Opinion
Civil Action 4:20-CV-2135
02-08-2022
JOHNONNA JO KEENS, Plaintiff v. KILOLO KIJAKAZI, Defendant
(BRANN, C.J.)
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Plaintiff Johnonna Jo Keens, an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g) and 42 U.S.C. §1383(c)(3).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, I find the Commissioner's final decision is supported by substantial evidence, and any legal errors are harmless. Accordingly, I recommend that the Commissioner's final decision be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On September 17, 2018, Plaintiff protectively filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. (Admin. Tr. 12; Doc. 13-2, p. 13). In these applications, Plaintiff alleged she became disabled on May 22, 2015, when she was forty-five years old, due to the following conditions: chronic low back pain; problems in both knees; fibromyalgia; neck problems; depression; bipolar with psychotic tendencies. (Admin. Tr. 196; Doc. 13-6, p. 6). Plaintiff alleges that the combination of these conditions affects her ability to lift, squat, bend, stand, kneel, memory, complete tasks, concentrate, follow instructions, and get along with others. (Admin. Tr. 208; Doc. 13-6, p. 18). Plaintiff has at least a high school education. (Admin. Tr. 24; Doc. 13-2, p. 25). Before the onset of her impairments, Plaintiff worked as a hand packager. (Admin. Tr. 24; Doc. 13-2, p. 25).
On March 5, 2019, Plaintiff's applications were denied at the initial level of administrative review. (Admin. Tr. 12; Doc. 13-2, p. 13). On May 6, 2019, Plaintiff requested an administrative hearing. Id.
On January 28, 2020, Plaintiff amended her alleged onset date to September 17, 2018. (Admin. Tr. 12; Doc. 13-2, p. 13).
On January 28, 2020, Plaintiff, assisted by her counsel, appeared, and testified during a hearing before Administrative Law Judge Howard Kauffman (the “ALJ”). Id. On March 12, 2020, the ALJ issued a decision denying Plaintiff's applications for benefits. (Admin. Tr. 26; Doc. 13-2, p. 27). On March 12, 2020, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 167; Doc. 13-4, p. 61).
On September 15, 2020, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1; Doc. 13-2, p. 2).
On November 16, 2020, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the applications is not supported by substantial evidence, and improperly applies the relevant law and regulations. Id. As relief, Plaintiff requests that the Court reverse the Commissioner's final decision, or in the alternative vacate the decision and remand this case for a new administrative hearing. Id.
On April 5, 2021, the Commissioner filed an Answer. (Doc. 12). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. Id. Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 13).
Plaintiff's Brief (Doc. 14), the Commissioner's Brief (Doc. 15), and Plaintiff's Reply (Doc. 18) have been filed. This matter is now ripe for decision.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security Appeals.
A. Substantial Evidence Review - the Role of This Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not mean 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 v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
“In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
B. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on March 12, 2020.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1). In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2); 20 C.F.R. § 416.945(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 404.1512(b)(3); 20 C.F.R. § 416.912(b)(3); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
IV. DISCUSSION
Plaintiff raises the following issues in her statement of errors:
(1) The ALJ failed to determine whether Plaintiff's traumatic brain injury was a severe impairment;
(2) The ALJ “erred in finding the Plaintiff was only limited to occasional supervision despite finding moderate limitations in interacting with others”; and
(3) The ALJ “erred in finding Dr. Guziec's opinion mostly [un]persuasive.” (Doc. 14, pp. 15-16).
A. The ALJ's Decision Denying Plaintiff's Applications
In his March 2020 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through September 30, 2017. (Admin. Tr. 15; Doc. 13-2, p. 16). Then, Plaintiff's applications were evaluated at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between September 17, 2018 (Plaintiff's alleged onset date) and March 12, 2020 (the date the ALJ decision was issued) (“the relevant period”). (Admin. Tr. 15; Doc. 13-2, p. 16). At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: degenerative disc disease of the lumbar spine; lower extremity fracture; obesity; depressive disorder; anxiety disorder; and personality disorder. (Admin. Tr. 15; Doc. 13-2, p. 16). The ALJ identified the following medically determinable non-severe impairments: gastritis; leg length discrepancy; and substance abuse disorders. Id. The ALJ also identified the following non-medically determinable impairments: bilateral knee pain; fibromyalgia; neck pain; and bipolar disorder. (Admin. Tr. 16; Doc. 13-2, p. 17). At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 16; Doc. 13-2, p. 17).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in light work as defined in 20 C.F.R. § 404.1567(b) and 20 C.F.R. § 416.967(b) except:
she is able to lift/carry 20 pounds occasionally, 10 pounds frequently. She is able to sit, stand, and walk six hours each in an eight-hour workday. She is able to climb ramps and stairs frequently. She is able to climb ladders, ropes, and scaffolds, balance, kneel, crouch, and crawl occasionally. She should have no exposure to extreme cold, vibration, unprotected heights, or moving mechanical parts. The claimant is limited to simple routine, repetitive tasks, not at a production rate pace. She is limited to occasional interaction with supervisors. She is limited to low stress jobs, defined as few workplace changes.(Admin. Tr. 19; Doc. 13-2, p. 20).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in her past relevant work. (Admin. Tr. 24; Doc. 13-2, p. 25).
At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Admin. Tr. 24-25; Doc. 13-2, pp. 25-26). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: cashier II, DOT #211.462-010; housekeeping cleaner, DOT #323.687-014; and office helper, DOT #239.567-010. (Admin. Tr. 25; Doc. 13-2, p. 26). The ALJ also noted that, based on the VE's testimony, there was a significant number of jobs at the sedentary exertional level that allow for the same additional restrictions set forth in the RFC. In doing so, the ALJ cited to the following three (3) representative occupations: table worker, DOT #739.687-182; final assembler, DOT #713.687-018; and bonder semi-conductor, DOT #726.685-066. (Admin. Tr. 25; Doc. 13-2, p. 26).
B. Whether the ALJ Failed to Evaluated Plaintiff's Traumatic Brain Injury At Step Two
At step two of the sequential evaluation process, the ALJ considers whether a claimant's impairment is (1) medically determinable or non-medically determinable, and (2) severe or non-severe; this step is essentially a threshold test. 20 C.F.R. § 404.1520(a)(4)(ii); 20 C.F.R. § 416.920(a)(4)(ii).
To be found medically determinable, an impairment “must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521; 20 C.F.R. § 416.921; see also 20 C.F.R. § 404.1502 (defining objective medical evidence, laboratory findings, and signs); 20 C.F.R. § 416.902 (same as 20 C.F.R. § 404.1502). This means that to be considered, an impairment must be established by objective medical evidence from an acceptable medical source. A claimant's statement of symptoms, a diagnosis that is not supported by objective evidence, or a medical opinion not supported by objective evidence, is not enough to establish the existence of an impairment. 20 C.F.R. § 404.1521; 20 C.F.R. § 416.921; SSR 96-4p, 1996 WL 374187 at *1(“regardless of how many symptoms an individual alleges, or how genuine the individual's complaints appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities. . . .”); see also 20 C.F.R. § 404.1502(i)(defining symptoms); 20 C.F.R. § 416.902(i)(defining symptoms). A claimant's symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect a claimant's ability to do basic work activities unless medical signs or laboratory findings show that a medically determinable impairment is present. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b). Thus, non-medically determinable impairments are excluded from an ALJ's RFC assessment.
There is no dispute that Plaintiff did not allege any impairment due to traumatic brain injury (“TBI”) during the administrative proceedings. There is also no dispute that the ALJ did not evaluate whether Plaintiff had a medically determinable TBI at step two. The records available to the ALJ on the date of the hearing include a “Problem List” this list includes the following entry:
Problem [Code] Occurrences First Date Last Date Associated Types Last Prognosis Value Last Prognosis Date
Brain injury without open intracranial wound [9015001] 110/24/2017 - Disease
Unspecified intracranial injury with loss of consciousness of unspecified duration, initial encounter [S06.9X9A]
Brain injury NEC [854.00]
Closed TBI (traumatic brain injury) [711308]
(Admin. Tr. 283; Doc. 13-8, p. 3).
In a November 2018 treatment record involving Plaintiff's treatment for diverticulitis, “Closed TBI ( traumatic brain injury ) (HCC) S06.9X9A” is listed under the heading “Patient Active Problem List.” (Admin. Tr. 288; Doc. 13-8, p. 3).
Plaintiff argues:
The record reflects that the Plaintiff was diagnosed with TBI on a continuing basis in 2017 (Tr. Pg. 283) and 2018 (Tr. Pg. 287). TBI is one of the disorders listed under Listing 12.024 Neurocognitive Disorders (see 12.00B1). Functional impairment from this is suggested by the Plaintiff's impaired memory noted by Dr. Trogner in her consulting psychological explanation on February 26, 2019 (Tr. Pg. 427). It is not known whether the Plaintiff had a significant cognitive decline other than memory under this listing from prior levels since the consulting examination did not include IQ testing. In Sharpe v. Colvin, Civil No. 1:14-CV-779 (M.D. Pa. 2015) (Jones, J), this Court stated “[t]he Administrative Law Judge did not address or make a determination as to whether or not Sharpe suffered from the medically determinable, severe or non-severe impairments of traumatic brain injury . . .” The Middle District remanded in that case because the failed to find TBI (and other impairments) made the ALJ's findings at step 2 (severe impairments) and step 4 (return to past relevant work) of the sequential evaluation defective.(Doc. 14, pp. 16-17).
In response, the Commissioner argues:
Plaintiff makes no credible argument that the ALJ should have found her alleged traumatic brain injury severe. For an impairment to be considered severe at step two, a claimant must show that the impairment significantly limits their ability to do basic work activities. 20 C.F.R. § 404.1522. Here, Plaintiff put no such evidence before the Commissioner. She did not allege a traumatic brain injury when she applied for benefits (Tr. 196). She did not allege a traumatic brain injury at the hearing (Tr. 33-75). She did not allege a traumatic brain injury before the Appeals Council (Tr. 165-68). And, not only did Plaintiff failed to allege a traumatic brain injury, the record contains no evidence of treatment for a traumatic brain injury since her alleged onset of disability. The fact that Plaintiff received no treating for this alleged impairment and made no mention of it throughout the pendency of her administrative proceeding indicates that she did not believe it limited her. See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995) (the fact that the claimant made no mention of physical impairments when he applied for benefits tended to show that the impairments were not functionally limiting).
Rather than actually alleging that she was limited by a traumatic brain injury, Plaintiff points to two pages in the record indicating that she had been diagnosed with a traumatic brain injury in the past (See ECF No. 14 at p. 16, citing Tr. 283, 287). These records recounting a past diagnosis hardly establishes any work-related limitations. See 20 C.F.R. § 404.1522. And, although Plaintiff points to a single instance of “mildly” decreased memory problems at an examination, Plaintiff's deficiency was attributed to her psychiatric disorders, which the ALJ found severe (Tr. 15, 427).
In support of her argument, Plaintiff cites to an unpublished decision in which this Court remanded an ALJ's findings, in part, because the ALJ did not consider a claimant's traumatic brain injury. ECF No. 14, pp. 16-17, citing Sharpe v. Colvin, 2015 WL 574623 (M.D. Pa. Feb 11, 2015). However, in Sharpe, the claimant had actually received treatment for a traumatic brain injury during the period before the ALJ. Id. at *15. There is no such record of treatment here.
And, in any event, the ALJ's RFC assessment included significant nonexertional limitations attributable to her mental impairments, and Plaintiff does not identify any additional limitations the ALJ should have attributed to her alleged traumatic brain injury. Therefore, she has not shown any harmful error. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (recognizing that the “burden of showing that an error is harmful normally falls upon the party attacking the agency's determination”). Accordingly, substantial evidence supports the ALJ's step two finding.(Doc. 15, pp. 7-9) (internal footnote omitted).
In reply, Plaintiff argues:
The Defendant argues that Plaintiff made no credible argument for finding her traumatic brain injury severe nor did she allege such an injury. This is of no consequence since the Plaintiff alleged impairment from the sequalae of traumatic brain injury including memory loss and mood disturbance among others. Plaintiff raises this issue since traumatic brain injury was suggested multiple times in the record.(Doc. 18, p. 1).
I am not persuaded that remand is required for the ALJ's failure to consider Plaintiff's traumatic brain injury. In Rutherford v. Barnhart, the Third Circuit addressed a similar issue. In Rutherford, the claimant was obese based on her body mass index. Like in this case, the claimant in Rutherford did not mention obesity as a condition that contributed to her inability to work, even when asked to describe her impairments. In that case, the Circuit decided that remand was not required because a claimant's “generalized response” regarding the limitations that resulted from the omitted impairment was not enough to require remand. In doing so the Third Circuit explained:
In rejecting the notion “that the ALJ's failure to mention his obesity is reason enough to remand the case” ([Skarkbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004)]), the Seventh Circuit articulated an analysis that might well have been written for this case (id.) (citations omitted):
An ALJ is required to consider impairments a claimant says he has, or about which the ALJ receives evidence. Although Skarbek did not specifically claim obesity as an impairment (either in his disability application or at his hearing), the references to his weight in his medical records were likely sufficient to alert the ALJ to the impairment. Despite this, any remand for explicit consideration of Skarbek's obesity would not affect the outcome of this case. Notably, Skarbek does not specify how his obesity further impaired his ability to work, but speculates merely that his weight makes it more difficult to stand and walk. Additionally, the ALJ adopted the limitations suggested by the specialists and reviewing doctors who were aware of Skarbek's obesity. Thus, although the ALJ did not explicitly consider Skarbek's obesity, it was factored indirectly into the ALJ's decision as part of the doctors' opinions.
We follow the Seventh Circuit and conclude that a remand is not required here because it would not affect the outcome of the case. Rutherford never mentioned obesity as a condition that contributed to her inability to work, even when asked directly by the ALJ to describe her impairments. So even if we assume-in accordance with common sense-that the administrative record's evidence of Rutherford's 5'2” height and her weight of some 245 pounds sufficed to alert the ALJ that obesity could be a factor, Rutherford has not specified how that factor would affect the five-step analysis undertaken by the ALJ, beyond an assertion that her weight makes it more difficult for her to stand, walk and manipulate her hands and fingers. That generalized response is not enough to require a remand, particularly when the administrative record indicates clearly that the ALJ relied on the voluminous medical evidence as a basis for his findings regarding her limitations and impairments. Because her doctors must also be viewed aware of Rutherford's obvious obesity, we find that the ALJ's adoption of their conclusions constitutes a satisfactory if indirect consideration of that condition. Rutherford v. Barnhart, 399 F.3d 546 (3d Cir. 2005).
As discussed above, until her appeal to the District Court, Plaintiff did not mention a TBI as an impairment that contributed to her inability to work.
Although Plaintiff generally alleges in her reply brief that the TBI causes “mood disturbance, ” Plaintiff did not cite any supporting evidence. To the extent Plaintiff argues that the TBI resulted in impaired memory. In support of her position she relies on Dr. Trogner's examination report. In that report, Dr. Trogner notes that “the claimant indicated that she was in a car accident and that she is forgetful and often distracted.” (Admin. Tr. 425; Doc. 13-9, p. 24). However, after a clinical examination, Dr. Trogner noted that:
ATTENTION AND CONCENTRATION: Intact. She was able to perform counting, simple calculations, and serial 7s from 100 with no difficulty.
RECENT AND REMOTE MEMORY SKILLS: Mildly impaired due to emotional distress secondary to her psychiatric issues. She was able to state 3 out of 3 objects immediately, 1 out of 3 objects after a five-minute delay, 6 digits forward, and 5 digits backward. (Admin. Tr. 427; Doc. 13-9, p. 26). Dr. Trogner assessed that these memory limitations would result in no more than mild difficulty carrying out simple instructions or making simple work-related decisions. (Admin. Tr. 429; Doc. 13-9, p. 28). Dr. Tronger assessed that these memory limitations would not result in any impairment to Plaintiff's ability to understand and remember simple instructions. Id. The ALJ limited Plaintiff to low stress occupations with few workplace changes that would require only simple, routine, repetitive tasks. (Admin. Tr. 19; Doc. 13-2, p. 20). Thus, as in Rutherford, the record in this case suggests that the full extent of Plaintiff's memory limitations were assessed and accounted for in the RFC. Plaintiff did not cite to any evidence that suggests the TBI caused mood disturbances.
Accordingly, I find that the ALJ's failure to evaluate Plaintiff's TBI does not require remand because: (1) Plaintiff never mentioned the TBI as a condition that contributed to her inability to work; (2) Plaintiff's general (and unsupported) allegation that the TBI caused mood disturbance is not enough to require remand; and (3) the full measure of Plaintiff's alleged “memory impairment” was accounted for in the RFC.
Thus, assuming the ALJ erred by failing to evaluate Plaintiff's TBI, I am not persuaded that remand is not required in this case. Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989); see also Snedeker v. Colvin, No. 3:13-CV-970, 2015 WL 1126598 at *7 (N.D. N.Y. Mar. 12, 2015) (“a reviewing court must reverse and remand when an administrative law judge errs when reaching a decision, unless, as a matter of law, the result could not be affected by the error. In other words, administrative legal error is harmless when a reviewing court confidently concludes that the same result would have been reached had the error not occurred.”) (internal citations omitted).
C. Whether the ALJ Adequately Accounted for Plaintiff's Social Interaction Limitations in the RFC Assessment
On February 26, 2019, psychologist Stacy Trogner, Psy.D. examined Plaintiff at the Social Security Administration's request, and completed a checkbox medical source statement. (Admin. Tr. 423-431; Doc. 13-9, pp. 22- 31).
In the medical source statement, Dr. Trogner was asked to assess Plaintiff's ability to perform certain activities on the following five-point scale: none, mild, moderate, marked, and extreme. (Admin. Tr. 429; Doc. 13-9, p. 28). The questionnaire defined “moderate” as “functioning in this area independently, appropriately, effectively, and on a sustained basis is fair.” Id. Dr. Trogner assessed that Plaintiff would have “moderate” restriction: interacting appropriately with the public; interacting appropriately with supervisors; and interacting appropriately with co-workers. (Admin. Tr. 430; Doc. 13-9, pp. 29).
In his decision, the ALJ found Dr. Trogner's opinion to be “persuasive.” In support of this finding, the ALJ explained:
In February 2019, Dr. Trogner opined the claimant was unable to manage her own funds due to substance abuse (Exhibit B5F). She concluded she had a moderate limitation in the ability to carry out complex instructions, as well as make judgments on complex work-related decisions. She stated she had a moderate limitation in the ability to interact appropriately with the public, supervisors, and co-workers, as well as respond appropriately to usual work situations and to changes in a routine work setting. Additionally, Dr. Trogner reported that the claimant's ability to concentrate, persist, or maintain pace were not affect [sic] by her impairments. Overall, this opinion is found to be persuasive; however, the undersigned finds the claimant's ability to concentrate, persist or maintain pace was moderately deficient. In this regard, treatment notes show that her attention span/concentration, recent and remote memory, fund of knowledge, insight, and judgment were impaired (Exhibit B3F). (Admin. Tr. 23; Doc. 13-2, p. 24).
In the RFC, the ALJ limited Plaintiff to occasional (from very little to 1/3 of the workday) interaction with supervisors. He did not impose any limitation regarding Plaintiff's interaction with co-workers or the public, and did not explain why he chose to discredit this aspect of Dr. Trogner's opinion.
Plaintiff argues:
The ALJ's residual functional capacity findings only limited the Plaintiff to occasional supervision but included no other limitation in interacting with others. The ALJ failed to include any limitations in dealing with the public or coworkers despite finding persuasive the opinion of Dr. Trogner that the Plaintiff was moderately limited in interacting with the public, supervisors and co-workers.
For the jobs listed by the Vocation Expert under this RFC, at the least the cashier II job would be precluded with any limitation in dealing with coworkers or the public. The cashier II position (DOT #211.462-010) requires the temperament of dealing with people beyond giving and receiving instructions. The other jobs listed as housekeeping/cleaner and office helper, may require less interaction with others but still require that interaction to be appropriate. Without a specific limitation in interacting with non-supervisors in a work
setting, it cannot be determined whether the Plaintiff would be able to maintain such employment. In Khanna v. Astrue, Civil Action 3:12-CV-2058 (M.D. Pa. 2014)(Nealon, J), the Middle District remanded because the ALJ failed to include a limitation to low social demands settings in the RFC despite giving significant weight to an opinion with such a limitation. The Plaintiff asserts that interaction with supervisors, while a significant part of interacting with others in a job setting, is not the only interaction with others.(Doc. 14, pp. 17-18).
In response, Defendant argues:
Plaintiff argues that the ALJ should have found additional limitation in Plaintiff's ability to interact with co-workers and the public, given the opinion of a consultative examiner Stacy Tronger, Psy.D., who assessed “moderate” rating in those areas (See ECF No. 14 at pp. 28-37). This argument is meritless for two reasons. First it amounts to harmless error, at most because of the six jobs enumerated by the vocational expert are classified as requiring the lowest possible amount of interaction. Specifically, the jobs of housekeeper (DICOT No. 323.687-014, 1991 WL 672783), table worker (DICOT No. 39.687-182, 1991 WL 680217), final assembler (DICOT No. 713.687-018, 1991 WL 679271), and semiconductor bonder (DICOT No. 726.685-066, 1991 WL 679631) are each classified by the Dictionary of Occupational Titles as having “people” ratings of eight, which is the lowest possible rating. Thus, although Plaintiff alleges that Dr. Trogner's limitations, if accepted, prevented the job of cashier II, a significant number of jobs would remain nevertheless.
Second, Plaintiff's argument conflates the step three and RFC analyses. At step three of the sequential evaluation, the Commissioner rates the severity of a claimant's impairments in a multitude of subdomains of function which, when taken together, translates to ratings of none, mild, moderate, marked, or extreme, in the four broad areas of function relevant to the criteria of the mental disorder listings. 20 C.F.R. §§ 404.1520a, 416.920a. The RFC is assessed later in the sequential evaluation to determine a claimant's capability to do work despite any limitations stemming from those impairments. 20 C.F.R. §§ 404.1545, 416.945. In terms of the interplay between the ratings assessed at steps two and three and the RFC, Courts have stated that term “moderate” in the step three context means “there are some moderate limitations, but the person can still perform the task satisfactorily.” See Cantrell v. McMahon, 2007 WL 557567 at *1 (5th Cir. 2007).
Here, although Dr. Trogner assessed “moderate” ratings of limitations in the subdomains of interacting with co-workers and the public, it was the ALJ's duty to determine whether these ratings translated to specific work-related limitations in the RFC. The ALJ ultimately found Dr. Trogner's overall assessment persuasive and assessed a “moderate” limitation in the broad functional domain of interacting with others. However, the ALJ noted that Plaintiff maintained a residence with a roommate and could interact with her roommate every day (Tr. 18). Given this evidence, the ALJ properly declined to assess limitations in Plaintiff's ability to interact with individuals other than supervisors (Tr. 19). (Doc. 15, pp. 10-12) (internal footnote omitted).
In reply, Plaintiff argues:
2. The Defendant argues that four of the six jobs cited by the Vocational Expert require the lowest possible amount of interaction with others. While this is true, when someone has a moderate degree of limitation in interacting with others the issue is not simply limiting the contact but assuring that the contact is appropriate.
3. The Defendant cites a Fifth Circuit case interpreting “moderate” limitations to mean some limitations but still satisfactory performance. The Plaintiff suggests this interpretation has not been made in the Third Circuit. (Doc. 18, pp. 1-2).
Evan assuming that the ALJ erred by failing to explain why he omitted the limitations related to contact with co-workers and the public, this error is harmless. As explained in Rochek v. Colvin:
[A] number of other courts have found harmless error where an alleged limitation that was not included in the ALJ's hypothetical (or in the RFC) was not necessary to perform one or more of the jobs identified by the VE, according to the DOT. E.g. Caldwell v. Barnhart, 261 Fed.Appx. 188, 190 (11th Cir. 2008) (environmental exposure); Powell v. Astrue, CIV. SKG 10-02677, 2013 WL 3776948, at *9 (D. Md. July 17, 2013) (collecting Fourth Circuit district court cases). However, other courts have refused to find harmless error in certain circumstances, such as when numerous components factor into each occupation under the DOT. E.g. Greenwood v. Barnhart, 433 F.Supp.2d 915, 928 (N.D. Ill. 2006) (observing “the reality that occupational availability is the VE's expertise and not the Court's.”) No 2:12-CV-01307, 2013 WL 4648340, at *12 (W.D. Pa. Aug. 23, 2013).
Furthermore, as it pertains to the social limitations, courts have found that occupations with a “people” code of 8 can be performed by an individual who has “moderate” difficulty interacting with co-workers and the public. See Sweeney v. Colvin, No. 3:13-CV-2233, 2014 WL 4294507 at *17-18 (M.D. Pa. Aug. 28, 2014) (collecting cases).
The fifth digit of a DOT occupational code expresses a job's relationship to “people” by identifying the highest appropriate function in this area. DICOT Appendix B, 1991 WL 688701. “People” in this context, refers to human beings and animals dealt with on an individual basis during the workday. Id. A “people” code of 8 requires “taking instructions - helping.” Id. As explained in the DOT “taking instructions” requires “[a]ttending to the work assignment instructions or orders of a supervisor. (No immediate response required unless clarification of instructions or orders is needed.).” Id. “Helping” applies to “non-learning” helpers. Id.
In this case, the ALJ cited to six occupations that Plaintiff could engage in- three “light” occupations and three “sedentary” occupations. See 20 C.F.R. § 404.1567(b) (“If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.”); 20 C.F.R. § 416.967(b) (same as 20 C.F.R. § 404.1567(b)). One of the three “light” occupations cited by the ALJ-Cleaner, Housekeeping, (DOT #323.687-014, 1991 WL 672783)-has a people code of 8. All three of the “sedentary” occupations cited by the ALJ have a people code of 8: Table Worker, (DOT #739.687-182, 1991 WL 680217); Final Assembler, (DOT #713.687-018, 1991 WL 679271); and Bonder, Semi-conductor, (DOT #726.685-066, 1991 WL 679631). Underneath the “people” code for these four occupations, the DOT indicates how often individuals performing this occupation would be expected to interact with people. In each of these four occupations, the DOT indicates “N-not significant.”
Therefore, I find that the ALJ's failure to include limitations to Plaintiff's interaction with co-workers and the public is harmless error because the ALJ identified a significant number of jobs where Plaintiff would be expected to have basic interaction with others on a “not significant” basis.
Together these four occupations amount to 139, 500 positions in the national economy. (Admin. Tr. 25; Doc. 13-2, p. 26).
D. Whether the ALJ Properly Evaluated Dr. Guziec's Opinion
On February 2, 2020, Dr. Guziec completed a hand-written check-box medical source statement. (Admin. Tr. 691-695; Doc. 13-11, pp. 85-89). Relevant to Plaintiff's argument, Dr. Guziec assessed that Plaintiff would be “off task” (either unable to perform work and/or be away from the work environment) more than 30% of the time due to her mental limitations. (Admin. Tr. 694; Doc. 13-11, p. 88).
The ALJ found that Dr. Guziec's opinion was “mostly unpersuasive.” In support of that finding, the ALJ explained:
Dr. Guziec opined in February 2020, the claimant was precluded from performance for more than 15 percent or more of an eight-hour workday in understanding, memory, sustained concentration (B12F). She stated she was precluded from performance for 10 to 15 percent of the time in an eight-hour workday in making simple work-related decisions. She reported that she was precluded from performance for 10 to 15 percent of the time to over 15 percent of the time in an eight-hour workday in social interaction and adaption. In addition, she indicated the claimant would be off task more than 30 percent of the time in an eight-hour workday and would be absent from work five days or more per month. This opinion is found to be mostly unpersuasive because the record does not support the claimant being off task to this severity. Treatment notes show that her attention span/concentration, recent and remote memory, fund of knowledge, insight, and judgment were impaired, but the extent of her impairment was not indicated (Exhibit B3F). On mental status evaluation by Dr. Trogner, the claimant's attention and concentration were intact (Exhibit B5F). Recent and remote memory skills were only mildly impaired. Cognitive functioning appeared average and general fund of information was appropriate to experience. In addition, her insight and judgment were fair. (Admin. Tr. 23; Doc. 13-2, p. 24).
Plaintiff argues:
The ALJ found this opinion mostly unpersuasive because he did not think the record supporting the Plaintiff being off task more than 30% of the time in an eight hour workday. However, the ALJ acknowledged that treatment notes showed the Plaintiff's attention span/concentration, recent and remote memory, fund of knowledge, insight, and judgment were impaired. Just because the extent of impairment was not indicated did not mean that the ALJ could assume a degree of impairment which would support being off task less than 30% of the workday. The ALJ also noted that Dr. Trogner assessed intact attention and concentration in her mental status evaluation. The ability to pay attention and concentrate during a short mental status evaluation is not predictive of the ability to maintain attention and concentration for a full eight hour workday. In Voorhees v. Colvin, 215 F.Supp.3rd 358, 387 (M.D. Pa. 2015), this Court remanded because the ALJ erroneously discounted limitations in the ability to maintain attention and concentration. “An ALJ may point to inconsistencies between the physician's opinion and treatment record to credit one opinion over another . . . but only if the treatment notes address ability to function in a work setting. See Brownawell v. Comm'r Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008). When using internal inconsistencies to discredit a treating physician's report, the internal discrepancies must be truly contradictory.” Brownawell v. Comm'r of Soc. Sec., at 356 went on to note that such assessments “are not necessarily contradictory, however, as one assessment was describing [the claimant's] condition at the time of . . . [the] examination and the other reflected [that doctor's] assessment of [the claimant's] ability to function in a work setting.” The Plaintiff asserts that likewise the opinion of Dr. Guziec is not contradictory with the record. Even if the Plaintiff had normal attention and concentration in a clinical setting, such findings would not be contradictory to Dr. Guziec's limitations because those limitations were expressed in the context of a work setting. (Doc. 14, pp. 19-20).
In response, the Commissioner argues:
Plaintiff cites to no evidence supporting Dr. Guziec's conclusion that Plaintiff would be “off task” for at least thirty percent of the workday (Tr. 694). This conclusion conflicts with every other medical opinion in the record, including Dr. Trogner's opinion, who found intact attention and concentration and assessed no more than moderate limitations in Plaintiff's ability to perform even the most complex work tasks on a sustained basis (Tr. 429). The opinion also conflicts with those of the state agency psychologists, who similarly found only moderate limitations in plaintiff's ability to complete a workweek without interruptions from her psychologically based symptoms (Tr. 103). The fact that Dr. Guziec's opinion conflicts with every other opinion of record is reason alone to affirm the ALJ's decision finding the opinion unpersuasive.
Plaintiff cites to no evidence in support of Dr. Guziec's assessment (See ECF No. 14 at pp, 18-19). Instead, she attempts to flip the burden of proof, essentially arguing that there is no evidence not supporting Dr. Guziec's opinion (See id.). As noted above, that is not the case. Moreover, it is Plaintiff's burden of proof, not the Commissioner's burden to disprove her disability. Plummer, 186 F.3d at 428; see also Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC remains on the claimant even when the burden of production shifts to the Commissioner at step five”).
Here, the record contains substantial evidence demonstrating that Plaintiff's mental impairments caused some limitations, but not to the degree asserted by Dr. Guziec (Tr. 19, 23). Ultimately, the ALJ assessed significant nonexertional limitations that fully accounted for Plaintiff's mental impairments, and the vocational expert enumerated a significant number of jobs that could accommodate these limitations (Tr. 19-25). As a result, the Court should affirm. (Doc. 15, pp. 12-14).
In reply, Plaintiff argues:
The Defendant argues that Plaintiff makes an unsupported assumption that notations in the record to attention deficits and inability to complete a normal work day or work week support Dr. Guziec's opinion that the Plaintiff would be off task at least 30% of the workday. If the Plaintiff should not assume a specific degree of limitation where none is set forth, neither should the ALJ assume such a nonspecific limitations is not of sufficient severity to result in being off task 30% of the workday. (Doc. 18, p. 2).
The Commissioner's regulations define a medical opinion as “a statement from a medical source about what [a claimant] can still do despite [his or her] impairment(s) and whether [he or she has] one or more impairment-related limitations or restrictions in the following abilities:”
(i) [The] ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) [The] ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) [The] ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) [The] ability to adapt to environmental conditions, such as temperature extremes or fumes. 20 C.F.R. § 404.1513(a)(2); 20 C.F.R. § 416.913(a)(2). A “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State of Federal Law, or an individual who is certified by a States as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law. 20 C.F.R. § 404.1502(d); 20 C.F.R. § 416.902(d). If one medical source submits multiple medical opinions, and ALJ will articulate how he or she considered the medical opinions from that medical source in a single analysis. 20 C.F.R. § 404.1520c(b)(1); 20 C.F.R. § 416.920(b)(1).
An ALJ's consideration of competing medical opinions is guided by the following factors: the extent to which the medical source's opinion is supported by relevant objective medical evidence and explanations presented by the medical source (supportability); the extent to which the medical source's opinion is consistent with the record as a whole (consistency); length of the treatment relationship between the claimant and the medical source; the frequency of examination; the purpose of the treatment relationship; the extent of the treatment relationship; the examining relationship; the specialization of the medical source and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(c); 20 C.F.R. § 416.920c(c).
The most important of these factors are the “supportability” of the opinion and the “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2). The ALJ will explain how he or she considered the “supportability” and “consistency” of a medical source's opinion. The ALJ may, but is not required to, explain his or her consideration of the other factors unless there are two equally persuasive medical opinions about the same issue that are not exactly the same. 20 C.F.R. § 404.1520c(b)(3); 20 C.F.R. § 416.920c(b)(3). Unlike prior regulations, under the current regulatory scheme, when considering medical opinions, an 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 your medical sources.” 20 C.F.R. § 404.1520c(a); 20 C.F.R. § 416.920c(a).
Plaintiff argues that Dr. Guziec's opinion was improperly discredited due to a lack of consistency and supportability with the record. 20 C.F.R. § 404.1520c(c)(1)-(2), 20 C.F.R. § 416.920c(c)(1)-(2).
I find that the ALJ accurately concluded that Dr. Guziec's 30% “off task” limitations was not consistent with the clinical observations noted by Dr. Trogner in her report. See 20 C.F.R. § 404.1520c(c)(2) (explaining “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.”); 20 C.F.R. § 416.920c(c)(2) (same).
I also find that the ALJ's assessment that Dr. Guziec's opinion is not well supported by the record is supported by substantial evidence. 20 C.F.R. § 404.1520c(c)(1) and 20 C.F.R. § 416.920c(c)(1) provide 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) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” In this case, Dr. Guziec did not provide any supported explanation as to why Plaintiff would be off task 30% of the time. The ALJ noted that, in addition to a lack of explanation in the opinion itself, the treatment records provide little insight as to the extent of any limitation in concentration. (Admin. Tr. 23) (“Treatment notes show that her attention span/concentration, recent and remote memory, fund of knowledge, insight and judgment were impaired, but the extent of her impairment was not indicated (Exhibit B3F).”). Plaintiff has cited to no treatment record that contradicts this characterization of Dr. Guziec's treatment notes. Accordingly, I am persuaded that the ALJ adequately addressed this factor, and supported his analysis.
In this case, the ALJ reviewed a record with two competing medical opinions about Plaintiff's ability to concentrate or remain “on task.” The first opinion was by Dr. Trogner, a consultative examiner. Dr. Trogner assessed that Plaintiff's ability to concentrate, persist, and maintain pace were not affected by her impairments. (Admin. Tr. 429-431; Doc. 13-9, pp. 28-30). In support of that opinion, Dr. Trogner relied on Plaintiff's performance of an exercise where she was required to perform counting, simple calculations, and serial 7s from 100. (Admin. Tr. 427; Doc. 13-9, p. 26). Plaintiff had no difficulty performing these tasks. Id. The second opinion was by Dr. Guziec, a treating source. Dr. Guziec assessed that Plaintiff would be “off task” 30% of the workday. (Admin. Tr. 694; Doc. 13-11, p. 88). No. specific supporting explanation was provided. Dr. Guziec did indicate that the assessment was based on progress and office notes. Id. The ALJ summarized that Dr. Guziec's notes suggest impairment, but that the notes are not specific enough to provide meaningful insight as to the extent of the impairment. No. party disputes that characterization of the treatment notes.
I agree with Plaintiff, that if credited, Dr. Guziec's opinion would preclude the performance of substantial gainful activity. (Admin. Tr. 72) (VE testifying that most employers would not tolerate an employee being off task more than 15% of the workday). However, Dr. Guziec's opinion is contradicted by Dr. Trogner's assessment. Furthermore, Dr. Trogner's assessment is supported by clinical observations suggesting that Plaintiff would have minimal difficulties staying on task. Ultimately, the ALJ found that Plaintiff was more limited than Dr. Trogner assessed, but not as limited as Dr. Guziec assessed, and addressed Plaintiff's deficits in concentration by limiting Plaintiff to simple routine, repetitive tasks not at a production rate pace in a low stress environment with few workplace changes. (Admin. Tr. 19, 23). Plaintiff has cited no evidence, aside from Dr. Guziec's opinion, that she would be unable to work under those conditions. Accordingly, I am not persuaded that the ALJ's evaluation of the medical opinions at issue is defective, or that remand is required for further evaluation of Plaintiff's ability to maintain concentration in a work environment.
V. RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's request for benefits or a new administrative hearing be DENIED as follows:
(1) The final decision of the Commissioner should be AFFIRMED.
(2) Final judgment should be issued in favor of the Commissioner.
(3) The clerk of court should close this case.
BY THE COURT
NOTICE OF LOCAL RULE 72.3 NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.