Opinion
Civil Action 4:21-CV-581
06-24-2022
JESSICA SEYLER, Plaintiff v. KILOLO KIJAKAZI,[1]Defendant
(MANNION, D.J.)
REPORT & RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Jessica Seyler, an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
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. Accordingly, I recommend that the Commissioner's final decision be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On December 11, 2018, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 15). In this application, Plaintiff alleged she became disabled on October 18, 2018, when she was thirty-seven years old, due to the following conditions: chronic regional pain syndrome; high blood pressure; depression; headaches; and high cholesterol. (Admin. Tr. 230). Plaintiff alleges that the combination of these conditions affects her ability to lift, bend, stand, reach, walk, talk, hear, see, memory, complete tasks, concentrate, understand, follow instructions, use her hands, and get along with others. (Admin. Tr. 249). Plaintiff has at least a high school education. (Admin. Tr. 24). Before the onset of her impairments, Plaintiff worked as a stores laborer and industrial truck operator. (Admin. Tr. 24).
On June 10, 2019, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 15). On September 10, 2019, Plaintiff's application was denied on reconsideration. Id. On October 8, 2019, Plaintiff requested an administrative hearing. Id.
On June 16, 2020, Plaintiff, assisted by her counsel, appeared, and testified during a telephone hearing before Administrative Law Judge Howard Kauffman (the “ALJ”). Id. On June 26, 2020, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 26). On August 26, 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. 205).
On January 27, 2021, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1).
On March 30, 2021, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the relevant law and regulations. Id. As relief, Plaintiff requests that the Court reverse the decision of the Commissioner and award benefits, or in the alternative remand this matter for a new administrative hearing. Id.
On August 12, 2021, the Commissioner filed an Answer. (Doc. 13). 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. 14).
Plaintiff's Brief (Doc. 15), the Commissioner's Brief (Doc. 18), and Plaintiff's Reply (Doc. 19) have been filed. This matter is now ripe for decision.
III. STANDARDS OF REVIEW
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); 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); see also 20 C.F.R. § 404.1505(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); 20 C.F.R. § 404.1505(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 June 26, 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). 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).
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). 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).
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); 20 C.F.R. § 404.1512; 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); 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 issue in her statement of errors:
(1) The ALJ failed to properly evaluate Plaintiff's subjective allegations. (Doc. 15, p. 1).
A. THE ALJ'S DECISION DENYING PLAINTIFF'S APPLICATION
In his June 2020 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through September 30, 2020. (Admin. Tr. 17). Then, Plaintiff's application was 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 October 18, 2018, (Plaintiff's alleged onset date) and June 26, 2020, (the date the ALJ decision was issued) (“the relevant period”). (Admin. Tr. 17).
At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: complex regional pain syndrome and obesity. (Admin. Tr. 17). The ALJ identified the following medically determinable non-severe impairments: hypertension; hyperlipidemia; hypothyroidism; abnormal uterine and vaginal bleeding; chronic headaches; and major depressive disorder. (Admin. Tr. 17-19). The ALJ identified the following non-medically determinable impairment: mild carpal tunnel syndrome. (Admin. Tr. 18). 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. 19).
In 2003, the Social Security Administration issued a policy interpretation ruling to explain the policies for developing and evaluating claims for disability on the basis of Complex Regional Pain Syndrome, Type I. SSR 03-2p, 2003 WL 22399117. The Ruling describes Complex Regional Pain Syndrome as a chronic pain syndrome that may manifest due to injury, disease, or surgery. Id. It explains that “[t]he most common acute clinical manifestations include complaints of intense pain and findings indicative of autonomic dysfunction at the site of the precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities in the affected region involving the skin, subcutaneous tissue, and bone.” Id.
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) except:
she can sit, stand, or walk for 6 hours each per 8-hour workday. She can occasionally crawl and climb ramps and stairs but cannot climb ladders, ropes or scaffolds. The claimant can occasionally push/pull with the left upper extremity and perform occasional reaching in all directions including overhead with the left upper extremity. She can perform occasional handling and fingering with the left upper extremity and occasional reaching overhead with the dominant right upper extremity. Further, she can tolerate no exposure to extreme cold, extreme wetness, vibration, unprotected heights or moving machinery parts.
(Admin. Tr. 19-20).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in her past relevant work. (Admin. Tr. 23-24). 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). To support her conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: bakery worker, conveyor line, DOT #524.687-022; machine tender laminating, DOT #569.686-046; and counter clerk, photo finishing, DOT #249.366-010. (Admin. Tr. 25).
B. WHETHER THE ALJ PROPERLY EVALUATED PLAINTIFF'S SYMPTOMS
The Commissioner's regulations define “symptoms” as the claimant's own description of his or her impairment. 20 C.F.R. § 404.1502(i). The ALJ is not only permitted, but also required, to evaluate the credibility of a claimant's statements about all symptoms alleged and must decide whether and to what extent a claimant's description of his or her impairments may be deemed credible. In many cases, this determination has a significant impact upon the outcome of a claimant's application, because the ALJ need only account for those symptoms - and the resulting limitations - that are credibly established when formulating his or her RFC assessment. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). To facilitate this difficult analysis, the Commissioner has devised a two-step process that must be undertaken by the ALJ to evaluate a claimant's statements about his or her symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptom alleged. 20 C.F.R. § 404.1529(b). If there is no medically determinable impairment that could reasonably produce the symptom alleged, the symptom cannot be found to affect the claimant's ability to do basic work activities. 20 C.F.R. § 404.1529(b); SSR 16-3p, 2016 WL 1119029.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms which can be reasonably attributed to a medically determinable impairment. 20 C.F.R. § 404.1529(c)(1). Symptoms will be determined to reduce a claimant's functional capacity only to the extent that the alleged limitations and restrictions can reasonably be accepted as consistent with objective medical evidence and other evidence of record. 20 C.F.R. § 404.1529(c)(4). However, an ALJ will not reject statements about the intensity, persistence, or limiting effects of a symptom solely because it is not substantiated by objective evidence. 20 C.F.R. § 404.1529(c)(3). Instead, the ALJ will evaluate the extent to which any unsubstantiated symptoms can be credited based on the following factors: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; any factor that precipitates or aggravates the claimant's pain or other symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms; any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3).
An ALJ's findings based on the credibility of a claimant are to be accorded great weight and deference, since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL 288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant's statements about his or her symptoms or limitations for no reason or for the wrong reason. Rutherford, 399 F.3d at 554.
In a function report, Plaintiff wrote:
My permanent restrictions are no repetition with L arm. No pushing, pulling, lifting more than 5 lbs w/ L arm 10 lbs right. My pain level can change very quickly. When pain is higher I am unable to follow directions, understand people speaking, speak myself. I also vomit w/ higher pain level. Also regular headaches. My left arm, shoulder neck
area will ‘lock' leaving me unable to move my head 3-5 days. I need frequent breaks and naps.
(Admin. Tr. 244).
During her administrative hearing, Plaintiff offered incredibly compelling testimony about the nature of her pain due to CRPS. Specifically, Plaintiff described her pain as:
like having your bone broken and the muscles being torn from it and lit on fire all at the same time. And, that doesn't go away. It's like an oil lamp where you can adjust the flame, that's how much pain goes being on fire. It doesn't ever go away. It doesn't ever stop. My level hasn't been under a 7 probably in over a year since I haven't had any medicine to help with it. And, even with medicine, it helped somewhat, but it never took it down under a 6 at best. And, it doesn't last long. It originally was in my forearms and elbow.
Now, it goes up into my neck, into my spine down to my waist on my left side. I get cramping. My hand contorts to where I can't control it. My flare-ups, when I get my flare-ups, they're easily a 10, but it feels higher to me because it just feels like it never ends. I'm sensitive to hot, if it's too hot. Cold is horrible for me. Noise, if things are real loud and basey. The vibrations of things, music if the base is real loud. All of that seems like it feels like it's going into my bones and it is extremely painful.
If somebody is running the vacuum cleaner, the TV has to be low. That's why I spend so much time alone in my bedroom. People yelling, screaming, motorcycles, cars, alarms at the stores when you buzz with the intercom, the fan going on my arm or the air conditioner being on it. Even taking a shower with the water. I have to shift my body to be able to have even the water just trickle over. I mean, there's so much. Even bending over, I can't bend over because of the pull that it puts on that arm. It's extremely painful.
(Admin. Tr. 48-49). During her hearing, Plaintiff testified that due to this pain in her left arm she has trouble doing everything, including holding things, grabbing things, twisting (e.g., to open a bottle of water), pushing, or pulling. (Admin. Tr. 55-56).
The ALJ's decision includes the following summary of Plaintiff's statements about her symptoms and limitations:
The claimant alleges disability due to complex regional pain syndrome, high blood pressure, depression, headaches and high cholesterol. Allegedly, the claimant's impairments affect her ability to lift, bend, stand, reach, walk, talk, hear, see, remember, complete tasks, concentrate, understand, follow instructions, use her hands and get along with others. She reported that she can only lift 5 pounds and that bending and walking aggravate her pain. The claimant reports that she is unable to perform any repetitive motions with her left arm, such as pushing, pulling or lifting. The claimant further reports that her pain levels vary from day to day. She indicated that she has regular headaches, vomiting with high pain levels and locking of her left arm, shoulder and neck area. She noted that she has blurry vision with increased pain and difficulty remembering things. The claimant avoids cold temperatures, as it exacerbates her pain. As to daily activities, she can perform matters of personal care but has some difficulty and pain in performing some of these tasks. She cares for her children, shops for necessities, prepares simple meals, and performs household chores, such as laundry, dishes and light dusting; however, she noted that on bad days she stays in bed. The claimant can manage finances, drive a vehicle short distances and go out alone; however, on bad days she is unable to go out alone. The claimant spends time with others and reads, but she has difficulty holding a book. She also reports forgetfulness in paying her bills and inability to go out with friends as she used to. She indicated she requires frequent breaks and naps. (Testimony, Exhibit B4E).
(Admin. Tr. 20-21).
The ALJ ultimately concluded that Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Admin. Tr. 21). In reaching this conclusion, the ALJ explained:
The claimant's medical records corroborate the claimant's reports of bilateral arm pain and shock-like sensations associated with complex regional pain syndrome; however, the longitudinal evidence suggests that the claimant can perform light work (Exhibit B15F, B16F). The evidence reflects that the claimant reports shock-like sensations from her left side of her body from her fingers into her shoulder and neck in addition to locking of her hands, insomnia, muscle cramps and a feeling of her bones “snapping” (Exhibit B15F/3). The claimant reports that her pain is aggravated by cold weather and vibrations and causes insomnia (Exhibits B13F, B15F/3). Records show that the claimant only requires conservative treatment for her pain, such as use of a compression glove on the left hand and pain medication (Exhibit 15F/3). Notably, her treatment records document that her pain was controlled on Oxycodone 10 mg; however, at a visit to her primary care physician dated June 25, 2019, she denied taking anything for pain due to financial reasons (Exhibit B16F/4). The bulk of the records relate to treatment prior to the alleged onset date (i.e., prior to October 18, 2018) (Exhibits B1F-B6F, B8F-B12F). The claimant is status post right shoulder debridement but has not required surgical intervention during the period at issue (Exhibit B4F/19). The claimant does not use an assistive device for ambulation and declined a recent referral to see neuropathy (Exhibit B16F/5). This evidence is inconsistent with the claimant's reports of disabling pain but substantiates that she experiences pain of a chronic nature.
On physical examination, the claimant has presented with a BMI of over 40 (consistent with morbid obesity), decreased range of motion on the left shoulder, cervical spine and lumbar spine, inability to
perform a full squat, and 4/5 strength of the left hand, but she typically shows normal range of motion of the other joints, normal gait with no use of assistive devices, no edema, no joint instability, intact neurologic examination, intact reflexes, and good strength (Exhibits B12F/18, B13F/15, B15F/5-6, 14-17). At the physical consultative examination, it was noted that the claimant demonstrated the ability to zip, button and tie, but she had difficulty with the button and tying a tight bow (Exhibit B15F/6). She was able to walk on heels and toes but did lose her balance while doing so (Exhibit B15F/5). In addition, she could get on and off the exam table and rise from a chair without difficulty (Exhibit B15F/5). The claimant's pain management records reveal some skin color changes and swelling of the left hand prior to the alleged onset date (Exhibit B12/16); however, there is not much evidence of the same during the period at issue. While the claimant's complex regional pain syndrome primarily affects the left upper extremity, the records also reflect some reports of right upper extremity pain (Exhibit B9F, B12F, B16F/5). There is no longitudinal evidence of gross instability, markedly diminished range of motion, absent reflexes, loss of sensation, muscle atrophy or severe motor deficits. Despite the claimant's pain, the claimant is able to perform light cooking, cleaning, laundry and shopping (Exhibit B15F/4). She showers and dresses herself but sometimes needs help getting dressed (Exhibit B15F/4). Her treatment records reflect that she is limited by pain, but she “tries to be as active as possible” (Exhibit B13F/14). This evidence suggests that she would be limited to a range of light exertional activity.
(Admin. Tr. 21-22).
Plaintiff argues that the ALJ's evaluation of Plaintiff's statements about the intensity of Plaintiff's pain was improper. She does not specify what statements or what pain. I construe Plaintiff's arguments as applying to the pain due to CRPS, the only medically determinable severe impairment that causes pain. Plaintiff argues that the ALJ's evaluation of her statements about the nature, intensity, and limiting effects of her CRPS pain was improper for four reasons: (1) the ALJ improperly disregarded Plaintiff's statements based on objective evidence, and did not consider the other evidence or the factors set forth in 20 C.F.R. § 404.1529(c)(3)(i)-(vii); (2) the ALJ improperly discounted Plaintiff's statements about the intensity of her pain without developing evidence as to why Plaintiff did not pursue more aggressive treatment; (3) the ALJ improperly concluded that Plaintiff's daily activities were inconsistent with her statements about the intensity of her pain; and (4) the ALJ improperly concluded that Plaintiff's work as a hair dresser was inconsistent with Plaintiff's statements about the intensity of her pain.
I will address each argument below.
1. Whether the ALJ Improperly Disregarded Plaintiff's Statements About the Intensity of Her Pain without Considering the “Other Evidence” or the Factors Set Forth in 20 C.F.R. § 404.1529(c)(3)(i)-(vii).
Pursuant to 20 C.F.R. § 404.1529(c)(2), an ALJ “will not reject [a claimant's] statements about the intensity and persistence of [his or her] pain or other symptoms or about the effect [a claimant's] symptoms have on [his or her] ability to work solely because the available objective medical evidence does not substantiate [his or her] statements.” In this context, “objective medical evidence” means “evidence obtained from the application of medically acceptable clinical and laboratory diagnostic techniques, such as evidence of reduced joint motion, Page 18 of muscle spasm, sensory deficit or motor disruption.” Id.; see also 20 C.F.R. § 404.1513 (defining objective medical evidence); 20 C.F.R. § 404.1502(c) (defining laboratory findings); 20 C.F.R. § 404.1502(g) (defining signs). SSR 16-3 provides, in relevant part, that:
Symptoms cannot always be measured objectively through clinical or laboratory diagnostic techniques. However, objective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities for an adult or to function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI claim. We must consider whether an individual's statements about the intensity, persistence, and limiting effects of his or her symptoms are consistent with the medical signs and laboratory findings of record.
The intensity, persistence, and limiting effects of many symptoms can be clinically observed and recorded in the medical evidence. Examples such as reduced joint motion, muscle spasm, sensory deficit, and motor disruption illustrate findings that may result from, or be associated with, the symptom of pain. These findings may be consistent with an individual's statements about symptoms and their functional effects. However, when the results of tests are not consistent with other evidence in the record, they may be less supportive of an individual's statements about pain or other symptoms than test results and statements that are consistent with other evidence in the record.
For example, an individual with reduced muscle strength testing who indicates that for the last year pain has limited his or her standing and walking to no more than a few minutes a day would be expected to have some signs of muscle wasting as a result. If no muscle wasting were present, we might not, depending on the other evidence in the record, find the individual's reduced muscle strength on clinical
testing to be consistent with the individual's alleged impairment-related symptoms.
However, we will not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual. A report of minimal or negative findings or inconsistencies in the objective medical evidence is one of the many factors we must consider in evaluating the intensity, persistence, and limiting effects of an individual's symptoms.
SSR 16-3p, 2017 WL 5180304 at *5.
Plaintiff argues that “testimony of severe pain cannot be disregarded simply because it is not supported by objective medical evidence.” (Doc. 15, p. 4).
In response, the Commissioner argues that the ALJ adequately explained the basis for discounting Plaintiff's statements about her pain. Specifically, the Commissioner contends:
First, the ALJ precisely articulated why Plaintiff's subjective statements were not fully consistent with the objective medical evidence (Tr. 24-48). See 20 C.F.R. § 404.1529(c)(2) (stating the ALJ will consider the objective medical evidence when evaluating the claimant's symptoms). As the ALJ noted, Plaintiff's statements were inconsistent with her “conservative treatment,” such as use of a compression glove on her left hand and pain medication (Tr. 21). Plaintiff's pain was controlled with medication, and at a June 2019 visit, Plaintiff denied taking any medication for pain due to financial reasons (Tr. 21, citing Tr. 869).
The ALJ also explained that Plaintiff's treatment records were not fully consistent with her subjective complaints (Tr. 21). At all her doctor visits, Plaintiff's gait was normal, she did not require any
assistive devices, and she denied musculoskeletal symptoms on numerous occasions (Tr. 21, citing Tr. 321, 386, 564, 756, 776, 786, 792, 796, 801, 806, 812, 825, 853, 871). Although Plaintiff's CRPS primarily affected her upper left extremity, and although she had some upper right extremity pain, the ALJ highlighted that there was “no longitudinal evidence of gross instability, markedly diminished range of motion, absent reflexes, loss of sensation, muscle atrophy, or severe motor deficits” (Tr. 21).
Next, the ALJ precisely explained why the other evidence failed to fully support Plaintiff's subjective complaints (Tr. 21-22). As the ALJ discussed, Plaintiff engaged in a wide array of daily activities despite her medical conditions (Tr. 21-22). Despite Plaintiff's pain, she reported that she “trie[d] to be as active as possible” (Tr. 22, citing Tr. 831). Plaintiff prepared simple meals, cleaned, did laundry, and shopped (Tr. 21, citing Tr. 246, 247, 852). She took care of her children, the family pets, and engaged in her own self-care, although sometimes she needed help getting dressed (Tr. 21, citing Tr. 245, 852). In light of this evidence, the ALJ reasonably determined that Plaintiff's own admissions about her daily activities were not fully consistent with her complaints of disabling pain and limitations (Tr. 25, 28).
Plaintiff's various challenges to the ALJ's analysis should be rejected. As the decision plainly shows, the ALJ satisfied his regulatory duty to carefully consider Plaintiff's statements, identified substantial evidentiary support for his finding that Plaintiff's subjective complaints were not entirely supported by the medical and other evidence, and included a narrative discussion that permits meaningful review (Tr. 20-23). Considering the ALJ's well-reasoned discussion, Plaintiff's argument amounts to nothing more than quibbling over semantics rather than a legitimate claim of legal error.
(Doc. 18, pp. 9-11).
I construe Plaintiff's argument as an allegation that the ALJ considered only the “objective medical evidence” and not the “other evidence” when evaluating Plaintiff's statements about her pain. Plaintiff is correct that the applicable Ruling and Regulation state that statements about pain will not be rejected solely because the available objective medical evidence does not substantiate the statements, without considering all the other evidence. However, the ALJ in this case did not discredit Plaintiff's statements about her pain solely based on objective evidence. The ALJ also considered: Plaintiff's daily activities (light cooking, cleaning, laundry, shopping, and Plaintiff's ability to care for herself); the location duration, frequency, and intensity of Plaintiff's pain (pain in both arms with shock-like sensations); precipitating and aggravating factors (cold weather and vibration); the type, dosage and effectiveness, and side effects of medication (Plaintiff was for some period prescribed 10 mg dose of Oxycodone, but stopped on or before June 2019 for financial reasons); and other measures used to relieve pain (use of a compression glove).
Accordingly, I find that the ALJ appropriately considered both the “objective medical evidence” and “other” evidence when evaluating Plaintiff's statements about the intensity, persistence, and limiting effects of her pain.
2. Whether the ALJ Improperly Made a Negative Inference Based on the Nature of Plaintiff's Treatment Without Adequately Developing the Record
SSR 16-3p provides guidance on the evaluation of symptoms in disability cases. It provides, in relevant part, that:
We will consider an individual's attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed when evaluating whether symptom intensity and persistence affect the ability to perform work-related activities for an adult or the ability to function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI disability claim. Persistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, referrals to specialists, or changing treatment sources may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.
In contrast, if the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record. We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints. When we consider the individual's treatment history, we may consider (but are not limited to) one or more of the following: ....
• An individual may not be able to afford treatment and may not have access to free or low-cost medical services. ....
The above examples illustrate possible reasons an individual may not have pursued treatment. However, we will consider and address reasons for not pursuing treatment that are pertinent to an individual's case. We will review the case record to determine whether there are explanations for inconsistencies in the individual's statements about symptoms and their effects, and whether the evidence of record supports any of the individual's statements at the time he or she made them. We will explain how we considered the individual's reasons in our evaluation of the individual's symptoms.
2017 WL 5180304 at *9-10 (emphasis added).
Plaintiff's treatment records from before the onset date in this case suggest that Plaintiff was seeing a pain management specialist, Dr. Daniel M. Lorenzo, in March 2018. (Admin. Tr. 784). Those records suggest that Plaintiff had an ulnar nerve transportation surgery in 2012, which did not help her pain, could not take NSAIDS due to an allergy, and could not tolerate gabapentin or lyrica. Id. Plaintiff had not tried injections. Id. At that time she was prescribed Oxycodone 10mg four times per day, as needed for CRPS. (Admin. Tr. 787). Plaintiff reported some difficulty getting insurance coverage for the prescription, but was able to get the prescription filled. (Admin. Tr. 794). In May 2018, Plaintiff began taking a combination of Oxycodone and 50 mg of Trazadone once daily as needed. (Admin. Tr. 795). A stellate ganglion block was recommended, but Plaintiff reported she could not afford it. (Doc. 809). In August 2018, Plaintiff reported that she had an outstanding bill at her pain management specialist's office. (Admin. Tr. 809).
In a June 2019 treatment record from the relevant period, Plaintiff reported that her pain was controlled on the oxycodone, that she was no longer taking any pain medications due to financial reasons, and that she does not want to go to Dr. Lorenzo's office again. (Admin. Tr. 869).
During the administrative hearing, Plaintiff testified as follows:
Q What treatment are you receiving for the pain syndrome presently?
A Nothing. We have to wait for me to have the money to go see a pain management doctor. My family doctor said she's not-I don't know if you need permission for those kind of medicines. I'm not sure, but she said she's not able to help with the pain. I can't barely afford to go see her, let alone go see a pain doctor at the moment.
Q Have you had any-have you ever had any surgery to remove any nerves?
A No, the only surgery they did for my left arm is they moved the ulnar nerve. The first surgery they moved it. So it didn't wrap around, I guess, the elbow bone. They put it underneath, but it was too sensitive there, so they went back in and tucked it into the muscle and released something in my wrist as well, but I don't remember what that was called, but I do have a scar at my wrist also. Those were the only surgeries they did on that. They didn't remove any nerves at least that I'm aware of. They didn't tell me.
(Admin. Tr. 55).
Plaintiff argues that the ALJ failed to adequately develop the record on the issue of why Plaintiff did not pursue more aggressive treatment for her pain. Specifically, Plaintiff contends:
Second, the ALJ noted that Ms. Seyler only required conservative treatment. (Tr. 21) But the Commissioner's Rulings require an ALJ to question a claimant about her treatment motivations/decisions before drawing a negative inference about a claimant's subjective allegations based on a claimant's failure to aggressively pursue treatment. SSR 16-3p (“We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact with individual regarding the lack of treatment or, at an administrative proceeding, as why he or she has not complied with or sought treatment in a manner consistent with his or her complaints.”) However, here the ALJ failed to adequately question Ms. Seyler about her treatment modalities.
(Doc. 15, p. 5).
In response, the Commissioner argues that the ALJ adequately discussed Plaintiff's treatment history in the decision. Specifically, the Commissioner contends:
Third, the ALJ appropriately discussed Plaintiff's routine and conservative treatment (Pl.'s Br. at 5). Here again, the regulations expressly provide that the kind of treatment a claimant receives for relief of pain or other symptoms is a relevant consideration when evaluating her subjective complaints. 20 C.F.R. § 404.1529(c)(3)(v); Social Security Ruling (SSR) 16-3p, 2016 WL 1119029, at *18 (ALJ may consider whether “the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints”). The ALJ did not suggest that Plaintiff failed
to aggressively pursue medical treatment, as Plaintiff claims (Pl.'s Br. at 5). Rather, the ALJ accurately explained that the record demonstrated her conditions remained managed by taking medications and attending routine office visits (Tr. 20-22). The ALJ did not err. See e.g., Garrett v. Comm'r of Soc. Sec., 274 Fed.Appx. 159, 164 (3d Cir. 2008) (“the conservative treatment [claimant] received for her impairments indicated that they were not as debilitating as she claimed”); Phillips v. Barnhart, 91 Fed.Appx. 775, 782 (3d Cir. 2004) (“conservative treatment history supports the ALJ's determination that Phillips' subjective complaints of pain were not entitled to full credence”) Dearth v. Barnhart, 34 Fed.Appx. 874, 875 (3d Cir. 2002) (“If a symptom can be reasonably controlled by medication or treatment, it is not disabling”).
(Doc. 18, pp. 12-13).
Contrary to Plaintiff's argument, the transcript of the administrative hearing suggests that the ALJ did ask Plaintiff about her CRPS treatment. Although the ALJ did not discuss the records that pre-date Plaintiff's alleged onset date in his decision, the ALJ's decision also demonstrates that the ALJ considered Plaintiff's statements made at the hearing and the statements reported in the June 2019 treatment record.
3. Whether the ALJ Improperly Concluded that Plaintiff's Activities of Daily Living Were Inconsistent with her Testimony
On April 9, 2019, Plaintiff reported that her daily activities include: making sure her kids are up for school; feeding, watering, and letting out pets; getting dressed (she chooses clothes with no buttons and wears shoes without laces); showering once per week (because the water exacerbates her CRPS pain); prepares simple meals when she is able (heating up leftovers, soup, making sandwiches, or heating frozen meals); cleaning the house by wiping counters, starting laundry (her husband or sons carry the baskets), putting away dishes, and light dusting; going outside a few times per week (weather permitting); and shopping one or two times per week for less than one hour. (Admin. Tr. 245-247). Plaintiff reported that she is able to drive and ride in a car, but cannot drive long distances, and cannot drive at all when her pain is bad. Id.
On May 29, 2019, Dr. Hammon recorded the following statements about Plaintiff's activities of daily living in her examination report:
She lives with her husband and children. She will do light cooking, cleaning, laundry, and shopping. She does very little amounts of these things. She does take care of her children. She showers and dresses herself, but sometimes she will need help getting dressed. She enjoys watching TV, listening to the radio, and reading. Her doctor is Dr. Torkado.
(Admin. Tr. 852).
During the administrative hearing, Plaintiff made the following statements about her daily activities:
Q Do you do the laundry? Do you do any other chores around the house?
A I can dust inside, but most of the stuff that's done inside, my kids or husband help with. So, my kids have to carry laundry
baskets for me. They have to help me fold it and put it away. They gather it to put it at the wash. They take turns doing dishes. I cannot do the dishes. Going in from the hot water to the cold air, even if it's warm, it's too much of a shock and it makes me swell and sends me into a flare. They vacuum and they take turns sweeping and mopping the floors. Scrubbing the shower my husband usually does. I can wipe down the counters.
But, something like the coffee pot, they'll have to lift that and move it for me. If I want a pot out, if my husband is making soup, they'll get that for me. They help with the dog. I cannot give her a bath, so they bathe the dog. If she needs help in and out of the car, they have to do that too. They take her for walks, I cannot do that either because of the pulling. They change their own bedding. My husband makes our bed.
ALJ Ms. Rhizor?
Atty Thank you, Your Honor.
EXAMINATION OF THE CLAIMANT BY THE ATTORNEY:
Q Ms. Seyler, you talked a little bit about the bathing earlier. How often do you bathe or shower?
A If I'm having a good week, and when I say good, my pain level is at about a 7, maybe three times a week. If I'm having a bad week, I'm lucky if I bathe once or twice. I cannot bend over to wash my hair in the shower and the feel of the water hitting from the shower head is like needles hitting that side of my arm. It's excruciating and then it sets the flare-up which feels like the burning and is a lot worse than a normal day. ....
Q You read at all during the day?
A Sometimes. I get confused a lot and have trouble focusing on things. And, I can't hold a book because that makes things difficult. But, I'll read here and there. I'll have a reader thing. What is it called?
Q One of the electronic readers?
A A Kindle. I have Kindle and I'll read until I can't focus or pay attention to it anymore. At some point, I can't keep track of what's happening.
Q Do you have any idea how much time goes by when you're not able to read anymore?
A No.
Q If you watch TV at all, would you be able to summarize the show after it's done?
A It depends on the show. I've watched the Golden Girls since I was little. Those I can tell you. New things I have a hard time with.
(Admin. Tr. 56-59).
Plaintiff argues that the ALJ improperly relied on Plaintiff's ability to go out alone, prepare simple meals and keep up with personal care to discount Plaintiff's statements about her severe symptoms. Specifically, Plaintiff contends:
Third, the ALJ remarked that Ms. Seyler['s] allegations were inconsistent with her activities of daily living. (Tr. 24) Activities of daily living can generally only support an adverse credibility finding if (1) the activities of daily living indicate that “a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting” or (2) the activities of daily living contradict other allegations by the claimant, rendering them internally inconsistent. Orn v. Astrue,
495 F.3d 625, 639 (9th Cir. 2007); accord Gonzales v. Colvin, No. 3:13-CV-2620, at ECF No. 26 (M.D. Pa. Feb. 17, 2015) (Adopting recommendation ECF No. 24). This is because a finding of nondisability requires that a claimant be able to “do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule. Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR 968P (S.S.A. July 2, 1996). See Zuback v. Colvin, 4:14-CV-00602-GBC, 2015 WL 5474846, at *18 (M.D. Pa. Sept. 15, 2015).
The ALJ cited Ms. Seyler's ability to go out alone, prepare simple meals, keep up with personal care, etc. to undermine the severity of her allegations (Tr. 24) “Disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity. Smith's activities are miniscule when compared to a plethora of cases which have held that there was total disability even when the claimant was far more active than Smith. It is well established that sporadic or transitory activity does not disprove disability.” Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981). This is because household tasks are less stressful and allow flexibility for breaks. Harsh v. Colvin, No. 3:13-CV-42 GLS, 2014 WL 4199234 at *4 (N.D.N.Y. Aug. 22, 2014) (“[T]he ALJ placed undue emphasis on Harsh's ability to perform a “wide range of daily activities,” including doing some cooking, cleaning, laundry, and shopping, sitting on her porch, reading, and caring for her kids. (Tr. at 13, 43-33, 284) Under the circumstances and given the medical opinions of record, it was error for the ALJ to infer an ability to handle the stress demands of competitive, remunerative employment on a sustained basis from the ability to perform very basic activities of daily living.”); Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005) (“[T]he test is whether the claimant has ‘the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.' In other words, evidence of performing general housework does not preclude a finding of disability.”) (internal quotations omitted); Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The critical differences between activities of daily living and activities in a full-time job are that a
person has more flexibility in scheduling the former than the latter, can get help from other persons ...and is not held to a minimum standard of performance, as []he would be by an employer.”). In her household, Ms. Seyler was able to stop when needed and to postpone activities due to her symptoms and this is not possible in a typical fulltime employment position.
(Doc. 15, pp. 5-7).
In response, the Commissioner argues that it is proper under the regulations for the ALJ to consider a claimant's activities of daily living when evaluating their statements. Specifically, the Commissioner contends:
Second, it was entirely proper for the ALJ to discuss Plaintiff's ability to perform activities of daily living (Pl.'s Br. at 5-7). The regulations expressly provide that a claimant's activities of daily living are a relevant consideration in the analysis of a claimant's subjective complaints. 20 C.F.R. § 404.1529(c)(3)(i); see also Burns v. Barnhart, 312 F.3d 113, 129-130 (3d Cir. 2002) (ALJ appropriately considered contradictory activities in evaluating subjective statements); Miller v. Colvin, No. 3:13-CV-0034, 2014 WL 1910495, at *6 (M.D. Pa. May 13, 2014) (ALJ is required to consider the claimant's daily activities). Here, the ALJ did not rely solely on Plaintiff's daily activities to find she was capable of working. The ALJ appropriately cited her daily activities for purposes of evaluating her subjective complaints (as required by the regulations), not as examples of the functions she could perform for an entire day. Ladda v. Berryhill, 749 Fed.Appx. 166, 173 n.4 (4th Cir. 2018). And the decision easily confirms the ALJ based his subjective complaint analysis on the totality of the evidence, not just Plaintiff's daily activities (Tr. 20-23).
(Doc. 18, pp. 11-12).
In her brief, Plaintiff relies primarily on a Ninth Circuit case, Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). In Orn, the claimant filed an application for benefits alleging that he was unable to work due to asthma, severe chronic obstructive pulmonary disease, diabetes, sleep apnea, and morbid obesity. 495 F.3d at 627. On appeal to the Nineth Circuit, the Court concluded that the ALJ did not give specific reasons, based on substantial evidence, for dismissing the opinions of Orn's treating physicians, and held that the ALJ erred in discrediting Orn's testimony. Id. During the administrative hearing Orn testified that he spent most of his time indoors to avoid fumes, odors, dust, and gases, and that his activities include reading, watching television, and coloring in coloring books. Id. at 628. “[T]he ALJ rejected Orn's testimony because his activities of ‘read[ing], watch[ing] television and color[ing] in coloring books” “indicate that he is more functional than alleged.'” Id. at 639.
Plaintiff argues that, like Orn, her ability to go out alone, prepare simple meals, and keep up with personal care does not undermine the severity of her allegations. As it pertains to Plaintiff's ability to prepare meals and keep up with personal care, the ALJ did reference these activities in a paragraph addressing both the objective medical evidence and Plaintiff's activities of daily living. (Admin. Tr. 22). At the conclusion of that paragraph, the ALJ stated “[t]his evidence suggests that she would be limited to a range of light exertional activity.” (Admin. Tr. 22). I agree that the ability to do “light cooking” as Plaintiff describes it in her testimony, and the ability to dress herself is not, by itself, inconsistent with Plaintiff's testimony that she feels as if someone has broken the bones in her left harm, ripped away the muscles, and set the arm on fire. However, I am not persuaded that remand is required. The evidence cited in that paragraph, viewed as a whole, may be reasonably viewed as inconsistent with Plaintiff's testimony about the nature of her pain.
To the extent Plaintiff argues that the ALJ improperly cited Plaintiff's ability to go out alone as inconsistent with her statements about her pain, I am not persuaded. The ALJ's only reference to Plaintiff's ability to “go out alone” appears in a summary of Plaintiff's testimony. The ALJ does not appear to find that this activity was inconsistent with Plaintiff's statements about her pain. (Admin. Tr. 20-21) (The claimant can . . . drive a vehicle short distances and go out alone; however, on bad days, she is unable to go out alone.”). The ALJ did not cite this activity as inconsistent with Plaintiff's testimony.
4. Whether the ALJ Improperly Relied on Plaintiff's ability to work as a Hairdresser to Discredit Plaintiff's Statements
Plaintiff argues that the ALJ improperly relied on Plaintiff's ability to work as a hairdresser to discount Plaintiff's statements about her pain. Specifically, Plaintiff contends:
Lastly, the ALJ referred to Ms. Seyler's ability to work as a hairdresser to discredit her allegations. (Tr. 24) If the ALJ had any doubts regarding Ms. Seyler's allegations, he should have questioned her before relying on her work as a hairdresser to her detriment. See Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013) (“Had the ALJ been concerned about the significance of the settlement, he could have questioned Roddy about it at the hearing.”).
(Doc. 15, pp. 8-9).
In response, the Commissioner argues that Plaintiff has never worked as a hairdresser. Specifically, the Commissioner contends:
Finally, Plaintiff's argument about her prior work as a hairdresser does not appear to pertain to this case (Pl.'s Br. at 7-8). Plaintiff had prior work experience as a production associate at a warehouse and as a kitchen associate in food service (Tr. 253).
(Doc. 18, p. 14).
In her reply brief, Plaintiff concedes that she did not work as a hairdresser.
(Doc. 19, p. 3 n.1). Accordingly, I find that this argument does not warrant remand in this case.
[The next page contains the Recommendation]
V. RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's request for relief 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.
ORDER
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.