Opinion
4:22-CV-126-D
01-17-2024
CATHY M. CLEVE, Plaintiff/Claimant, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jon, Jr. United States Magistrate Judge
This matter is before the court on the parties' briefs filed pursuant to the Supplemental Rules for Social Security Actions. [DE-11, -14], Claimant Cathy Cleve (“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”). Claimant filed a reply in support of her opening brief, [DE-15], the time for further responsive briefing has expired, and the matter is ripe for adjudication. Having carefully reviewed the administrative record and the briefs submitted by the parties, it is recommended that the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on August 12, 2019, alleging disability beginning April 6, 2018. (R. 16, 202-03). The claim was denied initially and upon reconsideration. (R. 98-125). A telephonic hearing before an Administrative Law Judge (“ALJ”) was held on March 29, 2021, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 34-67). On February 22,2022, the ALJ issued a decision denying Claimant's request for benefits. (R. 13-33). On August 18, 2022, the Appeals Council denied Claimant's request for review. (R. 1-7). 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 Craigv. 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 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 “listgs” 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). 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)(3).
In this case, Claimant alleges the ALJ erred by (1) failing to adequately evaluate and explain the decision regarding the opinion evidence, and (2) mischaracterizing the VE's testimony regarding Claimant's past relevant work. Pl.'s Br. [DE-11] at 9-18.
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 did not engage in substantial gainful activity from the alleged onset date of April 6, 2018. (R. 18). Next, the ALJ determined Claimant had the severe impairments of severe right knee degenerative joint disease status post right total knee replacement in 2016, hypertension, obesity, right shoulder labral tear status post arthroscopic surgery, and osteoarthritis in the lumbosacral spine, as well as the non-severe impairments of restless leg syndrome, arthritis with exostoses of the midtarsal joint bilaterally, and anxiety. (R. 18-19). The ALJ also found Claimant's hip pain to be a non-medically determinable impairment. (R. 20). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in no limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 19-20). At step three, the ALJ concluded Claimant's 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. 21).
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).
Function by function, the claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. The claimant can occasionally push and pull or utilize foot controls with the right lower extremity due to her right total knee replacement. The claimant can occasionally overhead reach with the right upper extremity due to right shoulder surgery. The claimant must avoid concentrated exposure to extreme
heat, and workplace hazards such as unprotected heights and open flames, as defined in the Selected Characteristics of Occupations.(R. 22-27). In making this assessment, the ALJ found Claimant's statements regarding her condition were not entirely consistent with the medical evidence and other evidence in the record. (R. 23). At step four, the ALJ concluded Claimant could perform her past relevant work as an office manager and purchasing agent. (R. 28). Alternatively, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined there are other jobs that exist in significant numbers in the national economy that Claimant can perform. (R. 28-29).
V. DISCUSSION
A. The RFC and Opinion Evidence
Claimant contends that in formulating Claimant's RFC the ALJ failed to properly evaluate and sufficiently explain the rejection of two opinions, one from Dr. Degraw, Claimant's family medicine specialist, and the other from Dr. Lupton, the state agency's consultative examiner. Pl.'s Br. [DE-11] at 9-16. The Commissioner contends the ALJ properly evaluated the opinions, and the decision is supported by substantial evidence. Def.'s Br. [DE-14] at 5-12.
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); see also SSR 96-8p, 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); 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”).
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). The applicable regulation provides that the ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical fmding(s), including those from [Claimant's] medical sources.” 20 C.F.R. § 404.1520c(a). Instead, the ALJ must consider the persuasiveness of medical opinions using five factors: (1) supportability, meaning that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s)... the more persuasive the medical opinions or prior administrative medical finding(s) will be”; (2) consistency, meaning that the more consistent an opinion is with other evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's relationship with the claimant, which considers the length of the treating relationship, frequency of examinations, purpose of the treating relationship, extent of the treatment relationship, and whether the medical source examined the claimant; (4) specialization, meaning that “a medical source who has received advanced education and training to become a specialist may be more persuasive”; and (5) “other factors that tend to support or contradict a medical opinion.” Id. § 404.1520c(c)(1)-(5). The most important factors are supportability and consistency. Id. § 404.1520c(a).
1. Dr. Degraw's Opinion
Claimant's treating physician, Dr. Degraw, completed a treating source statement dated December 23, 2020. (R. 727-31). Dr. Degraw indicated he had treated Claimant for 25 years, twice yearly and as needed for acute problems, for the following conditions: anemia, anxiety, obesity, degenerative joint disease, edema, high blood pressure, exostosis, history of COVID-19, history of proctitis, high cholesterol, internal hemorrhoids, joint pain, metatarsalgia, osteoarthritis of the feet, restless leg syndrome, and vitamin D insufficiency. (R. 727). Dr. Degraw opined that due to Claimant's symptoms she would be off task for 25% of the workday; could maintain attention and concentration for about two hours before requiring a break; would miss four days of work a month; could frequently lift less than 10 pounds, occasionally lift 10 pounds, and rarely lift 20 pounds; could occasionally carry ten pounds or less and rarely carry twenty pounds; could sit or stand/walk, with a sit/stand option, no more than four hours in an eight hour workday; requires an option to recline for 30 minutes every three hours throughout the workday; requires legs to be elevated when sitting; would not require an assistive device for ambulation; could frequently reach with the left arm and occasionally reach with the right arm; could handle, finger, feel, and push/pull occasionally with the left arm/hand and occasionally with the right arm/hand (with the exception of pushing/pulling, which was limited to rarely with the right arm/hand); could occasionally use foot controls; could rarely climb stairs; could never climb ladders, kneel, crouch, or crawl; could occasionally balance and stoop; could frequently rotate the head and neck; could never work around unprotected heights or extreme cold; could rarely work around pulmonary irritants, extreme heat, or vibrations; could occasionally work around moving mechanical parts and humidity or wetness; and could frequently operate a vehicle. (R. 727-31).
Aside from Dr. Degraw's opinion regarding working around unprotected heights, the ALJ found the opinion unpersuasive, explaining as follows:
The evidence in record illustrates that the claimant has reported her knee, shoulder and back impairments cause pain and discomfort that require rest breaks; however, the results of routine musculoskeletal and neurological examinations have consistently noted she [has] no objective signs of weakness in her upper or lower extremities, as well as sensory or motor deficits, range of motion deficits or problems ambulating and transitioning positions (Exhibits IF, page 98,2F, page 13, 17, 21, 28, 31, 34, and 37, 6F, page 8, 9F, pages 6, and 10, and 11F, page 8). Moreover, Dr. Lupton during his examination noted no gross joint swelling or deformities, full range of motion in the knee, negative straight leg raise testing, and 5/5 motor strength bilaterally (Exhibit 3F, page 4). Consistent with these examination findings, the claimant has endorsed being able to care for her personal needs, perform some household chores, drive short distances and engage some yardwork. To that end, there is no evidence to substantiate Dr. Degraw's opinion the claimant is limited to sedentary exertional work, that she cannot stand for long, that she needs an assistive device, requires manipulative limitations for her hands, requires postural limitations, or environmental limitations based on exposure to cold/heat, airborne irritants, and vibrations. To that end, this portion of his opinion is deemed not persuasive as it is inconsistent with the evidence in the record. However, Dr. Degraw's opinion the claimant cannot work around unprotected heights is persuasive as it is consistent with evidence of musculoskeletal impairments that are associated with discomfort and pain at times, and working around hazards can cause increased exposure to injury. Lastly, the undersigned notes Dr. Degraw failed to provide sufficient explanation in a narrative form or clinical citations to explain his limitations/restrictions, which makes his opinion vague and not rooted in objective evidence.(R. 26). Claimant contends that the ALJ erred in three ways: finding there was no evidence to substantiate Dr. Degraw's opinion that Claimant was limited to sedentary work, finding that Dr. Degraw's opinion was inconsistent with the record was conclusory, and failing to adequately address the supportability and consistency factors. Pl.'s Br. [DE-11] at 12.
In considering supportability, the regulation provides that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . ., the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1545(c)(1). As for consistency, “[t]he more consistent a medical opinion(s)... is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s)... will be.” Id. § 404.1545(c)(2).
First, in limiting Claimant to sitting or standing/walking for no more than four hours a day, Dr. Degraw explained that due to Claimant's knee replacement she cannot stand for long periods especially in one spot, the arthritis and bone spurs in her back make being in one position for too long painful, she needed to move around due to her restless leg syndrome, the arthritis and bone spurs in her feet make standing painful, and sitting with her legs down makes her feet and ankles swell. (R. 728). However, as the ALJ discussed in considering Claimant's treatment history, Claimant's 2016 right knee replacement was successful and she regained her ability to ambulate effectively. (R. 23). Furthermore, Dr. Degraw's treatment notes from March and September 2019, after the April 2018 alleged onset date, indicate Claimant remained “pleased” with her total knee replacement. (R. 529, 533). Claimant did complain to Dr. Degraw of pain in her knee and other joints in March and September 2020, (R. 591, 708), but her neurological and musculoskeletal examinations were routinely normal, she was not prescribed any pain medications, she was encouraged to continue exercising and to lose weight, she reported taking long walks (which caused a bit of ankle swelling), and she did not seek any further treatment related to her knee. (R. 24, 591-94, 708-11, 737-40). An x-ray of Claimant's knee on January 9, 2020, showed no acute findings. (R. 24, 585). Claimant also consistently reported that her restless leg syndrome was well-managed by her medication. (R. 537-40, 533-36, 529-32, 591-94, 737-40).
As for Claimant's back pain, the ALJ acknowledged that Claimant sought treatment with Dr. Barton, an orthopedic specialist, in January 2020, but also noted that aside from some general tenderness the examination was normal; Dr. Barton recommended conservative treatment, including back exercises and a regular course of ibuprofen; and he directed her to follow up if there was no improvement in a few weeks but there are no records indicating that Claimant did so. (R. 23, 573-77). With respect to Claimant's foot pain, Claimant received injections and reported they provided relief, and she was encouraged to walk by her podiatrist. (R. 737-40, 744-47).
Looking at the AL J's decision as a whole, the court can trace the AL J's reasoning in finding Dr. Degraw's opinion unpersuasive as it was not supported by Dr. Degraw's treatment notes and other evidence in the record. See Plemmons v. Kijakazi, No. 3:21-CV-680-MOC, 2022 WL 3974994, at *5 (W.D. N.C. Aug. 31, 2022) (considering the ALJ's discussion of the objective medical evidence in determining whether the ALJ properly evaluated the opinion evidence) (citing Bramblettv. Colvin, 2:14-CV-00011-RLV, 2016 WL 1249297, at *5-6 (W.D. N.C. Mar. 30, 2016) (finding that an ALJ's prior discussion of the medical evidence provides valuable insight regarding how he evaluated the medical opinions); McCartney v. Apfel, 28 Fed.Appx. 277, 279 (4th Cir. 2002) (agreeing with the district court that “the ALJ need only review medical evidence once in [the] decision.”)). The ALJ sufficiently explained her decision regarding Dr. Degraw's opinion with respect to the supportability and consistency factors and cited to medical records and Claimant's reported daily activities that were inconsistent with the limitations suggested by Dr. Degraw. (R. 26); see Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (“An 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.”) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). Accordingly, the ALJ did not err in evaluating Dr. Degraw's opinion.
2. Dr. Lupton's Opinion
Dr. Lupton, a state agency consultant, examined Claimant on January 9, 2020. (R. 57072). Dr. Lupton noted Claimant's total right knee replacement and that she reported her right knee was still painful and would occasionally swell after walking; she reported a history of left hip pain for about a year, that x-rays reportedly showed arthritis in her spine, and that pain would occasionally radiate to her left knee; and she was prescribed anti-inflammatory medication and home exercise. (R. 570). Examination showed no gross joint swellings or deformities, severe crepitus with flexion of the right knee but full range of motion of both knees, normal alignment of the thoracolumbar spine with no local tenderness, negative straight leg raising bilaterally, 5/5 motor strength bilaterally, and intact sensation to light touch. (R. 572). Dr. Lupton opined based on his examination that Claimant had a mild impairment due to her osteoarthritis of the right knee and lumbosacral spine, she would have no limitations with sitting, no limitations with walking if she takes her time, and a limitation to standing if over 30 minutes. Id.
The ALJ found Dr. Lupton's opinion to be not persuasive, explaining as follows:
Dr. Lupton assessed the claimant's physical health in January 2020, and opined the claimant had a mild impairment due to osteoarthritis in the right knee and lumbosacral spine (Exhibit 3F, page 4). Concerning functional limitations, he opined she would have no limitation in sitting, but had limitations in standing and if over 30 minutes (Exhibit 3F, page 4). Dr. Lupton based these limitations on his examination of the claimant that highlighted she had full range of motion in both knees, but his limitations in standing only up to 30 minutes do not appear to be based on musculoskeletal or neurological findings as the remainder of the examination was unremarkable, but are based on the claimant's subjective complaints (Exhibit 3F, pages 3 to 4).
The evidence in the record after this 1examination illustrates that although the claimant has been able to manage her knee and shoulder impairments conservatively, these impairments still cause some pain and discomfort that call for exertional limitations (Exhibits 3F, page 2, and 4F, pages 1, and 4). Specifically, lifting in excess of the light exertional level can exacerbate these impairments. Additionally, the claimant requires manipulative limitations that limit her reaching overhead as well as due to discomfort, and to ensure she does not suffer an exacerbation injury. The undersigned also notes that the claimant requires restrictions from working around hazards and open flames due to her musculoskeletal impairments that can put her at greater danger for injury. However, the record does not support limiting the claimant to only standing 30 minutes, as there are no musculoskeletal or neurological abnormalities noted during routine examinations in terms of weakness, loss of range of motion or sensation that would affect her ability to stand for longer than 30 minutes (Exhibits IF, page 98,2F, page 13, 17, 21, 28, 31, 34, and 37, 6F, page 8, 9F, pages 6, and 10, and 11F, page 8). Based on the evidence, the undersigned finds Dr. Lupton's opinion is not persuasive,
as it is not only inconsistent with the evidence in the record, as it is based on a onetime examination, as well as does not discuss the claimant's limitations in a function-by function format required by the Agency to assess the claimant's maximum capacity.(R. 25). Claimant contends the ALJ should have adopted a limitation to only 30 minutes of standing, that the ALJ failed to adequately address the factors of supportability and consistency when evaluating the standing limitation in Dr. Lupton's opinion, and that Dr. Lupton's opinion was internally well-supported and consistent with the treatment records of Claimant's other doctors. Pl.'s Br. [DE-11] at 13.
With regard to the supportability factor, the ALJ explained that Dr. Lupton indicated the suggested limitations were based on his examination of Claimant and that the examination findings were unremarkable. (R. 25). While Claimant points to Dr. Lupton's finding of severe crepitus with flexion of the right knee to support the standing limitation, as the ALJ noted, Dr. Lupton also highlighted that there was full range of motion and no significant swelling or tenderness. (R. 25, 572). Thus, the ALJ sufficiently considered the supportability factor. As for consistency with evidence from other sources, the ALJ explained that the record did not support limiting Claimant to only 30 minutes of standing because examination findings throughout the record demonstrated no musculoskeletal or neurological abnormalities in terms of weakness, range of motion, or sensation. (R. 25, 531, 535, 539, 546, 549, 552, 555, 593, 710, 714, 739). The ALJ also noted that Claimant had managed her knee impairment conservatively. (R. 25); see Dunn, 607 Fed.Appx. at 275 (“[I]f all that the claimant needs is conservative treatment, it is reasonable for an ALJ to find that the alleged disability is not as bad as the claimant says that it is.”); Richardson v. Colvin, No. 4:14-CV-125-FL, 2015 WL 5725546, at *6 (E.D. N.C. Aug. 11, 2015) (concluding that conservative treatment lends little support to claims of debilitating symptoms), adopted by 2015 WL 5737613 (E.D. N.C. Sept. 30, 2015). The ALJ evaluated Dr. Lupton's opinion in accordance with the governing regulation, and the court can trace the ALJ's reasoning in finding the standing limitation not persuasive.
B. The VE's Testimony
Claimant contends that the ALJ mischaracterized the VE's testimony regarding her past work as an office manager as sedentary as generally performed with transferable skills to other sedentary jobs. Pl's Br. [DE-11] at 16-18. However, as Claimant concedes, the error is only prejudicial if the ALJ had adopted the sedentary work restrictions assessed by Dr. Degraw or Dr. Lupton. Id. at 18. The ALJ determined Claimant could perform a restricted range of light work, and, consistent with the VE's testimony, that Claimant's past work as an office manager and purchasing agent were performed at the light exertion level. (R. 28, 60-61, 63). The ALJ also identified other jobs at the light exertion level that Claimant could perform. (R. 29, 64). Accordingly, because the ALJ did not adopt the sedentary work restrictions suggested by Drs. Degraw and Lupton, any error at step 5 regarding whether Claimant had transferable skills to sedentary work is harmless.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the final decision of the Commissioner be AFFIRMED.
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 January 31, 2024 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).