Opinion
Civil Action 5:23-4524-DCC-KDW
07-12-2024
Derrick Moore, Plaintiff, v. Martin O'Malley, Commissioner of Social Security Administration, [1] Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Kaymani D. West, United States Magistrate Judge
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
In October 2020, Plaintiff protectively filed applications for DIB and SSI alleging he became disabled on August 1, 2020. Tr. 245-56. Plaintiff's applications were denied initially on March 18, 2021, Tr. 128-29, and on reconsideration on August 30, 2022, Tr. 142-43. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 167-68. ALJ Anthony Capece conducted an administrative hearing on January 19, 2023, taking testimony from Plaintiff and a Vocational Expert (“VE”). Tr. 32-95. The ALJ denied Plaintiff's claim for DIB and SSI in a decision dated February 28, 2023. Tr. 11-26. On February 21, 2023, Plaintiff requested review of this decision by the Appeals Council. Tr. 242-43. On August 1, 2023 the Appeals Council sent Plaintiff a “Notice of Appeals Council Action” indicating it had denied Plaintiff's request for review of the ALJ's decision, making the ALJ's February 2023 decision the final decision of the Commissioner. Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on September 8, 2023. ECF No. 1.
B. Plaintiff's Background
Born in March 1976, Plaintiff was 44 years old on his alleged onset date of August 1, 2020. Tr. 269. In his October 30, 2020 form Disability Report-Adult Plaintiff indicated that he was 5'10” tall and weighed 300 pounds. Tr. 273. Plaintiff indicated that he completed the 12th grade in 1994, did not attend special education classes, and did complete any type of specialized job training, trade or vocational school. Tr. 274. Plaintiff indicated he stopped working on July 1, 2018 because of his conditions which he listed as heart attack, back, and left hip. Tr. 273. Plaintiff indicated that he “had only one job in the last 15 years before [he] became unable to work.” Tr. 274. He indicated that he worked as a commercial truck driver from 2007 to July 27, 2018. Id.
C. Administrative Proceedings
Plaintiff appeared for his administrative hearing on January 19, 2023 in Columbia, SC before ALJ Capece. Tr. 32. VE Kristine Handley also appeared. Id. Due to the extraordinary circumstances of the COVID-19 pandemic, the hearing was conducted by telephone with Plaintiff's consent. Tr. 34-35.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he lived in a single-story house that had two steps at each entrance. Tr. 41. Plaintiff stated that he has not installed any assistive-type modifications to the house such as a ramp or railings. Tr. 41-42. Plaintiff testified that he lived with his wife, his 21-year-old daughter, and two sons ages 26 and 15. Tr. 43. Plaintiff stated that the 15-year-old is in school, Plaintiff makes breakfast for him, and his son walks to school. Id. Plaintiff confirmed that he is 5'10” tall, and currently weighed 295 pounds. Id. Plaintiff stated that both he and his doctor have concerns about his weight, and he is taking pain medication so that he “can try to get out and get a few steps in during the day[.]” Tr. 44. Plaintiff testified that he is not undergoing formal physical therapy, but he uses stretch bands at home and on his “good days” he tries to walk 30 minutes to an hour. Id. Plaintiff stated that he also tries to do intermittent fasting. Id. He stated that he can get out and walk “at least three days a week.” Id. He stated that he believes “the nerves are rubbing” and after 30 minutes to an hour of walking, the pain is excruciating. Tr. 45. Plaintiff testified that he writes with his right hand, he and his wife drove to his attorney's office for the hearing, he has a drivers license and drives twice a month, and he does not have a handicap parking placard, although he stated that he needs one. Id. Plaintiff testified that he is not receiving any benefits like unemployment or workers' compensation, but he stated that after his injury in 2018 he received workers' compensation that “lasted for a little while” but he could not remember the date it ended. Id. Plaintiff testified that he graduated from high school and before his injury he was attending South University online working on his bachelor's degree in business, but he did not complete it. Tr. 46. Plaintiff testified that he has a commercial driver's license that is “in a suspended mode because [he] can't pass the physical[.]” Id.
Plaintiff testified that he tried to work at Young's Convenience Store for two months during Covid, but because of his pain he “couldn't do all the duties efficiently” and they would not allow him to work every other day instead of “back-to-back,” so he had to quit. Tr. 47. Plaintiff stated that he was supposed to stock the cooler at night, and shelve things on the bottom row, but “getting down and getting back up and doing that on an eight-hour shift and sometimes maybe being on [his] feet longer than that” would cause him to be in a lot of pain in the mornings when he got off so he was unable to go in to work the next night. Tr. 47-48. Plaintiff testified that he worked for Sykes Enterprises in 2020-21 for about two months doing telephone customer service. Tr. 48-49. Plaintiff stated that initially he was able to work from home, and “then it was high stress and then they wanted you to come into the office.” Tr. 49. Plaintiff testified that “it was very high stressful and they didn't understand the fact that [he] couldn't sit for long periods without getting up.” Id. Plaintiff testified that he did not go in to the office to work, but he still had issues working from home because of his need to take breaks away from the desk. Tr. 49-50. Plaintiff testified that every 30 minutes he needed to “get up for at least five to ten minutes to stretch out” and that sometimes his leg would go to sleep. Tr. 50. Plaintiff stated that they had a problem with his taking breaks at home so he quit. Id. Plaintiff testified that he also had just had triple bypass surgery and with COVID he did not trust going in to work. Tr. 50-51. Plaintiff testified that he started in November 2020 and quit in January 2021, so he actually worked three months. Tr. 52. Plaintiff testified that in 2018 he worked as a truck driver for EPES picking up loads from the paper plant in Eastover and delivering the load to Sumter. Tr. 53. Plaintiff stated that he did not have to load the truck, he just had to hook the truck to the trailer. Id. He confirmed that he was self-employed as a truck driver from 2012 to 2018. Id. Plaintiff stated that he stopped driving trucks independently because he was working on his bachelor's degree and needed to have a job that allowed him to be at home more. Tr. 54. Plaintiff testified that he “leased on to different companies” but he was the sole proprietor of his trucking business, Drivers Ink. Id. Plaintiff confirmed that he worked for Trimac as a truck driver in 2016 and 2017 doing that same duties as with EPES. Tr. 55. He stated that he also worked for a few weeks for RNC driving delivery trucks while his own truck was in the shop getting repaired. Id. He also drove trucks for Mountain Mill Calling and Pilgrim's Pride. Id. Plaintiff testified in 2010 he “took a break from driving a truck” and cleaned offices for the County of Clarendon, and in 2009 he worked for three months as a stocker and cashier at the Pantry, Inc. Tr. 56. Plaintiff testified that he worked for Murphy's Oil, managing Wal-Mart gas stations with five to ten employees. Tr. 57. He stated that he was fired because he got three “red card” violations in one month due to the employees' failure to check customer IDs. Tr. 58. After that he started driving a truck for Driver's Management/Warner in 2008. Id.
In response to questions from the VE Plaintiff testified that when he started in 2008 he drove refrigerated tractor-trailers, then when he bought his truck in 2018 he drove containers, and in between he had endorsements for tankers and some flatbeds. Tr. 59. Plaintiff clarified that when he was pulling containers it was not a flat bed, but it was “just on chassis and the box” and the capacity varied. Id. Plaintiff testified that he “pulled stuff that was within the 40,000 to 80,000 pounds total[.]” Tr. 60. Plaintiff also stated that he worked as a convenience store manager for about five years from 2002 until December 2007. Id.
The ALJ resumed questioning of Plaintiff and asked why he does not go back to trucking. Tr. 60. Plaintiff testified that he cannot physically climb up in the trucks and he is unable to sit and drive for six to eight hours straight. Id. Plaintiff stated that he last tried to climb in and out of a truck in 2018, but he picked the alleged onset date of August 1, 2020 because of his triple bypass. Tr. 61. Plaintiff confirmed that he has not applied for any work since working at Young's Convenient Store. Tr. 62. Plaintiff testified he is unable to work because he is limited in his dayto-day activity due to pain. Id. He testified that he has a torn labrum in his hip and nerve pain in his right arm that his doctor says is neurological related to diabetes. Id. Plaintiff stated that he has been prescribed two different pain medications and they help. Tr. 62-63. Plaintiff described his symptoms from his conditions as back pain and a mental toll. Tr. 63. Plaintiff stated that employers have told him that they will not hire him because he has too many conditions. Tr. 64. Plaintiff testified that, in addition to his torn labrum and nerve pain from diabetes, he cannot extend his arms too far due to the triple bypass. Id. Plaintiff testified that he was seen by his primary doctor the prior week, but he has not seen his cardiologist in almost a year. Tr. 64-65. Plaintiff testified that his coronary bypass is monitored by his primary doctor but because he does not have insurance and is unable to pay, he tries to limit his visits. Tr. 65. Plaintiff testified that his diabetes is controlled, and he does intermittent fasting, drinks a lot of fluids, watches his diet, tries to walk, and he takes 1000 mg of Metformin twice a day. Id. Plaintiff testified that his hypertension is uncontrolled because of the pain. Id. He stated that he takes his blood pressure pills but once he starts moving the movement causes pain, and when the pain starts his blood pressure stays at a high rate. Tr. 66. Plaintiff stated that his doctor has prescribed a fourth blood pressure pill but it is “not controlled at all because of the pain.” Id. Plaintiff testified that the only way he can get a normal reading is if he takes the Gabapentin as well as the Oxycodone and lies still. Id. Plaintiff testified that with the hypertension he has frequent headaches and he has experienced dizziness. Id. Plaintiff testified that within four hours of taking his medication, if he starts moving around with pain, he will start getting headaches and will have to lie down and relax. Tr. 67. He stated that his doctor has not imposed any limitations on him “per se” but has told him to make sure to “take it easy.” Id. Plaintiff stated that without insurance, doctors do not go into depth. Id. Plaintiff testified that he takes Metoprolol and Lisinopril for blood pressure, Metformin twice a day for diabetes, Atorvastatin for cholesterol, Gabapentin, and something like Oxycodone. Tr. 67-68. Plaintiff stated that Dr. Singh prescribed the Oxycodone-type medication two or three months ago after giving him an injection. Tr. 68. Plaintiff also confirmed that in November he was prescribed 500mg Tylenol for pain, and he also takes aspirin. Id. Plaintiff stated that he does not go to a pain clinic and is not on a pain contract for the Oxycodone-type medication-the doctor prescribed it for one year and it comes from Welvista. Tr. 69. Plaintiff stated that both the Gabapentin and the opioid make him drowsy. Id. Plaintiff stated that he does not drive when he takes medication. Tr. 70. Plaintiff also confirmed that he was prescribed 1000 mg of a Tylenol mixture to take three times a day. Id.
Plaintiff testified that he can walk at least one mile, and sometimes two, and that it takes him an hour to an hour and a half. Tr. 70-71. He confirmed that he can sit for 30 minutes before needing to move, and that standing “alleviates the pain from sitting but the best relief is for [him] to just lay (sic) on [his] right side.” Tr. 71. Plaintiff testified that he forces himself to “stand and move around for at least three to four hours in the house a day.” Id. Plaintiff stated that he does light cleaning and he can fix things around the house if it is at waist level. He stated that he does his own physical therapy with the stretch band, and he does a lot of reading. Id. Plaintiff testified that his uncle and his brother come to visit every Friday, and he has a few people that he interacts with by phone. Tr. 72. Plaintiff stated that he is not on social media. Id. Plaintiff confirmed that he is able to do some cooking, he can take care of his own hygiene, and he is able to dress himself. Id.
In response to questions from his attorney Plaintiff confirmed that he had driven trucks for many years and he had an injury in 2018. Tr. 23. Plaintiff confirmed that he had not been injured before 2018, and he has not been injured since 2018. Id. Plaintiff indicated that he was under workers' compensation for a period of time and it ended just before he had the triple bypass. Tr. 73-74. Plaintiff testified that when he was receiving workers' compensation, he was getting regular medical treatment through Midlands Orthopedics and he got an MRI from Carolina Spine. Tr. 74. Plaintiff confirmed that after his case settled, he wanted to return to work but he felt that stress from Covid and from what was said at the hearing led to his having a heart attack. Tr. 75. He testified that after his bypass he “knew that the stress was on [his] wife so [he] was trying to do anything. That's why [he] ended up working at Sykes.” Id. Plaintiff testified that prior to his heart attack he had never been treated for a heart condition. Id. Counsel referenced notes from the emergency room on August 12 that Plaintiff had been having chest pains for three days. Id. Plaintiff confirmed that when he went to the emergency room, that was the first medical treatment he received for chest pain. Tr. 76. Plaintiff confirmed that his surgery was on August 14, and his recovery was six weeks to two months. Id. Plaintiff testified that while working at home for Sykes it was “painful every day with that because of the opening of the chest” and he had to take breaks because of the stress because his “heart felt like it was about to jump out of [his] chest[.]” Id. Plaintiff stated that there was no camera on the computer but they would listen in on the calls and give feedback. Tr. 77.
Medical records indicate Plaintiff underwent urgent coronary artery bypass surgery on August 14, 2020. Tr. 486.
Plaintiff confirmed that he is seen by Dr. Jasmine Singh at Family Medicine at McLeod. Tr. 77. He also confirmed that Dr. Singh is familiar with him and was at his surgery. Id. Plaintiff testified that he typically gets his vitals checked, including his blood pressure, and it is consistently high. Id. Plaintiff confirmed he is on three blood pressure medications and takes them “religiously.” Tr. 78.
In response to the ALJ, Plaintiff testified that doctors at Midlands Orthopedics talked about hip replacement but he was told “they typically want to wait until [he is] about 60 years old before they do it.” Tr. 78.
2. VE's Testimony
The VE identified Plaintiff's past work driving trucks as tractor trailer truck driver, Dictionary of Occupational Titles (“DOT”) code 904.383-010, SVP:4, semi-skilled, performed at medium exertional level; and heavy truck driver, DOT code 905.663-014, SVP:4, also performed at medium exertional level. Tr. 80. The VE identified Plaintiff's work at Murphy's convenience store as manager retail store, DOT code 185.157-046, SVP:7, skilled, performed at the light exertional level. Tr. 81. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and with the past jobs as described limited to light exertional level as defined by the DOT but with only occasional climbing, balancing, stooping, kneeling, crouching, and crawling. Id. The VE testified those limitations would preclude working the truck driver jobs because those jobs were at the medium exertional level. Tr. 81-82. The VE testified that the individual could return to the retail manager position as it is generally performed, but not as Plaintiff actually performed it. Tr. 82. The ALJ asked if the hypothetical individual could perform any other work, and the VE indicated the individual could perform the following jobs: office helper, DOT code 239.567-010, SVP:2, light, approximately 45,000 in the national economy; ticket seller, DOT code 211.467-030, SVP:2, light, approximately 60,000 in the national economy; and marker, DOT code 209.587-034, SVP:2, light, approximately 67,000 in the national economy. Tr. 82-83.
For his second hypothetical the ALJ posed the same limitations as in the first hypothetical, but also added the individual “is only able to stand or walk for four hours a day.” Tr. 83. The VE confirmed that would preclude the prior jobs, but not the three jobs identified. Id. The VE noted that although light work is defined as six hours of standing and walking, in her experience she knows “there are jobs that would provide a sit/stand option.” Id. The VE noted that ticket seller, office helper, and marker all have the sit/stand option and would allow for only four hours of standing and walking instead of six hours. Tr. 84. The VE reiterated that was based on her experience and “not necessarily within the scope of the DOT.” Id. The VE stated that her experience was in placing individuals and observing the jobs as performed by the individuals. Id.
For his third hypothetical, the ALJ again referenced hypothetical one with the following limitations: “this individual is limited to the light exertional level as defined by the Regulations. And no climbing ladders, ropes, or scaffolds, and no crawling. Occasional climbing ramps and stairs, balancing, and the rest of the posturals, stooping, kneeling, crouching.” Tr. 84-85. The VE testified that would preclude the truck driver jobs, and the marker job because “there could be some climbing of a ladder . . . stocking or placing items on shelves. But the office helper and ticket seller would still remain.” Tr. 85. The VE identified another light job that would fit the scenario of assembler II, DOT code 723.684-018, SVP:2, light, approximately 45,000 in the national economy. Tr. 85-86. The VE explained this is a light bench position, part of an assembly line, usually done from a seated position that allows for sitting or standing. Tr. 86.
The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past jobs limited to the sedentary exertional level with only occasional climbing, balancing, stooping, kneeling, crouching, and crawling. Tr. 86. The ALJ acknowledged that past jobs would be out, but asked if there was any other work that the individual could perform. Id. The VE identified the following sedentary positions: lens inserter, DOT code 713.687-026, SVP:2, sedentary, approximately 13,000 in the national economy; printed circuit board screener, DOT code 726.684-110, SVP:2, sedentary, approximately 13,000 in the national economy; and final assembler, DOT code 713.687-018, SVP:2, sedentary, approximately 17,000 in the national economy. Tr. 86-87. The VE stated her testimony was consistent with the DOT, but different types of climbing are not specifically contained in the DOT, and not ladders. Tr. 87.
The ALJ asked the VE to consider the previous hypothetical at the “sedentary exertional level and occasional for the rest of the posturals but no crawling, no climbing ladders, ropes, or scaffolds.” Tr. 87-88. The VE testified that would not preclude the jobs and none of the jobs would be precluded by environmental limitations such as pulmonary irritants and moving machinery hazards. Tr. 88. The VE testified that use of a cane for standing, walking, or balancing would not preclude the sedentary positions she identified, but it would preclude the marker and office helper positions at the light level because the individual had to be able to carry. Id. The VE testified that in addition to the ticket seller position at the light level, the individual could also perform tanning salon attendant, DOT code 359.567-014, SVP:2, light, approximately 19,000 in the national economy. Tr. 89.
The ALJ asked the VE's opinion about workers being off task for a certain percentage of the workday. Tr. 89. The ALJ noted that off task “can be for any reason including but not limited to the worker not being able to concentrate, persist and pace for two hours or at least two hours for any reason. Like he has to sit down, stand up, lay down, elevate feet, take unscheduled breaks, essentially anything that takes the job out of the job that they were hired to do.” Tr. 90. The VE testified that in her experience, “employers will tolerate up to ten percent of an hour or six minutes per hour for off task behavior. Anything of, in excess of that would be work preclusive.” Id.
The ALJ asked what number of absences per month would be work preclusive and the VE responded that in her experience, “that would be one day per month” and anything in excess of that would be work preclusive. Id. The VE stated that her testimony was “overall consistent” with the DOT, but in places where the information was not specifically contained in the DOT, she based her opinion on her “education, training, and again heavily on [her] experience with employers in that job placement and Job Save Process.” Tr. 90-91.
Plaintiff's attorney asked the exertional level under the DOT for a worker limited to standing or walking for four hours in a workday. Tr. 91. The VE testified that per the DOT that would be sedentary. Id. The VE confirmed that jobs classified at light could still be performed as long as the worker had a sit/stand option. Id. The VE described the sit/stand option as a job that allowed the person performing the job to change positions as long as they remained on task. Tr. 91-92. The VE confirmed that in her opinion the available numbers for the jobs identified with light exertion would not change with the sit/stand option. Tr. 92. The VE confirmed that an unskilled worker would be expected to do the job the entire time they are supposed to be at work. Tr. 93. The VE confirmed that the lens inserter, printed circuit board screener, and final assembler are production-based jobs that require the worker to do a certain number of pieces in a given timeframe and keep up a certain pace and production. Id.
With no further questions, the hearing closed. Tr. 95.
II. Discussion
A. The ALJ's Findings
In his February 28, 2023 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2024.
2. The claimant has not engaged in substantial gainful activity since August 1, 2020, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: hypertension, coronary artery disease (“CAD”), left hip osteoarthritis with labral tear, and obesity (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can stand or walk for 4 hours a day and is limited to no more than occasional climbing, balancing, stooping, kneeling, crouching, and crawling.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on March 5, 1976 and was 44 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
9. Transferability of jobs skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 1, 2020, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. 18-19, 24-26.
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are “under a disability,” defined as:
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); see also 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing past relevant work (“PRW”); and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520, § 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) and § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii); § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if the claimant can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b); § 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing the inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that the claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that the claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish the inability to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146. n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner of Social Security made after a hearing to which he was a party....” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try [these cases] de novo, or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
III. Analysis
Plaintiff argues that the ALJ's decision was not based on substantial evidence because (1) the ALJ failed to provide adequate reasons for his credibility determination, and (2) the ALJ improperly disregarded opinion evidence. Pl.'s Br. 1-2, ECF No. 9. The Commissioner argues that the ALJ appropriately identified inconsistencies between what Plaintiff alleged about his limitations and what the evidence showed, and the ALJ appropriately evaluated Dr. Singh's checkbox opinion. Def.'s Br. 10, 17; ECF No. 14.
A. The ALJ's Consideration of Plaintiff's Subjective Statements
A claimant's subjective allegations of pain or other symptoms alone can never establish disability. 42 U.S.C. § 423(d)(5)(A); SSR 16-3p, 2016 WL 119029, at *2 (Mar. 16, 2016). Rather, the ALJ must consider “the extent to which [statements about subjective] symptoms can reasonably be accepted as consistent with objective medical evidence and other evidence” in the record. Id. SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment “that could reasonably be expected to produce the individual's alleged symptoms.” SSR 16-3p, 2017 WL 5180304, at *3. In the second step the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . ..” Id. at *4. The ALJ has the sole responsibility to weigh the claimant's complaints against the record as a whole and may discount them when they are unsupported. Craig v. Chater, 76 F.3d 585, 592-95 (4th Cir. 1996).
In assessing Plaintiff's statements regarding his symptoms, under its scope of review, the court cannot make credibility determinations but may review the ALJ's decision to determine whether substantial evidence supports the ALJ's credibility assessment. Johnson v. Barnhart, 434 F.3d at 658. This court is not tasked with the position of re-weighing evidence to make a new credibility determination. See Hancock v. Astrue, 667 F.3d 470, 471 (4th Cir. 2012) (“[i]n reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determination, or substitute our judgment for that of the [ALJ]”) (citing Johnson, 434 F.3d at 653).
Plaintiff argues that in “assessing a claimant's subjective complaints the ALJ's decision must contain specific reasons for his finding, supported by the evidence in the case record.” Pl.'s Br 15. Here, the ALJ outlined the two-step process that he is required to follow when considering Plaintiff's symptoms. Tr. 19-20. After considering Plaintiff's hearing testimony and his subjective statements the ALJ determined that:
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
As for the claimant's statements about the intensity, persistence, and limiting effects of his [ ] symptoms, they are inconsistent because they are not supported by the objective evidence of record.Tr. 20. The ALJ then outlined the objective medical evidence including diagnoses and treatment for Plaintiff's work-related injury resulting in low back pain and bursitis, his labral tear, obesity, coronary artery bypass surgery, diabetes, and hypertension. Tr. 20-22. The ALJ also considered the medical opinions of record. Tr. 22-23. The ALJ discussed medical records, Plaintiff's activities, and reported limitations and how the ALJ accommodated Plaintiff's limitations in his residual functional capacity (“RFC”) assessment. Tr. 23-24.
Plaintiff asserts two arguments to support his claim that the ALJ's reasoning was inadequate. First, he argues that “citing a large amount of evidence, containing a mix of findings, does not show that the ALJ gave proper consideration to [his] subjective complaints.” Pl.'s Br. 18. Secondly Plaintiff contends that the ALJ's lengthy summary includes “some unreasonable findings and lack of resolution of conflicting findings.” Id. The Commissioner argues that “the ALJ cited specific examples of evidence showing Plaintiff was more capable than he claimed” and “the ALJ carefully pointed out the conflicts he saw between what Plaintiff alleged and what the record actually showed.” Def.'s Br. 13. On reply Plaintiff argues that “the ALJ's summary of [Plaintiff's] medical records and mixed findings, if considered in totality, could be ‘construed to in fact support' his allegations.” Pl.'s Reply 3, ECF No. 16 (quoting Montgomery v. Kijakazi, No. 0:21-3074-JD, 2022 WL 17853557 at *5 (D.S.C. Oct. 26, 2022)).
Pursuant to SSR 16-3p, when “considering the intensity, persistence, and limiting effects of an individual's symptoms, [the ALJ will] examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” 2017 WL 5180304 at *4. Plaintiff argues that citing a large amount of evidence containing a mix of findings does not show the ALJ gave proper consideration to his subjective complaints. However, based on SSR 16-3p, that is exactly what an ALJ is required to do. Here, as recounted in Plaintiff's brief, the ALJ examined the case record as directed by the Ruling. Pl.'s Br. 15-17 (quoting ALJ's Decision, Tr. 20-22). As to the resolution of conflicting evidence, the ALJ's analysis includes a thorough discussion of Plaintiff's symptoms, subjective statements, objective and opinion evidence. The ALJ recounts medical encounters from 2020 that demonstrate normal musculoskeletal findings, and later records from 2022 that demonstrate abnormal findings. Tr. 21. The ALJ discussed Plaintiff's treatment for his hip and back pain and, based on Plaintiff's statement that “his hip is his main limiting factor,” the ALJ stated specifically that it was “accounted for in the light RFC with no more than occasional postural motions and no more that four hours of standing/walking.” Tr. 23.
Plaintiff contends this “visit was specifically to follow up on ‘lab work' for [his] diabetes and hypertension. R. 614.” While that is true, the physician also reviewed Plaintiff's systems and completed a physical exam. Tr. 614-16. Notably, Plaintiff denied musculoskeletal joint pain or neck pain, and denied any neurological headache, numbness, or weakness. Tr. 615.
The ALJ noted Plaintiff's 2021 report to his primary care provider that he “ran out of his medications,” and the medications were prescribed and restarted. Tr. 21. The ALJ also noted records from 2022 noting noncompliance with treatment and Plaintiff reporting that he could not afford his medications although the records indicated his medications were free. Id. The ALJ noted that Plaintiff received injections and was given additional prescriptions for pain. Id. In making his RFC assessment, the ALJ noted that records indicated fluctuations in Plaintiff's blood pressure, but he indicated “this seems to be more of an issue when he is not compliant with his prescribed medications.” Tr. 23.
As instructed by SSR 16-3p, the ALJ also considered “the factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3)” which include:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms.! SSR 16-3p, 2017 WL 5180304 at *7-8. The ALJ explained how he accounted for these factors in making his RFC determination. The ALJ noted that while Plaintiff's “impairments and symptoms warrant limitations, the extent of his limitations appear exaggerated when discussing his activities of daily living. He admits to being able to walk one mile or for an hour and a half, and in October 2021 he reported walking 5 miles.” Tr. 23. The ALJ noted that Plaintiff “has maintained with conservative treatment for his hip and back pain” but he accounted for Plaintiff's pain in limits to the RFC. Id. The ALJ also noted that Plaintiff reported use of a cane but that “there is no medical evidence that this was prescribed or is medically necessary.” Id. The ALJ cited to Plaintiff's “inconsistencies with compliance of prescribed medications to treat high blood pressure, diabetes, and heart disease” and his “reported side effects of his anti-hypertensive medication at the hearing” noting that “this is not corroborated by notations and treatment records which indicate no adverse side effects.” Tr. 23-24. The ALJ noted:
The claimant indicates he is only able to stand or walk three hours per day, but he told the consultative examiner that he can walk for an hour and a half and stand for two hours. Based on the medical evidence and activities of daily living, the undersigned has limited the claimant to no more than 4 hours of standing/walking per day. This is further supported by the DDS physician's opinion. The postural limitations further account for the claimant's hip injury, obesity, back pain, and hypertension, and the problems he reported having at his two recent short-term jobs. The claimant reported side effects of his anti-hypertensive medication at the hearing, but this is not corroborated by notations and treatment records which indicate no adverse side effects. The claimant reported the ability to climb two stairs to enter his home, and the consultative examiner noted the ability to get on and off the examination table and out of the chair, though with moderate difficulty. The claimant testified that he requires extra breaks to stand, and this has been accommodated in the RFC. The ability to stand/walk for four hours is also supported by his own reports that he is able to walk 5 miles and his ability to perform activities of daily living such as shopping, cooking, driving, and household chores. He appears to be a fairly active person, such that the need for breaks at the pace of every 30 minutes is not consistent with his activities of daily living, home exercise program, or the medical evidence of record.Tr. 24.
Based on the undersigned's review of the record and applicable law, the undersigned finds that the ALJ's decision reflects that he followed the two-step process in evaluating Plaintiff's symptoms, identified evidence in the record to support his conclusion, and the court is able to assess how he evaluated Plaintiff's symptoms. SSR 16-3p, 2017 WL 5180304 at *10. The ALJ provided an accurate and logical bridge from the evidence to his conclusion. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Accordingly, the undersigned recommends finding that the ALJ properly applied SSR 16-3p and his determination regarding Plaintiff's subjective statements is supported by substantial evidence.
B. The ALJ's Evaluation of Opinion Evidence
Plaintiff asserts that the ALJ failed to properly consider the consistent opinions in the record supporting limitations that would lead to a finding of disability. Pl.'s Br. 21. The Commissioner contends that ALJ's analysis was appropriate and that an ALJ may discount a treating physician's opinion that is inconsistent with the other medical evidence in the record. Def.'s Br. 18.
For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). The first two factors, supportability and consistency, are the most important in determining the persuasiveness of a medical source's opinion, and the ALJ is not required to explain the consideration of the other three factors. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). The new regulations further deem certain evidence “inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c), 416.920b(c). This includes statements on issues reserved to the Commissioner such as whether a claimant is disabled, is unable to work, or is incapable of doing past relevant work. 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3).
The new regulations define a “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in the abilities to perform the physical, mental, or other demands of work activity or to adapt to environmental conditions. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Those regulations also define a “prior administrative medical finding” as a “finding, other than the ultimate determination about whether [a claimant is] disabled, about a medical issue made by [the SSA's] Federal and State agency medical and psychological consultants at a prior level of review.” 20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5).
Here, the ALJ considered the opinions of three examining physicians-Drs. Smith, Chebuhar, and Singh-and the opinions of the State agency non-examining physicians. Tr. 22-23. Plaintiff takes issue only with the ALJ's findings regarding Dr. Singh's opinion.
1. Dr. Jasmine Singh
On November 16, 2022, Dr. Singh completed a one-page Functional Capacity Questionnaire (Physical 1.0) of Plaintiff. Tr. 664. She noted her first date of treatment of Plaintiff was August 12, 2020, and her most recent treatment was November 16, 2022, and the frequency of treatment was “every month.” Id. Her diagnoses were hypertension, diabetes, neuropathy, and left labrum injury. She noted Plaintiff's prognosis was “good if adequate therapy and [treatment] done.” Id. She indicated Plaintiff could stand/walk for three hours and sit for three hours total in an eight-hour day; and he could frequently lift and carry less than ten pounds, occasionally lift and carry ten pounds, and never lift and carry 20 or 50 pounds. She indicated that Plaintiff could frequently finger, grasp, and handle; he could never stoop/bend or crouch. Dr. Singh indicated that during a typical workday Plaintiff would “frequently” experience pain severe enough to interfere with attention and concentration needed to perform even simple work tasks. She identified Plaintiff's signs and symptoms as impaired sleep, muscle weakness, and reduced range of motion. She noted that, on average, Plaintiff would be absent from work more than four days per month because of his impairments or treatment. Id.
2. The ALJ's Consideration of Dr. Singh's Opinion
The ALJ considered Dr. Singh's November 2022 opinion and made the following determination:
Dr. Singh's opinion that the claimant cannot perform even sedentary work is not persuasive. She notes manipulative limitations even though the records demonstrate normal findings, including normal upper extremity strength. She notes the claimant cannot crouch, stoop, or bend, yet he is able to drive a car, complete household chores, and shop for things. She notes his pain is severe enough to frequently interfere with his attention and concentration, yet imaging revealed no significant abnormalities and his course of treatment has remained conservative. Given the inconsistencies in her opinions and the medical evidence, the undersigned finds her opinion is not persuasive.Tr. 23. The ALJ also noted:
While his primary care provider noted that he is able to frequently perform manipulative operations with his upper extremities, the medical evidence shows normal grip strength with no manipulative abnormalities. There is no evidence to support any need for manipulatable limitations in the RFC beyond the limitations of lifting and carrying 20 pounds frequently and 10 pounds occasionally, so this opinion is not persuasive.Tr. 24.
3. Discussion
Here, the ALJ explicitly applied the appropriate regulatory framework noting that she “considered the medical opinion(s) and prior administrative medical finding(s) in accordance with the requirements of 20 CFR 404.1520c and 416.920c.” Tr. 19. Moreover, as noted by the ALJ, an adjudicator is not bound to give any specific evidentiary weight or deference to any medical provider's opinion, including those provided by medical sources. Tr. 22. When discussing the finding about the persuasiveness of an opinion, the ALJ need only explain how he considered “the most important factors” of supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The responsibility for weighing evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.
Plaintiff argues that Dr. Singh's limitation of frequent manipulation is “perfectly consistent with an individual with neuropathy from diabetes” and a “slight limitation in manipulative abilities is also not inconsistent with a person with severe coronary artery disease and obesity-2 other impairments the ALJ found to be severe.” Pl.'s Br. 23. Plaintiff also contends that “a severe left hip osteoarthritis with labral tear impairment and severe obesity . . . are perfectly consistent with postural limitations.” Id. Plaintiff also asserts that despite acknowledging Plaintiff's severe hip impairment the ALJ “found Dr. Singh's opinion of [Plaintiff's] pain being severe enough to frequently interfere with his attention and concentration was inconsistent with ‘imaging revealed no significant abnormalities and his course of treatment has remained conservative.'” Id. at 24. The Commissioner argues that Plaintiff's criticisms of the ALJ's analysis “are simply alternative takes on the evidence-precisely what the narrow scope of review here precludes.” Def's Br. 19. The Commissioner contends that where the ALJ's decision is supported by substantial evidence, just because the evidence is subject to more than one interpretation or there is a disagreement with how the ALJ weighed the evidence, those are not bases for remand. Id.
As noted above, under the new regulations, when determining the persuasiveness of medical opinions, the two most important factors are supportability and consistency. Supportability is the “extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” 82 Fed.Reg. 5853, 2017 WL 168819; 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Consistency is the “extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim[.]” Id., 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
In reviewing the ALJ's decision, the ALJ adequately reviewed and considered the medical opinion of Dr. Singh finding her limitations unsupported by the medical evidence. Further Dr. Singh failed to provide any supporting explanation for her functional limitations. The ALJ noted the lack of evidence supporting Dr. Singh's manipulative limitations. Tr. 24. As to the consistency factor, the ALJ discussed the opinion of the State agency medical consultant who determined Plaintiff could perform work at the light exertional level with “the ability to stand or walk four hours and sit six hours in an 8 hour day; never crawl; and occasionally climb, balance, stoop, crouch, and kneel[.]” Tr. 23. The ALJ found it to be persuasive “as the evidence shows ongoing treatment for hypertension, coronary artery disease, obesity, back pain, and hip pain related to osteoarthritis of the left hip.” Id. These are the same impairments that Plaintiff suggests the ALJ failed to reconcile when considering Dr. Singh's opinion.
The issue here is whether the ALJ's decision is supported by substantial evidence, not whether a different conclusion could be supportable. The responsibility for weighing evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater, 76 F.3d at 589. “An ALJ's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has not given good reason for the weight afforded a particular opinion.” Koonce v. Apfel, 166 F.3d 1209 (4th Cir. 1999) (per curiam) (unpublished) (internal citation & quotation omitted). In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence. It is well-settled that an ALJ “‘must build an accurate and logical bridge from the evidence to his conclusion.'” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Here, the ALJ's discussion of the evidence of record supports his findings regarding Dr. Singh's opinion. The ALJ's analysis comports with the regulations as he provided an adequate explanation for why he found the opinion unpersuasive.
IV. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, Plaintiff has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through an application on an incorrect legal standard. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g). Accordingly, the undersigned recommends that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4thCir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).