Opinion
5:20-CV-187-FL
08-24-2021
JAMIE ACKERMAN, 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-25, -29] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Jamie Ackerman (“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 and Disability Insurance Benefits (“DIB”). Both parties submitted memoranda in support of their respective motions [DE-26, -30]. 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 and DIB on May 2, 2016, alleging disability beginning December 1, 2014. Transcript of Proceedings (“Tr.”) 94, 190. Her claim was denied initially. Tr. 10. Plaintiff filed a request for reconsideration (Tr. 95), and was denied upon reconsideration on April 7, 2017 (Tr. 102). On April 21, 2017, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 10. A hearing before the ALJ was held on October 24, 2018, at which plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 10. On March 20, 2019, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 7.
On March 20, 2019, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 1. On March 4, 2020, the Appeals Council denied Plaintiff's request for review. Tr. 1. 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 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). 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). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(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. 19. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since December 1, 2014, the alleged onset date. Tr. 12. Next, at step two, the ALJ determined Plaintiff had the following severe impairment(s): history of Crohn's disease and migraine headaches. Tr. 12. The ALJ also found Plaintiff had non-severe impairments of tachycardia and depression. Tr. 13.
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. Tr. 14. Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; mild limitation in concentrating, persisting, or maintaining pace; and, moderate limitation in adapting or managing oneself. Tr. 13. The ALJ found no episodes of decompensation. Tr. 13.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with 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).
[E]xcept she can occasionally stoop. She can perform goal-oriented rather than production-oriented work (i.e., the performance of work tasks in allotted time is more important than the pace at which the work tasks are performed). She can perform work limited to indoors. She can perform work that does not include the preparation or serving of food consumed by others. She can perform work that does not require the operation of a motor vehicle.Tr. 14. In making this assessment, the ALJ found Plaintiff's statements about her limitations were “not entirely consistent with the medical evidence and other evidence in the record . . . .” Tr. 15.
At step four, the ALJ concluded Plaintiff has no past relevant work. Tr. 17. At step five, upon consideration of Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that Plaintiff can perform that exist in significant numbers in the national economy. Tr. 17-18.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the following errors by the ALJ: (1) failure to make specific findings regarding the frequency and duration of Plaintiff's bathroom usage in the RFC assessment; and (2) failure to hold a hearing with Plaintiff when the case involves significant pain and discomfort, and the deciding ALJ was not the same ALJ who conducted the hearing. Pl.'s Mem. [DE-26] at 1. Each will be discussed below.
VI. DISCUSSION
A. Specific findings regarding the frequency and duration of Plaintiff's bathroom usage
Plaintiff contends that the ALJ erred by failing to make specific findings regarding the frequency and duration of Plaintiff's bathroom usage in the RFC assessment. Pl.'s Mem. [DE-26] at 1. The court agrees.
Specifically, at issue is whether the ALJ erred by failing to consider how Plaintiff's allegedly frequent bathroom breaks would impact her ability to stay on task in a workplace environment. Id. at 10-11. Plaintiff argues that if the ALJ were to determine that her bathroom usage causes her to be off task for even five percent of the day, it precludes her from competitive employment. Id. And, if Plaintiff is precluded from competitive employment, which she argues is likely, the ALJ must conclude that she is disabled. Id. at 11-12.
“A Social Security claimant's RFC represents ‘the most [she] can still do despite [her] limitations.'” Dowling v. Comm'r Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). It is “an administrative assessment of ‘an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis' despite impairments and related symptoms.” Brooks v. Berryhill, No. 2:16-CV-80-FL(2), 2018 WL 944382, at *3 (E.D. N.C. Jan. 23, 2018) (quoting S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). In making this assessment, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)). Further, an RFC assessment must be “based on all of the relevant medical and other evidence.” Ward v. Colvin, 90 F.Supp.3d 510, 513 (E.D. N.C. 2015) (citing 20 C.F.R. § 404.1545(a)(3)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
However, “a reviewing court is required to uphold [an ALJ's] determination when [the] ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Bird v. Comm'n Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012) (citing 42 U.S.C. § 405(g)). As explained above, substantial evidence is not a “large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Pierce, 487 U.S. at 565 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). More specifically, substantial evidence is “more than a mere scintilla of evidence but . . . somewhat less than a preponderance.” Laws, 368 F.2d at 642. In evaluating substantial evidence, the court should not “re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Mastro, 270 F.3d at 176 (quoting Craig, 76 F.3d at 589). Instead, 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., 131 F.3d at 439-40.
District courts in the Fourth Circuit have routinely held that when “an ALJ finds that a claimant has an impairment that requires him to have access to a bathroom, the ALJ should make specific findings concerning the frequency and duration of [the claimant's] bathroom usage.” Summey v. Berryhill, No. 1:16-CV-1185, 2018 WL 708355, at *3 (M.D. N.C. Feb. 5, 2018) (citing Binder v. Colvin, No. 5:12-CV-271-D, 2013 WL 1686306, at *3 (E.D. N.C. Mar. 21, 2013); Taylor v. Astrue, No. 7:11-CV-162-FL, 2012 WL 3637254, at *11 (E.D. N.C. Aug. 1, 2012); D a v i s v. Comm'r Soc. Sec., No. 2:10-CV-30, 2011 WL 442118, at *1 (N.D. W.Va. Feb. 2, 2011)). This is because “[a]bsent specific findings concerning the frequency and duration of a claimant's bathroom usage, a court cannot determine whether the ALJ's findings are supported by substantial evidence, and remand is appropriate.” Minchew v. Berryhill, No. 5:18-CV-56-KS, 2019 WL 772042, at *3 (E.D. N.C. Feb. 21, 2019) (citing Binder, 2013 WL 1686306, at *3).
In a recent decision, the Fourth Circuit appears to have adopted this view. Dowling, 986 F.3d at 377. In Dowling, the Fourth Circuit stated that, “[o]bviously, the need to visit the bathroom many times throughout the day impacts one's ability to work. And yet, the ALJ did not analyze [the claimant's] need for regular bathroom breaks.” Id. at 389. In doing so, the court ordered that the case be remanded to the ALJ, and “[o]n remand, the ALJ should evaluate the frequency at which [the claimant] needed to use the bathroom and analyze how that restriction impacted her ability to work.” Id. While the court in Dowling may not have created an explicit requirement, the court does implicitly require that an ALJ make specific findings about the frequency and duration of a claimant's bathroom usage in cases where a claimant requires bathroom access. Notably, the court does not undermine the persuasive authority of other district courts in the circuit, which demonstrate that such specific findings should be made.
Here, at step two of the sequential evaluation process the ALJ found Plaintiff to be severely impaired as a result of Crohn's disease. Tr. 12. The ALJ later reiterates that Plaintiff suffers from Crohn's disease in the RFC. Tr. 15. The ALJ notes that at the hearing, Plaintiff indicated that she must use the bathroom about seven to eight times a day during normal work hours as a result of her Crohn's disease. Tr. 15. The ALJ also references medical notes showing that Plaintiff uses the bathroom anywhere from six to eight times per day with the help of treatment, to three to four times per hour without treatment. Tr. 15.
The ALJ concludes in the RFC that Plaintiff can only complete work that is goal-oriented, indoors, and that does not include the preparation or serving of food consumed by others. Tr. 14. In discussing these limitations, the ALJ explains that the purpose of the goal-oriented limitation is to provide Plaintiff “the ability to disengage quickly from work tasks when the toilet is needed.” Tr. 17. Similarly, the indoor limitation “keeps [Plaintiff] in physical proximity to toilet facilities.” Tr. 17. Finally, the food limitation is seen as a “general hygienic consideration” due to Plaintiff's frequent need to use the bathroom. Tr. 17.
Based on Plaintiff's RFC assessment, the ALJ here has clearly found that Plaintiff “has an impairment that requires [her] to have access to a bathroom . . . .” Minchew, 2019 WL 772042, at *3. However, the ALJ fails to “make specific findings concerning the frequency and duration of [Plaintiff's] bathroom usage.” Id. While the ALJ does include accommodations in the RFC that provide Plaintiff with access to a bathroom, the ALJ does not explain how Plaintiff's frequent trips to the bathroom would impact her ability to stay on task for at least ninety-five percent of the workday. That is, the ALJ does not explain how, at best, six trips to the bathroom would or would not impact Plaintiff's ability to find competitive unskilled employment.
At the hearing before the ALJ, the VE agreed “that for a person to engage in unskilled competitive work, a person had to be able to perform at no less than 95 percent productivity during an eight-hour workday, not including the typical, morning, lunch, and afternoon breaks.” Tr. 62. In other words, a person cannot be off task for more than five percent, or twenty-four minutes, of the workday, or they are precluded from unskilled competitive work.
Defendant argues that regardless of whether any specific findings were made by the ALJ, the amount of bathroom breaks that Plaintiff may take are “well-within an allowable limit discussed by the Fourth Circuit . . . .” Def.'s Mot. [DE-30] at 9. That is, that the number of bathroom breaks is not so high as to preclude Plaintiff from working, and further, that the accommodations set forth in the RFC adequately account for Plaintiff's bathroom breaks. Id. In support of this argument, Defendant cites to two Fourth Circuit cases in which the court found claimants who required frequent bathroom use not to be disabled. Id. (citing Bergen v. Bowen, No. 88-1343, 1989 WL 90515 (4th Cir. Aug. 3, 1989); Rogers v. Barnhart, 216 Fed.Appx. 345, 348 (4th Cir. 2007)). The court finds both cases to be distinguishable.
Defendant argues that the record does not support more than six to eight bathroom breaks a day. Def.'s Mem. [DE-30] at 9. However, as previously discussed, Plaintiff requires six to eight bathroom breaks at a minimum. Medical notes referenced in Plaintiff's RFC state that, at times, she required up to ten to twelve bathroom breaks a day, or even three to four bathroom breaks an hour. Tr. 15-16.
First, in Bergen, the Fourth Circuit affirmed an ALJ's conclusion that the plaintiff was not disabled, even though he required approximately ten bathroom trips each workday. Bergen, 1989 WL 90515, at *2-3. The VE testified that despite these ten trips, the plaintiff would still be capable of substantial gainful activity. Id. at *3. Defendant argues that Bergen is factually similar to the case here, and thus, Plaintiff is similarly not precluded from working and not disabled. However, in Bergen, the VE “testified that a person with ‘down time' (loss of productivity) of more than 20 percent of the work day probably could do no ‘substantial gainful activity.'” Id. at *2. Here, at the hearing, the VE agreed with the ALJ that being off task for any more than five percent of the day would prohibit a claimant from competitive employment. Tr. 62. Under this standard, the plaintiff in Bergen would be unable to maintain employment and deemed disabled.
Similarly, in Rogers, the Fourth Circuit affirmed an ALJ's conclusion that the plaintiff was not disabled, even though he required bathroom breaks approximately every thirty minutes. See Rogers, 216 Fed.Appx. at 345. However, in Rogers, the plaintiff had past relevant work experience as a self-employed machine operator. Id. Based on this experience, the VE specifically noted that “self-employment offers more flexibility than working for another. Because of this flexibility, Rogers could leave his post at a machine or at a desk to go to the bathroom. Thus, Rogers can perform in a self-employment setting but he cannot perform while working for another.” Id. at 348. Indeed, the VE testified that the plaintiff could not have performed his past relevant work if he was employed by another, because “no employer would hire a machinist who would need to leave his post to go to the bathroom every half hour.” Id. at 347. It is also noted that “the [ALJ] found that Rogers is capable of performing his past relevant work as a self-employed machine shop operator as he performed it due to the inherent flexibility of self-employment.” Id. at 349 (emphasis added). Finally, the court in Rogers distinguishes the case from other cases involving disability determinations at step five of the evaluation process. Id. Here, Plaintiff has no past relevant work enabling her the flexibility to use the bathroom as she pleases. Further, she was deemed not disabled at step five, as opposed to step four, of the sequential evaluation process. The court finds Rogers to be distinguishable and unpersuasive.
In Rogers, the ALJ found that the claimant was not disabled under step four of the sequential evaluation process because he could perform past relevant work. Rogers, 216 Fed.Appx. at 349. Step five of the sequential evaluation process involves a finding that the claimant cannot perform any work.
Without specific findings concerning the frequency and duration of Plaintiff's bathroom usage the court cannot determine whether the ALJ's findings are supported by substantial evidence. Accordingly, the undersigned recommends this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should make specific findings concerning the frequency and duration of Plaintiff's bathroom use.
B. Failure to hold a hearing by the ALJ who issued the decision
Plaintiff next contends that the case should be remanded for rehearing because the ALJ who issued the decision did not hold a hearing with Plaintiff despite the significant involvement of pain and discomfort in this case. Pl.'s Mem. [DE-26] at 1.
Plaintiff specifically argues that remand is warranted “so that the same ALJ who has the opportunity to observe the demeanor of [Plaintiff] is the one to make an assessment regarding the veracity of her statements and how well supported her statements are in light of the medical record.” Id. at 14. Plaintiff cites to the Hearings, Appeals and Litigation Law Manual (“HALLEX”) § I-2-8-40 in support of her argument. Id. at 12-13.
“HALLEX conveys guiding principles, procedural guidance, and information to hearing level and Appeals Council staff. Soc. Sec. Admin., Office of Hearings and Appeals, Hearing, Appeals and Litigation Law Manual § I-1-0-1 (Mar. 3, 2011). Section I-2-8-40 of HALLEX states that:
This is the version of HALLEX § I-2-8-40 cited by both parties in their briefs, and the version that Plaintiff argues was effective on March 20, 2019, the date of the ALJ's decision. Pl.'s Mem. [DE-26] at 13; Def.'s Mem. [DE-30] at 10. However, HALLEX § I-2-8-40 was amended prior to the ALJ's decision, on March 10, 2016, and then again following the ALJ's decision, on April 9, 2019. HALLEX Transmittal No. I-2-167 (Mar. 10, 2016); HALLEX Transmittal No. I-2-224 (Apr. 9, 2019). While the amended versions no longer contain the exact language cited, the substance of the section (along with now cross-referenced section § I-2-1-55(F)) is substantially the same.
When an Administrative Law Judge (ALJ) who conducted a hearing in a case is not available to issue the decision . . ., the Hearing Office Chief ALJ (HOCALJ) will reassign the case to another ALJ. The ALJ to whom the case is reassigned will review the record and determine whether or not another hearing is required to issue a decision. The ALJ's review will include all of the evidence of record, including the audio recording of the hearing.
If the ALJ is prepared to issue a fully favorable decision, another hearing would not be necessary.
If the ALJ is prepared to issue a less than fully favorable decision, another hearing may be necessary. For example, another hearing would be necessary if relevant vocational expert opinion was not obtained at the hearing, or the claimant alleges disabling pain, and the ALJ believes the claimant's credibility and demeanor could be a significant factor in deciding the case.HALLEX § I-2-8-40 (May 16, 2008).
Although the Fourth Circuit has not spoken on the issue, district courts in the circuit have consistently held that “[a]s an internal guidance tool, HALLEX lacks the force of law.” Melvin v. Astrue, 602 F.Supp.2d 694, 704 (E.D. N.C. 2009) (citing Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000); Bordes v. Comm'r Soc. Sec., 235 Fed.Appx. 853, 859 (3d Cir. 2007)); see also Revere v. Berryhill, No. 3:17-cv-774 (DJN), 2019 WL 99303, at *5 (E.D. Va. Jan. 3, 2019) (citing cases); Young v. Colvin, No. 1:13-cv-00075-MR-DLH, 2014 WL 1874984, at *3 (W.D. N.C. May 9, 2014). Indeed, Plaintiff herself acknowledges this point. Pl.'s Mem. [DE-26] at 13 (stating that “[a]lthough the HALLEX does not bind SSA the way case law and regulations do . . .”).
Plaintiff cites to a district court case, Young v. Colvin, No. 1:13-cv-00075-MR, 2014 WL 1874984 (W.D. N.C. May 9, 2014), in support of her proposition that remand for a new hearing here is still required. In Young, the district court concluded that remand for a re-hearing was appropriate not because it was required by law, but because it was “in the interests of justice and fairness . . . .” Id. at *4. Here, because remand is recommended based upon the first issue raised by Plaintiff, the court need not determine whether remand for the interest of justice and fairness is warranted. On remand, however, the ALJ should assess whether a re-hearing, at which the ALJ can personally observe Plaintiff, may be helpful in assessing Plaintiff's pain and other symptoms.
VII. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-25] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-29] 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 September 7, 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 September 14, 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).