Opinion
No. 5:20-CV-19-D
11-19-2020
MONICA T. HANNAH, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-22, -24] pursuant to Fed. R. Civ. P. 12(c). Claimant Monica T. Hannah ("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. Claimant responded to Defendant's motion, and the time for filing a reply has expired. [DE-26]. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability, DIB, and SSI on May 8, 2017, alleging disability beginning April 10, 2017. (R. 12, 231-42). Both claims were denied initially and upon reconsideration. (R. 12, 71-136). A hearing before the Administrative Law Judge ("ALJ") was held on May 17, 2019, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 12, 29-70). On August 7, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 9-28). On November 14, 2019, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in: (1) discussing Listing 1.04A; (2) failing to perform a proper function-by-function analysis of Claimant's ability to sit, stand, and walk and her need to lie down during the day; and (3) evaluating the medical opinion of Dr. Edward Forero. Pl.'s Mem. [DE-23] at 7-18.
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 had not engaged in substantial gainful employment since April 10, 2017, the alleged onset date. (R. 14). Next, the ALJ determined Claimant had the following severe impairments: degenerative disc disease and scoliosis with very remote thoracic fusion with hardware. Id. The ALJ also found Claimant had a nonsevere impairment of depression. (R. 15). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 17). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairment has resulted in no limitations in understanding, remembering, or applying information and interacting with others and mild limitations in concentrating, persisting, or maintaining pace and adapting or managing oneself. (R. 15-17).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform sedentary work except that she "can never climb ladders, ropes or scaffolds; can occasionally perform all other postural changes; can occasionally push, pull, and operate foot controls with the bilateral lower extremities; [and] must avoid all exposure to hazards." (R. 18-21) (internal footnote omitted). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence. (R. 18). At step four, the ALJ concluded Claimant had the RFC to perform the requirements of her past relevant work as a receptionist and as a customer service clerk. (R. 21-22).
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. §§ 404.1567(a), 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). "Occasionally" generally totals no more than about 2 hours of an 8-hour workday. "Sitting" generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
V. DISCUSSION
A. The ALJ erred in discussing Listing 1.04A.
Claimant contends the ALJ failed to properly evaluate Listing 1.04A. Pl.'s Mem. [DE-23] at 7-12. The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. §§ 404.1525(a), 416.925(a). Therefore, if a claimant's impairments meet or medically equal a listing, that fact alone establishes that the claimant is disabled. Id. §§ 404.1520(d), 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); S.S.R. 83-19, 1983 WL 31248, at *2 (Jan. 1, 1983) (rescinded in part). The burden of demonstrating that an impairment meets a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
When "there is at least conflicting evidence in the record" as to whether a claimant satisfies a listing, the ALJ must explain her determination that the claimant's impairment does not meet or exceed the listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). The ALJ cannot "summarily conclude" that a listing is not satisfied because "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Id. For example, in Radford the record showed "limited motion of the spine on at least four occasions, positive straight leg raises at least five times, and sensory reflex loss on at least three occasions," but it also showed "no weakness, sensory loss, or limitation of motion during some examinations." Id. at 296. The court held that there was conflicting evidence requiring detailed explanation from the ALJ. Id.
To satisfy Listing 1.04A, a claimant must show a disorder of the spine "(e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equine) or the spinal cord" with one of the following three characteristics:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);20 C.F.R. § 404, subpt. P, app. 1, § 1.04.
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
The ALJ discussed Listing 1.04A as follows:
Listing 1.04 requires a spinal disorder resulting in compromise of a nerve root (including the cauda equina) or the spinal cord with either specific evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis. The undersigned has considered Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013) (Acquiescence Ruling 15-1(4)) which ruled, regarding Listing 1.04(A), that the evidence must show that all the medical criteria in paragraph A are present within a continuous 12-month period, but not necessarily in the same or consecutive examinations. MRIs of the spine showed mild[] left foraminal narrowing at L5-S1 but no overt evidence of nerve root compression, arachnoiditis, or stenosis (Ex. 4F/14). Keith Hull, MD, interpreted electromyography (EMG) and nerve conduction study (NCS) to show 'mildly' abnormal nerve conduction with loss of
right H reflex indicative of right S1 radiculopathy, lower lumbar plexopathy, or sciatic neuropathy (Ex. 1F/13). Sergio Lattes, MD, found this to be relatively normal with decreased H reflex on the right causing occasional numbness when driving long periods. Treating and examining physicians generally noted some antalgic but generally normal gait, heel walk, toe walk, tandem walk, and ambulation with no need for [an] assistive device (Ex. 2F/5; 4F/10; 5F/6; 10F/5; 11F/5; 12F/14; 13F/9; 15F/4; 19F/191). The evidence does not satisfy the listing.(R. 17).
The ALJ's conclusion that the evidence does not satisfy Listing 1104A is not supported by substantial evidence, and the lack of further explanation by the ALJ frustrates meaningful review. Claimant's November 17, 2016 MRI showed degenerative disc disease and facet joint degenerative joint disease. (R. 376). The ALJ found that Claimant's MRI showed "no overt evidence of nerve root compression." (R. 17). However, the MRI showed a "small posterior disc protrusion at L5-S1 with small central/right paracentral annular tear and minimal caudal extension of disc material at this level." (R. 376). On December 15, 2016, Dr. Lattes noted that "There is small disc rupture at L5-S1 and there is no significant displacement. The nerve root does look edematous." (R. 430). A June 16, 2017 MRI showed degenerative disc disease with a "small posterior disc protrusion at L5-S1 with annular tear." (R. 454). Accordingly, there is at least conflicting evidence that Claimant suffers from a disorder of the spine resulting in compromise of a nerve root.
Additionally, the record contains numerous references to pain, tenderness, limited range of motion, motor loss, reflex loss, diminished sensation, and positive straight leg raises. (R. 370, 374, 384-85, 429, 442, 445, 561, 563-64, 578, 681, 684, 698, 926-27). See 20 C.F.R. § 404, subpt. P, app. 1, § 1.04A (requiring "Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)"). The ALJ's conclusory statement that the evidence does not satisfy Listing 1.04A does not lend itself to meaningful review, and it requires further explanation on remand. See Radford, 734 F.3d at 295 (holding that the ALJ cannot "summarily conclude" that a listing is not satisfied when there is at least conflicting evidence in the record).
B. The ALJ did not err in failing to perform a function-by-function analysis.
Claimant contends the ALJ erred by failing to perform a function-by-function evaluation of Claimant's ability to sit, stand, and walk and her need to lie down during the day. Pl.'s Mem. [DE-23] at 12-17. "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. (quoting S.S.R. 96-8p). "Only after such a function-by-function analysis may an ALJ express RFC 'in terms of the exertional levels of work.'" Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). However, the Fourth Circuit has rejected "a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis." Mascio, 780 F.3d at 636. Rather, the court explained that "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review.
Here, even if the ALJ failed to perform a function-by-function analysis, her RFC discussion otherwise provides a sufficient basis for meaningful review. The ALJ summarized Claimant's treatment history since her spinal release surgery fourteen years before the alleged onset date. (R. 19). The ALJ noted that Claimant saw a neurologist for lower back pain and three other treatment providers for back and leg pain. Id. She had steroid injections and physical therapy, and she reported improvement with continued symptoms. Id. Claimant declined another back surgery and was able to care for her child. Id. The ALJ concluded that the "conservative treatment and observations of treating physicians do not support disabling symptoms." Id.
The ALJ next found that the "medical images and laboratory findings support some standing, walking[,] lifting, postural, and environmental limitations but not the degree alleged." Id. The ALJ discussed Claimant's October 2016 x-rays, November 2016 MRI, April 2017 EMG, June 2017 MRI, July 2017 ultrasound, September 2017 x-rays, and March 2018 x-rays. Id. The ALJ concluded, "The minimal L5-S1 finings and minimal EMG results justify some[] but not disabling standing, walking, and postural changes. The occasional numbness, controlled on Gabapentin, supports avoidance of hazards." Id.
The ALJ then discussed Claimant's clinical signs. She summarized Dr. Hull's observations of "positive straight-leg-raise with otherwise normal muscle bulk and tone, motor strength, gait, sensation, coordination, and reflexes"; Dr. Joshi's observations of "positive slump sit test on the right, reduced ankle reflexes on the right, positive straight-leg-raise on the right, [] 75% range of motion of the lumbar spine[,] . . . normal gait, station, heel walk, toe walk, tandem walk, muscle tone, spinal posture, paraspinal palpation, range of motion of the spine, and sensation"; Dr. Lattes and Dr. Boggess's report of "difficulty lifting the right leg, tenderness to palpation of the left leg and lower back, antalgic gait, decreased range of motion of the lumbar spine, [] brief heel and toe walk[,] . . . normal hip range of motion, motor strength, joint stability, sensation, neurovascular signs, Faber test, and straight-leg-raise tests"; Dr. Forero's report of "reduced range of motion of the lumbar spine, inability to test hip range due to pain, mild difficulty getting up from the chair, inability to perform heel or toe walk, antalgic posture, positive straight-leg-raise on the right, and reduced motor strength in the lower extremities," as well as "otherwise normal sensation, reflexes in the left leg, muscle strength, [] extremity function," the ability to "sit, stand, or walk" but not squat, and slow ambulation with an antalgic gait. (R. 19-20). The ALJ concluded that Claimant's "consistent lower back pain with reduced range of motion and occasional right leg issues supports sedentary limitations, limited use of the feet for controls, postural limitations, and the avoidance of hazards. However, the otherwise normal lower extremity function and ambulation do not support disabling limitations." (R. 20). The ALJ also weighed the third-party function report of Charlotte Weathers, Claimant's friend, and the medical opinions of Dr. Lattes, Dr. Linster, and Dr. Forero.
In summary, the ALJ provided "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)." Mascio, 780 F 3d at 636 (quoting S.S.R. 96-8p). The ALJ found that the evidence supported "some standing, walking [,] lifting, postural, and environmental limitations but not [to] the degree alleged," and she explained why she included "sedentary limitations, limited use of the feet for controls, postural limitations, and the avoidance of hazards" in the RFC, citing Claimant's testimony, treatment history, medical images and laboratory findings, clinical signs, third-party function report, and medical opinions. (R. 18-22). Accordingly, even if the ALJ did fail to conduct a function-by-function analysis, the RFC discussion provides a basis for meaningful review, and the ALJ did not err in that regard.
C. The ALJ erred in weighing the medical opinion of Dr. Forero.
Claimant contends the ALJ erred in finding Dr. Forero's opinion somewhat persuasive. Pl.'s Mem. [DE-23] at 17-18. Because Claimant protectively filed her application on May 8, 2017, 20 C.F.R. §§ 404.1520c, 416.920c govern how the ALJ considers the medical opinions in Claimant's case. That 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 finding(s), including those from [Claimant's] medical sources." 20 C.F.R. §§ 404.1520c(a), 416.920c(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), 416.920c(c)(1)-(5). The regulations require the ALJ to "articulate in [her] determination or decision how persuasive [she] find[s] all of the medical opinions and all of the prior administrative medical findings in [the] case record." Id. §§ 404.1520c(b), 416.920c(b). However, when a medical source provides multiple opinions, the ALJ may use a single analysis to evaluate all the opinions from a single source, and the ALJ is "not required to articulate how [she] considered each medical opinion or prior administrative medical finding from one medical source individually." Id.
20 C.F.R. §§ 404.1520c, 416.920c are applicable to claims filed on or after March 27, 2017.
Dr. Forero performed a consultative examination of Claimant on April 10, 2018. (R. 561-64). He noted that she had a mild difficulty getting up from her chair and on and off the exam table, she was "unable to heel toe random walk without difficulty," and her posture was antalgic. (R. 563). Dr. Forero wrote: "Could sit, stand, cannot squat, and ambulates slowly with antalgic gait. Unsteady gait, abnormal station, muscle strength is 3/5 lower extremities, could raise arms overhead, pinch, grasp, and manipulate objects with the hands." (R. 564). He diagnosed Claimant with scoliosis with a fair prognosis, degenerative disc disease of L-S spine with radiculopathy with a guarded prognosis, and circumstantial depression. Id. Dr. Forero concluded:
Claimant does not need assistive device for ambulation. The claimant is unable to walk a block at a reasonable pace on a rough/uneven surface. The claimant is unable to climb a few steps at a reasonable pace with the use of a single handrail. The claimant does not have full use of the other upper extremity for carrying objects. The claimant's ability to handle objects, hear and speak is not impaired. The claimant's ability to sit, stand, move about, lift, carry, travel and stamina is moderately impaired.Id.
The ALJ discussed Dr. Forero's opinion as follows:
Dr. Forero supported [his] opinion with a full physical exam but did not express many limitations in functionally relevant terms, and did not address all functions. The mild findings on images of the cervical find and normal upper extremity function does not support disabling lifting limitations. The 'moderate' limitations in sitting, standing, and lifting are supported by the tests and exams and generally accommodated by the residual functional capacity. The undersigned found sufficient evidence for greater postural and lower extremity use limitations. The
undersigned found this opinion somewhat persuasive.(R. 21). Claimant raises issue with the ALJ's conclusion that Dr. Forero did not express many limitations in functionally relevant terms and that the moderate limitation in sitting was generally accommodated by the RFC. Pl.'s Mem. [DE-23] at 17-18.
First, it does appear that Dr. Forero expressed his opinion in vocationally relevant terms. A vocationally relevant term "provides functional limitations arising from [the claimant's] impairments." Gillis v. Colvin, No. 1:14CV426, 2015 WL 4644777, at *6 (M.D.N.C. Aug. 4, 2015). Dr. Forero assessed Claimant's ability to walk, climb, carry and handle objects, hear, speak, sit, stand, move about, lift, and travel. (R. 564). It is not clear how Dr. Forero "did not express many limitations in functionally relevant terms." (R. 21). See Jones v. Saul, No. 5:18-CV-177-BO, 2019 WL 2884279, at *2 (E.D.N.C. July 3, 2019) (finding that an ALJ erred in concluding that an opinion was not expressed in vocationally relevant terms because "Dr. Coplin's opinions are in regard to plaintiff's ability to sit, stand, lift and carry, and push and pull, which are directly relevant to the inquiry into whether a claimant can perform substantial gainful activity."). Accordingly, the court cannot trace the ALJ's reasoning with respect to her first reason for discounting the opinion.
Next, Dr. Forero's limitations do not appear to be generally accommodated by the RFC. Dr. Forero found that Claimant's ability to sit was moderately impaired, and he noted that she reported that she cannot sit or stand for long periods of time and that her pain increases by sitting or standing for too long. (R. 563-64). However, the ALJ did not include a limitation for sitting in the RFC, and a full range of sedentary work involves sitting for six hours in an eight-hour workday. 20 C.F.R. §§ 404.1567(a), 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3. Accordingly, it is not clear how Dr. Forero's limitations are generally accommodated by the RFC. On remand, the ALJ should more thoroughly explain the weight given to Dr. Forero's opinion.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-22] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-24] 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 December 3, 2020 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).
Submitted, this the 19 day of November, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge