Opinion
5:20-CV-169-FL
09-03-2021
KATHRYN ROBINSON, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-21, -23] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Kathryn Robinson (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). Both parties submitted memoranda in support of their respective motions [DE-22, -24]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff'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
Plaintiff protectively filed an application for a period of disability, DIB, and SSI on April 15, 2016, with an alleged onset date which was later amended to June 17, 2016. Transcript of Proceedings (“Tr.”) 87-88, 218. Her claims were denied initially. Tr. 117, 121. Plaintiff filed a request for reconsideration (Tr. 115-16), and was denied upon reconsideration on October 14, 2016 (Tr. 132, 136). On November 18, 2016, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 141. A hearing before the ALJ was held on December 19, 2018, at which plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 42-62. On March 14, 2019, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 24. On March 14, 2019, Plaintiff requested a review of the ALJ's decision by the Appeals Council (Tr. 2) and submitted additional evidence as part of her request (Tr. 3). After reviewing and incorporating the additional evidence into the record, the Appeals Council denied Plaintiff's request for review on February 21, 2020. Tr. 2-7. Plaintiff 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). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
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 [“SGA”], ” 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 [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r Soc. Sec. Admin., 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)(4), 416.920a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 36. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since June 17, 2016, the amended alleged onset date. Tr. 29.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease, major joint dysfunction, and obesity. Tr. 29. The ALJ also found Plaintiff had a non-severe impairment of depression. Tr. 30. However, at step three, the ALJ concluded these impairments, both physical and mental, 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. Tr. 31. Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in no limitation in understanding, remembering, or applying information; no limitation in interacting with others; mild limitation in concentrating, persisting, or maintaining pace; and, no limitation in adapting or managing oneself. Tr. 30.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work, “except that she can only frequently stoop” and she “is also limited to frequent handling and fingering of objects bilaterally.” Tr. 31. In making this assessment, the ALJ found Plaintiff's statements concerning the intensity, persistence, and limiting effects of the symptoms of her medically determinable impairments were not entirely consistent with the medical evidence and other evidence in the record. Tr. 32. At step four, the ALJ concluded Plaintiff had the RFC to perform the requirements of her past relevant work as a salesperson as that work is usually performed in the national economy. Tr. 35.
“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).
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the following errors by the ALJ: (1) failure to adequately account for Plaintiff's limitations in standing, walking, and sitting because of lower back and leg pain due to severe degenerative disc disease; (2) improper treatment of the medical opinion of the consultative examiner, Dr. Constant Masere; and, (3) improper assessment of Plaintiff's limitations in concentration, persistence, and pace due to chronic pain and depression. Pl.'s Mem. [DE-22] at 22. Each will be discussed below.
VI. DISCUSSION
A. The ALJ's consideration of Dr. Constant Masere's medical opinion
Plaintiff contends that the ALJ erred in her treatment of the medical opinion of the consultative examiner, Dr. Constant Masere. Pl.'s Mem. [DE-22] at 1. Specifically, at issue is the ALJ's decision to assign only partial weight to Dr. Masere's opinion, rather than adopting the opinion in full. Id. at 15-16. Plaintiff contends the reasons offered by the ALJ for discrediting Dr. Masere's opinion were insufficient. Id. Thus, the ALJ fails to adequately explain why she partially discredited Dr. Masere's opinion, the only comprehensive evaluation on file for the Plaintiff. Id. at 16-17. The court agrees.
Because Plaintiff filed her claims on April 15, 2016 (Tr. 87-88), the applicable regulations regarding the evaluation of medical source opinions are 20 C.F.R. §§ 404.1527(c) and 416.927(c), each entitled “Evaluating opinion evidence for claims filed before March 27, 2021.” Sections 404.1527 and 416.927 instruct that “[r]egardless of its source, [the ALJ] will evaluate every medical opinion [it] receive[s].” 20 C.F.R. §§ 404.1527(c), 416.927(c). Medical opinions are defined as “statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [their] symptoms, diagnosis and prognosis, what [they] can still do despite impairment(s), and [their] physical or mental restrictions.” Id. §§ 404.1527(a)(1), 416.927(a)(1). In evaluating medical opinions, the ALJ must “always consider the medical opinions in [a] case record together with the rest of the relevant evidence [it] receive[s].” Id. §§ 404.1527(b), 416.927(b) (citing 20 C.F.R. § 404.1520b).
In general, the ALJ should assign more weight to the opinion of a source who has examined the claimant than to the opinion of a non-examining source. Id. §§ 404.1527(c)(1), 416.927(c)(1). Additionally, more weight is generally given to the opinion of a treating source, rather than non-treating sources, such as consultative examiners. Id. §§ 404.1527(c)(2), 416.927(c)(2); see also Warren v. Berryhill, No. 4:16-CV-77-FL, 2017 WL 3326978, at *3 (E.D. N.C. July 10, 2017); Moore v. Colvin, No. 4:12-CV-189-FL, 2013 WL 5434052, at *4 (E.D. N.C. Sept. 27, 2013). “If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all the medical opinions of record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, (5) whether the physician is a specialist, and (6) any other relevant factors.” McCormick v. Colvin, No. 7:13-CV-00234-RJ, 2015 WL 1471269, at *7 (E.D. N.C. Mar. 31, 2015) (citing Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citation omitted)); Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D. N.C. Dec. 20, 2012) (unpublished) (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)). The ALJ is not required, however, to discuss all of these factors. Id. (citing Wa re , 2012 WL 6645000, at *2 (citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); Munson v. Astrue, No. 5:08-CV-l10-D(3), 2008 WL 5190490, at *3 (E.D. N.C. Dec. 8, 2008) (unpublished)).
“Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such case, we will consider the acceptable medical source to be a nontreating source.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
While an ALJ is not obligated to accept any medical opinion, an ALJ is, however, required to explain the weight given to each opinion. McCormick, 2015 WL 1471269, at *7 (citing Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D.Va. Sept. 5, 2006) (unpublished)); see also Lamb v. Berryhill, No. 7:16-CV-397-BO, 2017 WL 5509998, at *3 (E.D. N.C. Nov. 17, 2017) (citing Mastro, 270 F.3d at 178). An ALJ may not reject medical evidence for the wrong reason or no reason. Wireman, 2006 WL 2565245, at *8. “Without . . . specific explanation of the ALJ's reasons for the differing weights he assigned various medical opinions, neither [the court of appeals] nor the district court can undertake meaningful substantial-evidence review.” David v. Berryhill, No. 7:17-CV-157-FL, 2018 WL 4664129, at *3 (E.D. N.C. Sept. 28, 2018) (quoting Monroe, 826 F.3d at 191) (alterations in original).
Here, after a single consultative physical examination of Plaintiff, Dr. Masere provided the following findings in her written opinion:
The claimant gave good effort during the examination. The claimant can be expected to sit normally in an 8-hour workday with normal breaks. The claimant has moderate limitations with standing and walking due to lower back and left ankle pain. The claimant does not need an assistive device with regards to short and long distances and uneven terrain. The claimant has moderate limitations with lifting and carrying weight due to lower back and left ankle pain. There are limitations on bending, stooping, crouching and squatting and so on and the claimant will be able to perform these occasionally due to lower back and left ankle pain. There are no manipulative limitations on reaching and the claimant will be able to perform this frequently. There are manipulative limitations on handling, feeling, grasping and fingering and the claimant will be able to perform these occasionally due to numbness and weakness of bilateral hands. There are no relevant visual, communicative or work place environmental limitations.
Tr. 337.
The relevant portion of the ALJ's assessment of Dr. Masere's opinion appears in Plaintiff's RFC narrative as follows:
Partial weight is accorded to the opinions of Constant S. Masere, M.D., contained in the report of the claimant's May 2016 consultative physical examination. Dr. Masere opined that the claimant had “moderate” exertional and postural limitations due to her low back and left ankle pain. Dr. Masere also concluded that the clamant [sic] could only occasionally handle, feel, and finger objects due to her weakness and numbness in both hands. The undersigned finds the opinions concerning the claimant's exertional and postural limitations to be vague and not expressed in vocationally relevant terms. With respect to Dr. Masere's opinions regarding the claimant's manipulative restrictions, the undersigned agrees that the claimant is limited in the ability to handle and finger, but finds that the cumulative effect of the claimant's impairments do not warrant the degree of limitations expressed by Dr. Masere nor does the evidence warrant additional limitations on the claimant's ability to feel (Ex. 3F).Tr. 34-35.
In assessing Dr. Masere's opinion, the ALJ determines that the opinion is only entitled to “partial weight.” In doing so, the ALJ proffers two justifications for her decision. Plaintiff argues that the ALJ erred in both justifications concerning the opinion.
The first reason proffered by the ALJ for partially discrediting Dr. Masere's opinion is that the ALJ “finds the opinions concerning the claimant's exertional and postural limitations to be vague and not expressed in vocationally relevant terms.” Tr. 35. “Vagueness is a proper ground for limiting the weight given [to] medical source opinions.” Robertson v. Saul, No. 5:18-CV-454-D, 2019 U.S. Dist. LEXIS 224968, at *26 (E.D. N.C. Dec. 19, 2019) (citing Scott v. Berryhill, No. 1:16-CV-48, 2017 U.S. Dist. LEXIS 16894, at *5 (M.D. N.C. Feb. 7, 2017)). However, Dr. Masere's statement that Plaintiff could “occasionally” bend, stoop, crouch and squat is not vague. Tr. 337. “Occasionally” is a term of art in the Social Security context, explained in S.S.R. 83-10 as “occurring from very little up to one-third of the time” as opposed to “frequent” which is defined as “occurring from one-third to two-thirds of the time”. S.S.R. 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983); See, e.g., Colon v. Berryhill, No. 4:17-CV-53-FL(2), 2018 WL 1833010, at *5 (E.D. N.C. Mar. 23, 2018); Rhodie v. Berryhill, No. 7:16-CV-358-KS, 2018 WL 830145, at *3 (E.D. N.C. Feb. 12, 2018); Vick v. Astrue, No. 5:11-CV-601-D, 2013 WL 511040, at *4 (E.D. N.C. Jan. 10, 2013).
In this instance, the ALJ included a limitation in the RFC that Plaintiff “can only frequently stoop.” Tr. 31. Dr. Masere's written opinion expresses that Plaintiff would be able to “occasionally” stoop. Tr. 337. The ALJ does not explain which statements she found to be vague or to be lacking vocationally relevant terms. The court is therefore left to guess which statements concerning Plaintiff's exertional and postural limitations the ALJ is discrediting. Without further explanation, the court cannot undertake meaningful substantial evidence review of the ALJ's decision to assign Dr. Masere's opinion less weight. See David, 2018 WL 4664129, at *3 (quoting Monroe, 826 F.3d at 191).
The second reason proffered by the ALJ for discrediting Dr. Masere's opinion, is that “the [ALJ] agrees that the claimant is limited in the ability to handle and finger but finds that the cumulative effect of the claimant's impairments do not warrant the degree of [manipulative restrictions] expressed by Dr. Masere nor does the evidence warrant additional limitations on the claimant's ability to feel.” Tr. 35. The ALJ is correct that when “a physician's opinion is not supported by the clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight.” Molina v. Colvin, No. 5:12-CV-259-FL, 2013 WL 4039416, at *4 (E.D. N.C. Aug. 7, 2013) (quoting Mastro, 270 F.3d at 178). Here, however, the ALJ does not cite in the record to the evidence contradictory to or inconsistent with Dr. Masere's opinion.
Dr. Masere's conclusions appear to be supported by the results of her physical examination of Plaintiff in May 2016. As summarized in the ALJ's decision, at the May 2016 examination by Dr. Masere, Plaintiff “reported numbness, weakness, and pain in both of her arms” and “[u]pon examination, [Plaintiff] exhibited full muscle strength in all musculoskeletal testing with the exception of her grip strength, which was observed to be a 4 out of 5 in both hands.” Tr. 33. Neither of Dr. Masere's statements appear to undermine her determination regarding Plaintiff's manipulative restrictions.
The lack of explanation and analysis regarding Dr. Masere's opinion frustrates meaningful review by the court. The court is left to guess at how the ALJ came to her conclusions. The court finds that this was not harmless error, as the inclusion of “occasional” versus “frequent” limitations could be outcome-determinative. Based on the descriptions by the ALJ, it is impossible to know how she weighed the evidence. See Monroe, 826 F.3d at 190-91 (explaining how an ALJ's general and conclusory assignments of weight precluded meaningful review).
Accordingly, the undersigned recommends this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should further explain the consideration given to Dr. Masere's opinion so that meaningful judicial review would be permitted, if necessary. It is, of course, up to the Commissioner to determine what weight to give all evidence.
B. Assessment of Plaintiff's limitations in standing, walking, and sitting due to lower back and leg pain
Plaintiff contends that the ALJ erred by failing to adequately account for Plaintiff's limitations in standing, walking, and sitting because of lower back and leg pain due to severe degenerative disc disease. Pl.'s Mem. [DE-22] at 1. Specifically, Plaintiff argues that the ALJ fails to explain how she determined in the RFC that Plaintiff could walk and stand up to six hours at the time, in light of Plaintiff's pain. Id. at 9. Plaintiff asserts that the RFC's standing, walking, and sitting limitations, or lack thereof, are inconsistent with both Plaintiff's testimony and the well- documented medical evidence concerning her lower back and leg pain. Id. at 9-10.
Defendant asserts that substantial evidence exists to support the ALJ's RFC assessment. Def.'s Mem. [DE-24] at 5. Defendant states that “the ALJ's decision clearly illustrates the factors she considered when evaluating Plaintiff's RFC as well as the evidence that supports her conclusion.” Id. at 6. And “[t]he ALJ evaluated the objective medical evidence, x-rays, treatment history, hearing testimony, [Plaintiff's] use of a cane, opinion evidence, and consultative examiners opinions when she properly determined that Plaintiff could perform light work with enumerated limitations.” Id.
As discussed above, the undersigned recommends this case be remanded based upon consideration of the opinion of consultative examiner Dr. Masere, which directly addresses Plaintiff's ability to stand and walk. Dr. Masere opines that Plaintiff “has moderate limitations with standing and walking due to lower back and left ankle pain.” Tr. 337. On remand, it will be incumbent on the ALJ to consider all of the evidence before her, which includes Dr. Masere's opinion, and to explain her findings as to the weight afforded the evidence. As the findings on remand may be substantially different, the undersigned does not address whether substantial evidence supports the ALJ's RFC assessment.
C. Assessment of Plaintiff's limitations in concentration, persistence, and pace due to chronic pain and depression
Plaintiff contends that the ALJ erred in her assessment of Plaintiff's limitations in concentration, persistence, and pace (“CPP”) due to chronic pain and depression. Pl.'s Mem. [DE-22] at 1. Specifically, Plaintiff argues that because the ALJ determined that Plaintiff suffered from “mild limitations” in CPP at step two of the sequential evaluation process (Tr. 30), the ALJ was required to either include a limitation for CPP in the RFC, or alternatively, explain why no such limitation was required. Id. at 17-19. In support of this claim, Plaintiff cites to the case Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Additionally, Plaintiff argues that when calculating the RFC, the ALJ improperly disregarded difficulties in CPP stemming from Plaintiff's physical impairments and pain. Id. (citing Tr. 30).
As noted in Section VI.B above, the undersigned recommends this case be remanded based upon consideration of the opinion of consultative examiner Dr. Masere, in which she opines that Plaintiff “has moderate limitations with standing and walking due to lower back and left ankle pain.” Tr. 337 (emphasis added). As the findings on remand may be substantially different, the undersigned does not address whether substantial evidence supports the ALJ's CPP determination. On remand, the Commissioner should make findings that sufficiently explain the probative evidence, and that would permit meaningful judicial review, if necessary.
VII. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-21] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-23] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence. That is a matter for the Commissioner to decide.
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 September 15, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct 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 September 22, 2021.
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).