Opinion
No. 5:17-CV-419-D
07-18-2018
LISA LYNN SHANER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on Plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Defendant's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Lisa Lynn Shaner (Plaintiff) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for Disability Insurance Benefits (DIB) and 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 Summary Judgment [DE #12] be granted, Defendant's Motion for Judgment on the Pleadings [DE #15] be denied, and the Commissioner's decision be remanded for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for a period of disability and DIB on June 26, 2013, and for SSI on September 6, 2013; both applications alleged an onset date of February 26, 2013. (R. 17, 76-77, 89-90, 102-03.) The applications were denied initially and upon reconsideration, and a request for hearing was filed. (R. 17, 102-03, 130-31, 161-62.) A hearing was held via videoconference on April 25, 2016, before Administrative Law Judge (ALJ) Sandra R. DiMaggio Wallis, who issued an unfavorable ruling on June 29, 2016. (R. 17, 29.) The Appeals Council denied Plaintiff's request for review on June 20, 20167. (R. 1.) Plaintiff seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
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) (first quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); then quoting 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), 416.920(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 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.
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since February 26, 2013, the alleged onset date. (R. 19.) Next, the ALJ determined Plaintiff had the following severe impairments: "fibromyalgia, degenerative disk disease, migraines, bipolar disorder, and post-traumatic stress disorder." (Id.)
At step three, the ALJ concluded that 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, Appendix 1. (R. 20.) The ALJ specifically considered Listings 1.02, 1.04, 12.04, and 12.06. (Id.)
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (RFC) and found that Plaintiff had
the residual functional capacity to lift/carry and push/pull up to 20 pounds occasionally and up to 10 pounds frequently; stand/walk 6 hours in an 8-hour workday, 30 minutes at a time; and sit 6 hours in an 8-hour workday, 30 minutes at a time. [Plaintiff] can occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch or crawl. She can frequently finger and handle with both upper extremities. She must avoid unprotected heights and hazardous machinery. [Plaintiff] can understand, remember and carry out simple and detailed tasks and job instructions. She can have occasional interaction with supervisors, co-workers and the general public.(R. 22-23.) In making this assessment, the ALJ found Plaintiff's statements about the severity of her symptoms "not entirely consistent" with the evidence in the record. (R. 23.) At step four, the ALJ concluded Plaintiff was unable to perform her past relevant work as a polysomnography technician, administrative clerk, and medical secretary. (R. 27.) At step five, the ALJ identified Inspector-Hand Packager (DOT 559.687-074), Plastic Hospital Product Assembler (DOT 712.687-010), and Small Parts Assembler (DOT 706.684-022) as jobs with sufficient numbers in the national economy that Plaintiff could perform. (R. 28.)
IV. Plaintiff's Arguments
On review, Plaintiff raises two arguments. First, Plaintiff contends the ALJ insufficiently explained the weight assigned to a vocational rehabilitation assessment. (Pl.'s Mem. Supp. Mot. Summ. J. [DE #13] at 9-13.) Second, Plaintiff contends the ALJ failed to assign the proper weight to the opinions of her treating physicians, two of whom were specialists. (Id. at 13-19.) The Commissioner argues otherwise and contends that the ALJ adequately explained the weight assigned to the various opinions cited by Plaintiff, reached factual findings supported by substantial evidence, and correctly applied the relevant law and regulations. For the reasons discussed below, the undersigned disagrees with the Commissioner and, therefore, recommends the matter be remanded for further proceedings.
A. Vocational Rehabilitation Assessment
Plaintiff underwent vocational rehabilitation testing administered by Mr. Stephen D. Carpenter, a certified rehabilitation counselor, on April 20, 2014. This testing resulted in a report, which contained testing results, functional limitation findings, and opinions about various job-related abilities of Plaintiff. (R. 519-43, 666-90.) While the ALJ did not explicitly state how much weight she assigned to Mr. Carpenter's opinions and findings, any reasonable interpretation of the ALJ's written opinion indicates she gave these opinions and findings little weight. (See R. 26.) The ALJ critiqued Mr. Carpenter's report for three reasons: (i) Mr. Carpenter was not a treating physician, (ii) the opinions and findings were inconsistent with evidence that Plaintiff had "mild anxiety and depression" (R. 26 (citing R. 626)), and (iii) the opinions and findings were inconsistent with evidence that Plaintiff's memory and cognitive function were intact and that Plaintiff denied "anxiety, depression, memory loss, mood changes and inability to concentrat[e]" (R. 26 (citing R. 606, 818)).
Plaintiff argues that the ALJ committed reversible error by failing to "state what weight, if any, she gave Carpenter's opinion[s]." (Pl.'s Mem. Supp. Mot. Summ. J. at 11.) Furthermore, Plaintiff contends, even if the ALJ's explanation is credited, that explanation was limited to comments on Plaintiff's mental functioning and failed to address the vocational testing's "numerous physical findings that are inconsistent with the ALJ's RFC finding." (Id. at 11-12.) That is, Plaintiff contends the ALJ never resolved material inconsistencies between the RFC and Mr. Carpenter's findings regarding Plaintiff's physical limitations. According to Plaintiff, that failure to address the physical findings contained in the vocational rehabilitation report runs afoul of the ALJ's duty "to explicitly indicate 'the weight given to all [of the] relevant evidence.'" Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987) (quoting Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984)).
The Commissioner first argues, citing 20 C.F.R. §§ 404.1527 & 416.927, that the ALJ was not required to indicate what weight she gave Mr. Carpenter's findings and opinions because Mr. Carpenter is not a physician. (Def.'s Mem. Supp. Mot. J. Pldgs. at 10.) The Commissioner next advances substantive arguments regarding alleged malingering and broad inconsistency with medical records. (Id. at 10-11.)
As the Commissioner notes, the ALJ incorrectly referred to Mr. Carpenter as a doctor. (Def.'s Mem. Supp. Mot. J. Pldgs. at 10.) Plaintiff makes the same error in her brief. (Pl.'s Mem. Supp. Mot. Summ. J. at 11-13.) However, Plaintiff does not contend that the ALJ erred in her evaluation of Mr. Carpenter's opinions by violating the treating physician rule. (Id.)
The Commissioner's first argument ignores the possibility that relevant evidence may come from a source other than a physician. See, e.g., Ivey v. Barnhardt, 393 F. Supp. 2d 387, 390 (E.D.N.C. 2005) (remand appropriate where ALJ failed to discuss weight assigned to relevant testimony from a claimant's mother about the effects and limitations of the claimant's ailments); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) (relevant evidence may come from non-acceptable medical sources such as "nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists," and from non-medical sources). Here, Mr. Carpenter administered several tests related to Plaintiff's functional abilities, including physical testing. During the hearing before the ALJ, a Vocational Expert (VE) testified and acknowledged the relevance and general acceptance of the tests administered by Mr. Carpenter in the field of vocational rehabilitation. (R. 70-72.) Mr. Carpenter's conclusions, which appear to have been based on the testing he administered, are relevant because they tend to suggest Plaintiff's physical abilities are more limited than those assessed by the ALJ. For example, Mr. Carpenter's report indicates that Plaintiff has more limited manipulative and reaching abilities than those found by the ALJ in the RFC. (R. 537-38.) However, the ALJ did not explain how he resolved the material inconsistencies between the RFC and Mr. Carpenter's findings about Plaintiff's physical abilities. To be clear, the error is not that the ALJ failed to state a particular amount of weight she assigned to these opinions and findings, but that the ALJ failed to explain how she reconciled the findings regarding physical limitations in Mr. Carpenter's report with the contrary findings in the RFC.
SSR 06-03P was rescinded as to claims filed on or after March 27, 2017. 82 Fed. Reg. 15,263 (Mar. 27, 2017).
ALJ Wallis did not articulate the remaining arguments advanced by the Commissioner on review, and therefore, these arguments cannot be relied upon for purposes of review. See Patterson v. Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (reviewing court may only affirm an ALJ's decisions based on the reasons the ALJ provided); DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) ("It may be, of course, as the Secretary suggests on appeal, that the ALJ considered all of these factors and proposed to himself cogent reasons for disregarding them. However, on this record we cannot so determine."); Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *3 (E.D.N.C. Dec. 20, 2012) ("The court cannot supplement the ALJ's explanation with the Commissioner's legal arguments in this court.").
The Commissioner argues that Plaintiff was either alleging pain based on fear during her testing with Mr. Carpenter, or that she was trying to manipulate the test. (Def.'s Mem. Supp. Mot. J. Pldgs. at 10-11 (citing R. 530).) However, the language referenced by the Commissioner on that page (R. 530) is a general description of the various assessments and their associated notes/findings. The testing results and findings begin two pages after that referenced by the Commissioner. Indeed, contrary to the Commissioner's assertion, Mr. Carpenter noted more than once that he administered distraction testing to determine if Plaintiff put forth less than full effort or magnified her alleged symptoms and that he detected no reduced effort or exaggeration. (R. 537-38, 542.)
B. Treating Physician Opinions
Plaintiff contends the ALJ erred by failing to assign, or in the alternative, to explain why she did not assign, more weight to the opinions of three treating physicians—Dr. Jonathan Richman, Dr. John W. Jameson, and Dr. Maria J. Watson. (Pl.'s Mem. Supp. Mot. Summ. J. at 13-14.) In contrast, the Commissioner argues that "none of [the] physician opinions discussed were supported by the physician's own examinations"; Plaintiff exaggerated her allegations in light of the examination findings; and the treating physicians' opinions "seem to be clearly based on [Plaintiff's] allegations, not the examinations." (Def.'s Mem. Supp. Mot. J. Pldgs. at 6.)
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), 416.927(b)-(c); SSR 96-8p, 1996 WL 374184, at *7. 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. §§ 404.1527(a)(2), 416.927(a)(2).
This agency ruling was rescinded March 27, 2017, for claims filed on or after that date. 82 Fed. Reg. 15,263 (Mar. 27, 2017).
All references to 20 C.F.R. §§ 404.1527 & 416.927 are to the regulation in effect at the time Plaintiff filed his claim, which preceded the effective date of updated regulations on March 27, 2017. See Brown v. Berryhill, 873 F.3d 251, 255 (4th Cir. 2017). --------
Controlling weight will be given to "a treating source's medical opinion on the issue(s) of the nature and severity of [a claimant's] impairment(s) [if it] is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Craig, 76 F.3d at 590. A treating source is a "physician, psychologist, or other acceptable medical source who provides . . . or has provided [the claimant] with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant]." 20 C.F.R. §§ 404.1502, 416.902 (effective June 13, 2011, to Mar. 26, 2017).
If an ALJ determines that a treating physician's opinion is not entitled to controlling weight, she must then determine the weight to be given the opinion by applying the following factors: (1) the length of the treatment relationship and the frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidentiary support for the physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the physician is a specialist in the field in which the opinion is rendered; and (6) any other relevant factors brought to the ALJ's attention. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6); see also Parker v. Astrue, 792 F. Supp. 2d 886, 894 (E.D.N.C. 2011). "The ALJ is not required to discuss all of these factors." Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D.N.C. Dec. 20, 2012) (citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), and Munson v. Astrue, No. 5:08-CV-110-D(3), 2008 WL 5190490, at *3 (E.D.N.C. Dec. 8, 2008)). "However, the ALJ must give 'good reasons' for the weight assigned to a treating source's opinion." Ware, 2012 WL 6645000, at *2 (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), and SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)).
i. Dr. Richman
Plaintiff first asserts that the ALJ did not discuss any of three opinion letters that Dr. Richman wrote regarding Plaintiff. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 13-15 (citing R. 445, 478, 664).) Dr. Richman, Plaintiff's neurologist, indeed submitted three (quite brief) opinion letters regarding Plaintiff. The ALJ did not mention any of these opinion letters in her written decision. (R. 26-27.) These letters tend to support Plaintiff's allegations about the severity of her fibromyalgia-related symptoms. The Commissioner provides good reasons for discounting Dr. Richman's opinions (Def.'s Mem. Supp. Mot. J. Pldgs. at 8-9); the ALJ did not provide those—or any—reasons for discounting these opinions, though. Thus, the ALJ's failure to address three opinion letters from Plaintiff's treating neurologist frustrates this court's ability to meaningfully review whether substantial evidence supports the ALJ's (implicit) rejection of Dr. Richman's opinions in these letters. See Patterson, 839 F.2d at 225 n.1; DeLoatche, 715 F.2d at 150; Ware, 2012 WL 6645000, at *3.
ii. Dr. Jameson
Plaintiff next argues that the reasons the ALJ provided for discounting the weight assigned to Dr. Jameson's March 13, 2014, opinion letter are contrary to other evidence in the record. (Pl.'s Mem. Supp. Mot. Summ. J. at 16.) The ALJ explained that she discounted the weight assigned to Dr. Jameson's opinion because it was (1) inconsistent with evidence that Plaintiff had a normal gait and full muscle strength in her extremities (R. 25 (citing R. 606, a treatment note from Dr. Richman)), (2) not supported by the improvement of joint pain with medication (R. 25 (citing R. 419, a treatment note from Dr. Watson)), and (3) inconsistent with attending church, caring for her children, and riding in a car for seven hours. (R. 25-26.)
The court is unable to determine whether the ALJ's first two reasons for discounting Dr. Jameson's March 2014 opinion letter are supported by substantial evidence because the ALJ failed to address material inconsistencies posed by those reasons. First, the ALJ relied on a treatment note from Dr. Richman indicating Plaintiff had normal gait and full muscle strength to impeach Dr. Jameson's opinion. However, Dr. Richman also noted "gait disturbance" on a different occasion. (R. 804.) Moreover, as discussed above, the ALJ inadequately addressed evidence from Dr. Richman. Lastly, while there may be an apparent inconsistency between the Dr. Richman note referenced and Dr. Jameson's opinion, the ALJ was required to explain how any inconsistency was reconciled in light of the possibility that Plaintiff's symptoms of fibromyalgia were waxing and waning on various occasions. See SSR 12-2p, 2012 WL 3104869, at *6 (July 25, 2012) ("For a person with [fibromyalgia], we will consider a longitudinal record whenever possible because the symptoms of [fibromyalgia] can wax and wane so that a person may have 'bad days and good days.'").
Second, the ALJ's use of Dr. Watson's April 8, 2013, treatment note is insufficiently explained. The ALJ characterized this treatment note as indicating that Plaintiff's "joint pain improved with medication." (R. 25.) However, the treatment note stated, "[Plaintiff] still has pain and it is always there. The hypermobility seems to be giving her joint pain and it is a little better with the meds. She still seems to have the pain all of the time." (R. 419.) The ALJ's characterization may be reasonable, but the face of the treatment note seems to indicate a more nuanced opinion from Dr. Watson. Thus, if the ALJ wanted to rely on this treatment note from Dr. Watson to impeach Dr. Jameson's opinion, the ALJ needed to explain her characterization of Dr. Watson's opinion via a thorough, longitudinal review of the medical evidence. See SSR 12-2p, 2012 WL 3104869, at *6.
The undersigned expresses no recommendation as to the ALJ's reasons related to Plaintiff's alleged activities of daily living because meaningful review of the ALJ's treatment of Dr. Jameson's opinion is frustrated by the errors discussed above. The Fourth Circuit has, however, recently cautioned the Commissioner about relying too heavily on a claimant's "incremental" daily living activities as a basis for making a finding of non-disability. See Lewis v. Berryhill, 858 F.3d 858, 868 n.3 (4th Cir. 2017) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), for the proposition that "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations").
iii. Dr. Watson
The ALJ also assigned little weight to the opinions of Plaintiff's treating rheumatologist, Dr. Watson, contained in a May 8, 2014, letter. (R. 26.) The ALJ discounted this opinion because it was "inconsistent with the physical examinations and improvement with medication." (R. 26.) The ALJ did not reference any specific portions of the record in this discussion of Dr. Watson's opinion. The only other sections of the ALJ's opinion that mention improvement of symptoms with medication reference Dr. Watson's December 8, 2013, treatment note discussed above and two treatment notes from Dr. Jameson. (R. 24 (citing R. 419 (December 8, 2013, Dr. Watson treatment note), 748 (December 9, 2014, Dr. Jameson treatment note), 755 (March 23, 2015, Dr. Jameson treatment note).) The problem with the ALJ's reliance on Dr. Watson's December 8, 2013, treatment note for the proposition that Plaintiff's symptoms improved with medication is described above. As to references to Dr. Jameson's treatment notes, those treatment notes—at most—obliquely stand for the proposition the ALJ says they do.
The December 9, 2014, note indicates that Dr. Jameson, Plaintiff's primary care physician, was examining Plaintiff regarding neck pain, hypertension, and allergy problems. (R. 748.) The only references to medication include the statement that "[Plaintiff] was on Bystolic in the past but they stopped it because they didn't think she needed it after stopping Cymbalta" and the statement that Plaintiff's allergy symptoms improved with over-the-counter antihistamines. (Id.) The March 23, 2015, note includes the exact same language from Dr. Jameson but for the allergy symptoms discussion. At most, these two treatment notes suggest that a previous medical provider had prescribed Plaintiff blood pressure and fibromyalgia/nerve pain medication and ceased those medications at some point. Importantly, the plain language of the notes indicate that Dr. Jameson was not remarking on Plaintiff's response to a medication regimen he had prescribed. Therefore, these treatment notes do not constitute good reasons for impeaching Dr. Watson's opinion. See Ware, 2012 WL 6645000, at *2 (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), and SSR 96-2p, 1996 WL 374188, at *5).
In sum, ALJ Wallis failed to provide any reasons for implicitly rejecting the opinions of Plaintiff's treating neurologist, and failed to provide sufficient reasons for rejecting the opinions of Plaintiff's treating rheumatologist and primary care physician. Moreover, all of these treating physicians opined that Plaintiff's RFC was more restricted than that assessed by the ALJ. Post-hoc rationalization by the Commissioner on review cannot substitute for the ALJ's failure to comply with relevant case law and regulations requiring the ALJ to have provided such explanation regarding the opinions of three treating physicians.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Summary Judgment [DE #12] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #15] be DENIED, and the Commissioner's decision be remanded for further proceedings.
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 1, 2018, 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, e.g., 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. 2017).
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 18th day of July 2018.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge