Opinion
4:20-CV-71-M
07-19-2021
DAVID RICHARDSON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, [1] Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK United States Magistrate Judge
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. David Richardson (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of his application for supplemental security income (“SSI”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #18] be granted, Defendant's Motion for Judgment on the Pleadings [DE #20] 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 SSI on October 20, 2017, with an alleged onset date of August 2, 2016. (R. 15, 205.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 15, 120, 140, 154.) A hearing was held on October 24, 2019, before Administrative Law Judge (“ALJ”) Joseph L. Brinkley, who issued an unfavorable ruling on November 27, 2019. (R. 12-81.) On February 26, 2020, the Appeals Council denied Plaintiff's request for review. (R. 16.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 416.1481. Plaintiff then filed for review of the unfavorable 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. § 416.920(a)(4); Albright v. Comm'r of SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” 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”). At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since the application date. (R. 17) Next, the ALJ determined Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine, borderline intellectual functioning, and depression. (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.) The ALJ expressly considered Listings 1.04, 12.04, and 12.11. (R. 18.)
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 416.967(b), with the following limitations: occasionally use the bilateral upper extremities for overhead lifting, reaching, pulling and pushing, otherwise, can frequently use the bilateral upper extremities to lift, reach, pull and push in all other directions[;] frequently use the bilateral upper extremities to handle (handling include grasping), finger, and feel; occasionally stoop, kneel crouch, climb stairs and ramps and use the right dominant lower extremities to operate foot and leg controls; no climbing ladders, ropes, or scaffolds[;] occasional exposure to temperature extremes; no working around dangerous, moving mechanical parts and unprotected heights; and no standing and/or walking on narrow slippery surfaces (used to defined balancing); will need the flexibility to alternate between sitting, standing, and walking every 30 minutes but will not need to leave the work station except for when on regularly scheduled breaks; in an 8-hour workday comprised of regularly scheduled breaks and the types of interruptions that may take the claimant off task up to 10% but no more of the total work schedule, the claimant can: sit for a total of 6 hours and stand and walk for a combined total of 4 hours; work at a reasoning level of 2, as defined in the DOT, denoting the ability to apply commonsense understanding to carryout detailed but uninvolved oral and written instructions and deal with problems involving a few concrete variables in or from standardized situations encountered on the job; simple, routine, and repetitive tasks in 2-hour intervals; occasional, direct interaction with the general public, coworkers, and supervisors; performing jobs not requiring the claimant to complete a specific number of production quotas on a defined timeline and/or to do fast paced assembly line work.(R. 19.) In making this assessment, the ALJ stated he had considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”) based on the requirements of 20 C.F.R. § 416.929 and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017), evaluated the opinion evidence and prior administrative medical findings in accord with 20 C.F.R. § 416.920c, and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms “not entirely consistent with the medical evidence and other evidence in the record.” (R. 19-20.)
At step four, the ALJ concluded that Plaintiff had no past relevant work. (R. 26.) 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: electronics worker (DOT #726.687-010) and laundry folder (DOT #369.687-018). (R. 27-28.) The ALJ concluded that Plaintiff had not been disabled under the Act since October 20, 2017, the date Plaintiff's application was filed. (R. 28.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by:
(A) failing to identify as a severe impairment, and failing to evaluate, Plaintiff's chronic pain syndrome, the diagnosis of which was made in a consultative exam and about which the ALJ was aware (Pl.'s Mem. Supp. Mot. Pldgs. [DE #19] at 13-14; Pl.'s Reply [DE #22] at 1-4);
(B) failing to resolve a conflict between the Dictionary of Occupation Titles (“DOT”) and the testimony of the Vocational Expert (“VE”), which is relevant to the RFC and Plaintiff's purported ability to perform the two jobs identified at step five (Pl.'s Mem. Supp. Mot. J. Pldgs. at 14-15; Pl.'s Reply at 4-7);
(C) failing to explain why Plaintiff was not limited to occasional reaching in all directions, contrary to the opinion of a consultative examiner (Pl.'s Mem. Supp. Mot. J. Pldgs. at 19-21; Pl.'s Reply at 78); and
(D) failing to develop the record regarding Plaintiff's back surgeries and incorrectly guessing that Plaintiff only had one surgery, which was expressly considered by the ALJ in his evaluation of Plaintiff's credibility (Pl.'s Mem. Supp. Mot. J. Pldgs. at 21-22; Pl.'s Reply at 8-10).
The Commissioner contends (A) the ALJ was not required to evaluate Plaintiff's chronic pain syndrome because Plaintiff did not allege that as a disability in his application for benefits, and that even if the ALJ was so required, the failure to do so was harmless (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #21] at 4-6); (B) the ALJ sufficiently explained the apparent conflict between the DOT and VE testimony regarding overhead reaching in the sample jobs relied on at step five (id. at 6-9); (C) the ALJ sufficiently explained the RFC finding as to Plaintiff's reaching ability (id. at 9-11); and (D) the ALJ had sufficient evidence upon which to base his decision regarding Plaintiff's disability, and the absence of records from pre-onset date back surgeries was not the reason for the ALJ's disability decision (id. at 11-14). Issues (B) and (C) are related and will be addressed together. For the reasons explained below, the undersigned disagrees with the Commissioner and, therefore, recommends the matter be remanded.
A. Chronic Pain Syndrome & Severity of Impairments
When Plaintiff applied for benefits, he listed “back problems, ” “learning disability, ” “depression, ” and “problems with legs” as the physical and mental conditions that limit his ability to work. (R. 256.) In January 2018, Dr. Jerome B. Albert, a licensed psychologist, conducted a comprehensive clinical psychological evaluation of Plaintiff as a consultative exam. (R. 329-31.) Dr. Albert diagnosed Plaintiff with borderline intellectual functioning, unspecified depressive disorder, and chronic pain syndrome. (R. 331.) While ALJ Brinkley summarized Dr. Albert's findings (R. 21), including the chronic pain syndrome diagnosis, ALJ Brinkley did not find chronic pain syndrome to be a severe impairment at step two (R. 17), nor did he explain in the subsequent steps how the chronic pain syndrome contributed to his findings regarding Plaintiff's RFC and credibility (R. 19-26).
A “severe” impairment within the meaning of the regulations is one that “significantly limits . . . [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). Conversely, an impairment is not severe “when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered.” SSR 85-28, 1985 WL 56856, at *3 (Nov. 15, 1985); see also Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984). The claimant has the burden of demonstrating the severity of his impairments. Pass, 65 F.3d at 1203.
At step two of the sequential evaluation process, the ALJ must determine whether a claimant's impairment(s), individually or in combination, are “severe.” 20 C.F.R. § 416.923. So long as a claimant has any severe impairment or combination of impairments, the ALJ must proceed beyond step two and consider all of the impairments (including non-severe impairments) at the remaining steps of the sequential evaluation process. Id.; see also SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996) (explaining that the existence of one or more severe impairments requires the ALJ to “consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe'”).
Courts have found that an ALJ's failure to find a particular impairment severe at step two does not constitute reversible error where the ALJ determines that a claimant has other severe impairments and proceeds to evaluate all the impairments at the succeeding steps in the evaluation. See Jones v. Astrue, No. 5: 07-CV-452-FL, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009) (agreeing with various circuit and district courts that “it is not reversible error where an ALJ does not consider whether an impairment is severe at step two of the sequential evaluation provided the ALJ considers that impairment in subsequent steps” (emphasis added)) (citing, inter alia, Hill v. Astrue, 289 Fed. App'x 289, 292 (10th Cir. 2008) and Maziarz v. Sec'y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)).
Here, the ALJ committed reversible error. He failed to explain why he did not identify chronic pain syndrome as a severe impairment, and he did not evaluate Plaintiff's chronic pain syndrome at the subsequent steps of the disability evaluation process. The Commissioner's argument that ALJ Brinkley was not required to consider this as an impairment because Plaintiff did not identify it as such in his benefits application is undermined by the fact that the diagnosis was made after Plaintiff's application and was a result of a consultative examination ordered in connection with this benefits application.
The purpose of a consultative examination is to acquire information needed to adjudicate the claim that is not present in the initial application. See 20 C.F.R. § 416.919a (“We may purchase a consultative examination to try to resolve an inconsistency in the evidence or when the evidence as a whole is insufficient to support a determination or decision on your claim.”). It makes no sense to preclude a claimant from arguing that an impairment identified as a result of a consultative examination ordered by the Commissioner cannot form part of the basis for his benefits application because it was not listed as an impairment in the initial application.
This error is pronounced here because ALJ Brinkley did not consider chronic pain syndrome during the subsequent steps of the evaluation despite noting that Dr. Albert made this diagnosis. (R. 21.) This is important because ALJ Brinkley expressly discounted Plaintiff's statements about the severity of his symptoms, which appear to be corroborated by Dr. Albert's diagnosis. ALJ Brinkley said nothing about this diagnosis, its potential effects on Plaintiff's RFC, or how it may or may not have supported Plaintiff's statements about the severity of his symptoms. Remand is required because ALJ Brinkley did not consider, or failed to explain why he did not consider, the chronic pain syndrome diagnosis at step two or the subsequent steps. See Jones, 2009 WL 455414, at *2.
B. Reaching Ability and DOT/VE Conflict
ALJ Brinkley found Plaintiff had the RFC to reach overhead occasionally and to reach frequently in other directions. (R. 19.) This conflicts with the findings of Dr. Kris Roach, M.D., who conducted a consultative examination of Plaintiff in January 2018 and opined that Plaintiff was limited to occasional reaching in all directions. (R. 333-38.) Plaintiff's reaching ability is important because the two jobs identified at step five both require frequent, as opposed to occasional, reaching. See Electronic Worker, DOT #726.687-010, 1991 WL 679633; Folder, DOT #369.687-018, 1991 WL 673072. Were Plaintiff limited to occasional reaching in all directions, as Dr. Roach determined, these two jobs would be precluded and the Commissioner would have failed to carry his burden at step five. During the hearing before ALJ Brinkley, the VE testified that, based on her “education, training, experience, and knowledge, ” and contrary to the DOT, the two aforementioned jobs only require occasional overhead reaching and would thus be available to Plaintiff with the RFC assessed by ALJ Brinkley. (R. 70-72.) ALJ Brinkley credited the VE's testimony and relied on it at step five. (R. 27-28.)
1. RFC
The RFC is an administrative assessment of “an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis” despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. § 404.945(a)(1). “A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *1. In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 416.945(a)(4). It is based upon all relevant evidence, which may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. § 416.945(a)(3). If necessary, an ALJ must “explain how any material inconsistences or ambiguities in the evidence were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7.
An ALJ must “include a narrative discussion describing how the evidence supports each conclusion” in the RFC. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636). The ALJ must specifically explain how certain pieces of evidence support particular conclusions and “discuss[ ] . . . which evidence the ALJ found credible and why.” Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The Fourth Circuit has interpreted this to require an ALJ to “build an accurate and logical bridge from the evidence to his conclusion.” Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion [M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). Simply put, this means an ALJ must “[s]how [his] work.” Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (applying same principle to an ALJ's listing analysis). Such analysis-“[h]armonizing conflicting evidence and bolstering inconclusive findings, ” Patterson, 846 F.3d at 662-is a “necessary predicate” to determining whether substantial evidence supports the Commissioner's findings, Monroe, 826 F.3d at 189 (quoting Radford, 734 F.3d at 295).
Here, ALJ Brinkley did not sufficiently explain why he deviated from Dr. Roach's opinion that Plaintiff was limited to occasional reaching in all directions. In explaining the weight assigned to Dr. Roach's opinions, ALJ Brinkley found they were “persuasive, in part.” (R. 24.) While noting that the exam findings were “suspect or questionable” because Dr. Roach stated that Plaintiff gave poor effort, ALJ Brinkley explained that spinal imaging from October 2019 “showed progressive [degenerative disc disease] at the L4-5 and L5-S1 disc space levels with progressive broad-based disc protrusions and moderate to severe and mild to moderate neuroforaminal narrowing.” (R. 24.) Based on these October 2019 imaging results, ALJ Brinkley stated:
[Dr. Roach's] opinion that [Plaintiff] can occasional[ly] reach but that there were no other manipulative limitations [is] less persuasive because, again, it is not consistent with the most recent objective imaging, which reasonably supports manipulative limitations, as well as [Plaintiff's] testimony of difficulty reaching, handling, and lifting.(Id.) This explanation implies that Plaintiff is more limited in his manipulative abilities than stated by Dr. Roach. ALJ Brinkley erred because he did not explain this material discrepancy and it is unclear how he concluded that Plaintiff could reach overhead occasionally but in all other directions frequently. See Monroe, 826 F.3d at 189; SSR 96-8p, 1996 WL 374184, at *7.
Reaching is a manipulative function according to SSR 85-15, 1985 WL 56857, at *7 (Jan. 1, 1985).
2. DOT/VE Conflict
In Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015), the Fourth Circuit, in addressing the impact of SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000), held that an ALJ must independently identify and obtain a reasonable explanation from the VE as to any apparent conflicts between the VE's testimony and the DOT before relying on the VE's testimony. Pearson, 810 F.3d at 209-10. “An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT].” Id. As noted above, there is an apparent conflict between the DOT requirements for the jobs identified by the VE and Plaintiff's RFC. See also Fennell v. Berryhill, No. 7:16-CV-312-FL, 2017 WL 4230557, at *7-8 (E.D. N.C. Aug. 31, 2017) (apparent conflict between no overhead reaching in RFC and jobs requiring frequent reaching), mem. & recommendation adopted by 2017 WL 4226039 (E.D. N.C. Sept. 22, 2017).
Here, the only explanation elicited from the VE as to this conflict is that overhead reaching is not addressed by the DOT and that, based on the VE's education, training, experience, and knowledge, the jobs could be done by someone limited to occasional overhead reaching. (R. 72.) Standing alone, that reason is an insufficient basis upon which to resolve the foregoing apparent conflict. Resolving the conflict would have required evidence to explain the basis of the VE's opinion that the overhead reaching requirements are different from other reaching requirements, for example, the VE's observations of the job as performed or other research by the VE into the specific job requirements. The record here contains no such testimony or evidence. Accordingly, ALJ Brinkley did not resolve the apparent conflict, and the Commissioner has failed to demonstrate the error is harmless.
C. Development of the Record and Plaintiff's Back Surgeries
When explaining why he discounted Plaintiff's statements about the severity of his symptoms, ALJ Brinkley noted that “some inconsistencies in the record detract from the persuasiveness of [Plaintiff's] statements regarding the extent of symptoms and limitations.” (R. 22.) As an example of one of these inconsistencies, ALJ Brinkley expressly noted that “while [Plaintiff] reported at least 2 [back] surgeries, including one as recently as 2015, [] treatment notes from his primary care provider repeatedly note only a single surgery - a fusion in 2006.” (R. 22-23.) Numerous pages in the record, including treatment notes from Plaintiff's primary care provider (Rural Health Group) with a “Surgical History” section caption, explicitly note or straightforwardly imply two back surgeries. (R. 297, 301, 304, 310, 315, 321, 324, 329, 333, 338, 340, 380.) Thus, ALJ Brinkley's statement appears directly controverted by the record.
“[T]he ALJ has a duty to explore all relevant facts and inquire into the issues necessary for adequate development of the record, and cannot rely only on the evidence submitted by the claimant when that evidence is inadequate.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986) (citing Walker v. Harris, 642 F.2d 712, 714 (4th Cir. 1981), and Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980)); see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop arguments both for and against granting benefits.”) “Where the ALJ fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded.” Marsh, 632 F.2d at 300.
The Commissioner argues that ALJ Brinkley did not need the records regarding Plaintiff's back surgeries because he had sufficient evidence upon which to base his ultimate decision regarding disability. (Def.'s Mem. Supp. Mot. J. Pldgs. at 11-12.) However, ALJ Brinkley explicitly stated that inconsistencies in the record regarding the number of surgeries impacted his assessment of Plaintiff's credibility regarding his symptom severity. ALJ Brinkley's explicit reliance on evidence regarding Plaintiff's back surgeries completely undermines the Commissioner's position and shows that ALJ Brinkley's failure to investigate Plaintiff's back surgeries prejudiced Plaintiff.
The Commissioner also argues that Plaintiff “was represented by an attorney at the administrative hearing” and that if he “considered the records of the back surgeries necessary, he had the opportunity to request that the record be kept open for those records and even to request assistance in obtaining those records.” (Def.'s Mem. Supp. Mot. J. Pldgs. at 12-13.) There are several problems with this argument.
First, Plaintiff was represented, but not by an attorney, at the administrative hearing. (R. 15, 153, 170.) That non-attorneys may represent claimants at Social Security hearings underscores the non-adversarial nature of such hearings and the ALJ's duty to develop the record. Second, ALJ Brinkley obviously believed information regarding Plaintiff's back surgeries was relevant as he explicitly discussed it in the opinion. Third, the ALJ “cannot rely only on the evidence submitted by the claimant when that evidence is inadequate.” Cook, 783 F.2d at 1173.
For these reasons, ALJ Brinkley's analysis of Plaintiff's statements about the severity of his symptoms is based on what appears to be a factual error, and ALJ Brinkley failed to discharge his duty to adequately develop the record regarding Plaintiff's back surgeries. Accordingly, remand is recommended.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #18] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #20] 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 August 2, 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)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).