Opinion
C. A. 2:22-cv-01317-DCC-MGB
04-20-2023
JOYCE JOHNSON, Plaintiff, v. KILOLO KIJAKAZI,[1] Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Joyce Johnson (“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 regarding her claim for Disability Insurance Benefits (“DIB”) 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 reversing the decision of the Commissioner and remanding for an award of benefits.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 63 years old on her date last insured, December 31, 2017. (R. at 492, 511.) She alleges a disability onset date of November 8, 2012. (R. at 16.) Plaintiff originally claimed disability due to, inter alia, “major depressive,” osteoporosis, arthritis in feet, “thorasis [sic] spine fracture,” irregular heartbeats, urinary incontinence, nervous breakdown, dyslipidemia, gastroesophageal reflux disease, and pericarditis after small pox vaccine. (R. at 219.) Plaintiff has past relevant work as a registered nurse. (R. at 511.)
Plaintiff filed an application for DIB on April 28, 2014, alleging disability that began on November 8, 2012. (R. at 16.) Her application was denied initially and upon reconsideration. (R. at 16.) After a hearing before an Administrative Law Judge (“ALJ”) on January 17, 2017, the ALJ issued a decision on April 26, 2017, in which the ALJ found that Plaintiff was not disabled. (R. at 16-32.) After the Appeals Council declined the request for review, Plaintiff filed an action in the United States District Court for the District of South Carolina. On September 10, 2019, the District Court remanded the action for further proceedings. (R. at 583-585). The Court expressed “concern[] that the opinion of the [ALJ] effectively omits several years of records from Plaintiff's treating physician, particularly in light of the strength of Plaintiff's claim for disability.” (R. at 584.) The Court further “note[d] a disturbing number of cases where ALJs go to great lengths to justify giving little weight to the opinions of treating physicians while giving great weight to the opinions of consultative examiners.” (R. at 584.)
Based on the District Court's Order, the Appeals Council vacated the ALJ's decision and remanded the case on October 30, 2019. (R. at 586-89.) A hearing was held on February 28, 2020, before the same ALJ who had issued the April 2017 decision. (R. at 490-513.) On March 20, 2020, the ALJ issued a decision finding Plaintiff was not disabled. (R. at 490-513.) The March 2020 decision is the Commissioner's final decision for purposes of judicial review.
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 last met the insured status requirements of the Social Security Act on December 31, 2017.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of November 8, 2012 through her date last insured of December 31, 2017 (20 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: osteoporosis, fracture of the right wrist, a compression fracture of the thoracic spine, degenerative disc disease, obesity, depression, and anxiety (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) (lift 50 pounds occasionally and 25 pounds frequently; stand 6 of 8 hours; walk 6 of 8 hours; sit 6 of 8 hours) except that the claimant could never climb ladders, ropes, and scaffolds; the claimant could frequently climb ramps and stairs, stoop, kneel, crouch, and crawl; the claimant could frequently handle and finger; the claimant should avoid concentrated exposure to hazards; the claimant could perform simple routine, repetitive work, with a reasoning level up to and including 3, on a sustained basis (defined as 8 hours a day, 5 days a week, in 2-hour increments with normal breaks for an 8-hours workday); the claimant required a low stress work environment (defined as non-production work, specifically, no fast-paced work like an assembly line where one has to produce a product in a high-speed manner); the claimant could have no public contact; the claimant could have frequent contact with co-workers; the claimant required a job with occasional decision making required and occasional changes in the work setting.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on July 18, 1954 and was 63 years old, which is defined as an individual of advanced age, on the date last insured. The claimant subsequently changed age category to closely approaching retirement age (20 CFR 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
(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) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, 404.1569(a)).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from November 8, 2012, the alleged onset date, through December 31, 2017, the date last insured (20 CFR 404.1520(g)).(R. at 490-513.)
APPLICABLE 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). “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).
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 Social Security 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. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
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; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
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 (4th Cir. 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 cherrypick, 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.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff asserts that the ALJ erred by failing to properly credit the opinions of Plaintiff's longtime treating physicians. (Dkt. No. 12 at 20-40.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 13.)
For the reasons discussed below, the undersigned cannot find the ALJ's decision is supported by substantial evidence. Further, remand for reconsideration would serve no useful purpose here, where this case has already been remanded and the ALJ has held two hearings on Plaintiff's application, which has been pending almost nine years. Accordingly, the undersigned recommends remanding this case for an award of benefits.
A. Treating Physician Opinion
A claimant's residual functional capacity (“RFC”) represents the most she can still do despite her limitations. Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). In reaching a determination regarding a claimant's RFC, the ALJ is obligated to consider “all of the relevant evidence in the case record,” including any medical source statements submitted by the claimant's treating source(s) and/or other acceptable medical sources. SSR 96-8P, 1996 WL 374184 (July 2, 1996); see also 20 C.F.R. § 404.1527. Indeed, the regulation, known as the “Treating Physician Rule,” imposes a duty on the Commissioner to “evaluate every medical opinion we receive.” 20 C.F.R. § 404.1527(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that “these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.” 20 C.F.R. § 404.1527(c)(2).
The Social Security Administration has amended the “Treating Physician Rule,” effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the new rule, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.1520c(a), (c)(1)-(2). Because Plaintiff's claim was filed before the effective date of the change, the decision is reviewed under the regulation in effect at that time, 20 C.F.R. § 404.1527.
The Fourth Circuit has recently reiterated the treating physician rule in Arakas v. Commissioner, explaining that 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.” 983 F.3d at 107 (emphasis in original) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). If a treating physician's opinion is not accorded controlling weight, the ALJ must consider the following factors to determine how much weight is appropriate:
(1) the length of the physician's treatment relationship with the claimant, (2) the physician's frequency of examination, (3) the nature and extent of the treatment relationship, (4) whether the medical evidence in the record supports the physician's
opinion, (5) the consistency of the physician's opinion with the entirety of the record, and (6) the treating physician's specialization.Shelley C. v. Comm'r of Soc. Sec. Admin., 61 F.4th 341, 354 (4th Cir. 2023) (citing 20 C.F.R. § 404.1527(c)(1)-(6)). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6).
“While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling, 986 F.3d at 385 (citing, e.g., Arakas, 983 F.3d at 107 n.16 (emphasis in original).) The Arakas Court observed that “SSR 96-2p further notes that ‘[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.'” Arakas, 983 F.3d at 106-07 (alterations and emphasis in original) (quoting SSR 96-2p). A “treating physician's testimony is ignored only if there is persuasive contradictory evidence.” Id. (emphasis in original) (quoting Coffman, 829 F.2d at 518).
SSR 96-2P was rescinded effective March 27, 2017 as part of the amendment of the “Treating Physician Rule.” SSA-2012-0035, 2017 WL 3928298. However, it was in effect at the time the Plaintiff filed her claim.
B. The ALJ's Decision
In his decision, the ALJ considered whether Plaintiff was disabled from November 8, 2012, the alleged disability onset date, through her date last insured, December 31, 2017. The ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform medium work with additional limitations. (R. at 20-21.) In his discussion of the evidence, the ALJ described Plaintiff's hearing testimony as follows:
The claimant has alleged disability based on a nervous breakdown, major depressive disorder, anxiety, osteoporosis, a thoracic spine fracture, arthritis in her feet, hips, and hands, pericarditis, dyslipidemia, GERD, and urinary incontinence.
She reports symptoms of irregular heartbeats; shortness of breath; panic attacks; inability to cope with crowds; social isolation; pain in her feet, legs, hands, waist, hips, and back; weakness in her right wrist; lack of stamina; crying spells; emotional instability; brain fog/confusion; depression; and insomnia. She also reports medication side effects of blurry vision, tremors, fatigue, sore muscles, light-headedness, and cognitive deficits. The claimant has alleged that her impairments affect her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, see, remember, complete tasks, concentrate, follow instructions, and use her hands. Specifically, she reports that she can walk ten feet or 10-15 minutes, lift ten pounds, and pay attention for a few minutes (Exhibit 2E; Exhibit 4E; Exhibit 6E; Exhibit 7E; Exhibit 9E; Exhibit 10E; Exhibit 13E; Exhibit 18E; Exhibit 19E; Hearing Testimony).(R. at 497.) The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” Plaintiff'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.” (R. at 497.)
After considering the medical evidence, the ALJ assessed the opinion evidence in the record; specifically, the opinions of three treating physicians, a consultative physician, a consultative psychologist, several State agency medical and psychological consultants, and a third party function report completed by Plaintiff's sister. (R. at 504-511.) The ALJ addressed the opinions of Plaintiff's treating psychiatrist, Dr. William Taylor, as follows:
In February 2014, Dr. Taylor opined that the claimant had poor attention and concentration as well as cognitive impairments and would not be capable of employment due to her chronic and longstanding conditions and conditions and deterioration in her mood and cognitive abilities (Exhibit 11F/14). That same day, he also completed a questionnaire indicating that the claimant would likely miss more than 3 days of work a month, and would have problems maintaining her attention and concentration during the workday (Exhibit 12F/2). Dr. Taylor is a treating source; however, he had only seen the claimant on two occasions prior to rendering these opinions. Although his opinion is supported by his findings on exam, his examinations took place while he was still adjusting the claimant's medication regimen and during times of admitted noncompliance (Exhibit 11F/13-20). Thus, they are not representative of the claimant's functioning on a sustained basis. In fact, just six months later, he indicated that the claimant's mental condition had improved (Exhibit 14F). Moreover, his findings and opinion are not consistent with those of other providers, namely the neuropsychological testing performed in
late 2012, which showed no problems with the claimant's cognitive functioning (Exhibit 4F), and the mental status examinations of the claimant's initial mental health provider, which showed improvement with medication and normal thought process and speech (Exhibit 2F; Exhibit 5F).
In June 2015, Dr. Taylor opined that the claimant had sufficient deficits in cognition and focus along with fatigue and that she appeared to be unable to be gainfully employed. He further surmised that her fatigue was likely also due to her cardiac history and some possible sequelae (Exhibit 18F/8). In September 2015, he stated that the claimant was considered now disabled to work and unable to be gainfully employed due to her cognitive deficits and chronic depressive symptoms and fatigue. He went on to opine that it was likely that the claimant would decompensate with any stressors or the stress usually associated with typical employment or jobs (Exhibit 18F/6). These opinions appear to be based primarily on the claimant's subjective reports, as these were topics discussed and noted in the “History of Present Illness” section of his notes (Exhibit 18F/5, 7). His opinions are not particularly consistent with his own treatment notes. Although he noted impaired attention and concentration during those two visits and impaired memory on one of those visits, such findings were not present during any other visits in 2015 and 2016 (Exhibit 18F; Exhibit 20F; Exhibit 22F). Moreover, they are not consistent with the 2012 neuropsychological evaluation, which showed no problems with the claimant's cognitive functioning (Exhibit 4F). Finally, it is noted that the majority of the opinions he expresses are on issues reserved for the Commissioner and do not set forth specific functional abilities or limitations. For all of these reasons, these opinions have been given little weight.
In February 2017, Dr. Taylor indicated that the claimant's diagnoses were recurrent major depressive disorder with psychotic features, neurocognitive disorder, and rule out pseudodementia or early dementia. She experienced depression, impairment in her attention and concentration, memory impairment, reduced stress tolerance, and decreased interest/motivation. She would experience problems with attention and concentration if she attempted to work on a full-time basis. Finally, he opined that the claimant had been so impaired since at least November 2012 (Exhibit 25F). Again, this opinion is assigned partial weight. It is conclusory in nature and rather vague, failing to set forth specific functional limitations or abilities. His opinion regarding the claimant's attention and concentration is not supported by his own treatment notes, which document improvement/stability with medications and only a few instances of impaired memory, attention, and concentration since March 2014 (Exhibit 11F; Exhibit 18F; Exhibit 20F; Exhibit 22F; Exhibit 30F). It is also not consistent with the findings from the claimant's 2012 neuropsychological evaluation (4F) or 2014 consultative psychological evaluation (Exhibit 15F). However, there is longitudinal evidence demonstrating that stress does exacerbate the claimant's symptoms. For that reason, the undersigned limited her to a low stress work environment and only occasional decision making and changes in the work setting.
In reaching the conclusions with respect to all of the Dr. Taylor's opinions set forth above consideration has been given to the mental longitudinal history, activities of daily living and mental status examinations which are persuasive in reaching the above conclusions. Initially, the factors relied upon in establishing the “B” criterion conclusions in section 4 above are not entirely consistent with his opinions. Similarly, the activities of daily living set forth in the RFC analysis are also inconsistent with Dr. Taylor's opinions. The activities of daily living and factors set forth in the “B” criterion analysis set forth hereinabove are incorporated herein as though fully set forth as the basis of reaching the conclusions concerning Dr. Taylor's opinion, however, I am compelled to note several particularly salient evidence set forth above. Ms. Johnson has been providing care for her husband who is now on oxygen and suffers from dementia the ability to perform care for her husband is inconsistent with the opinion that the claimant would have problems with attention and concentration and would interrupt tasks. Moreover, the claimant provided extensive care for her grandchildren which not only included childcare, picking a child up, but volunteering in the classroom. Curiously, Dr. Taylor stated that he would not complete a questionnaire concerning the claimant's condition since the claimant's condition has improved and Dr. Taylor felt that if he completed the questionnaire it would hurt the claimant's disability claim (Exhibit 14F). The claimant completed the Folstein Mini Mental Status Examination scoring 29 of 30 which provides the inference that Dr. Taylor's opinion is not supported. The claimant only missed one of serial sevens. The claimant on multiple occasions denied depression and treating sources indicated that the claimant's depression was well controlled (Exhibits 30F, 29F, 28F, 22F and 19F). The mental longitudinal history to some extent supports Dr. Taylor's opinion that she has problems with attention and concentration but not to the extent that he opines. Treatment records indicate the claimant has average attention and concentration, poor concentration, she has a severe impairment of attention and concentration that she is distractible and concentration is average (Exhibits 22F, 11F, 7F, 4F and 5E). The mental longitudinal history reveals the claimant was negative for dysphoric mood and sleep disturbance, that she was not nervous or anxious, she was oriented times three, in no acute distress, that the claimant was pleasant and cheerful, judgment and insight was good, that she is anxious, she had intact associations, normal mentation, mood and affect were normal, she was able to follow simple directions and logical thought process (Exhibits 30F, 29F, 28F, 22F, 18F, 17F, 11F 9F and 3F). The claimant reported to Dr. Taylor that she was doing very well, that she was back to her old self, happy and more energetic that she denied depressive symptoms, she enjoy driving her grandson on dates, that she had significant improvement on medications, that she was stable on current medications, that she was helping her grandson with cursive writing and she was going motorcycle riding (Exhibit 30F). While not all inclusive of the mental status examinations, mental longitudinal history and activities of daily living set forth above, the above brief summary illustrates the claimant has significant mental impairments, however, not to the extent as Dr. Taylor opined. In reaching the above conclusions consideration has been given to the treating relationship with Dr. Taylor, who specializes in
psychiatry, who has a long, extensive and regular the treatment record with the claimant.(R. at 504-06.)
The ALJ addressed the opinions of Plaintiff's treating internist, Dr. William Craig, III, as follows:
Because Plaintiff disputes only the ALJ's assessment of her treating psychiatrist, Dr. William Taylor, and her treating internist, Dr. William Craig, III, the undersigned focuses on the ALJ's assessment of this opinion evidence.
In April 2014, William Craig, III, M.D. opined that the claimant had major depressive disorder with psychotic features, could not perform work involving more than 1 or 2 step processes, and would have to rest away from the work station for more than an hour during the workday (Exhibit 12F/1). Dr. Craig is a treating source, an internist, with an extensive longitudinal history with the claimant. However, he admits that the claimant is under the care of Dr. Taylor for her psychological problems (Exhibit 27F/1). The portion of his opinion regarding the claimant's ability to perform work involving more than 1 or 2 step processes is given partial weight. The implication that the claimant cannot perform complex work is supported by the objective findings of tearfulness and impaired attention, concentration, and memory (Exhibit 11F; Exhibit 18F). However, the claimant also did well on neuropsychological testing (Exhibit 4F) and remains capable of performing activities that involve more than two steps, such as caring for her ailing husband, driving, and cooking. For this reason, the undersigned finds that simple routine, repetitive work, with a reasoning level up to and including 3 is mor appropriate. A review of Dr. Craig's treatment notes shows few positive pertinent findings. Less weight is assigned to Dr. Craig's opinion that the claimant would need to rest away from the work station for more than an hour during the workday due to back pain and left hip and bilateral ankle arthritis. This is not supported by the objective evidence. Notably, imaging of the claimant's hips, right ankle, and feet were negative (Exhibit 3F; Exhibit 17F; Exhibit 23F). Although imaging of the claimant's spine shows positive pertinent findings (Exhibit 8F; Exhibit 24F), Dr. Craig's notes do not document evidence of disabling pain. Notably absent from his notes are any findings of distress, decreased strength or sensation, or abnormal gait (Exhibit 6F; Exhibit 17F; Exhibit 24F; Exhibit 28F; Exhibit 31F).
In January 2017, Dr. Craig opined that the claimant would have problems with attention to and concentration sufficient to frequently interrupt tasks during the working portion of the workday if she attempted to work on an 8-hour day, 5-day per week basis (Exhibit 26F). As noted above, Dr. Craig admits that the claimant is under the care of Dr. Taylor for her psychological problems (Exhibit 27F/1). Neither Dr. Craig's nor Dr. Taylor's notes document this level of impairment. Dr. Craig makes no specific findings regarding the claimant's attention of concentration (Exhibit 6F; Exhibit 17F; Exhibit 24F; Exhibit 28F; Exhibit 31F), while Dr. Taylor has only noted a few instances of impaired memory, attention, and
concentration since March 2014 (Exhibit 11F; Exhibit 18F; Exhibit 20F; Exhibit 22F; Exhibit 30F). Moreover, just six months after writing this opinion, Dr. Craig indicated that the claimant's depression was stable and stated that she may taper off of medications as per her psychiatrist (Exhibit 28F/45-46; Exhibit 31F/22-23). Accordingly, the undersigned has given this opinion limited weight.
In June 2017, Dr. Craig opined that the claimant had several problems that combine to make it difficult for her to work. Specifically, he opined that the claimant has osteoporosis, a history of fractures in her ankles and wrist, and a 40% compression fracture of her T12 vertebra and must avoid any activity that requires her to lift significant weights, anything more than a few pounds. He also opined that as a result of either her underlying psychological problems or the side-effects of Latuda, she should avoid work that requires her to be alert and she should avoid complicated tasks (Exhibit 27F). Dr. Craig's opinion that the claimant must avoid any activity that requires her to lift more than a few pounds is not supported by the record and is thus given little weight. Although the claimant does have osteoporosis with a history of fractures, all of her fractures were associated with accidental falls, not lifting (Exhibit 3F; Exhibit 9F; Exhibit 17F). Moreover, physical examinations show good strength and sensation (Exhibit 9F; Exhibit 21F). Notably, after the date last insured, the claimant reported some right deltoid pain after lifting 50 pounds of dog food (Exhibit 29F/10). Dr. Craig's opinion that the claimant should avoid work that requires her to be alert or perform complicated tasks is assigned significantly more weight. Although there are no findings showing that the claimant was not alert during examinations, she has noted some brain fog associated with Latuda and Dr. Taylor has noted several instances of impaired attention and concentration. For this reason, the undersigned finds that the claimant must avoid concentrated exposure to hazards, cannot do fast-paced work like an assembly line where one has to produce a product in a high-speed manner, can only have occasional changes in the work setting, and cannot climb ladders, ropes, or scaffolds. Also consistent with Dr. Craig's opinion to avoid complicated tasks, the undersigned has limited the claimant to simple routine, repetitive work, with a reasoning level up to and including 3.
Although Dr. Craig attempts to explain his lack of findings in a June 2017 letter (Exhibit 27F), the undersigned does not fully accept this explanation. His notes do not simply repeat the same findings from visit to visit. There are often changes noted and the contents of the areas examined often vary as well (Exhibit 6F; Exhibit 17F; Exhibit 24F; Exhibit 28F; Exhibit 29F; Exhibit 31F). Moreover, if there were findings serious enough to warrant disability, one would expect to find some notation of them (at least once) in a longitudinal record.
Physical examinations and activities of daily living do not support the degree of limitations opined by Dr. Craig. Initially, the mental longitudinal history, activities of daily living and mental status examinations used in reaching the conclusions regarding Dr. Taylor's opinion is incorporated herein and in part is the basis for concluding the degree of limitations set forth by Dr. Craig is not supported by the
evidence. Examinations repeatedly note the claimant does not have weakness (Exhibits 29F, 28F, 24F, 17F and 6F). Treatment records also reveal normal strength, sensation, gate, reflexes, and no numbness (Exhibits 30F, 28F, 22F, 20F, 10F and 6F). Additionally, the claimant has been noted to have no dizziness, fatigue, normal range of motion of the musculoskeletal system and no tenderness (Exhibit 28F and 10F). Also, the claimant has been reported to have no side effects from medications (Exhibit 18F, 6F and 1F). When considering the above findings in conjunction with the activities of daily living that have been set forth throughout this decision the opinion with respect to missing time from work resting away from the workstation and that the claimant would have interruptions from work are not consistent with the examinations. This is particularly reinforced by the claimant's extensive activities of daily living particularly the ability to provide care for her husband and grandchild as has been set forth in detail above. Similarly, the repeated notes of the claimant exercising by walking and swimming suggest the ability to perform sustained work. The claimant testified to the ability to do housework from 7 AM until 11 AM at which time she requires rest. This is not consistent with the opinion regarding resting and frequent interruptions from work. In order to determine the supportability of Dr. Craig's opinion the claimant's arduous activities of daily living negate his opinions. While the claimant no longer keeps and cares for horses she was able, according to her testimony keep horses at home and care for them after the onset date. Dr. Taylor noted in November 2018 that the claimant gave away her horses (Exhibit 30F). The claimant testified that she maintained a vegetable garden after the onset date. Consistently since the onset date, the claimant has exercised by extensive walking and swimming. The claimant continued, since the onset date, to go motorcycle riding. She testified that she would walk to her grandsons daily and care for her young grandson. Similarly, the claimant reported going hiking until 2014 in the mountains. Other activities of daily living included volunteering at her grandsons school, caring for her 12-year-old grandson, fixing meals daily that take one and a half hours, doing laundry, doing dishes, taking the trash out, cleaning the kitchen for 2 to 3 hours daily, and driving (Exhibits 9E, 6E and testimony). Dr. Craig's treatment records indicate that the claimant was in no acute distress, he repeatedly noted that the claimant denied weakness, that there was no weakness numbness or pain on walking, that the claimant takes long walks, that depression was well controlled, the claimant did not have any fatigue, that the claimant had normal range of motion without tenderness, reflexes were normal, and that osteoporosis was relieved by calcium and vitamins (Exhibits 28F, 17F and 1F). With the exception of the claimant's wrist, she has been treated conservatively; she is not required recurrent visits to the emergency room due to exacerbation of mental symptoms. She has not been psychiatrically hospitalized and her symptoms have been treated conservatively with medication.(R. at 506-09.)
In his additional discussion of the opinion evidence, the ALJ afforded partial weight to Plaintiff's treating psychiatrist, Dr. Vina Jain, who “opined that the claimant had adequate ability to complete basic activities of daily living, relate to others, and complete simple and routine tasks, but poor ability to complete complex tasks.” (R. at 504.) Here, the ALJ noted Dr. Jain “stopped treating the claimant in April 2013.” (R. at 504.) The ALJ afforded partial weight to the opinion of the consultative physician who opined in July 2013 that Plaintiff had “no functional limitations,” and he afforded great weight to the consultative psychologist who opined in August 2014 “that the claimant had sufficient concentration and focus to perform simple tasks and follow basic instructions, but that her depression interfered with her ability to perform more complex tasks.” (R. at 509.) The ALJ afforded partial weight to the 2013 and 2014 opinions of State agency medical consultants who “determined that the claimant was capable of performing medium exertional work with postural limitations.” (R. at 509.) Finally, the ALJ afforded great weight to the 2013 and 2014 opinions of State agency psychological consultants, who determined that Plaintiff: “was capable of simple routine tasks away from the public”; “was capable of performing at least simple routine tasks”; could maintain the attention and concentration necessary to perform simple tasks on a fulltime basis; could interact appropriately with co-workers and supervisors, but would do best in an environment which does not require ongoing public contact; and can adapt to predictable work environments, attend work regularly, and make simple work-related decisions and occupational adjustments.” (R. at 510.)
After considering Plaintiff's RFC and the vocational expert's testimony, the ALJ found that through the date last insured, Plaintiff could have performed work that existed in significant numbers in the national economy. The ALJ therefore concluded that Plaintiff is not disabled. (R. at 512-13.)
C. Analysis
In her brief, Plaintiff asserts that the ALJ erred in assessing the opinions of Dr. Taylor and Dr. Craig, her two longtime treating providers. Here, she mainly takes issue with the ALJ's assessment of the “consistency” between these opinions and the entirety of the record under § 404.1527(c)(4). More specifically, she argues, inter alia, that the ALJ found their opinions were inconsistent with Plaintiff's ability to perform daily activities without sufficient explanation. (Dkt. No. 12 at 28-29, 39.) She further argues that the ALJ erred in discounting Dr. Taylor's opinion evidence as inconsistent with the findings of nontreating providers. (Id. at 27.) She also argues the ALJ erred in characterizing her treatment as conservative and finding this treatment as inconsistent with Dr. Craig's opinions. (Id. at 39.) The Commissioner responds that the ALJ's assessment of the opinion evidence is supported by substantial evidence. (Dkt. No. 13 at 9-14.)
As Plaintiff notes, the ALJ declined to give the opinions of Dr. Taylor and Dr. Craig controlling weight, thereby requiring that he “give adequate attention to each 20 C.F.R. § 404.1527(c) factor.” Shelley C., 61 F.4th at 355. Here, the undersigned agrees that the ALJ failed to properly consider the consistency of these opinions with the entirety of the record, such that the ALJ's decision to discount these opinions is not supported by substantial evidence.
1. Consideration of Activities of Daily Living
As an initial matter, the ALJ found the opinions of Dr. Taylor and Dr. Craig unpersuasive largely because they conflicted with Plaintiff's activities of daily living. (R. at 506, 508.) The Fourth Circuit recently found that “[a] claimant's inability to sustain full-time work due to pain and other symptoms is often consistent with her ability to carry out daily activities.” Arakas, 983 F.3d at 101. The Court further emphasized that “[b]eing able to live independently and participate in the everyday activities of life empowers people with disabilities and promotes their equal dignity. In pursuing those ends, disability claimants should not have to risk a denial of Social Security benefits.” Id. Accordingly, “[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them.” Woods, 888 F.3d at 694 (citing Brown v. Commissioner, 873 F.3d 251, 263 (4th Cir. 2017).) (emphasis in original).
The ALJ discussed Plaintiff's activities of daily living throughout her decision. (R. at 494 95, 502-03, 506, 508.) As noted above, the ALJ found Dr. Taylor's opinions, including that Plaintiff “would experience problems with attention and concentration if she attempted to work on a full-time basis” were inconsistent with Plaintiff's activities of daily living. In his assessment, the ALJ emphasized, inter alia, that
Ms. Johnson has been providing care for her husband who is now on oxygen and suffers from dementia the ability to perform care for her husband is inconsistent with the opinion that the claimant would have problems with attention and concentration and would interrupt tasks. Moreover, the claimant provided extensive care for her grandchildren which not only included childcare, picking a child up, but volunteering in the classroom.(R. at 506.) Earlier in his decision, the ALJ found that Plaintiff “is able to participate in the care of others, such as her ailing husband and teenage grandson (Exhibit 6E; Exhibit 9E; Exhibit 11F/5, 18; Exhibit 20F/2; Hearing Testimony).” (R. at 495.) Upon careful review of these exhibits and the entire record, the undersigned cannot find the ALJ adequately considered the extent of Plaintiff's caretaking abilities.
In a function report completed by Plaintiff on June 3, 2014, Plaintiff stated that she took care of her husband by “fix[ing] some meals, manag[ing] medications, [and] laundry.” (R. at 249.) She noted it takes 1-2 hours to prepare meals and it takes “all day” for her to perform household chores. (R. at 250.) Approximately five months later, in another function report, Plaintiff clarified that “John David Woodson helps with home maintenance and Clarence's [Plaintiff's husband] care.” (R. at 267.) At the ALJ hearing on January 17, 2017, Plaintiff stated that her husband “does all the cooking” and cleaning. (R. at 53-54.) Also, in the function report completed by Plaintiff's sister, Jenny Cape Cox, on June 9, 2014, Ms. Cox stated that Plaintiff took care of her husband by providing “companionship” and doing laundry. (R. at 240.) Ms. Cox clarified that Plaintiff did laundry one or two times a week and “sometimes stays in bed all day.” (R. at 240.) Notably, the ALJ gave “Ms. Cox's statements regarding the claimant's activities great weight,” stating “[s]he has known the claimant for at least 59 years and sees the claimant on a regular basis.” (R. at 511.) Given these recorded limitations in Plaintiff's care of her husband during the relevant time period, it is unclear how these activities are inconsistent with Dr. Taylor's opinion that Plaintiff's problems with attention and concentration would preclude her ability to work on a full-time basis.
Likewise, at the January 17, 2017 ALJ hearing, Plaintiff provided some context to her care for her grandson. She testified that she goes with her husband to pick up her grandson after school and spends an hour a day with him. (R. at 58.) When asked about “volunteering at [her] grandson's school,” Plaintiff clarified that it was for “one day” in 2014. (R. at 59-60.) Again, given the limited extent of Plaintiff's care of her grandson during the relevant time period, it is unclear how these activities are inconsistent with Dr. Taylor's opinion that Plaintiff's problems with attention and concentration would preclude her ability to work on a full-time basis.
Here, the undersigned recognizes that the ALJ also separately discussed a treatment record from March 29, 2019 wherein Plaintiff stated she “continues to enjoy her son [sic] and drives him on some of his dates” and a treatment record from March 16, 2018 wherein Plaintiff stated she “continues to enjoy being with her grandson and is helping him to learn cursive writing.” (R. at 506, 826, 834.) These notations postdate Plaintiff's date last insured and still are not inherently inconsistent with Dr. Taylor's opinions.
The ALJ similarly emphasized Plaintiff's caretaking of her husband and grandson as reason to discount Dr. Craig's opinions that Plaintiff “would have problems with attention to and concentration sufficient to frequently interrupt tasks during the working portion of the workday if she attempted to work on an 8-hour day, 5-day per week basis.” (R. at 507-08.) For the reasons discussed above, the undersigned cannot find Plaintiff's limited caretaking activities are inconsistent with Dr. Craig's opinions.
Given the ALJ's emphasis on Plaintiff's caretaking activities as a significant reason to discount the opinions of Dr. Taylor and Dr. Craig, the undersigned cannot find the ALJ's assessment is supported by substantial evidence where he failed to consider the extent to which Plaintiff can perform those activities. See, e.g., Penny M. v. Saul, No. 3:20-CV-00012, 2021 WL 2349299, at *7 (W.D. Va. June 8, 2021) (finding the ALJ erred in rejecting opinion evidence because claimant's “'limited' daily activities ‘suggest[ed] she could work on a full time basis'”; finding the activities highlighted by the ALJ “fully accommodate” the opinion evidence at issue), adopted by, 2021 WL 2582579 (W.D. Va. June 23, 2021); Brenda T. v. Saul, No. CV TMD 193617, 2021 WL 1060362, at *5 (D. Md. Mar. 19, 2021) (“The ALJ should explain on remand how Plaintiff's activities show that she could persist through an eight-hour workday and sustain a fulltime job.”); Cantrell v. Saul, No. 2:20-CV-00467, 2021 WL 1305384, at *12 (S.D. W.Va. Mar. 19, 2021) (“In short, though the ALJ acknowledged Claimant's daily activities, there is a deficiency in the assessment as to the extent Claimant was able to perform them, and how this translates into the conclusion that Claimant remained capable of substantial gainful activity.”), adopted by, 2021 WL 1299203 (S.D. W.Va. Apr. 7, 2021); Suggs v. Berryhill, No. 1:17-cv-1105, 2018 WL 5777618, at *6 (M.D. N.C. Nov. 2, 2018) (“The ALJ improperly relied on Plaintiff's daily activities to discount Dr. Leversedge's significant restrictions on Plaintiff's use of his left arm, because none of the activities cited by the ALJ demonstrated that Plaintiff enjoyed more functional use of his left arm than prescribed by Dr. Leversedge.”), adopted by, 2018 WL 6731671 (M.D. N.C. Nov. 27, 2018).
2. Characterization of Treatment
In discounting the opinions of Dr. Craig, the ALJ emphasized that Plaintiff's “mental symptoms” were “treated conservatively,” noting that “[s]he has not been psychiatrically hospitalized and her symptoms have been treated conservatively with medication.” (R. at 509.) As the Fourth Circuit recently observed, “A growing number of district courts have held that in cases where claimants consume antidepressant, anticonvulsant, and/or antipsychotic drugs, consistently attend visits with mental health professions, and endure constant medication adjustment and management, their treatment is classified as anything but ‘routine and conservative.'” Shelley C., 61 F.4th at 363 (“Overlooking the extensive and nuanced treatment Shelley C. received, the ALJ inappropriately ‘play[ed] doctor in contravention of the requirements of applicable regulations,' . . ., by concluding that her treatment was ‘routine and conservative.'”) (internal citation omitted).
Here, the record shows that Plaintiff had consistent visits with her treating psychiatrist, Dr. Taylor, throughout the relevant time period. Her medication was closely managed with frequent adjustments, including various dosage amounts of the antipsychotic, Latuda. (R. at 300, 314-317, 386-87, 533.) Given the recent guidance from the Fourth Circuit, the ALJ erred in concluding that Plaintiff's mental health was “treated conservatively” and in discounting Dr. Craig's opinions in part on the basis of such treatment. See Shelley C., 61 F.4th at 363 n.11 (collecting cases, including Za Xiong Mua v. Saul, No. 1:19-cv-516, 2020 WL 5257592, at *8 (E.D. Cal. Sept. 3, 2020) (finding antidepressants, antipsychotics, and “frequent” visits with mental health professionals was “anything but conservative”); James N. v. Saul, No. 18-cv-1199-KS, 2019 WL 3500332, at *6 (C.D. Cal. July 31, 2019) (concurring with “other district courts that have found antipsychotic medications such as Risperidone do not qualify as routine or conservative treatment”).
3. Comparison to Non-treating Opinions
In his decision, the ALJ afforded the opinions of the non-treating sources greater weight than the opinions of Dr. Taylor and Dr. Craig. The record indicates Plaintiff saw psychiatrist Dr. Taylor on a regular basis from December of 2013 through March of 2019. (R. at 324-29, 826.) Plaintiff had a similarly lengthy treatment relationship with internist Dr. Craig, who she regularly saw from February of 2013 through February of 2019. (R. at 297-300, 799.) As discussed above, Dr. Taylor issued opinions in 2014, 2015, and 2017, consistently opining that Plaintiff's mental limitations precluded her ability to work on a full-time basis. Similarly, Dr. Craig issued one opinion in 2014, and two opinions in 2017, in which he consistently opined Plaintiff's mental and physical limitations precluded her ability to work on a full-time basis. Instead of affording these opinions as to Plaintiff's mental limitations controlling weight, the ALJ afforded “great weight” to the 2013 and 2014 opinions of the State agency psychological consultants, who issued opinions on Plaintiff's mental limitations consistent with the ALJ's RFC finding. (R. at 510.) Similarly, the ALJ afforded “great weight” to the August 2014 opinion of a consultative psychologist who opined Plaintiff “had sufficient concentration and focus to perform simple tasks and follow basic instructions, but that her depression interfered with her ability to perform more complex tasks.” (R. at 509.)
As the District Judge emphasized when initially remanding this case, there are “a disturbing number of cases where ALJs go to great lengths to justify giving little weight to the opinions of treating physicians while giving great weight to the opinions of consultative examiners.” (R. at 584.) Relatedly, the Fourth Circuit recently criticized an ALJ's decision to afford greater weight to the opinions of non-treating, non-examining sources than to the claimant's treating physician.
In Shelly C., the Court emphasized,
Naturally, we expect that [treating physician] Dr. Beale would be astutely aware and privy to the uniqueness of Shelley C.'s specific, severe depressive and anxious symptoms, which non-treating agents are unlikely to understand or decipher from a paper record. There is a significant difference between a direct and physical examination, which in this case has spanned over years, of a claimant's mental health impairments, and an examination of a written record. Thus, the ALJ erred by failing to consider the important distinctions between these treating and nontreating relationships and extending more weight to the non-examining physicians' opinions than to Dr. Beale's.61 F.4th at 359.
The undersigned similarly finds the ALJ's assessment here is troubling where he afforded greater weight to the opinions of non-treating, non-examining State Agency psychological consultants, particularly where their opinions were based on records ending in 2014. Likewise, the ALJ specifically discounted Dr. Taylor's numerous opinions, spanning many years, as inconsistent with the opinion of a consultative psychologist, who examined Plaintiff once in 2014. (R. at 505.) The ALJ's decision to discount the opinions of Plaintiff's longtime treating providers in favor of the opinions of non-treating sources, when considered in combination with the other errors in his decision, indicates his assessment of the opinion evidence is not supported by substantial evidence.
This error is more apparent given that adoption of these treating physicians' opinions would have rendered Plaintiff disabled. When the vocational expert was asked at the 2020 ALJ hearing about a person with the psychological limitations included in Dr. Taylor's February 14, 2017 opinion, the vocational expert stated that there was “no competitive employment” for a person with such limitations. (R. at 479, 538; see also R. at 73.) See Shelley C., 61 F.4th at 368 (finding “the ALJ disregarded a powerful segment of the vocational expert's testimony” wherein the VE opined that “there were no such jobs in the national economy suitable for a person” with claimant's recorded psychological impairments; “The ALJ erred by disregarding the vital vocational expert testimony and finding that Shelley C. had the capacity to work”) (emphasis in original). Further, as Plaintiff notes, if the ALJ had limited her RFC to light work or less, in accordance with the opinion evidence, she would be found disabled under the Medical-Vocational Guidelines. (Dkt. No. 12 at 39-40.) Specifically, the Grid rules for light work would direct a finding that someone in Plaintiff's circumstances is disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 (The Grid table for light work directs a finding of disabled for an individual that is advanced age, who has a high school education or more that does not provide direct entry into skilled work, and has skilled or semi-skilled past work without transferrable skills).
D. Recommendation to Remand with Award of Benefits
Having found multiple errors in the ALJ's assessment of the opinions of Plaintiff's longtime treating physicians, remand is appropriate. The Fourth Circuit has held that it is appropriate for a federal court to “reverse without remanding where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The undersigned recommends remand for reconsideration would serve no useful purpose here, where this case has already been remanded and the ALJ has held two hearings on Plaintiff's application, which has been pending almost nine years. See, e.g., Anderson v. Saul, No. 7:19-CV-132-BO, 2021 WL 328846, at *2 (E.D. N.C. Feb. 1, 2021) (remanding for award of benefits where “reopening this case for another hearing would serve no purpose”); Gilliard v. Berryhill, No. 8:17-CV-1435-RMG, 2018 WL 4092069, at *3 (D.S.C. Aug. 28, 2018) (remanding for award of benefits where claimant's application has been pending for six years).
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 an award of benefits.
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).