little (if any) corresponding notes of limitations caused by such fatigue. For example, although the plaintiff is correct that Thomas Motycka, M.D., consultative examiner, on May 5, 2011, noted fatigue, Dr. Motycka opined as follows:
In this 32-year-old I do not think there is any major problem. With three young children at home, and work place difficulties, she certainly can be under a lot of stress, and could be having some overuse syndrome. There was no sciatic radiation. Her effort on forward lumbar spine flexion seemed contrived. Her gait was essentially normal, and other than the forward lumbar flexion her ranges of motion were all normal, and she can perform fine- and gross-manipulation.(Tr. 240-44). During June 2011, Richard Bogan, M.D., noted reports of fatigue by the plaintiff, but also indicated that the plaintiff's neurological findings were within normal limits (Tr. 292-96). Records from September and October 2011 with the plaintiff's treating provider Dr. Cline noted reports of fatigue, but the plaintiff was noted as fully oriented, and Dr. Cline reported in October that the fatigue was secondary to depression, and he started the plaintiff on medication (Tr. 301-09, 405). Similarly, Melissa Tuten, L.P.C., noted that the plaintiff complained of being tired, but she also noted the plaintiff had the ability to attend and maintain focus (Tr. 355-56). The plaintiff only referenced two records from 2012, including subjective reports of fatigue to S. Rao, M.D. (Tr. 359-64) as well as visit notes from Nicholas Lind, Psy. D., noting that although the plaintiff reported fatigue, her lack of effort on testing meant that the cognitive testing was not valid (Tr. 381-82). Interestingly, although Dr. Lind noted in examination notes that the plaintiff could attend and maintain focus (Tr. 382), a medical source statement completed that same date indicated that the plaintiff had distractible thought processes with poor attention/concentration (Tr. 384-94).
Indeed, the next treatment notes referenced by the plaintiff are from two years later, in late 2014, with Dr. Cline (Tr. 942-45, 948-51). In these records, the plaintiff reported fatigue to Dr. Cline, and her thyroid medication was adjusted; during her second appointment, she realized that she may not have increased her thyroid medication as directed, which was exacerbating her fatigue (Tr. 942-45). In December 2015, Suneetha Morthala, M.D., noted complaints of fatigue, but suggested that the plaintiff use activity modification to help her fatigue (including sleeping eight hours, minimizing stress, and engaging in thirty minutes of aerobic exercise) (Tr. 986-98). Interestingly, during this same time, the plaintiff presented for treatment with Dr. Cline and indicated that she had run out of thyroid medication (Tr. 906-09). The only other treatment records cited by the plaintiff during the relevant period were two consultative examinations in September 2016 (Tr. 1036-39, 1047-50). During the examination with Cherilyn Taylor, Ph.D., on September 19, 2016, the plaintiff had a fatigued affect, but also scored within normal limits on the MiniMental State Examination (“MMSE”) and Dr. Taylor opined that the plaintiff had no “significant difficulty tracking the flow of conversation adequately across the 45-minute interview and showed no significant distraction by ambient office sounds,” as well as that the plaintiff's fatigue would only have a “mild” impact on the plaintiff's interpersonal relationships at work (Tr. 1036-39). During the examination four days later, the plaintiff reported “severe fatigue” to Lori Lord, M.D., but Dr. Lord opined that “[b]ased on physical exam findings alone, [the plaintiff] does not appear to have significant reduction in range of motion or limitation in physical activity” (Tr. 1047-50). As noted by the ALJ, these treatment records, noting subjective reports of fatigue with few abnormal examination findings or recommended activity restrictions secondary to fatigue, did not support additional off-task RFC limitations.
The plaintiff's only other argument pertaining to fatigue is difficult to decipher. The plaintiff appears to suggest that the ALJ did not explain why the plaintiff would be off-task 20% of the day as of the established disability onset date, but not as of the plaintiff's alleged onset date (doc. 23 at 24-25). However, the ALJ explained that the additional off-task time was to account for the plaintiff's additional severe impairments of asthma and chronic obstructive pulmonary disease (“COPD”), not the plaintiff's reports of fatigue (Tr. 1092, 1096-97). The plaintiff has provided no argument or reference to record evidence (not already outlined/discussed above) in support of her assertion that the 20% off-task limitation should have been imposed earlier by the ALJ. The Court of Appeals for the Fourth Circuit has held that while an RFC assessment must include a narrative describing how the evidence supports the ALJ's conclusions, there is no particular format or language that must be utilized, so long as the decision permits meaningful judicial review. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Here, the ALJ's decision, with its detailed discussion of the record evidence and the resultant RFC limitations (both prior to and as of the established disability onset date), permits such review. As such, the undersigned finds that the ALJ's RFC assessment is supported by substantial evidence, free of legal error, and should be affirmed.
Medical Source Statements
The plaintiff also argues that the ALJ failed to appropriately evaluate opinion evidence from treating provider Dr. Cline (doc. 23 at 25-31). The regulations require that all medical opinions in a case be considered. §§ 404.1527(b), 416.927(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), 416.927(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), 416.927(c)(1)-(5); see also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). However, “[w]hile an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 385 (4th Cir. 2021) (emphasis in original).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. §§ 404.1527, 416.927. 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, 416.920c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
Recently, the Court of Appeals for 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, Soc. Sec. Admin., 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).
As an initial matter, the plaintiff has waived review with respect to all opinions - except for the 2012 opinion proffered by Dr. Cline that the plaintiff would need to shift positions at will (or at least every hour) - because she has failed to argue error with respect to the remaining opinions. Shinaberry v. Saul, 952 F.3d 113, 124 n.5 (4th Cir. 2020) (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief). Further, although the plaintiff makes a passing one-sentence reference (presumably) to Dr. Cline's 2012 opinion regarding the plaintiff's ability to sustain work only “at times” (as part of her contention that the ALJ erred in the subjective complaints analysis) (doc. 23 at 34), her passing assertion of error with respect to this opined limitation raises the matter in a perfunctory manner; thus, it is also waived. See Jacobus v. Comm'r of Soc. Sec., 664 Fed.Appx. 774, 777 n.2 (11th Cir. 2016) (noting that the plaintiff's “perfunctory argument” was arguably abandoned (citing Singh v. U.S. Atty Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009) (explaining that simply stating an issue exists, without further argument or discussion, constitutes abandonment of that issue)); Rice v. Comm'r of Soc. Sec., 169 Fed.Appx. 452, 454 (6th Cir. 2006) (finding that issues raised in a perfunctory manner “without elaboration or legal argument” “unaccompanied by some effort at developed argumentation” were deemed waived (internal citations and quotation marks omitted)); Parms v. Colvin, C/A No. 1:13-cv-01002, 2015 WL 1143209, at *8 n.10 (M.D. N.C. Mar. 13, 2015) (noting that the “Court need not address . . . perfunctory arguments by counsel), memorandum and recommendation adopted by doc. 32 (M.D. N.C. Mar. 31, 2015). Indeed, the court is not required to rummage through the administrative record to construct and present a well-supported position for the plaintiff. See Hayes v. Self-Help Credit Union, C/A No. 1:13-cv-00880, 2014 WL 4198412, at *2 (M.D. N.C. Aug. 22, 2014) (noting that “[i]t is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument (internal citations omitted)). Nevertheless, the undersigned will address the ALJ's evaluation of Dr. Cline's 2012 opinion.
Dr. Cline
Applicable to the plaintiff's assertion of error, on May 24, 2012, Dr. Cline completed a form entitled “Medical Assessment of Ability to Perform Work-Related Activities (Physical)” regarding the plaintiff. On the form, Dr. Cline marked that the plaintiff could lift and carry ten pounds occasionally and less than ten pounds frequently. The plaintiff could sit/stand/walk four hours in an eight-hour workday. The plaintiff could sit sixty minutes before needing to stand or walk and could stand or walk sixty minutes before needing to sit. The plaintiff would require the ability to shift at-will from sitting or standing/walking or at least every hour. The plaintiff would not need to lie down at unpredictable intervals during an eight-hour workday. The plaintiff could occasionally twist, stoop, crouch, climb stairs, and climb ladders. The plaintiff's ability to reach (including overhead), finger (fine manipulation), handle (gross manipulation), feel (hands), and push/pull were not affected by an impairment. When asked if the plaintiff, with her physical and mental functional limitations, could consistently sustain and persist at work activity for an eight-hour day, five days per week, Dr. Cline responded, “At times, yes” (Tr. 396-99).
The ALJ considered opinion evidence by Dr. Cline (including other various opinions by Dr. Cline not challenged here), but noted with respect to Dr. Cline's 2012 opinion that it was afforded “some” weight as the opinion
was a factor in the undersigned's decision to limit the [plaintiff] to sedentary forms of exertion. With that said, Dr. Cline again did not explain the [plaintiff's] purported physical limitations with any reference to her symptoms or treatment prognosis. He did not provide support for the conclusion that the [plaintiff] would need to change positions at will or on an hourly basis. Based upon the undersigned's review of the record, the [plaintiff's] scoliosis, back pain, and fibromyalgia are not severe enough after treatment to warrant such frequent or regular changes in position, except as permitted when taking ordinary breaks, generally provided every two hours.(Tr. 1093). As noted above, the limitation not adopted by the ALJ from this opinion that the plaintiff asserts was in error was Dr. Cline's opined limitation regarding a need to change positions at will or on an hourly basis (doc. 23 at 29-30). Additionally, as noted, the plaintiff makes a passing reference to Dr. Cline's opinion that the plaintiff could not sustain work (id. at 34). Upon review, the undersigned finds that the ALJ's decision reflects meaningful consideration of the applicable factors for opinion analysis, including the plaintiff's longitudinal treating relationship with Dr. Cline. See Dowling, 986 F.3d at 385. Additionally, as recognized by the ALJ, check-box forms, such as the one completed by Dr. Cline, have limited probative value in this court. See Freeman v. Colvin, C/A No. 7:14-cv-00199, 2015 WL 5056734, at *4 (W.D. Va. Aug. 26, 2015) (noting that check-box forms have “limited probative value” (citing Leonard v. Astrue, C/A No. 2:11-cv-00048, 2012 WL 4404508, at *4 (W.D. Va. Sept. 25, 2012))); see also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993) (“Such check-the-box assessments without explanatory comments are not entitled to great weight, even when completed by a treating physician.”)). Further, contrary to the plaintiff's argument, Dr. Cline's decision to wholesale attach treatment records to the opinion form does not transform the check-box form into one that contains detailed explanations for the opinions provided. The plaintiff also argues that the ALJ was required to provide significant or great weight to Dr. Cline's opinion based on prior ALJ decisions. However, the plaintiff's assertion is in error, as the prior ALJ decisions were vacated by the Appeals Council (see Tr. 737, 1297-98, 1343-45). The plaintiff's only other argument is that Dr. Cline's treatment notes supported his opinion that the plaintiff would need to change positions at will. The undersigned disagrees.
First, of note, the ALJ identified Dr. Cline as a general practice physician who had a longitudinal treatment relationship with the plaintiff (Tr. 1092, 1093). Nevertheless, as recognized by the ALJ, a review of Dr. Cline's treatment records during the relevant period do not support his opinion that the plaintiff would have to change positions at will or could not always sustain work. For example, in March 2011, Dr. Cline noted that the plaintiff was feeling 80% better during a follow-up appointment for hypothyroidism, fatigue, and depression (Tr. 251). In May 2011, the plaintiff reported fatigue, but improved pain (Tr. 251). When the plaintiff returned for treatment with Dr. Cline in August, she reported hand pain, but it was secondary to hitting her hand between the seats of her car (Tr. 372). In September, the plaintiff had two appointments, but one visit was solely an acute visit where she was provided an antibiotic (Tr. 301-09, 371). During the other visit, the plaintiff reported continued pain and had an antalgic gait and positive straight leg raise (“SLR”) testing, but the plaintiff still had full strength in her extremities (Tr. 301-09). In the remaining two visits for the year with Dr. Cline, he noted fatigue (which Dr. Cline attributed to depression) and breast pain for which the plaintiff was referred for a mammogram (Tr. 405). In 2012, the visits leading up to the plaintiff's request for the completion of the opinion form in question were all acute sick visits where the plaintiff was prescribed antibiotics (Tr. 406, 408). On May 18, 2012, during the office visit with Dr. Cline closest in time to the opinion form in question, the plaintiff reported periodic hand paresthesias, but she was doing “okay otherwise,” and her medications were refilled (Tr. 400). As noted by the ALJ, these treatment records, representing Dr. Cline's treatment of the plaintiff prior to completion of the May 2012 opinion form, do not support Dr. Cline's opinions with respect to a need to change positions or inability to sustain work as they contained no mention of symptom flares, noted an antalgic gait on only one occasion, and contained few complaints relating to the plaintiff's lower extremities or ability to sit, stand, or walk (Tr. 1093).
Similarly, the ALJ also noted that this opinion by Dr. Cline is not entitled to greater weight because it is inconsistent with other record evidence. Indeed, none of the consultative examiners or reviewing examiners found that the plaintiff required a sit/stand option secondary to her impairments (see Tr. 240 (examination by Thomas Motycka, M.D., noting that the plaintiff's effort on ROM testing was “contrived” and opining that the plaintiff did not have any major problem), 267 (assessment by Warren Holland, M.D., noting that the plaintiff did not need to alternate sitting and standing), 348 (assessment by Robert Kukla, M.D. noting that the plaintiff did not need to alternate sitting and standing), 1050 (examination by Lori Lord, M.D. noting that based on “physical exam findings alone, she does not appear to have significant reduction in range of motion or limitation in physical activity)). Similarly, Dr. Morthala instructed the plaintiff to engage in aerobic exercise to assist with her fibromyalgia (Tr. 988-89) and neurologist Miroslav Cuturic, M.D., noted that the plaintiff had normal examination findings, including the ability to walk on her heels and toes and tandem walk (Tr. 1803-05). Similarly, notations in 2017 (well after Dr. Cline's opinion was issued) by Maria Farooq, M.D., indicated that the plaintiff was engaging in water aerobics and swimming (Tr. 2027-31), and while Robert Christensen, PA-C, noted that the plaintiff had increased pain in her back radiating to her leg, it was secondary to the plaintiff lifting too much laundry (Tr. 1884-88). Indeed, in 2018, Dr. Farooq noted that the plaintiff was “not very active” but also “not in that much pain,” and the plaintiff requested additional pain medication, but indicated that it was for pain when walking long distances (Tr. 2044-66). As noted by the ALJ, these treatment records were inconsistent with notations by Dr. Cline that the plaintiff would need to shift positions at will or at least once an hour and could not sustain work all the time (Tr. 1093). The plaintiff has not identified record evidence ignored by the ALJ in determining that Dr. Cline's opinion was only due some weight. As such, as outlined above, the ALJ appropriately explained the weight provided to Dr. Cline's 2012 opinion. This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). As such, the undersigned finds that the ALJ's evaluation of the opinion evidence is based upon substantial evidence, without legal error, and should be affirmed.
Subjective Complaints
The plaintiff also asserts that the ALJ erred in the consideration of the plaintiff's fibromyalgia and chronic fatigue syndrome by finding that the plaintiff's subjective complaints were not consistent with objective record evidence (doc. 23 at 31-34). The Court of Appeals for the Fourth Circuit has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . . ....
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit panel held, “Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the plaintiff] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or so severe that it prevented] him from working a full eight-hour day.” Hines, 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that “‘[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'” Id. at 564. The court further acknowledged:
While objective evidence is not mandatory at the second step of the test, “[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers.”Id. at 565 n.3 (quoting Craig, 76 F.3d at 595); see Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (“We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.”).
A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Furthermore, “a formalistic factor-by-factor recitation of the evidence” is unnecessary as long as the ALJ “sets forth the specific evidence he relies on” in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, the plaintiff alleges that the ALJ erred in the subjective complaints analysis by improperly relying on a lack of objective evidence (doc. 23 at 31-34). The plaintiff also argues that the ALJ erred by discounting an opinion by Dr. Cline that the plaintiff would not always be able to sustain work (Id. at 34), which was addressed supra. The court finds no error in the ALJ's consideration of the plaintiff's subjective complaints. In the RFC assessment, the ALJ set out the plaintiff's subjective complaints in detail (Tr. 1077-80). In evaluating the plaintiff's subjective complaints, the ALJ found that while the plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of the symptoms were “not fully supported prior to January 1,2022” (Tr. 1089). In analyzing the appropriateness of the RFC assessment in light of the plaintiff's subjective complaints, the ALJ summarized the plaintiff's subjective allegations and analyzed them in light of the plaintiff's longitudinal treatment history and other record evidence, as required by the regulations (Tr. 1089-92). Importantly, the plaintiff does not argue that the ALJ failed to analyze the appropriate factors in analyzing the plaintiff's subjective complaints; instead, the plaintiff's sole argument is that the ALJ improperly rejected the plaintiff's subjective complaints relating to fibromyalgia and chronic fatigue syndrome based solely on a lack of objective evidence. The undersigned finds the plaintiff's argument unpersuasive.
First, of note, the plaintiff has provided scant reference to the record in support of her assertion, relying on references to SSRs and one opinion form by Dr. Cline (see doc. 23 at 31-34). However, as noted by the ALJ, the plaintiff's subjective complaints were not consistent with the longitudinal record evidence. Contrary to the plaintiff's assertion, the ALJ in this case did not just reject the plaintiff's subjective complaints based on a lack of objective evidence; instead, the ALJ examined the longitudinal record evidence in finding the plaintiff's subjective complaints not consistent with the record. For example, the ALJ evaluated the treatment and effectiveness of medication in noting that rheumatology records recorded the plaintiff's fibromyalgia symptoms as stable or manageable and responsive to treatment, meaning that the plaintiff's pain had not been persistently uncontrolled (Tr. 1090). The ALJ also recognized that Dr. Motycka noted “wanting” or “contrived” effort by the plaintiff during his orthopedic examination of the plaintiff; the plaintiff was noted as having a “high probability” for malingering, and cognitive findings were not valid based on lack of effort upon examination by Dr. Lind; and that the plaintiff refused to attempt some ROM tests with Dr. Lord (Tr. 243-44, 389, 417, 1049-50, 1089-92). The ALJ went on to note that the plaintiff was noncompliant with some treatment recommendations, including physical therapy or gentle exercise, which called into question the plaintiff's “efforts to treat fibromyalgia symptoms based on the advice of [the plaintiff's] rheumatologist” (Tr. 1090). Significantly, the ALJ went on to explain that he limited the plaintiff to a range of sedentary work with environmental limitations to account for the plaintiff's subjective reports secondary to fibromyalgia and chronic fatigue syndrome, although he did not find them disabling (Tr. 1090-91).
The ALJ also recognized that the plaintiff's reported activities of daily living (“ADLs”) were internally inconsistent as well as inconsistent with reports of being unable to work secondary to fibromyalgia and chronic fatigue syndrome (Tr. 1077-80, 1089-92). For example, as recognized by the ALJ, during the administrative hearings, the plaintiff reported having three kids (with a fourth born between the first and second administrative hearings) (Tr. 36, 631). The plaintiff also testified that she was able to drive - drove to the store, drove herself to the administrative hearings, and drove her kids to school and picked them up each day (although occasionally she used a car pool) (Tr. 39, 633, 1130, 1697). The plaintiff also testified that she was able to take the kids to the park, attended doctors' appointments, took care of her own personal care routine, did some household chores, visited the library, shopped for groceries, and attended church (including teaching Sunday school) on a regular basis (Tr. 40-41, 634-35, 1129-30, 1159 (noting a struggle with putting on socks sometimes), 1695). The plaintiff testified that cramping in her hands limited her ability to do laundry, but also testified that she enjoyed reading and using her phone to access Pinterest during the day (Tr. 662, 1155). As recognized by the ALJ, the ADLs reported by the plaintiff were not consistent with her reports of disabling pain and fatigue that prevented her from working. In light of the foregoing, the ALJ did not find the plaintiff's subjective complaints inconsistent with the record evidence solely based on a lack of objective evidence; rather, he found that the plaintiff's subjective complaints were not consistent with the longitudinal record evidence.
As noted, the plaintiff has not asserted that the ALJ failed to address any of the consistency factors as set forth by SSR 16-3p. Nevertheless, the undersigned notes that the ALJ provided an analysis of the plaintiff's subjective complaints based upon the factors provided in SSR 16-3p. As such, based upon the foregoing, the undersigned finds that the ALJ appropriately weighed the plaintiff's subjective complaints as required by SSR 16-3p.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
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 250 East North 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).