Hanks v. Saul

Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

Plaintiff applied for Disability Insurance Benefits (DIB) on February 15, 2015, alleging disability beginning February 16, 2015, due to pancreatitis, Crohn's disease, diabetes, and her post neck surgery. (R.pp. 46, 51-52, 156-157, 202). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on October 6, 2017. (R.pp. 38-63). The ALJ thereafter denied Plaintiff's claim in a decision issued February 20, 2018. (R.pp. 21-33). The Appeals Council denied Plaintiff's request for review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-9).

Plaintiff originally alleged an onset date of October 2, 2014. (R.pp. 156-157, 176).

Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for entry of a decision fully favorable to her, or in the alternative, be remanded for further administrative proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence.

Scope of review

Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].

The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by 'substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

Discussion

Plaintiff, who was sixty (60) years old on her alleged disability onset date, has a high school education and past relevant work experience as a tax clerk. (R.pp. 32, 44, 50, 64). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.

After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of a pancreatitis, Crohn's disease, and status post cervical fusion surgery, she nevertheless retained the residual functional capacity (RFC) to perform medium work with limitations of lifting and carrying 50 pounds occasionally and 25 pounds frequently; sitting, standing, and walking each for up to 6 hours in an 8-hour workday; frequently climbing ladders, ropes, scaffolds, ramps, and stairs; frequently balancing, stooping, kneeling, crouching, and crawling; and frequently reaching overhead. Furthermore, Plaintiff must avoid concentrated exposure to fumes, odors, dust, gases, and environmental hazards, and must be afforded two additional bathroom breaks per day, expected to last up to five minutes each. (R.pp. 24, 26). At step four, the ALJ found that Plaintiff could perform her past relevant work with these limitations. (R.p. 32). The ALJ also obtained testimony from a VE, and in the alternative found at step five that Plaintiff could perform other jobs existing in significant numbers in the national economy with her limitations, and thus was not disabled during the period at issue. (R.pp. 32-33).

An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).

Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c).

Plaintiff asserts that in reaching this decision the ALJ erred by failing to properly evaluate Dr. Alanna R. Angel's opinion, and because the RFC omits limitations supported by the record and failed to include Plaintiff's intermittent limitations, which were work preclusive. However, after careful review and consideration of the evidence and arguments presented, the undersigned finds and concludes for the reasons set forth hereinbelow that there is substantial evidence to support the decision of the Commissioner, and that the decision should therefore be affirmed. Laws, 368 F.2d 640 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].

(Dr. Angel's Opinion)

Dr. Angel was a consultative, not treating, physician. Plaintiff saw Dr. Angel in July 2015 for a consultative disability examination. Plaintiff reported to Dr. Angel that "[o]ver the last year [her pancreatitis] has flared up approximately every 6 weeks. Has abdominal pain radiating to back, swelling of RUQ, nausea, occasional vomiting. Lasts about 1 week. Can typically treat herself outpatient with modified diet and pain meds (Norco). Also has Crohn's Disease, diagnosed about 8 years ago. Will take prednisone prn when her symptoms flare up, approx 3 times per year. C/O diarrhea daily, with every meal or drink. Present for years but worsening. Has about 5 BM's per day on average, about 10-12 times per day during flare-ups, about once a month." (R.p. 249). However, on examination Plaintiff's review of systems and general examination findings were all normal or unremarkable. (R.p. 250). Dr. Angel then later noted, based on Plaintiff's reporting, that she has chronic pancreatitis that causes diarrhea five (5)-twelve (12) times per day, and that she has exacerbation approximately every six (6) weeks lasting for one (1) week. She stated that Plaintiff's condition "[w]ill likely continue and worsen over time." She also opined that Crohn's Disease contributes to her GI symptoms listed under her chronic pancreatitis. (R.p. 250). Under "degenerative disc disease, cervical," Dr. Angel wrote "limits ability to perform repetitive tasks with upper extremities." (R.p. 250). She also wrote that Plaintiff's diabetes and depression were not limiting. (R.pp. 250-251).

Dr. Ingrid Isakov is Plaintiff's primary doctor. It does not appear from Dr. Angel's report that she reviewed any of Dr. Isakov's records.

The ALJ gave Dr. Angel's opinion mixed weight, and the undersigned can discern no reversible error in his treatment of this evidence. (R.pp. 30-31). The ALJ noted that Dr. Angel's own examination findings were essentially normal, findings supported by the other medical professionals in the record, and that the limitations noted by Dr. Angel were based on Plaintiff's own self-report, rather than on any medical evidence. (R.pp. 28, 31). The mere reciting of Plaintiff's complaints by her physician does not elevate Plaintiff's GI and upper extremity complaints to clinical evidence. Cf Craig v. Chater, 76 F.3d 589-590 (4th Cir. 1996) ["There is nothing objective about a doctor saying, without more, 'I observed my patient telling me she was in pain' "]. The ALJ found that "the imposition of a reaching limitation is based on the [Plaintiff's] self-reported symptoms, but is inconsistent with the medical evidence itself - both the physical examination findings and the lack of clinical findings . . . " (R.p. 31). The ALJ also found that the extent of Plaintiff's allegations regarding her GI issues was not supported by the medical evidence. See discussion, infra. To the extent any opinion by Dr. Angel is based on Plaintiff's own self-reports which may not be supported by any other medical provider, including her primary care physician, it was not error for the ALJ to have discounted such an opinion. Cf Mastro v. Apfel, 270 F.3d 171,178 (4th Cir. 2001) [ALJ may assign lesser weight to the opinion of a physician that was based largely upon a claimant's self-reported symptoms]; Johnson v. Barnhardt, 434 F.3d 650, 658 (4th Cir. 2005) [ALJ properly rejected physician's opinion that was based on the claimant's own subjective complaints]; see also discussion, infra.

Notably, in Mastro the ALJ discounted a treating physician's opinion. In this case, Dr. Angel only saw Plaintiff one time and was not her treating physician. --------

Instead, the ALJ quite properly looked at the entire record, including the objective medical findings of Plaintiff's treating physician and her lack of complaints to her treating physician regarding her GI symptoms, in reaching his determination that Plaintiff is not disabled. (R.pp. 27-28). See Mickles v. Shalala, 29 F.3d 918, 925-926 (4th Cir. 1994) [In assessing the credibility of the severity of reported subjective complaints, consideration must be given to the entire record, including the objective and subjective evidence]; see also Poling v. Halter, No. 00-40, 2001 WL 34630642, at * 7 (N.D.W. Va. Mar. 29, 2001) ["It is the duty of the ALJ, rather than the reviewing court, to assess the evidence of record and draw inferences therefrom"], citing Kasey v. Sullivan, 3 F.3d 75, 79 (4th Cir. 1993). Dr. Isakov's records from January 2015 reflect that Plaintiff had no complaints regarding her gastrointestinal system or neck pain affecting her arms. (R.pp. 268, 276). Plaintiff's gastrointestinal and musculoskeletal examinations were unremarkable, with no positive findings and normal strength (R.p. 271). Similar findings were noted by Dr. Isakov in a follow-up visit in July 2015. (R.pp. 276, 278-279). When Plaintiff returned to Dr. Isakov on December 10, 2015, she presented with "hypertension, hyperlipidemia, hypothryroidism, and diabetes. The patient states that over the last years The patient denies any additional symptoms." She later noted under "Gastrointestinal" by admits - [sic] "DIARREAH". (R.p. 281). Dr. Isakov's gastrointestinal examination was unremarkable, with her making no positive findings. Plaintiff's musculoskeletal examination was also unremarkable with respect to Plaintiff's arms; she exhibited normal strength and muscle tone with no abnormal movements. (R.p. 283).

The record also reflects that after her consultative disability examination in July 2015 with Dr. Angel, Plaintiff saw Dr. Louay Hanna in July 2015 for a follow-up examination for thrombocytopenia. Dr. Hanna noted that Plaintiff was doing okay, that her weight was stable, and she had no fatigue. He also noted "[a]ppetite good, denies heartburn and indigestion. No nausea. Bowel movement daily, denies constipation or loose stools", and listed Abdominal pain. Dr. Hanna opined that Plaintiff was well-developed and well-nourished. With regard to Plaintiff's abdomen, Dr. Hanna opined that it was "soft, nontender, and nondistended. Positive bowel sounds." (R.pp. 302-303). On November 30, 2015, Plaintiff had a follow-up examination with Dr. Hanna for thrombocytopenia. Dr. Hanna recorded that Plaintiff was feeling okay, had no bleeding or black stool, and was recovering from an upper respiratory infection. Dr. Hanna opined that Plaintiff's weight was stable, and she had no fatigue. He again noted that Plaintiff had "[a]ppetite good, denies heartburn and indigestion. No nausea. Bowel movement daily, denies constipation or loose stools", and listed Abdominal pain. Dr. Hanna opined that Plaintiff was well-developed and well-nourished. With regard to her abdomen, Dr. Hanna opined that it was "soft, nontender, and nondistended. Positive bowel sounds." (R.pp. 299-300).

The ALJ found it would be "expect[ed] that symptoms so severe as to leave the [Plaintiff] bedridden for a week at a time would be reported to physicians and discussed with them regularly, with more indication that additional treatment options were being considered." (R.p. 29). Further, in discounting the opinion of Dr. Angel, the ALJ also properly gave great weight to the assessment completed by the state agency physician Dr. Seham El-Ibiary, who reviewed Plaintiff's treatment records through July 2015, along with Dr. Angel's report, and opined regarding Plaintiff's functional abilities. (R.pp. 69-72). Dr. El-Ibiary concluded that the medical evidence failed to show that Plaintiff could not perform any type of work activity. (R.pp. 70-71). Rather, Dr. El-Ibiary opined that Plaintiff could perform a range of medium work with postural and environmental limitations. (R.pp. 70-72). The ALJ found that Dr. El-Ibiary's functional assessment was "consistent with the evidence, as again, physical examinations of the [Plaintiff] did not tent to show particular physical functional limitations or abdominal pain." (R.p. 29). Therefore, the ALJ gave great weight to the opinion of Dr. El-Ibiary. See Johnson, 434 F.3d at 657 [ALJ can give significant weight to opinion of medical expert who has thoroughly reviewed the record]. The decision to give Dr. El-Ibiary's opinion great weight, while discounting parts of Dr. Angel's opinion, is supported by the evidence. See Stanley v. Barnhart, 116 F. App'x 427, 429 (4th Cir. 2004)[disagreeing with argument that ALJ improperly gave more weight to RFC assessments of non-examining state agency physicians over those of examining physicians].

In sum, the decision does not reflect that the ALJ improperly considered and analyzed Dr. Angel's opinion evidence in conjunction with the record and evidence in this case as a whole. Cf Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002) ["[W]hen a . . . physician's opinions are inconsistent or contrary to the medical evidence as a whole, they are entitled to less weight" (citations omitted) ]; Bowen, 482 U.S. at 146, n. 5 [Plaintiff has the burden to show that he has a disabling impairment]; see also Guthrie v. Astrue, No. 10-858, 2011 WL 7583572, at * 3 (S.D.Ohio Nov. 15, 2011), adopted by, 2012 WL 9991555 (S.D.Ohio Mar. 22, 2012)[Even where substantial evidence may exist to support a contrary conclusion, "[s]o long as substantial evidence exists to support the Commissioner's decision ... this Court must affirm."]. It is not the role of this court to disturb the ALJ's determination as to the weight to be assigned to a medical source opinion "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam). Here, as discussed above, the ALJ provided good reasons for the weight he afforded to the opinion of Dr. Angel as well as the other opinion evidence, and there is no indication that the ALJ dredged up "specious inconsistencies" to discount Dr. Angel's opinion. Plaintiff simply disagrees with the ALJ's findings and asks this court to reweigh the evidence. However, that is not the province of this court. See Johnson, 434 F.3d at 653 [a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ].

The decision reflects that the ALJ throughly reviewed the evidence in reaching his findings and decision, and there is no basis shown for this Court to overturn his conclusions. Hays, 907 F.2d at 1456 [It is the responsibility of the ALJ to weigh the evidence and resolve conflicts in that evidence]; Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]. Therefore, this claim is without merit.

(RFC)

Plaintiff's "substantial evidence" argument is that the ALJ did not include limitations in her RFC as supported by the testimony of Dr. Angel, the Plaintiff, and Plaintiff's former employer. The Plaintiff also contends that the ALJ did not account for her intermittent limitations. These arguments are without merit.

In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacity to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. An RFC "assessment 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)." Id. at *7. Here, the ALJ properly evaluated Plaintiff's RFC by including in his decision a narrative discussion of the medical and nonmedical evidence leading to his conclusion that Plaintiff had the RFC to perform the range of medium work set forth with the postural limitations discussed above. (R.pp. 26-31). See Knox v. Astrue, 327 F. App'x 652, 657 (7th Cir. 2009) ["[T]he expression of a claimant's RFC need not be articulated function-by-function; a narrative discussion of a claimant's symptoms and medical source opinions is sufficient"], citing Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Osgar v. Barnhart, No. 02-2552, 2004 WL 3751471, at *5 (D.S.C. Mar. 29, 2004). In doing so the ALJ specifically explained why he did not credit the contradictory evidence in the record, including the opinion evidence. (R.pp. 26-29); see Lyall v. Chater, No. 94-2395, 1995 WL 417654, at * 1 (4th Cir. 1995)[Finding no error where the ALJ's analysis "was sufficiently comprehensive as to permit appellate review"].

Initially, as already discussed, the undersigned does not find that the ALJ improperly considered the opinion evidence, including Dr. Angel's opinion, in determining Plaintiff's RFC, which is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). Likewise, for the reasons previously discussed, the Plaintiff has not shown that the ALJ erred by not including the limitations noted by Dr. Angel, which were primarily based on Plaintiff's self-report to her. See discussion, supra; see also Mastro, 270 F.3d at 178 [ALJ may assign lesser weight to the opinion of a physician that was based largely upon a claimant's self-reported symptoms]; Johnson, 434 F.3d at 658 [ALJ properly rejected physician's opinion that was based on the claimant's own subjective complaints]. As discussed above, the ALJ found that Dr. El-Ibiary's opinion was entitled to great weight, and his functional assessment was consistent with the evidence, including Plaintiff's physical examinations.

With regard to Plaintiff's testimony, she testified at the hearing about her GI problems. (R.pp. 46-48). She also testified that she drives in town daily, that she cooks, she does the dishes, she folds and irons clothes, she cleans the kitchen and living room, that she occasionally visits with others, and that she occasionally goes out to eat. (R.pp. 45, 53-55). Although Plaintiff also testified that when she is unable to get out of bed during a flare-up, she is unable to clean, go out to eat, or fold and iron clothes (R.p. 56), as previously discussed, the ALJ found that it would be "expect[ed] that symptoms so severe as to leave the [Plaintiff] bedridden for a week at a time would be reported to physicians and discussed with them regularly, with more indication that additional treatment options were being considered." (R.p. 29). The ALJ looked at the entire record, including the objective medical findings of Plaintiff's treating physician and her lack of complaints to her treating physician regarding her GI symptoms, in reaching his decision that Plaintiff's impairments were not as severe as alleged. See Mickles, 29 F.3d at 925-926; see also Poling, 2001 WL 34630642, at * 7 (citing Kasey, 3 F.3d at 79). Therefore, the ALJ found after careful consideration of the evidence that while Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . the [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record . . . ." (R.p. 27).

The ALJ also noted the statements in the record from Mike Freeman and Gina Smith, CPA, both of whom formerly worked with the Plaintiff, but afforded them no particular weight. (R.pp. 31, 231-232). The ALJ found that neither were approved medical sources, and neither expressed a particular opinion with regard to Plaintiff's specific functional capacities. Further, while the ALJ considered these statements in formulating Plaintiff's RFC assessment and weighing the medical evidence, the ALJ found that neither statement could be afforded any particular weight, as they tended to provide only generic support for the Plaintiff's allegations and both individuals reported that Plaintiff was unable to perform her duties due to her medical conditions, which is a statement on the "ultimate disability reserved to the Commissioner." (R.p. 31). Whether a claimant is disabled from all work activity is a decision reserved for the Commissioner. See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) [finding that opinion that a claimant is totally disabled "is not dispositive because final responsibility for determining the ultimate issue of disability is reserved to the [Commissioner]"]; Hays, 907 F.2d at 1456 [It is the responsibility of the ALJ to weigh the evidence and resolve conflicts in that evidence]; see also Jolley v. Wineberger, 537 F.2d 1179, 1181 (4th Cir. 1976)[the Commissioner's "findings must be upheld if [they are] supported by inferences that could be properly drawn from [the] record evidence."].

Dissatisfied with the ALJ's conclusions, Plaintiff asks this Court to reweigh the evidence to come to a different RFC conclusion that she has additional limitations due to her impairments. However, as noted, the Court does not reweigh the evidence. That is the job of the ALJ. See Johnson, 434 F.3d at 653 [a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ]. This Court's role is to determine whether substantial evidence supports the ALJ's conclusion, and if so, then the decision should be affirmed. Guthrie, 2011 WL 7583572, at * 3 [Even where substantial evidence may exist to support a contrary conclusion, "[s]o long as substantial evidence exists to support the Commissioner's decision ... this Court must affirm."]; see also Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"]. This Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. Smith, 99 F.3d at 638 ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]; see also Clarke v. Bowen, 843 F.2d 271, 272-273 (8th Cir. 1988)["The substantial evidence standard presupposes . . . a zone of choice within which the decision makers can go either way without interference by the Courts"]. While Plaintiff may disagree with the ALJ's RFC finding,

"the determination of a claimant's RFC is ultimately the province of the ALJ as the representative of the Commissioner." McPherson v. Astrue, 605 F. Supp. 2d 744, 755 (S.D.W.Va. 2009) (citing 20 C.F.R. § 404.1527(e)(2)); see also Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)." "The reviewing court's sole responsibility is to determine whether the ALJ's determination of the claimant's RFC is rational and based on substantial evidence." Id. (citing Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)).

Smith-Williams v. Berryhill, No. 16-03556, 2017 WL 1284961, at *9 (S.D.W.Va. Mar. 6, 2017), adopted by, 2017 WL 1281147 (S.D.W.Va. Apr. 4, 2017).

The ALJ's decision here is both rational and based on substantial evidence. Hays, 907 F.2d at 1456 [If there is evidence to justify refusal to direct a verdict where the case before a jury, then there is 'substantial evidence']. Therefore, Plaintiff's RFC argument is without merit.

Conclusion

Substantial evidence is defined as " ... evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously noted, if the record contains substantial evidence to support the decision (i.e., if there is sufficient evidence to justify a refusal to direct a verdict were the case before a jury), this Court is required to uphold the decision, even should the Court disagree with the decision. Blalock, 483 F.2d at 775.

Under this standard, the record contains substantial evidence to support the conclusion of the Commissioner that the Plaintiff was not disabled within the meaning of the Social Security Act during the time period at issue. Therefore, it is recommended that the decision of the Commissioner be affirmed.

The parties are referred to the notice page attached hereto.

/s/_________

Bristow Marchant

United States Magistrate Judge January 2, 2020
Charleston, South Carolina

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).