Opinion
7:22-CV-66-FL
07-31-2023
SAMANTHA L. HOWE, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-18, -21] pursuant to Fed.R.Civ.P. 12(c). Claimant Samantha L. Howe (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the denial of her applications for child's insurance benefits based on disability, a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) payments. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant'? Motion for Judgment on the Pleadings be denied, and the matter be remanded for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB and for SSI on February 26, 2019, and an application for child's insurance benefits on May 24, 2019, alleging disability beginning March 1, 2018. (R. 12, 330M-7). The claims were denied initially and upon reconsideration. (R. 12, 59-199). A hearing before the Administrative Law Judge (“ALJ”) was held on June 2, 2021, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 36-58). On July 28, 2021, the ALJ issued a decision denying Claimant's request for benefits. (R. 9-30). On February 18, 2022, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
Claimant's administrative hearing was initially scheduled for February 8, 2021, but Claimant was unable to attend because she had been transferred by an emergency department to a psychiatric hospital on an involuntary commitment order. (R. 241, 854-55).
IL STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., 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). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “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 v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438.439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in (1) failing to find that Claimant's anxiety disorder met or equaled Listing 12.06. and (2) failing to account for all non-exertional limitations from Claimant's mental impairments in the RFC. Pl.'s Mem. [DE-19] at 16 31.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. The ALJ first determined that Claimant had not attained age 22 as of March 1, 2018, the alleged onset date. (R. 15). At step one, the ALJ found Claimant had not engaged in substantial gainful employment since March 1, 2018, the alleged onset date. Id. Next, the ALJ determined Claimant had the severe impairments of bipolar disorder, post-traumatic stress disorder, generalized anxiety disorder, polysubstance abuse (alcohol and cannabis), and morbid obesity. Id. However, at step three, the ALJ concluded these 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. 15-17). Applying the special technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in a moderate limitation in understanding, remembering, or applying information; interacting with others; and concentrating, persisting, or maintaining pace; and a mild limitation in adapting or managing oneself. (R. 16).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a full range of work at all exertional levels with the following non-exertional limitations:
the claimant has the ability to understand, remember, and carry out instructions for simple, routine tasks, not performed at production pace, meaning not subject to
strict time deadlines or quota requirements. She has the ability to maintain attention and concentration for two-hour segments for completion of simple, routine tasks at the non-production pace, assuming normal fifteen-minute morning and afternoon breaks and a thirty-minute lunch break. She can interact frequently with supervisors and on an occasional, casual basis with coworkers, but none with public. She also has the ability to adapt to workplace changes if they involve simple, work-related decisions.(R. 17-22). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence of record. (R. 18).
At step four, the ALJ concluded Claimant had no past relevant work. (R. 22). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 23).
V. DISCUSSION
Claimant, who was 19 years old on the alleged onset date and 22 years old at the time of the hearing, contends that she cannot work due to her severe psychiatric impairments that have resulted in, among other things, multiple suicide attempts, hospitalizations, violent outbursts, self-injurious behavior, self-isolation, and an inability to relate well to others. Claimant asserts that her anxiety disorder is of sufficient severity to meet Listing 12.06 and that the RFC does not account for all of her limitations.
A. Listing 12.06, Anxiety
The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. §§ 404.1525(a). 416.925(a). Therefore, if a claimant's impairments meet or medically equal a listing, that fact alone establishes that the claimant is disabled. Id. §§ 404.1520(d), 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Even if an impairment does not meet the listing criteria, it may still satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. §§ 404.1525(c)(5), 416.925(c)(5); SSR 17-2p, 2017 WL 1105349 (Mar. 27, 2017). The burden of demonstrating that an impairment meets or equals a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); Shoulars v. Astrue, 671 F.Supp.2d 801, 813 (E.D. N.C. 2009). When “there is at least conflicting evidence in the record” as to whether a claimant satisfies a listing, the ALJ must explain her determination that the claimant's impairment does not meet or exceed the listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). The ALJ cannot “summarily conclude” that a listing is not satisfied because “insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Id.
In order to meet the listing for anxiety, the claimant must establish the A criteria along with either the B or C criteria. 20 C.F.R. Pt. 404, subpt. P, app.l, § 12.06. The A criteria requires medical documentation of anxiety disorder characterized by three or more of the following: (a) restlessness; (b) easily fatigued; (c) difficulty concentrating; (d) irritability; (e) muscle tension; or (f) sleep disturbance. Id. The B criteria assess how the claimant's mental disorders limit functioning measured in four functional areas: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. § 12.00A.2.b. To satisfy the B criteria, a claimant must demonstrate extreme limitation of one, or marked limitation of two, of the four functional areas. Id. A “mild limitation” means functioning is “slightly limited,” a “moderate limitation” means functioning is “fair,” a “marked limitation” means functioning is “seriously limited,” and an “extreme limitation” means an inability to function. Id. § 12.00F.2. The C criteria are not relevant here, as Claimant contends her anxiety disorder meets the A and B criteria.
Claimant asserts that she experienced difficulty concentrating, irritability, and sleep disturbance, which would satisfy the A criteria. Claimant points to evidence in the record of anger outbursts, rapid mood swings, panic disorders, poor concentration, and sleep issues. (R. 562, 589, 679, 715, 786, 808, 811). The ALJ did not discuss whether Claimant's anxiety was characterized by any of the A criteria, but the evidence in the record cited by Claimant supports a conclusion that her anxiety met the A criteria, and it is presumed the ALJ found the A criteria satisfied and proceeded to consider the B criteria. See Hayes v. Kijakazi,No. T.21-CV-715, 2023 WL 22159, at *5 (M.D. N.C. Jan. 3, 2023) (finding the ALJ apparently assumed without express analysis that a claimant's anxiety met the A criteria before proceeding to consider the B and C criteria); Tonya L. M. v. Kijakazi, No. 2:21CV667, 2022 WL 17408817, at *17 (E.D. Va. Nov. 1, 2022) (finding the ALJ did not analyze the A criteria but arguably assumed they were met before proceeding to the B and C criteria), report and recommendation adopted, 2022 WL 17405828 (E.D. Va. Dec. 2, 2022); see also Shelley C. v. Comm 'r of Soc. Sec. Admin., 61 F.4th 341, 366 (4th Cir. 2023) (finding the ALJ's determination that the claimant's mental impairments were severe and significantly limited the ability to perform basic work activities was sufficient to infer satisfaction of the A criteria for the depressive disorder listing). Accordingly, the dispositive issue is whether Claimant's anxiety satisfied the B criteria.
Claimant contends she has marked limitations in the functional areas of interacting with others and adapting or managing oneself, and the ALJ erred in concluding she only had moderate and mild limitations, respectively, in these areas. Pl.'s Mem. [DE-19] at 19-27. The court agrees that the ALJ's findings in these areas are not supported by substantial evidence.
In considering Claimant's functioning in the area of interacting with others, the ALJ acknowledged Claimant's alleged limitations getting along with others, she is angry at times and isolates herself to avoid conflict, she experiences mood swings, at the administrative hearing she testified that she had not left the house in two months, and she became angry at an exam, yelled, and she had to be restrained. (R. 16). However, because treatment notes indicated Claimant was cooperative at most exams, the ALJ concluded she was only moderately limited in interacting with others. The evidence cited by the ALJ, as well as other evidence in the record, does not constitute substantial evidence to support the ALJ's conclusion that Claimant's ability to interact with others was only “moderately impaired” or “fair.”
The record is replete with incidents of Claimant's inability to interact with others due to her angry outbursts and isolating behaviors. For example, in February 2018, Claimant was referred for counseling for her anger and anxiety; in April 2019, she was hospitalized after a suicide attempt triggered by her uncle, with whom she was living, communicating with her ex-roommate; in June 2019, Claimant presented to the emergency department as suicidal, after the examination she began yelling and screaming, and she had to be restrained; in October 2019, Claimant's therapist noted Claimant reported anxiety related to going in public and anger issues, and concluded Claimant's anxiety affected her socially and interpersonally; and there were repeated instances of Claimant isolating and not leaving her room or the house for days or weeks at a time, fearful even to interact with her own family. (R. 546, 589, 670, 715-17, 719, 786, 790). Claimant was also fired from her job at McDonald's because she was “giving too much attitude to the customers,” she had a psychiatric meltdown and punched herself in the head in response to a rude customer, and the police were called. (R. 42). Claimant also had conflicts with her supervisor at another job and was fired for giving him attitude, and she reported having problems with coworkers, including having arguments with coworkers “broken up” on two occasions. (R. 43-44). At other times, Claimant felt like people in her workplace were talking down to her, and she responded by hitting her head. (R. 44-45).
In the case of Shelley C. v. Comm 'r of Soc. Sec. Admin., the Fourth Circuit determined that an ALJ erred in finding that the claimant, who similarly self-isolated and struggled with social interaction apart from doctor's appointments, was only moderately limited in the ability to interact with others. 61 F.4th at 366-67. The court found that Shelley C.'s “marked limitation in this area, supported by overwhelming evidence in the record, would inhibit her from performing ‘in an ordinary work setting on a regular and continuing basis' of ‘8 hours a day, for 5 days a week, or an equivalent work schedule.'” Id. at 367 (quoting SSR 96-p, 1996 WL 374184, at *2). Likewise, here, Claimant's ability to be “cooperative at most exams,” is insufficient to support the ALJ's conclusion that Claimant was only moderately limited in her ability to interact with others when the overwhelming evidence demonstrates that Claimant's anxiety caused her to frequently selfisolate in order to avoid the angry confrontations that often resulted from her interactions with others.
Turning to Claimant's ability to adapt or manage herself, the ALJ found that Claimant experienced only mild limitations. (R. 16). The ALJ acknowledged Claimant's reported feelings of depression and anxiety, the presence of ongoing distressing dreams and nightmares, her multiple hospitalizations due to depression and suicidal ideation, and her engaging in cutting behavior. Id. Nevertheless, the ALJ determined that “with treatment, the claimant was doing well and her affect seemed brighter,” she had a normal mood and affect, despite her mental symptoms and substance use, she worked after the alleged onset date, and she reported watching television, making breakfast, and playing on her phone. Id. The ALJ's reasoning is not supported by substantial evidence in the record.
First, the ALJ's finding that Claimant did well with treatment fails to acknowledge the short-lived nature of Claimant's improvement and her repeated relapses. In support of the conclusion that Claimant was doing well with treatment, the ALJ cited a treatment note from February 2018 indicating Claimant had normal mood and affect, and an April 29, 2019 discharge summary, at the end of a two week hospitalization after Claimant cut herself and attempted suicide by taking a handful of ibuprofen, that stated Claimant was “doing well” and her affect seemed “much brighter.” (R. 16, 540, 670). However, less than two months later in June 2019, Claimant presented to the emergency department as depressed and suicidal, she yelled and screamed at the provider, and she had to be restrained. (R. 586-89). The Fourth Circuit has reasoned, in the context of considering whether depression was disabling under the listings, that “[t]he waxing and waning of [a claimant's] symptoms would hinder her from being a dependable employee.” Shelley C., 61 F.4th at 368. Here, while Claimant at times showed improvement, it unfortunately was not a lasting improvement.
Additionally, in the RFC discussion, the ALJ focused on Claimant's medication noncompliance as an exacerbating factor in her repeated relapses. (R. 18-20). However, the ALJ failed to consider why Claimant was noncompliant with her medications. This was error, particularly where this court has recognized that noncompliance may be a symptom of mental illness. See McKoy v. Saul, No. 7:19-CV-00223-FL, 2020 WL 8084961, at *9 (E.D. N.C. Nov. 22, 2020) (finding that citing a mental health patient's medication non-compliance, without exploring the reasons underlying it, offered little in the way of substantial evidence to support the ALJ's RFC assessment), report and recommendation adopted, 2021 WL 76956 (E.D. N.C. Jan. 8, 2021); Turner v. Saul, No. 5:19-CV-190-D, 2020 WL 3866669, at *7 (E.D. N.C. June 9, 2020) (“treatment [n]on-compliance may be intentional or a symptom of mental illness[,] . . . [s]o citing . . . noncompliance, without exploring the reasons underlying it, offers little in the way of substantial evidence to uphold the RFC determination.”) (citing Pate-Fires v. Astrue, 564 F.3d 935, 945-46 (8th Cir. 2009) (“[N]oncompliance with psychiatric medications can be, and usually is, the result of the mental impairment itself, and, therefore, neither willful nor without a justifiable excuse . . . Courts considering whether a good reason supports a claimant's failure to comply with prescribed treatment have recognized psychological and emotional difficulties may deprive a claimant of the rationality to decide whether to continue treatment or medication.”)), report and recommendation adopted, 2020 WL 3840510 (E.D. N.C. July 8, 2020). Furthermore, SSR 16-3p requires the ALJ to consider possible reasons for failure to comply with treatment before finding an individual's symptoms inconsistent with the evidence of record on that basis. 2017 WL 5180304, at *9-10 (Oct. 25, 2017). There is also evidence in the record that indicates Claimant was, at times, not taking her medication due to insurance or cost issues. (R. 586, 593, 774); see Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) (“It flies in the face of patent purposes of the SSA to deny benefits to someone because he is too poor to obtain medical treatment that may help him.”).
Next, Claimant's unsuccessful work attempts do not provide substantial evidence to support the ALJ's conclusion that Claimant had only mild limitations in her ability to adapt and manage herself. Adapting and managing oneself refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work setting. 20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.00E.4. As discussed above, Claimant was fired from her jobs, had interpersonal conflicts with her supervisors and coworkers, repeatedly hit herself in the head in response to stressors at work, and was frequently late or missed work due to sleep issues stemming from her anxiety. (R. 42-45). The court cannot trace the ALJ's reasoning in finding Claimant's work history indicates only mild limitations in her ability to adapt and manage herself. See Jenkins v. Saul, No. 1:20-CV-2544-SVH, 2021 WL 248704, at *32 (D.S.C. Jan. 26, 2021) (finding failed work activity cited by the ALJ demonstrated that the claimant was capable of performing some work over the relevant period but not work consistent with the RFC); see also Corinna H. v. Kijakazi, No. 2:21-CV-00113-JAG, 2023 WL 2702544, at *6 (E.D. Wash. Mar. 29, 2023) (finding the claimant's work history was not substantial evidence supporting the ALJ's decision where the claimant had been unable to sustain the work for very long).
Finally, the ALJ cited Claimant's ability to watch television, make breakfast, and play on her phone as evidence that she experienced only a mild limitation in adapting and managing oneself. (R. 16). It is not apparent how these activities are reflective of Claimant's ability to regulate emotions, control behavior, and maintain well-being in a work setting. See Brown v. Comm 'r Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017) (finding error in the ALJ's reliance on daily activities of living where the ALJ provided no explanation as to how those particular activities showed the claimant could persist through an eight-hour workday).
In sum, the ALJ's finding that the B criteria of Listing 12.06 were not satisfied is not supported by substantial evidence. Accordingly, it is recommended that this matter be remanded for further consideration of whether Claimant's anxiety meets or equals listing 12.06.
B. The RFC Assessment
The RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also SSR 96-8p, 1996 WL 374184, at * 1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. “[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
Claimant contends that the errors made by the ALJ in applying the special technique at step 3 necessarily resulted in a flawed RFC. Pl.'s Mem. [DE-19] at 29-31. The court agrees. The ALJ's RFC determination is based on much of the same reasoning as the Listing 12.06 analysis, including Claimant's work after the alleged onset date, her improvement with medication and medication non-compliance, and her activities of daily living. (R. 18-22). Furthermore, again relying mainly on the same reasoning, the ALJ discounted two psychiatric opinions-one by a consultative examiner and one by a treatment provider-indicating Claimant was significantly more limited than the ALJ determined. (R. 21-22). The Fourth Circuit has acknowledged the interconnection of the special technique and RFC assessment:
The special-technique regulation affects how an ALJ evaluates and documents his process at steps 1 through 4 if the claimant alleges a mental impairment. Id. § 404.1520a. When evaluating and documenting the severity of a claimant's mental impairment at steps 2 and 3-and its concomitant impact on the RFC assessment relevant to step 4-the ALJ “must follow [the] special technique.” Id. § 404.1520a(a) (emphasis added).Patterson v. Comm 'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). The deficiencies in the ALJ's analysis of Claimant's areas of functional limitation at step 3, discussed in detail above, prevent a finding that substantial evidence supports the ALJ's RFC. Accordingly, it is recommended that on remand the ALJ reassess Claimant's RFC.
VI. CONCLUSION
For the reasons stated above, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, [DE-18], Defendant's Motion for Judgment on the Pleadings be denied. [DE-21], and the matter 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 14, 2023 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)(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. Any response to objections shall be filed by within 14 days of the filing of the objections.
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).