Opinion
Civil Action 2:20-03573-MGL-MGB
12-03-2021
TAMMY T. HILL, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Tammy Hill (“Plaintiff'), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the “Administration”) regarding her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 49 years old on her alleged disability onset date of March 1, 2016. (R. at 56, 67, 82, 94.) Plaintiff alleged disability due to constant back pain and a ruptured L4 disc. (Id. at 56, 67, 82, 94.) Plaintiff has past relevant work as a cashier and inventory specialist. (Id. at 65, 76, 92, 104.)
On April 11, 2017, Plaintiff filed an application for DIB and an application for SSI. (Id. at 56, 67, 80, 81, 82, 94, 107, 109.) Her applications were denied initially on December 1, 2017, and on reconsideration on February 7, 2018. (Id. at 66, 77, 80, 81, 93, 105, 107, 109.) Plaintiff requested a hearing before an Administrative Law Judge (the “ALJ”) on March 19, 2018. (Id. at 130.) The hearing was held on June 27, 2019. (Id. at 28-55.) On July 24, 2019, the ALJ issued a decision and found that Plaintiff was not disabled. (Id. at 12-21.) The Appeals Council denied Plaintiff's request for review on August 27, 2020, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (Id. at 1-6.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant met the insured status requirements of the Social Security Act through June 30, 2018.
(2) The claimant has not engaged in substantial gainful activity since March 1, 2016, the alleged onset date (20 CFR 404.1571 et seq., and416.971 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease of the lumbar spine and chronic obstructive pulmonary disease (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, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations: The claimant could frequently climb ramps and stairs, never climb ladders, ropes, or scaffolds, could frequently kneel and crouch, occasionally stoop, and never crawl. The claimant could frequently push and pull with the right lower extremity. The claimant should avoid concentrated exposure to
temperature extremes, humidity, pulmonary irritants, and workplace hazards. The claimant would need to alternate between sitting and standing every thirty (30) minutes while staying on task. Due to drowsiness from the claimant's medications, she would be limited to unskilled work.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on April 2, 1966 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job 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 March 1, 2016, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).(Id. at 14-21.)
APPLICABLE LAW
I. Relevant Statutory Law
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.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 13 81 et seq. “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).
“[T]he definition of disability is the same under both DIB and SSI....” Morgan v. Saul, 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.l (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06A136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3 (1982); Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
II. Standard of Review
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4thCir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm 'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry- pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Id. at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends only that the ALJ committed reversible error by improperly evaluating the opinions of her treating physician, Dr. Thomas Trautmann. (See generally Dkt. No. 15.) Plaintiff contends that the ALJ did not provide sufficient rationale for his consideration of Dr. Trautmann's medical opinions and that this case must therefore be remanded “to allow the ALJ to properly evaluate the opinion evidence in the first instance.” (Dkt. No. 17 at 12.) By contrast, the Commissioner argues that “the ALJ evaluated Dr. Trautmann's opinions as contemplated by the regulations and substantial evidence supports his fact-finding.” (Dkt. No. 16 at 15.) For the reasons set forth below, the undersigned agrees with Plaintiff.
I. Dr. Trautmann's Opinions
The record contains two medical opinions from Dr. Trautmann-one dated March 5, 2018 and one dated April 15, 2019. (R. at 640, 684.) The record also contains a “Physical Capacities Evaluation” completed by Dr. Trautmann on April 1, 2019 and a series of treatment records detailing Dr. Trautmann's observations of Plaintiff throughout his visits with her. (Id. at 636-38.)
Dr. Trautmann's March 5, 2018 medical opinion is drafted as a letter to Plaintiffs counsel. (Id. at 684.) It states:
Mrs. Tammy Hill suffers from severe low back pain of at least two years duration. The pain is related to a herniated disk at the L5-S1 level. This problem was documented by an MRI scan performed on 04/24/2017 at OrthoCarolina in Rock Hill, SC. The patient is severely incapacitated due to this pain in her lower back, radiating to her right lower extremity. In view of this unrelenting pain, it is my opinion that she is totally and permanently disabled....
(Id.) Dr. Trautmann's April 15, 2019 opinion is also in letter format. (Id. at 640.) It states, in pertinent part:
I have been caring for Mrs. Hill for the past 18 months. This unfortunate woman has severe, intractable, incapacitating low-back pain that radiates down her right leg. The pain is constant, and unrelieved by medicine or spinal injection. The pain is not relieved by change in her position. Specifically, she has severe pain at all times, whether she is standing, walking, lying down, or sitting. This severe pain has caused her to present to the Emergency Room twice in the past three months. MRI scan has revealed the cause of her pain-a bulging disk at L5-S1, with compression of the right SI nerve root.
There is reasonable chance that her pain could be improved with surgery. I have tried to find a surgeon who is willing to operate on her. Unfortunately, she has no insurance, and no financial resources. Therefore, I have been unable to find a surgeon for her. . . As a result, it is my opinion that Mrs. Hill is totally and permanently disabled....(Id.)
Dr. Trautmann's “Physical Capacities Evaluation” is a “circle the answer” form dated April 1, 2019. (Id. at 636-38.) In this evaluation, Dr. Trautmann reported that Plaintiff could not sit, stand, or walk for an hour at a time; could occasionally lift or carry up to five pounds, but no more; could use her hands for simple grasping, pushing and pulling, and fine manipulation; should be completely restricted from activities involving unprotected heights and moving machinery; and should be moderately restricted from exposure to dust, fumes, and gas, and from marked changes in temperature and humidity. (Id.) In the “Remarks” section of the form, Dr. Trautmann explained that “[d]ue to severe, continuous lower back pain that radiates down the [right leg], this patient is not able to sit, stand, walk, bend, etc. for more than a few minutes. It is my opinion that she is totally [and] permanently disabled.” (Id. at 638.)
In his decision, the ALJ found Dr. Trautmann's opinions unpersuasive, stating:
I have considered the March 2018 and April 2019 opinions of Thomas Trautmann, M.D., who opined that the claimant would be unable to stand, sit, and walk, could only lift up to five (5) pounds occasionally, and that she was totally and
permanently disabled secondary to her lower back impairment (Exhibits 17F/3-5, 7; 20F). Although Dr. Trautmann is a treating source, his opinions are very unpersuasive as they are not consistent with his examination findings nor do they align with other clinical examination findings. Specifically, Dr. Trautmann noted that the claimant exhibited normal gait upon examination and Dr. Das also indicated normal findings, including normal lumbar range of motion, straight leg raising within normal limits, 5/5 strength in her bilateral lower extremities, and no use of assistive devices. (Exhibitss 4F/1; 5F/2-3).(Id. at 19.) The ALJ did not mention Dr. Trautmann's medical opinions anywhere else in his decision. (Id. at 12-21.) He did, however, mention treatment records from Plaintiff's visits with Dr. Trautmann at various points. (Id. at 15, 17.)
II. Analysis
Under the Social Security Administration (“SSA”) regulations, the ALJ must consider each medical opinion and prior administrative medical finding in the record. 20 C.F.R. §§ 404.1520c, 416.920c (“We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”). 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 and prior administrative medical findings. 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 prior administrative findings and need not 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 and prior administrative findings 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(b), (c), 416.920c(b), (c).
20 C.F.R. § 416.920c has replaced the “Treating Physician Rule” for claims filed after March 27, 2017; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the Treating Physician Rule, a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Arakas, 983 F.3d at 107 (emphasis in original).
Supportability and consistency are the most important of the factors, and the ALJ must explicitly address how he considered these factors in evaluating each medical opinion and prior administrative finding. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ is not required to explain the consideration of the other three factors. 20 C.F.R. §§ 404.1520c(b)(2), 426.920c(b)(2). For supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are, ” the “more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Similarly, for consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with evidence from other medical sources and nonmedical sources, ” the “more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The Fourth Circuit has repeatedly stated that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas, 983 F.3d at 98. Moreover, “an ALJ continues to have an obligation to include a narrative discussion describing how the evidence supports each conclusion.” Pearce v. Saul, No. 0:20-cv-1623-PJG, 2020 WL 7585915, at *3 (D.S.C. Dec. 22, 2020) (internal quotations omitted); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC assessment must include 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).”). Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mas do, 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe, 826 F.3d at 189 (citation omitted).
Here, Plaintiff argues that the ALJ improperly evaluated Dr. Trautmann's opinions because: (1) he “cherry-picked portions of the evidence that supported a finding of non-disability while ignoring evidence that points to a disability finding, ” and (2) he failed “to give ‘good reasons' for his evaluation of the opinion evidence.” (See generally Dkt. No. 17.) The Commissioner contends that the ALJ's assessment of Dr. Trautmann's opinions is supported by substantial evidence because: (1) the ALJ addressed the supportability and consistency of Dr. Trautmann's opinions, as required by the regulations, and (2) the ALJ discussed evidence throughout his decision that was inconsistent with Dr. Trautmann's restrictive opinion. (Dkt. No. 16 at 10-15.) Plaintiff argues that these are post hoc rationalizations for the ALJ's inadequate decision. (Dkt. No. 17 at 7.) Upon a careful review of the record, the undersigned must agree with Plaintiff.
While the Commissioner is correct that the ALJ addressed the supportability and consistency of Dr. Trautmann's opinions, the ALJ stated only that the opinions “are not consistent with his examination findings” and “do [not] align with other clinical examination findings.” (R. at 19.) The ALJ did not cite to any portion of the record after making these statements. (Id.) The ALJ also did not explain how Dr. Trautmann's opinions were inconsistent with his examination findings, other than to state that he observed Plaintiff to have a “normal gait upon examination.” (Id.) However, Dr. Trautmann's observation that Plaintiff had a normal gait on one or more occasions is not inconsistent with his opinion that Plaintiff experiences severe pain when sitting, standing, walking, or laying down. (Id. at 640.)
Moreover, Dr. Trautmann's treatment notes from an April 1, 2019 examination of Plaintiff described Plaintiff as in “[s]evere distress related to back pain, ” “[b]arely able to walk, due to pain, ” and unable to “stand, sit, lie down, or find any position that helps the pain.” (Id. at 663.) In notes from a February 18, 2019 appointment with Plaintiff, Dr. Trautmann described Plaintiff as having “chronic low-back pain” that “continues to be her biggest problem.” (Id. at 662.) He then referenced Plaintiffs April 2017 MRI, which “showed disc bulge at L5-S1, ” and Plaintiffs epidural injection, which “provided relief of approximately 25%.” (Id. at 662.) In January of 2019, Dr. Trautmann noted that Plaintiffs lower back pain rated as “7-8 on a 0-10 scale” and that he suggested she see a neurosurgeon. (Id. at 660.) In March 2018, Dr. Trautmann's examination of Plaintiff reflected that she was in “moderate distress” due to her chronic back pain, was “[t]ender in right SI region, ” was “[a]ble to lie flat, but only with significant effort and with extreme discomfort, ” and had positive straight leg raising on the right. (Id. at 493.) The ALJ fails to mention this evidence anywhere in his decision. (Id. at 12-21.)
The Commissioner argues that the ALJ was nonetheless justified in determining that Dr. Trautmann's opinions were inconsistent with his examination notes because “his other physical examinations contained few findings and were generally unremarkable.” (Dkt. No. 16 at 12-13.)
Contrary to the Commissioner's assertion, the ALJ's failure to address evidence supporting Dr. Trautmann's opinion before discounting that opinion is exactly the “cherry-picking” about which Plaintiff complains. As noted, “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869 (quoting Denton, 596 F.3d at 425); see also Arakas, 983 F.3d at 98.
With respect to other evidence in the record that was inconsistent with Dr. Trautmann's opinion, the ALJ only cited to evidence from 2017. (R. at 19.) Specifically, the ALJ cited a “Range of Motion Chart for Orthopedic Exam” and examination notes from an October 2017 exam. (Id.) The ALJ is correct that this evidence reflects “normal findings, including normal lumbar range of motion, straight leg raising within normal limits, 5/5 strength in her bilateral lower extremities, and no use of assistive devices.” (Id.) However, the record reflects that Plaintiffs back pain worsened over time, (Id. at 395-684), and the ALJ fails to explain why evidence from 2017 conflicts with examination findings reflecting worsening pain years later. (Id.)
The Commissioner argues that the ALJ was nevertheless justified in determining that Dr. Trautmann's opinion was inconsistent with the overall record because he “discussed other evidence throughout his decision that was inconsistent with Dr. Trautmann's . . . opinion.” (Dkt. No. 16 at 13.) The ALJ did discuss evidence in the record which suggested that Plaintiff might be capable of more than Dr. Trautmann opined. (R. at 16-19.) Still, the ALJ's failure to address the extent to which such evidence undermined Dr. Trautmann's opinions requires remand. See SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC assessment must include 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).”).
Indeed, it is unclear from the ALJ's decision which evidence he considered inconsistent with Dr. Trautmann's opinions, and the Court may not consider the Commissioner's post-hoc rationalizations for the ALJ's decision-making. See Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting Commissioner's argument in part because it consisted of “a post[-]hoc rationalization”) (citing Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)); Alexander v. Colvin, No. 9:14-2194-MGL-BM, 2015 WL 2399846, at *6 (D.S.C. May 19, 2015) (rejecting Commissioner's argument as “only a post hoc rationalization for upholding the decision, since that is not actually what the ALJ did”). As such, the undersigned recommends that the Commissioner's decision be reversed and that the case be remanded for further proceedings.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for further proceedings consistent with this Report & Recommendation
IT IS SO RECOMMENDED.
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 (4th Cir. 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 835
Charleston, South Carolina 29402
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).