Opinion
5:20-CV-584-M
05-11-2022
PATRICIA SMITH, Plaintiff/ Claimant, v. KILOLO KIJAKAZI, Acting 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-15, -17] pursuant to Fed.R.Civ.P. 12(c). Claimant Patricia Smith (“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. Plaintiff filed a response to Defendant's motion, [DE-19], the time for briefing 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 matter be remanded to the Acting Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability, DIB, and SSI on February 8, 2017, alleging disability beginning January 8, 2017. (R. 18, 213-23). Both claims were denied initially and upon reconsideration. (R. 18, 64-113). A hearing before the Administrative Law Judge (“ALJ”) was held on February 26, 2019, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 18,36-63). On April 5,2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 15-35). On September 9, 2020, the Appeals Council denied Claimant's request for review. (R. 1-9). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
IL 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 by (1) failing to accommodate Claimant's limitation on the ability to stay on task where Claimant was moderately impaired in the ability to maintain concentration, persistence, or pace, and (2) failing to properly evaluate the treating source opinion of Scott Mackenzie, NP. Pl.'s Mem. [DE-16] at 9-22.
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 activity since January 8, 2017, the alleged onset date. (R. 21). Next, the ALJ determined Claimant had the following severe impairments: pyelonephritis with obstructive hydronephrosis status post stent, nephrolithiasis bladder stone, hypernatremia, leucosis, renal perinephric abscess, generalized anxiety disorder, and major depression. Id. The ALJ also found that Claimant had nonsevere impairments of anemia, dilated common bile duct, hyperlipidemia, hypertension, scoliosis, gastroesophageal reflux disease, and cervicalgia, and that although Claimant allegedly suffered from fibromyalgia, it was considered to be a non-medically determinable impairment. (R. 21-22). 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. 22-25). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 23-24).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following additional 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 can frequently balance, kneel, stoop, crouch, and crawl, can frequently climb
stairs and ramps and can occasionally climb ladders, ropes and scaffolds. She can tolerate occasional exposure to unprotected heights and moving machinery parts. The claimant is able to understand and remember simple instructions, make simple work related decisions and carry out simple instructions. She can occasionally deal with changes in a routine work setting and can occasionally deal with coworkers and the public.(R. 25-28). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical and other evidence. (R. 26).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work as a domestic housekeeper or restorative cleaner. (R. 29). 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. 29-30).
V. DISCUSSION
A. The RFC Assessment
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also SSR 968p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. “[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 SSR 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 SSR 96-8p); 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”).
1. Claimant's Ability to Maintain Concentration, Persistence, and Pace
Claimant contends the ALJ erred in formulating her RFC by failing to incorporate non-exertional limitations on the ability to stay on task where the ALJ found she was moderately limited in the ability to maintain concentration, persistence, and pace. Pl.'s Mem. [DE-16] at 9-14. Defendant contends that the opinion of Scott Mackenzie, NP supports the ALJ's decision that Claimant had the ability to stay on task. Def.'s Mem. [DE-18] at 6-10. In response, Claimant argues that Defendant misinterprets Mackenzie's opinion. Pl.'s Resp. [DE-19] at 1-5.
The Fourth Circuit held in Mascio v. Colvin that “an ALJ does not account ‘for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'” 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). The court explained that “the ability to perform simple tasks differs from the ability to stay on task” and that “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Id. The court acknowledged there could be instances where a moderate limitation in concentration, persistence, or pace at step three does not require a limitation in the RFC; however, the failure to explain such a result is error requiring remand. Id. (“Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. . . . But because the ALJ here gave no explanation, a remand is in order.”); see also Shinaberry v. Saul, 952 F.3d 113, 122 (4th Cir. 2020) (holding that ALJ decision comported with Mascio where the ALJ explained why evidence supported mental limitation to simple, routine, repetitive tasks and included limitations in the hypothetical to the VE); Iva K. v. Soc. Sec. Admin., No. 1:19-CV-02954-JMC, 2020 WL 3060752, at *4 (D. Md. June 9, 2020) (“[P]ursuant to Mascio, once the ALJ made a step three finding that a claimant suffers from moderate difficulties in concentration, persistence, or pace, the ALJ must either include a corresponding limitation in the RFC assessment, or explain why no such limitation is necessary.”).
Here, the ALJ determined Claimant had no more than a moderate limitation in her ability to maintain concentration, persistence, or pace. (R. 24). The ALJ based this determination on Claimant's testimony that she requires frequent short breaks throughout the workday and that she has trouble concentrating for more than ten minutes at a time, but the ALJ also considered that she cared for her seven-year-old son on a daily basis and her mental status examinations were generally unremarkable. Id. The ALJ then limited Claimant to work requiring only the ability to “understand' and remember simple instructions, make simple work related decisions and carry out simple instructions,” “occasionally deal with changes in a routine work setting,” and “occasionally deal with coworkers and the public.” (R. 25). The ALJ acknowledged Claimant's anxiety disorder and major depressive disorder, mild recurrent, and that Claimant attended outpatient treatment every three months and was treated with medication. (R. 27). The ALJ in discussing the mental health treatment records noted that Mackenzie, Claimant's treating nurse practitioner, indicated that “her mood is variable to mildly depressed and her anxiety is managed with prescription medication, which has side-effects such as drowsiness and dizziness,” that “the claimant isolates herself from others, [has] issues dealing with stress and criticism, and that she experiences decreased energy and mood disturbance with anxiety,” and that “while she had limitations, she was capable of understanding and remembering simple instructions, interacting appropriately, and making simple decisions.” Id.
Under Mascio, because the ALJ determined that Claimant was moderately limited in her ability to maintain concentration, persistence, or pace, the ALJ was obligated to account for that limitation in the RFC or to explain why no such limitation was necessary. 780 F.3d at 638. The ALJ limited Claimant to work involving only simple instructions, simple decision making, and occasional changes in the work setting, which address the ability to understand and perform a task. However, Mascio made clear that the ability to perform a task is distinct from the ability to stay on task. Id. The ALJ's RFC imposed no limitation to address Claimant's limited ability to stay on task and explained only that “[t]he record lacks sufficient clinical evidence to support limitations beyond the stated residual functional capacity.” (R. 27). This conclusory statement falls short of what is required and is insufficient to allow the court to trace the ALJ's reasoning. See Wooten v. Kijakazi, No. 4:20-CV-50-D, 2021 WL 4270181, at *5 (E.D. N.C. Sept. 7, 2021) (finding remand warranted where the ALJ failed to “explain how limitations to simple routine tasks not requiring interaction with the public, work in proximity to co-workers, and only occasional interaction with supervisors, ‘enable [Plaintiff] to stay on task and concentrate throughout the workday.'”) (quoting Taylor v. Saul, No. 4:19-CV-66-FL, 2020 WL 6389835, at *4 (E.D. N.C. July 9, 2020)), report and recommendation adopted, 2021 WL 4269872 (E.D. N.C. Sept. 20, 2021).
Defendant asserts that Mackenzie's opinion supports the ALJ's treatment of Claimant's moderate limitation in concentration, persistence, or pace and her ability to stay on task. Def.'s Mem. [DE-18] at 7-9. Defendant suggests that Mackenzie's opinion was that despite Claimant's serious limitations, Claimant “could stay on task for unskilled work,” citing Mackenzie's opinion on a check-the-box form that Claimant was “seriously limited, but not precluded” in the areas of “complete a normal workday and workweek without interruptions from psychologically based symptoms” and “perform at a consistent pace without an unreasonable number and length of rest periods.” Id. at 8 (citing R. 579). Claimant points out that “seriously limited, but not precluded” means the “ability to function in this area is seriously limited and less than satisfactory, but not precluded in all circumstances,” which is inconsistent with the ability to stay on task on a regular and continuous basis. Pl.'s Resp. [DE-19] at 3 (citing R. 579). Plaintiff also notes that Mackenzie found Claimant would find certain demands of work stressful, such as speed, deadlines, working within a schedule, and completing tasks. Id. (citing R. 581).
First, the ALJ did not provide the rationale posited by Defendant, and the court cannot substitute Defendant's explanation for one not given by the ALJ. See Cumbee v. Kijakazi, No. 7:20-CV-59-FL, 2021 WL 4447625, at *4 (E.D. N.C. Sept. 28,2021) (“[H]owever meritorious [the Commissioner's suggested] rationale might be, acceptance of such an unclearly stated but ostensibly implicit rationale would constitute ‘post-hoc justification.'”) (citing Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 109 (4th Cir. 2020); Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013)). This case is also distinguishable from Shinaberry, where the ALJ sufficiently explained why a limitation to simple, routine, and repetitive tasks accounted for the claimant's moderate difficulties with concentration, persistence, or pace. 952 F.3d at 121. In Shinaberry, the ALJ explicitly relied on a consultative psychological opinion indicating that the claimant's “task persistence” was adequate, and the ALJ explained that a limitation to unskilled work accounted for Claimant's limitation in tolerating work-related stresses. Id. at 122. The AL J's decision in this case lacks such evidence or explanation.
Second, the court does not agree with Defendant's reading of Mackenzie's opinion. The form defines “seriously limited, but not precluded” as “ability to function in this area is seriously limited and less than satisfactory, but not precluded in all circumstances.'1' (R. 579) (emphasis added). Mackenzie thus opined that Claimant was not completely unable to “perform at a consistent pace without an unreasonable number and length of rest periods,” but that while she was “seriously limited and less than satisfactory” in that ability, there would be some circumstances in which she could do so. Coupled with Mackenzie's opinion that Claimant would find stressful work demands such as speed, deadlines, working within a schedule, and completing tasks, the circumstances under which Claimant could “perform at a consistent pace without an unreasonable number and length of rest periods” might include a low-stress work environment or work that does not require meeting quotas or performing assembly line tasks. Such limitations have been found to sufficiently account for a Claimant's limited ability to stay on task. See Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. Oct. 17, 2017) (holding that limitations to working in a low stress, non-production job with no public contact were sufficient to account for moderate limitations in concentration, persistence, or pace); Lee v. Colvin, No. 5:15-CV-142-D, 2016 WL 816784, at * 1-2 (E.D. N.C. Feb. 29, 2016) (finding a hypothetical limiting the individual to no fast paced or quota based work and limiting contact with supervisors, co-workers, and the public comported with Mascio and the claimant's mental restrictions in concentration, persistence, or pace). Accordingly, the AL J committed reversible error by failing to sufficiently account for Claimant's moderate limitation in the ability to maintain concentration, persistence, or pace, or alternatively to explain why further limitation was unnecessary.
2. The Medical Source Statement of Scott Mackenzie, NP
Claimant contends the ALJ failed to properly evaluate the treating source opinion of her mental health provider, Scott Mackenzie, NP, because the reasons the ALJ provided for affording only “some weight” to Mackenzie's statement are not supported by the record. Pl.'s Mem. [DE-16] at 14-22. Defendant contends that the ALJ gave good reasons for discounting portions of Mackenzie's opinion and the ALJ's decision is supported by the record. Def.'s Mem. [DE-18] at 8-11.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. §§ 404.1527(c), 416.927(c). Mackenzie is a nurse practitioner and not an “acceptable medical source,” because nurse practitioners are “acceptable medical sources” only for claims filed after March 27, 2017, and Claimant filed her claim in February 2017. Id. §§ 404.1502(a)(7), 416.902(a)(7). Nonetheless, the ALJ was required to consider Mackenzie's opinion using the same factors used for acceptable medical sources, and ALJs “generally should explain the weight given to opinions from [medical sources who are not acceptable medical sources] or otherwise ensure that the discussion of the evidence... allows a claimant or subsequent reviewer to follow the adjudicator's reasoning.” 20 C.F.R. §§ 404.1527(f), 416.927(f). The nonexhaustive list of factors to be considered includes (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, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527).
An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). However, “[a]n ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).
The ALJ discussed the August 24, 2018 medical source statement of Mackenzie as follows:
Mr. Mackenzie, who treats the claimant every three (3) months since 2016, indicated that the claimant's mental health impairments cause serious limitations in his [sic] ability to maintain attention, sustain a routine, complete a normal workday without psychological interruptions, interact well with coworkers and supervisors, carry out detailing instructions, and deal with stress (10F/3-4). He also indicated that the claimant would be likely to miss about four (4) days of work per month due to her impairments or treatment and would have difficulty performing at a reasonable pace without an unreasonable number of rest periods (10F/5). I find that these opinions are generally inconsistent with and not supported by his own examination findings, which indicate the claimant's mood is variable to mildly depressed and her anxiety is controlled with medication, and the objective clinical evidence of record, which shows the claimant only treats every three (3) months and her mental status examinations are unremarkable. Further, the claimant reports that her urinary frequency is every three (3) hours, which can be accommodated with normal workday breaks. Therefore, only some weight was afforded to this opinion.(R. 28).
The ALJ found Mackenzie's opinions to be inconsistent with his own examination findings that indicated Claimant's mood was variable to mildly depressed, her anxiety was controlled with medication, and her mental status examinations were unremarkable. Id. Claimant disputes this reasoning based on medical records indicating she had a mixed history with antidepressant medications and was dependent upon Xanax for relief of her anxiety, there are significant periods during which Claimant is significantly debilitated by depression and pain, Claimant required frequent breaks to complete home chores, and her co-morbid pain condition was exacerbated by her psychiatric condition that constrained her from taking pain relievers due to her need for Xanax. Pl.'s Mem. [DE-16] at 17-21.
The record only contains treatment records from Mackenzie for the period of January 2015 through February 2017. (R. 471-99). The ALJ offered to keep the record open for a few weeks so counsel could obtain additional records from Mackenzie but ultimately nothing further was provided. (R. 56-57). The treatment notes in the record indicate that Claimant, after regaining insurance coverage, started treatment with Mackenzie in July 2016 for issues with depression and anxiety, including nervousness, tremors, nausea, and lack of motivation, and Mackenzie advised that Xanax was ideally for short-term use and she should try other medications, to which Claimant agreed and was started on Effexor. (R. 471). Effexor initially was beneficial at reducing Claimant's symptoms but in September 2016 she stopped taking Effexor due to restlessness and decreased appetite and was started on Cymbalta. (R. 480). Subsequent records from November 2016 and February 2017 indicate that Claimant's medications were working well, she wished to continue on those medications, and her mental status exams on these occasions were normal. (R. 484-85,494-95).
The consistency with the record and supportability, “particularly [with] medical signs and laboratory findings,” of an opinion are appropriate factors for the ALJ to consider. 20 C.F.R. §§ 404.1527(c), 416.927(c). Mackenzie's examination findings in the most recent treatment notes, coupled with those in the Medical Source Statement that Claimant's mood was “variable to mildly depressed” and her anxiety controlled with medication, support the ALJ's determination that Mackenzie's suggested limitations in the Medical Source Statement were inconsistent with his examination findings. See White v. Kijakazi, No. 4:20-CV-127-RJ, 2021 WL 2936135, at *6 (E.D. N.C. July 13,2021) (finding no error in the ALJ's evaluation of a medical opinion where the ALJ opined the claimant had total occupational impairment but the ALJ discussed numerous examinations of record that were normal).
Claimant also points out that she required frequent breaks to complete her home chores and was constrained from taking pain relievers because of her need to manage anxiety with Xanax. However, “the fact that Claimant can point to other evidence that supports her position does not render the ALJ's decision unsupported.” Lilley v. Saul, No. 4:19-CV-93-RJ, 2020 WL 3884429, at *11 (E.D. N.C. July 9, 2020) (citation omitted). It is not the court's role to reweigh the evidence. See Hancock v. As true, 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 our judgment for that of the ALJ.”) (citation omitted). Accordingly, the court can trace the ALJ's reasoning in discounting Mackenzie's opinion, and the ALJ's determination in this regard is supported by substantial evidence.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-15] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-17] be DENIED, and the matter be REMANDED to the Acting Commissioner for further proceedings.
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 May 25, 2022 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).