Opinion
5:18-CV-474-FL
02-19-2020
ROBERT NANTZ, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Robert Nantz ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Commissioner of Social Security Andrew Saul ("Commissioner") denying his application for a period of disability and disability insurance benefits ("DIB") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 14, 18. Both filed memoranda in support of their respective motions. D.E. 15, 19. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 30 May 2019 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded.
I. CASE HISTORY
Plaintiff filed an application for DIB on 12 July 2016, alleging a disability onset date of 2 April 2014. Transcript of Proceedings ("Tr.") 12. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 12. On 1 November 2017, a hearing was held before an administrative law judge ("ALJ") at which plaintiff, who was represented by an attorney, and a vocational expert testified. Tr. 12, 31-71. On 12 June 2018, the ALJ issued a decision denying plaintiff's application. Tr. 12-25.
Plaintiff had apparently filed a prior application that was denied, and the ALJ found no basis for reopening the application. See, e.g., Tr. 12, 185.
Plaintiff timely requested review by the Appeals Council. Tr. 164. On 31 July 2018, the Appeals Council denied the request for review. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 1 October 2018, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See D.E. 1 (Compl.).
The court is reviewing the ALJ's decision under the versions of the regulations applicable to plaintiff's claim in this appeal, although several are subject to modifications that subsequently went into effect.
II. STANDARDS FOR DISABILITY
The Social Security Act ("Act") defines disability as the "inability to engage in 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." 42 U.S.C. § 423(d)(1)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step. If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the
claimant's limitations. If the Commissioner meets her 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).
See also 20 C.F.R. § 404.1545(a)(1). This regulation is the counterpart for DIB to the above-cited regulation, which relates to Supplemental Security Income ("SSI"). The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.
See also 20 C.F.R. § 404.1545(a)(2).
See also 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1560(c)(2); 404.929.
III. ALJ'S FINDINGS
Plaintiff was 55 years old on the alleged onset date of disability; 58 on the date last insured, which the ALJ found to be 31 December 2017 (Tr. 14 ¶ 1), and on the date of the hearing; and 59 on the date of issuance of the ALJ's decision. See Tr. 23 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 23 ¶ 8) and past relevant work as a combination of infantry weapons crewmember and personnel clerk (Tr. 23 ¶ 6).
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity from his alleged onset of disability through the date last insured. Tr. 14 ¶ 2. At step two, the ALJ found that through the date last insured plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: degenerative joint disease; degenerative disc disease; peripheral neuropathy; prostate cancer; recurrent, status-post treatment; and hypertension. Tr. 14 ¶ 3. At step three, the ALJ found that through the date last insured plaintiff's impairments did not meet or medically equal any of the Listings. Tr. 17 ¶ 4.
The ALJ next determined that through the date last insured plaintiff had the RFC to perform a limited range of light work:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the [RFC] to perform light work as defined in 20 CFR 404.1567(b), with the following provisos: he was limited [to] occasional climbing ladders, ropes or scaffolds, but frequent climbing ramps and
stairs, balancing, stooping, kneeling, crouching and/or crawling. In addition, the claimant was limited to frequent use of his bilateral upper extremities to handle, finger, feel, push, pull, and/or operate hand controls, and frequent use of his lower extremities to push, pull, and/or operate foot controls. He had to avoid concentrated exposure to workplace hazards, such as dangerous moving machinery and unprotected heights.[ ]Tr. 18-19 ¶ 5.
Under this regulation, "light work" is defined as work as work that "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "L-Light Work," 1991 WL 688702. The terms for exertional level as used in the Regulations have the same meaning as in the DOT. 20 C.F.R. § 404.1567.
Based on his determination of plaintiff's RFC, the ALJ found at step four that through the date last insured plaintiff was not capable of performing his past relevant work. Tr. 23 ¶ 6. The ALJ further found that plaintiff's past relevant work included "personnel and human resources skills, as well as knowledge of administrative and clerical procedures, as well as business and management principles, which are transferable to other occupations." Tr. 23 ¶ 9.
At step five, the ALJ accepted the testimony of the vocational expert and found that the claimant had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy, namely, the sedentary occupations of credit card clerk and referral clerk. Tr. 24 ¶ 10. The vocational expert had testified to the effect that these occupations would require of plaintiff only a slight vocational adjustment in terms of tools, work processes, work settings, or the industry, and no additional skills beyond the transferable skills noted; and that there were no light, skilled or semiskilled jobs that plaintiff could perform with only his transferable skills—that is, jobs that required no additional skills—that existed in significant numbers in the national economy. Tr. 24 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 2 April 2014, through the date last insured, 31 December 2017. Tr. 24 ¶ 11.
IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded, or in the alternative, that the case should be remanded for a new hearing on the grounds that the ALJ in determining plaintiff's RFC erred by not performing a proper function-by-function analysis regarding his ability to use upper extremities to handle, finger, feel, push, pull, and/or operate hand controls. Plaintiff also seeks remand for a new hearing on the ground that at the time the ALJ issued his decision, his appointment did not comply with the Appointments Clause of the United States Constitution, Art. II, § 2, cl. 2. The court will address each contention in turn.
VI. ALJ'S RFC DETERMINATION
A. Applicable Legal Principles
As discussed, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1). More specifically, "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. 20 C.F.R. § 404.1525(a)(3). The assessment includes evaluation of the claimant's symptoms. See, e.g., Mascio, 780 F.3d at 639; Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *12; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *5, 7. An ALJ's decision must state his RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7.
In determining a claimant's RFC, Social Security Ruling 96-8p requires the ALJ to perform a function-by-function analysis. The ruling states that the "RFC assessment must . . . assess [the individual's] work-related abilities on a function-by-function basis." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *1. However, the Fourth Circuit has declined to adopt a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis. Mascio, 780 F.3d at 636. Rather, "'remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.'" Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The functions listed in the Regulations for purposes of determining a claimant's RFC are:
(1) physical abilities, "such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping or crouching)"; (2) mental abilities, "such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, coworkers, and work pressures in a work setting"; and (3) other work-related abilities affected by impairments "such as skin impairment(s), epilepsy, impairment(s) of vision, hearing or other senses, and impairment(s) which impose environmental restrictions."Id. at 636 n.5 (quoting 20 C.F.R. § 416.945(b)-(d)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00120, 2015 WL 4389533, at *3 (W.D.N.C. 17 July 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with SSR 96-8p." (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. 26 July 2010))).
B. Analysis
The ALJ discussed plaintiff's ability to use his upper extremities, along with his peripheral neurology, repeatedly in his decision. See Tr. 14 ¶ 3; 19, 20-22 ¶ 5. Nonetheless, the court agrees with plaintiff that the ALJ's decision does not include a formal function-by-function analysis regarding plaintiff's use of his upper extremities. The court, though, disagrees with plaintiff that the ALJ failed to satisfy the requirement for a function-by-function analysis. The ALJ satisfied the requirement by relying on the function-by-function analysis performed by the state agency consulting physicians at the initial and reconsideration levels of review. See, e.g., Linares, 2015 WL 4389533, at *3.
Jagjit Sandhu, M.D. performed the physical RFC assessment of plaintiff at the initial level of review on 23 September 2016. Tr. 80-82. Jack N. Drummond, M.D. performed the physical RFC assessment at the reconsideration level on 18 January 2017. See Tr. 95-98. Both Dr. Sandhu and Dr. Drummond found that plaintiff was capable of a limited range of light work. Tr. 80-82 (Dr. Sandhu); 95-98 (Dr. Drummond). While they also found that plaintiff's peripheral neuropathy was a severe impairment (Tr. 78, 93), they both determined plaintiff not to have any manipulative limitations or any limitations in pushing, pulling, and/or operating hand controls beyond those inherent in the light work limitation on lifting and carrying (Tr. 81, 97). The medical records Dr. Sandhu and Dr. Drummond reviewed in making their determinations appear to include many of the same records that were before the ALJ, including the report on a consultative examination of plaintiff performed on 22 September 2016 by Micah Edwin, M.D. (Tr. 595-99) and disability ratings of plaintiff by the Department of Veterans Affairs ("VA") (e.g., Tr. 198-201).
See, e.g., Tr. 21, 22 ¶ 5 (references by the ALJ to Dr. Edwin's report); 73-74, 77, 80 (references by Dr. Sandhu to Dr. Edwin's report); 88, 92, 95 (references by Dr. Drummond to Dr. Edwin's report).
See, e.g., Tr. 22-23 ¶ 5 (discussion by the ALJ of VA ratings); 75 (reference by Dr. Sandhu to VA 100% disability rating); 90 (reference by Dr. Drummond to VA 100% disability rating).
The assessments by Dr. Sandhu and Dr. Drummond are supported by substantial evidence. This evidence includes the consultative examination by Dr. Edwin which, as the ALJ found, "was generally within normal limits." Tr. 21 ¶ 5. While diagnosing plaintiff with polyneuropathy, Dr. Edwin found specifically that plaintiff "could . . . pinch, grasp, and manipulate objects with the hands" and that his "ability to . . . handle objects . . . is not impaired." Tr. 597, 598. There is also an apparent absence from the medical records of specifications of functional loss as to plaintiff's hands.
The ALJ gave the assessments by Dr. Sandhu and Dr. Drummond "partial weight," stating:
The undersigned has accorded the physical assessments partial weight, because a range of light work is consistent with the record, but the undersigned has added upper and lower extremity limits to account for the claimant's neuropathy, as well as greater postural limits to account for his combined impairments, which gives him the benefit of the doubt at the hearing level considering the longitudinal record for the period at issue.Tr. 22 ¶ 5. As indicated, the ALJ limited plaintiff to "frequent use of his bilateral upper extremities to handle, finger, feel, push, pull, and/or operate hand controls." Tr. 19 ¶ 5. The ALJ's determining plaintiff to be more limited in the use of his hands than Dr. Sandhu and Dr. Drummond found was obviously favorable, not prejudicial, to plaintiff.
In sum, the function-by-function assessments by Dr. Sandhu and Dr. Drummond were proper, the ALJ did not err in relying upon them as he did, and such reliance satisfied the function-by-function requirement applicable to his decision. The court therefore rejects plaintiff's challenge to the ALJ's decision based on its purported failure to meet the function-by-function analysis requirement.
VII. NON-COMPLIANCE WITH THE APPOINTMENTS CLAUSE
Independent of his challenge to the ALJ's RFC determination, plaintiff contends that this case should be remanded because the ALJ was an inferior officer of the United States and at the time he issued his decision he had not been appointed by the President, any court of law, or any head of a department as purportedly required by the Appointments Clause of the Constitution and Lucia v. Securities & Exch. Comm'n ("SEC"), 138 S. Ct. 2044, 2053-54 (2018). In Lucia, the Supreme Court held that SEC ALJs are inferior officers subject to the Appointments Clause. 138 S. Ct. at 2049.
The Commissioner effectively concedes for purposes of this appeal that Social Security Administration ("SSA") ALJs are inferior officers. He states: "For purposes of this brief, [the Commissioner] does not argue that SSA ALJs are employees rather than inferior officers." Comm'r's Mem. 9 n.4. Moreover, the then Acting Commissioner of Social Security ratified the appointment of the SSA ALJs and approved them as her own on 16 July 2018, after issuance of the ALJ decision at issue in this appeal. See Soc. Sec. Ruling 19-1, 2019 WL 1202036, at *9583 & n.3 (15 Mar. 2019) (citing Soc. Sec. Emerg. Message (EM) 18003 REV 2, § B, https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM).
The Commissioner does, though, challenge the ability of plaintiff to raise the Appointments Clause issue for the first time in this appeal, as he is attempting to do. He argues that plaintiff has waived the issue by not asserting it in the administrative proceedings. In support, the Commissioner cites the language in Lucia that "'one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case' is entitled to relief." Lucia, 138 S. Ct. at 2055 (emphasis added) (quoting Ryder v. United States, 515 U.S. 177, 182-183 (1995)).
In Probst v. Berryhill, this court held that a claimant appealing from denial of Social Security disability benefits by an ALJ did not waive her challenge to the ALJ's decision under the Appointments Clause by not asserting it at the administrative level and could raise it for the first time before the district court. Probst, 377 F. Supp. 3d 578, 587 (E.D.N.C. 2019), appeal pending, No. 19-1529 (4th Cir.). In so ruling, the court rejected the contrary conclusion reached in other cases in this court and other courts. See id. at 583-84 (collecting cases).
E.g., Stewart v. Berryhill, No. 5:18-CV-85-RJ, 2019 WL 772334, at *8 (E.D.N.C. 20 Feb. 2019); Higgs v. Berryhill, No. 4:18-CV-22-FL, 2019 WL 848730, at *8 (E.D.N.C. 10 Jan. 2019), mem. & recomm. adopted, 2019 WL 845406, at *1 (21 Feb. 2019). --------
The Probst court reasoned that the exhaustion requirement, which is rooted in adversarial litigation, did not apply to plaintiff's Appointments Clause claim pursuant to Sims v. Apfel, 530 U.S. 103 (2000) based on the non-adversarial nature of the Social Security disability process. Although the precise issue in Sims was application of the exhaustion requirement to proceedings before the Appeals Council, the Probst court reasoned that because proceedings before ALJ were of the same non-adversarial nature as those before the Appeals Council, as Sims recognized, the exhaustion requirement should also be found inapplicable to proceedings before the ALJ. Id. at 585-86.
The Probst court further explained that even if the exhaustion requirement were deemed applicable, the court was exercising its discretion under Freytag v. Cmm'r of Internal Revenue, 501 U.S. 868 (1991) to find that no waiver occurred. Freytag, which dealt with a constitutional challenge to the appointment of special trial judges in the United States Tax Court, held that "the courts retained discretion to hear such claims in the 'rare cases' where a constitutional challenge was 'neither frivolous nor disingenuous' and goes 'to the validity of the . . . proceeding.'" Probst, 377 F. Supp. 2d at 586 (quoting Freytag, 501 U.S. at 879). The Probst court held that the case before it was such a case. Id. at 587.
The court continues to find the analysis in Probst convincing. For the reasons stated in that decision, the court finds that plaintiff did not waive his Appointments Clause challenge to the ALJ's decision, but if he were deemed to have waived it, the court would exercise its discretion to find that no waiver occurred. See, e.g., Cirko ex rel. Cirko v. Comm'r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020); Bradshaw v. Berryhill, 372 F. Supp. 3d 349 (E.D.N.C. 26 Mar. 2019), appeal pending, No. 19-1531 (4th Cir.). But see Harris v. Saul, No. 4:18-CV-135-RJ, 2019 WL 2865840, at *5 (E.D.N.C. 2 July 2019). The court further finds that the ALJ who decided plaintiff's case was appointed in violation of the Appointments Clause. See Soc. Sec. Ruling 19-1, 2019 WL 1202036, at *9583 & n.3 (discussing then Commissioner's ratification of appointment of ALJs). The proper remedy for this violation is remand of this case for a new hearing before an ALJ, constitutionally appointed, different from the one who decided plaintiff's case. Probst, 377 F. Supp. 2d at 587
VIII. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 14) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 18) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
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 4 March 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct 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, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will 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).
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
This 19th day of February 2020.
/s/_________
James E. Gates
United States Magistrate Judge