Opinion
5:20-CV-244-M
06-02-2021
ALICIA MCNEILL, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge.
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-17, -19] pursuant to Fed.R.Civ.P. 12(c). Claimant Alicia McNeill ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability, DIB, and SSI on November 10, 2016, alleging disability beginning January 9, 2015. (R. 10, 204-14). Both claims were denied initially and upon reconsideration. (R. 10, 66-129). A hearing before the Administrative Law Judge ("ALJ") was held on March 14, 2019, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 10, 32-65). On April 24, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 7-26). On April 6, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in: (1) failing to perform a function-by-function analysis, (2) failing to address Plaintiff's need to use a walker, and (3) failing to address Plaintiff's need to elevate her right lower extremity ("RLE"). Pl.'s Mem. [DE-18] at 10-19.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since January 9, 2015, the alleged onset date. (R. 12). Next, the ALJ determined Claimant had the following severe impairments: hypertension; obesity; post-traumatic arthritis of the right ankle, status-post injury and open reduction and internal fixation (ORIF); and degenerative disc disease/sciatica. Id. The ALJ also found Claimant had nonsevere impairments of cardiomegaly, hyperlipidemia, acute carpal tunnel syndrome, cervical radiculopathy at C5, and unspecified depression and a non-medically determinable impairment of right great toe pain. (R. 13-14). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 14-15). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in a mild limitation in understanding, remembering, or applying information; no limitation in interacting with others; a mild limitation in concentrating, persisting, or maintaining pace; and no limitation in adapting or managing oneself. (R. 13).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
she is limited to occasional pushing, pulling, and/or operating foot controls with the right lower extremity; occasional climbing ramps and stairs, but no climbing ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching,
and/or crawling. The claimant must avoid concentrated exposure to workplace hazards, such as unprotected heights. She requires the flexibility of a sit/stand option, which would allow her to change positions at will while remaining on task.(R. 16-20). In making this assessment, the ALJ found Claimant's statements about her limitations not persuasive of disability based upon the medical and other evidence in the record. (R. 17).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work as a home health aide and a medical technician. (R. 20). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 21-22).
V. DISCUSSION
A. The ALJ erred in failing to perform a function-by-function analysis.
Claimant contends the ALJ erred in failing to perform a function-by-function evaluation of her ability to stand and walk. Pl.'s Mem. [DE-18] at 10-16. "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. (quoting S.S.R. 96-8p). "Only after such a function-by-function analysis may an ALJ express RFC 'in terms of the exertional levels of work.'" Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). However, the Fourth Circuit has rejected "a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis." Mascio, 780 F.3d at 636. Rather, the court explained that "[r]emand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review. See Dowling v. Comm 'r of Soc. Sec. Admin., 986 F.3d 377, 388 (4th Cir. 2021) (holding that "the lack of a rule requiring remand does not mean that remand is never the appropriate outcome when an ALJ fails to engage in a function-by-function analysis" and finding that remand was appropriate when the claimant's ability to sit was a contested issue and the ALJ "barely mentioned [the claimant's] sitting problems in his decision").
Claimant contends that the decision does not provide for meaningful review because the ALJ improperly evaluated Claimant's pain, cherry-picked the evidence and ignored evidence of Claimant's swollen RLE, and improperly found that there was no objective support for an assistive device. Pl.'s Mem. [DE-18] at 10-19.
1.The ALJ's discussion of Claimant's pain does not provide for meaningful review.
Federal regulations 20 C.F.R. §§ 404.1529(a) and 416.929(a) provide the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[, ] and the extent to which it affects her ability to work," Craig, 16 F.3d at 595, and whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 404.1529(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011). "The ALJ cannot 'reject a claimant's statements about the intensity and persistence of. . . pain or other symptoms' or about the effect of those symptoms on a claimant's ability to work 'solely because the available objective medical evidence does not substantiate them.'" Ladda v. Berryhill, 749 Fed.Appx. 166, 171 (4th Cir. 2018) (quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)).
In discussing Claimant's pain, the ALJ found:
[W]hile the claimant experiences severe impairments, the degree and severity of her alleged impairments are not entirely consistent with the evidence. Following the claimant's surgery, she did complain of ongoing pain and she was diagnosed
with post-traumatic osteoarthritis and synovitis of the ankle (Ex. 3F). An examination thereafter showed limited range of motion due to pain (Ex. 6F/10-12). However, examinations often showed ability to ambulate with findings, such as normal range of motion, normal muscle tone, normal gait, and normal sensation (Exs. IF/91, 120; 4F/22; 6F/10-12; 7F/17, 28-29; 9F). ... She denied medication side effects (Ex. 9F) and only conservative ongoing treatment was recommended. An EMG was normal (Ex. 2F/4-5).(R. 19).
If an ALJ discounts a Claimant's pain merely because it is not substantiated by objective medical findings, the ALJ's analysis is insufficient. See Ladda, 749 F App'x at 171 (holding that the ALJ did not err in discounting the claimant's subjective complaints of pain because the ALJ did more than compare the subjective complaints to the objective medical evidence; the ALJ noted that "Ladda made conflicting statements at the hearing and to his physicians about whether his pain medication caused side effects, and [the ALJ] considered Ladda's medication and treatment history, which also cut against Ladda's statements about his pain"); Inman v. Berryhill, No. 7:17-CV-182-FL, 2018 WL 7324920, at *5 (E.D. N.C. Nov. 29, 2018) (finding error when "the ALJ did nothing more than conclude that Claimant's statements were unsubstantiated by medical evidence"), adopted by 2019 WL 637767 (E.D. N.C. Feb. 14, 2019). Here, in addition to finding that the objective medical evidence did not substantiate Claimant's complaints, the ALJ stated without elaboration that Claimant "denied medication side effects (Ex. 9F) and only conservative outgoing treatment was recommended." (R. 19). However, it is not clear how a lack of medication side effects indicates that Claimant's complaints of pain were overstated, and the ALJ did not explain his conclusion. Additionally, a conservative course of treatment may serve as a reason for discounting a claimant's subjective complaints of pain in some cases. See Smith v. Saul, No. 7:19-CV-118-RJ, 2020 WL 5578966, at *6 (E.D. N.C. Sept. 17, 2020) (finding no error when "[i]n addition to a lack of diagnostic test results and evaluations corroborating Claimant's report of symptoms, the ALJ noted that her treatment overall was generally conservative in nature" and that no medical opinion supported the claimant's complaints); King v. Berryhill, No. 2:17-CV-58-D, 2018 WL 6817036, at *6 (E.D. N.C. Dec. 6, 2018) (finding no error when "[t]he ALJ discounted Claimant's testimony regarding the severity of his pain based primarily on his lack of treatment other than medication for his back impairments, as well as his failure to follow recommended treatment for his ankle impairment and minimal objective evidence regarding his knee impairment."), adopted by 2018 WL 6815651 (E.D. N.C. Dec. 27, 2018). Here, however, the court cannot trace the ALJ's reasoning in finding that Claimant's treatment was conservative. Claimant underwent surgery in 2015 and was prescribed a litany of medication for ongoing pain thereafter. (R. 17-20). She also sought emergency treatment for back pain in September 2018. (R. 18). She completed physical therapy. (R. 19). The ALJ's bare statement that "only conservative ongoing treatment was recommended," where the record appears to indicate otherwise, is not a sufficient discussion of Claimant's subjective complaints of pain. Accordingly, remand is appropriate for the ALJ to more thoroughly explain his conclusions regarding Claimant's subjective complaints.
2. The ALJ's discussion of Claimant's ankle impairment does not provide for meaningful review.
Claimant contends the ALJ ignored evidence of Claimant's RLE swelling and failed to mention the medical directives that Claimant elevate her RLE above her heart to control pain and swelling. Pl.'s Mem. [DE-18] at 18-19.
The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm V o/Soc. Sec, 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, the ALJ may not ignore material evidence that conflicts with his/her decision. Drotar v. Colvin, No. 7:13-CV-265-FL, 2015 WL 965626, at *3 (E.D. N.C. Mar. 4, 2015) (citing hey v. Barnhart, 393 F.Supp.2d 387, 390 (E.D. N.C. 2005)). "An 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 v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Further, "[t]he ALJ's failure to 'build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error." Id. at 868 (quoting Monroe, 826 F.3d at 189).
The ALJ noted Claimant's testimony that she rests, elevates, and ices her ankle. (R. 17). The ALJ also discussed Claimant's July 2015 MRI, which showed swelling and tenderness in her foot, and her September and December 2015 examinations by Dr. Parineet Bambrah, where Claimant complained of pain, numbness, tingling, burning, and swelling. Id. The ALJ summarized Claimant's July 2016 exam where she was diagnosed with post-traumatic osteoarthritis and synovitis of the ankle and her October 2016, January 2017, February 2017, and November 2017 exams, where Claimant reported continued pain and difficulty walking and was referred to physical therapy. (R. 18). The ALJ discussed Claimant's two 2018 emergency department visits for back pain and noted that she participated in physical therapy. (R. 19). The ALJ concluded, "The claimant alleged constant swelling of her ankle, which is not demonstrated on examinations." Id.
However, the record contains at least seven objective observations of Claimant's RLE swelling. (R. 450-51, 453, 460, 463, 467, 475, 488). On January 9, 2015, Dr. Colleen Gibson wrote that "On exam [Claimant] appears uncomfortable and has a deformity to right ankle with swelling." (R. 475). On January 16, 2015, Claimant was noted to have moderate swelling about the right ankle. (R. 467). On February 2, 2015, Claimant had moderate swelling on examination. (R. 463). On March 9, 2015, Claimant's leg cast was removed, and she had mild swelling. (R. 460). On July 20, 2015, Dr. Bambrah examined Claimant and noted: "Swelling is minimal. . . . There is a small area of focal swelling about the plantar medial midfoot about a centimeter in diameter. Its borders are ill-defined." (R. 453). On September 10, 2015, one of Dr. Bambrah's impressions after an examination of Claimant was "right foot swelling with considerable amount of pain on weightbearing." (R. 451). At an independent medical evaluation for Claimant's workers compensation claim, Dr. Jeffrey Gaber noted, "Circumferential measurements of the ankles reveal a 1 cm increased girth of the right ankle due to effusion." (R. 488). In finding that Claimant's constant ankle swelling "is not demonstrated on examinations," the ALJ therefore ignored evidence contrary to his decision. Lewis, 858 F.3d at 869. Accordingly, the ALJ's discussion of Claimant's ankle swelling frustrates meaningful review.
3.The ALJ's discussion of Claimant's need for an assistive device provides for meaningful review.
Claimant contends the ALJ failed to consider probative evidence when deciding that Claimant's walker was not medically necessary. Pl.'s Mem. [DE-18] at 17-18. The ALJ must consider the impact of a "medically required" hand-held assistive device on a claimant's functional capacity. See Taylor v. Berryhill, No. 5:17-CV-78-FL, 2018 WL 852396, at *3 (E.D. N.C. Jan. 10, 2018) (citing Eason v. Astrue, No. 2:07-CV-30-FL, 2008 WL 4108084, at *16 (E.D. N.C. Aug. 29, 2008); S.S.R. 96-9p, 1996 WL 374185, at *7 (July 2, 1996)). "The requirement to use a handheld assistive device may . . . impact... [an] individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling." 20 C.F.R. part 404, subpt. P, app. 1, § 1.00J.4. Social Security Ruling 96-9p provides guidance regarding when a hand-held assistive device is medically required. S.S.R. 96-9p, 1996 WL 374185, at *7. "To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically or only in certain situations; distance and terrain; and any other relevant information)." Id. "[A] prescription or the lack of a prescription for an assistive device is not necessarily dispositive of medical necessity." Fletcher v. Colvin, No. 1:14-CV-380, 2015 WL 4506699, at *8 (M.D. N.C. July 23, 2015) (citing Staples v. Astrue, 329 Fed.Appx. 189, 191-92 (10th Cir. 2009)).
"While Social Security Ruling 96-9[p] concerns individuals capable of less than a full range of sedentary work, district courts within the Fourth Circuit consistently rely on the Ruling for guidance when a claimant alleges that a hand-held assistive device was not adequately considered in his or her disability determination." Peake v. Beriyhill, No. 5:17-CV-01998, 2018 WL 1178256, at *15 (S.D. W.Va. Feb. 8, 2018), adopted by 2018 WL 1177354 (Mar. 6, 2018).
Here, the ALJ found:
The record references the claimant was using a walker; however, there is no evidence any assistive device was prescribed by an acceptable medical source outside of the claimant's recovery period immediately following her ankle surgery (Ex. 6F/10). More importantly, there is no objective support for an assistive device based on a combination of diagnostic imaging and examinations.(R. 19).
In September 2018, Dr. Yagna Raj Bhattrai noted that "PT recommends rolling walker and outpatient PT," and Claimant was discharged "home with rolling walker." (R. 651). It is not clear from the treatment note whether Dr. Bhartrai intended to adopt the physical therapist's recommendation as his own. Id. A physical therapist is not an acceptable medical source, 20 CFR §§ 404.1502(a), 416.902(a), so if the walker was prescribed by only the physical therapist and not by Dr. Bhattrai, then the ALJ did not err in finding that "there is no evidence any assistive device was prescribed by an acceptable medical source" following Claimant's recovery from surgery. (R. 19). Additionally, even if the walker was prescribed by Dr. Bhattrai, the treatment note does not describe "the circumstances for which it is needed (i.e., whether all the time, periodically or only in certain situations; distance and terrain; and any other relevant information)." S.S.R. 96-9p, 1996 WL 374185, at *7. Accordingly, the ALJ's discussion of Claimant's assistive device provides for meaningful review. See Matthews v. Berryhill, No. 5:18-CV-60-D, 2019 WL 577427, at *6 (E.D. N.C. Jan. 24, 2019), adopted by 2019 WL 572870 (E.D. N.C. Feb. 12, 2019); see also Gilmer v. Berryhill, No. 3:17-CV-539-FDW, 2018 WL 3518470, at *2 (W.D. N.C. July 20, 2018) ("The claimant bears the burden of presenting 'medical evidence establishing the need for a cane and describing the circumstances for which it is needed.'") (quoting S.S.R. 96-9p).
Nonetheless, it is recommended that the case be remanded. The ALJ failed to perform a function-by-function assessment of Claimant's ability to stand and walk, and that failure amounts to reversible error because the ALJ's decision frustrates meaningful review in two regards. See Dowling, 986 F.3d at 388. First, the ALJ did not properly evaluate Claimant's subjective complaints of pain, and second, the ALJ ignored evidence of swelling in Claimant's RLE. Accordingly, remand is appropriate for the ALJ to conduct a function-by-function analysis of Claimant's ability to stand and walk or to otherwise more thoroughly explain his decision such that it provides for meaningful review.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-17] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-19] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until June 16, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).