Opinion
No. 5:19-CV-388-D
02-12-2021
TIMOTHY J. JONES, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
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. Timothy J. Jones ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of his application for a period of disability and disability insurance benefits ("DIB"). 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 #24] be granted, Defendant's Motion for Judgment on the Pleadings [DE #27] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. §405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for DIB on August 17, 2016, with an alleged onset date of June 15, 2015. (R. 15, 253-54.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 15, 86, 104, 120-21.) A hearing was held on January 30, 2019, before Administrative Law Judge ("ALJ") Adrienne Porter, who issued an unfavorable ruling on March 27, 2019. (R. 12-70.) On June 28, 2019, 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. On September 3, 2019, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405.
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); 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." Hall 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 December 31, 2020. (R. 17.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since June 15, 2015, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff had the severe impairments of degenerative disc disease of the cervical spine, bilateral knee osteoarthritis, right knee status-post two arthroscopic surgeries, obstructive sleep apnea, obesity, post-traumatic stress disorder (PTSD), and traumatic brain injury. (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. 17-2.) The ALJ expressly considered Listings 1.02, 1.04, 3.02, 11.18, 12.02, and 12.15. (Id.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he must be able to sit down for 1-2 minutes after
every 30 minutes of standing or walking. He can occasionally climb ramps, stairs, ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; and frequently work around unprotected heights, moving mechanical parts, and dust, odors, fumes and other pulmonary irritants. He is limited to performing simple, routine, and repetitive tasks, but not at a production rate pace (e.g. no assembly line work). He can frequently interact with supervisors; occasionally interact with coworkers, but cannot perform any tandem/teamwork type activities; and can never have work-related interaction with the general public, though intermittent, casual contact can be tolerated.(R. 20.) In making this assessment, the ALJ considered Plaintiff's symptoms and the evidence (both "objective medical" and "other") based on the requirements of 20 C.F.R. § 404.1529 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." (R. 20-21.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 24.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, namely: car wash attendant-automatic (DOT #915.667-010), marker (DOT #209.587-034), and silver wrapper (DOT #318.687-018). (R. 25.) The ALJ concluded that Plaintiff has not been disabled under the Act since June 15, 2015, Plaintiff's alleged onset date through the date of the decision. (R. 26.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by:
(A) failing to address the opinion of an examining physician who evaluated Plaintiff in connection with a Department of Veterans Affairs ("VA") disability benefits claim (Pl.'s Mem. Supp. Mot. J. Pldgs [DE #25] at 6-8);The Commissioner contends (A) ALJ Porter "did not ignore" the consultative examiner's opinions because the ALJ referenced "VA disability evaluations," and any error is harmless; (B) the ALJ properly evaluated the VA disability rating; and (C) the ALJ properly evaluated the medical opinion of Plaintiff's treating psychologist. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #28] at 7-14.) The undersigned disagrees with the Commissioner as to each issue and, therefore, recommends remand.
(B) failing to give substantial weight to Plaintiff's 100% VA disability rating and improperly evaluating the VA disability rating (id. at 8-10); and
(C) improperly evaluating evidence from Plaintiff's treating psychologist (id. at 11-13).
A. VA Consultative Examiner Opinion
An ALJ "is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner." SSR 96-5p, 1996 WL 374183, at *3 (July 2, 1996). As part of this consideration and explanation, an ALJ must evaluate all medical opinions in the record. 20 C.F.R § 404.1527(b)-(c) (medical opinions will "always" be considered and "generally" opinions from examining medical sources will be given more weight); SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (RFC assessment "must . . . [c]ontain a thorough discussion and analysis of the objective medical evidence" and "explain how any material inconsistences or ambiguities in the evidence in the case record were considered and resolved" (emphasis added)). Medical opinions are statements from physicians or other "acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1502, 404.1513(a), 404.1527(a)(1). "Acceptable medical source" includes only licensed physicians, licensed or certified psychologists for purposes of establishing intellectual disability and intellectual functioning levels, licensed optometrists for purposes of establishing visual disorders, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. § 404.1513(a).
This agency ruling was rescinded March 27, 2017, for claims filed on or after that date. 82 Fed. Reg. 15,263 (Mar. 27, 2017).
Unless otherwise noted, all references are to the regulation in effect at the time Plaintiff filed his claim, which preceded the effective date of several updated regulations on March 27, 2017. See Brown v. Comm'r of SSA, 873 F.3d 251, 255 (4th Cir. 2017).
Dr. Robert A. Clinton, M.D., examined Plaintiff in August 2015 in connection with a VA disability benefits claim and completed, among other things, a disability benefits questionnaire form regarding knee and lower leg conditions. (R. 1794-1805.) Dr. Clinton noted Plaintiff was "unable to perform physical activities such as extended walking" and that "[t]he frequency of [Plaintiff's] right knee flare-ups is daily, moderate, lasting 2-3 hours." (R. 1804-05.)
ALJ Porter never mentioned Dr. Clinton's findings in her opinion (R. 17-26), a fact the Commissioner does not dispute (Def.'s Mem. Supp. Mot. J. Pldgs. at 7). And yet Dr. Clinton examined Plaintiff and made a finding that appears materially inconsistent with the ALJ's RFC assessment that Plaintiff can perform light work. See 20 C.F.R. § 404.1567(b) ("[A] job is in [the light work] category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls."). The failure to mention, much less discuss, Dr. Clinton's examination report violates 20 C.F.R. § 1527(b) and SSR 96-8p, 1996 WL 374184, at *7.
On review, the Commissioner makes two arguments: (i) the ALJ relied on Dr. Clinton's findings in evaluating the other medical opinion evidence in the record, as shown by the ALJ's statement that a non-examining state agency consultant's medical opinion "was consistent with the overall record, including the VA disability evaluations that were completed during the same time period," and (ii) any error in failing to consider Dr. Clinton's opinion is harmless because his opinion is "largely consistent" with the RFC assessment and, therefore, the outcome of the case would not change on remand. (Def.'s Mem. Supp. Mot. J. Pldgs. at 7 (first quoting R. 22; then quoting Tanner v. Comm'r of SSA, 602 F. App'x 95, 100-01 (4th Cir. 2015) (per curiam) (unpublished).) The undersigned rejects each argument for the following reasons.
First, the undersigned is disinclined to accept that the ALJ implicitly considered Dr. Clinton's opinion based on the statement that it, as part of the group of evidence identified as "all VA disability evaluations during the relevant time period," was used to credit a non-examining consultant's opinion. See Bates v. Berryhill, 726 F. App'x 959, 960 (4th Cir. 2018) (per curiam) (unpublished) (refusing to "divine a rationale for an implicit conclusion" that the ALJ considered and rejected a listing); Ezzell v. Berryhill, 688 F. App'x 199, 201 (4th Cir. 2017) (per curiam) (unpublished) (rejecting an ALJ's "implicit[] rejection" of a medical opinion).
Second, "remand is appropriate where an ALJ fails to discuss relevant evidence that weighs against [the] decision." Ivey v. Barnhart, 393 F. Supp. 2d 387, 390 (E.D.N.C. 2005) (citing Murphy v. Bowen, 810 F.2d 433, 438 (4th Cir. 1987)). Here, the Commissioner does not dispute that the evidence from Dr. Clinton, an examining physician, was relevant.
Third, the cases cited by the Commissioner in support of his harmless error argument are distinguishable. Tanner, 602 F. App'x at 100-01, involved an ALJ's failure to specify how much weight was assigned to a medical source statement from a particular doctor; however, the ALJ at least acknowledged other evidence from that doctor. Id. at 100. The problem here is not simply that ALJ Porter failed to specify how much weight she assigned to Dr. Clinton's findings; ALJ Porter failed altogether to mention Dr. Clinton. Similarly, in McNiff v. Berryhill, No. 1:18-CV-1411, 2019 WL 3161840, at *12 (E.D. Va. June 4, 2019), report & recommendation adopted sub nom. McNiff v. Saul, 2019 WL 3084235 (E.D. Va. July 15, 2019), the ALJ considered and discussed the medical opinion at issue. Notably, the McNiff court cited Arnold v. Sec'y of Health, Educ. & Welfare, 567 F.2d 258, 259-60 (4th Cir. 1977), for the proposition that an "ALJ's mere recital that he considered the evidence without discussing that the medical opinion had been weighed or assigning it a weight required remand." McNiff, 2019 WL 3161840, at *12. Here, ALJ Porter did not even make such a recital.
For these reasons, ALJ Porter failed to apply the correct legal and regulatory framework for evaluating relevant evidence, and the Commissioner has failed to demonstrate the error was harmless. Accordingly, remand is recommended.
B. Evaluation of VA Disability Rating
In Bird v. Comm'r of SSA, 699 F.3d 337 (4th Cir. 2012), the Fourth Circuit noted that "both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability." Bird, 699 F.3d at 343. "Thus, . . . in making a disability determination, the SSA must give substantial weight to a VA disability rating" unless the record clearly demonstrates that a lesser weight is appropriate. Id. In certain cases, deviation may be appropriate due to the different standards employed by the agencies in evaluating a claimant's disability. Id. ("[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability . . . an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate."). In Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018), the Fourth Circuit further specified that "in order to demonstrate it is appropriate to accord less than substantial weight to [the disability ratings of an agency other than the SSA], an ALJ must give persuasive, specific, valid reasons for doing so that are supported by the record." Woods, 888 F.3d at 692 (internal quotation marks omitted).
General differences between VA disability ratings and Social Security disability determinations are not, however, a sufficient basis for discrediting VA disability ratings. Such differences exist in all cases, and allowing an ALJ to discount a VA disability rating for this reason would eviscerate the presumptive standard established in Bird. See Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D.N.C. Aug. 10, 2015) (discussing the Commissioner's analysis of an Office of Personnel Management ("OPM") disability rating and noting "the reasons cited by the Commissioner—different rules and different standards—would apply to every case and thus cannot be relied upon to avoid scrutiny of the OPM's decision under Bird's new presumptive standard"), mem. & recommendation adopted, 2015 WL 5089060 (E.D.N.C. Aug. 27, 2015).
ALJ Porter recognized that Plaintiff has a 100% VA disability rating. (R. 23.) In March and April 2016, the VA issued its disability ratings, which included explanations of the ratings and noted that Plaintiff had a total and permanent service-connected disability. (R. 266-78, 298-303.) Under VA regulations, this means that Plaintiff was found to have "an[] impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340; see also 38 C.F.R. § 4.15 ("[P]ermanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.").
In discussing the VA disability rating, ALJ Porter first explained the difference between the VA disability system and that of the Commissioner. (R. 23.) This type of general reason is not sufficient to overcome the Bird presumption. See Woods, 888 F.3d at 692. ALJ Porter's case-specific discussion of the VA disability rating is as follows:
The [VA] individual rating of impairments are [sic] supported with explanations after review of the records (e.g. 10-20% for MSK issues, 10% TBI, 50% PTSD, 50% obstructive sleep apnea only because he requires CPAP use, which does not really cause any limitations), and in that regard is given great consideration to support light exertion with a sit/stand option every 30 minutes and occasional postural movements. The undersigned reviewed each of the component impairments rated by the VA, and assigned appropriate limitation for each one determined to be severe during the relevant period. For these reasons, the undersigned accords the VA disability rating partial weight.(R. 23.)
On review, the Commissioner argues that ALJ Porter credited the VA disability ratings to the extent she gave the individual rating components "great consideration" and that substantial evidence supports the ALJ's decision not to give substantial weight to the VA disability rating. (Def.'s Mem. Supp. Mot. J. Pldgs. at 9-10.)
Whether substantial evidence supports the ALJ's decision to assign less than substantial weight to the VA disability rating is not the question—the ALJ was required to provide "persuasive, specific, valid reasons" for deviating from the disability rating. Woods, 888 F.3d at 692. The foregoing explanation from ALJ Porter is not persuasive because the statement that the ALJ assigned "appropriate limitation" for each VA disability component rating is too vague to permit meaningful review. An ALJ does not comply with Bird, 699 F.3d at 343, and Woods, 888 F.3d at 692, simply by stating that the VA disability ratings were each given "appropriate" or "great" consideration, and then concluding that these map perfectly onto an RFC the ALJ has already determined. Furthermore, the ALJ's conclusion that "partial weight" was assigned to the VA disability rating is too vague to permit meaningful review. See Pridgen v. Colvin, No. 4:15-CV-95-F, 2016 WL 4047058, at *4 (E.D.N.C. June 30, 2016), mem. & recommendation adopted, 2016 WL 4046763 (E.D.N.C. Jul. 27, 2016); cf. Johnson v. Colvin, No. 5:13-CV-509-FL, 2014 WL 4636991, at *8-10 (E.D.N.C. Sept. 16, 2014) (approving ALJ's explanation as to why he was not affording a VA disability rating substantial weight). Therefore, the ALJ's failure to explain the deviation from the standard of assigning substantial weight to the VA's rating requires remand.
As in Dowling v. Comm'r of SSA, ___ F.3d ___, 2021 WL 203371 (4th Cir. 2021), the ALJ here appears to have applied an incorrect regulatory framework by determining Plaintiff's RFC without first engaging in a function-by-function analysis. See Dowling, 2021 WL 203371, at *7; (R. 20-24). --------
C. Treating Psychologist Opinion
Plaintiff argues the ALJ failed to properly weigh the opinion of Plaintiff's treating psychologist, Dr. Rebecca Gellman, Ph.D. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 11-13.) In contrast, the Commissioner contends the ALJ properly evaluated Dr. Gellman's opinion and gave good reasons for assigning it only partial weight. (Def.'s Mem. Supp. Mot. J. Pldgs. at 11-13).
Under the applicable regulations, evaluation of opinions from treating medical sources has two steps. First, if the medical opinion of a treating source is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record," the opinion is entitled to controlling weight. Dowling, 2021 WL 203371, at *4 (quoting 20 C.F.R. § 404.1527(c)(2); citing Arakas v. Comm'r of SSA, 983 F.3d 83, 106-07 (4th Cir. 2020), and Brown v. Comm'r of SSA, 873 F.3d 251, 255-56 (4th Cir. 2017)). "Second, if a medical opinion is not entitled to controlling weight under the treating physician rule, an ALJ must consider each of the [] factors" under 20 C.F.R. § 404.1527(c)(2)(i)-(6). Dowling, 2021 WL 203371, at *4. Thus, if controlling weight is not assigned to a treating source's opinion, the ALJ must consider each factor in 20 C.F.R. § 404.1527(c)(2)(i)-(6) when deciding how much weight to give the opinion. Id. at *4-5. "While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating [medical source], it must nonetheless be apparent from the ALJ's decision that he meaningfully considered eachof the factors before deciding how much weight to give the opinion." Id. at *5 (citing Arakas, 983 F.3d at 107 n.16, and Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000)).
Here, ALJ Porter explained the weight given to Dr. Gellman's opinion as follows:
[Plaintiff]'s therapist Rebecca Gellman, Ph.D. opined that [Plaintiff] had extreme restriction in the ability to understand, remember, or apply information; marked difficulties in interacting with others; marked difficulties in the ability to concentrate, persist, or maintain pace; and marked limitation in the ability to adapt or manage oneself. Dr. Gellman further opined that [Plaintiff] was not capable of working 8 hours a day, 5 days a week (Exhibit 8F). Partial weight was given. This opinion was supported by an explanation, which is generally consistent with the record. However, when taken as a whole, the explanation supports moderate limitations, but not necessarily marked or extreme limitations. The residual functional capacity herein with limitations to simple, routine, repetitive tasks at non-production pace and little to no interaction with coworkers and general public can reasonably accommodate the symptoms in Dr. Gellman's explanations, which result in available work.(R. 24.) This explanation does not comply with the required evaluation procedure described above.
Without determining whether the analysis sufficiently explains why Dr. Gellman's opinion was not given controlling weight, it is not apparent that ALJ Porter considered each factor identified in 20 C.F.R. § 404.1527(c)(2)(i)-(6) when deciding to assign "partial weight" to Dr. Gellman's opinion. See Dowling, 2021 WL 203371, at *4-5 (explaining that an ALJ's decision not to assign controlling weight to a treating physician's opinion was acceptable, but the ALJ's failure to consider each factor in the regulations when deciding how much weight to assign the opinion required remand). In particular, it is not apparent from ALJ Porter's explanation how she weighed the length of Dr. Gellman's relationship with Plaintiff and the frequency of Dr. Gellman's examinations of Plaintiff, the nature and extent of the relationship between Dr. Gellman and Plaintiff, and the consistency of Dr. Gellman's opinion in the context of other evidence in the record, in particular, the VA records. See 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (4). Furthermore, if Dr. Gellman's opinion was unclear to the ALJ, it was incumbent upon the ALJ to contact Dr. Gellman for clarification. See SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996) ("For treating sources, the rules also require that we make every reasonable effort to recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us.").
For the foregoing reasons, ALJ Porter did not evaluate the opinion of Plaintiff's treating psychologist in accord with applicable regulations and Fourth Circuit precedent. Therefore, the undersigned recommends remand to the Commissioner.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #24] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #27] be DENIED, and the Commissioner's decision be remanded for further consideration.
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 February 26, 2021, 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)(l); 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. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 12th day of February 2021.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge