Opinion
Civil Action 3:21-cv-00033
07-25-2022
CATHY DENISE GREEN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1] Defendant.
BRANN, C.J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR., UNITED STATES MAGISTRATE JUDGE
The plaintiff, Cathy Denise Green, brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for disability and disability insurance benefits under Title II of the Social Security Act (the “Act”).
This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we recommend that the final decision of the Commissioner be AFFIRMED.
I. Background
Green is an adult individual born March 28, 1968. On March 5, 2018, Green protectively filed an application for benefits under Title II of the Act alleging disability as of March 28, 2018. She was fifty years old at the time of the alleged onset of disability-March 28, 2018. (Tr. 14). In her application, Green alleged that the following impairments prevent her from engaging in any work: fibromyalgia and arthritis in back. (Tr. 71).
Green's age at the onset date makes her a “person closely approaching advanced age” under the Commissioner's regulations whose age may affect her ability to adjust to other work.
At the time of the administrative hearing, Green was fifty-one years old and resided alone in Waynesboro, Pennsylvania, which is in the Middle District of Pennsylvania.
At the administrative hearing, Green testified that she stopped working in April 2017 because she missed time from work due to pain in her hips. She testified that her job required her to stand and lift heavy parts, and this required her to sit for lengthy periods because of pain. She stated that she went on short-term disability leave. She stated that she continued to get paid under a short-term disability policy through her employer. (Tr. 40). Green stated that she continues to receive long-term disability from Hartford through her employer. (Tr. 41).
At the administrative hearing, Green testified that she completed a GED and possesses a driver's license. She testified that she drives short distances, two or three times a week, to go to the store or give her grandchildren rides. (Tr. 38). Green testified that her grandson helps her out around the house and she has a neighbor who does her yard work and takes out her trash. (Tr. 44). She testified that she has a robotic vacuum that vacuums her floors and she is able to wash her dishes and cook as long as she sits on a chair. She is able to bathe herself every other day because she has a shower chair. She stated she is able to dress herself as long as she is sitting down. (Tr. 45, 46).
Green testified that in a typical day, she wakes up between 6:00 a.m. and 7:00 a.m., takes her dog out, prepares her coffee, and sits and plays on her phone or watches television for a couple hours. She stated she usually eats once a day and has a snack later in the day.
Green testified she goes to bed around midnight and usually sleeps well due to the medication. (Tr. 47). Green also testified that she wakes up frequently because her legs go numb and she has to keep moving around. She testified that she sometimes takes naps during the day for a couple of hours. (Tr. 48).
Green testified that she is able to do her laundry but sometimes her grandson does it for her. (Tr. 50). She testified that she used to walk around the grocery store but now she uses the cart. (Tr. 49). Green testified that her grandson stays with her 90% of the time in the summer and she sees him on weekends during the school year. She testified she has a granddaughter that lives near her and helps her out. Green testified that she could probably stand/walk for five minutes before she would have to sit down, and she would be able to sit for approximately one hour, but if she sat for longer than that she would have to shift constantly. She stated that she is able lift a case of water and put it in the cart. (Tr. 51-52).
Green testified that her medications help with her symptoms and that her allergies and asthma are under control. She testified she has gained weight from her medications and continues to have good and bad days. (Tr. 55).
Green stated that she spends time with her daughter, grandchildren, and her sister. She testified that once or twice a month, she goes to their homes and sometimes goes to meet her parents for dinner. (Tr. 58).
II. Standard of Review
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); 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 (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). 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 the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that he or she 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 [Commissioner]'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 ....”).
To receive disability benefits, 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).
A “physical or mental impairment” is an impairment resulting from “anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
“Substantial gainful activity” is work that (1) involves performing significant or productive physical or mental duties, and (2) is done (or intended) for pay or profit. 20 C.F.R. § 404.1510.
The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering his or her residual functional capacity (“RFC”); and (5) whether the claimant is able to do any other work, considering his or her RFC, age, education, and work experience. Id. The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064.
An extensive list of impairments that warrant a finding of disability based solely on medical criteria, without considering vocational criteria, is set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1.
“Residual functional capacity” is the most a claimant can do in a work setting despite the physical and mental limitations of his or her impairment(s) and any related symptoms (e.g., pain). 20 C.F.R. § 404.1545(a)(1). In assessing a claimant's RFC, the Commissioner considers all medically determinable impairments, including those that are not severe. Id. § 404.1545(a)(2).
III. The ALJ's Decision
On March 5, 2018, Green protectively filed claims for disability insurance benefits asserting a disability onset date of June 13, 2017. Her claim was initially denied by state agency reviewers on September 11, 2018. The plaintiff then requested an administrative hearing.
A hearing was subsequently held on August 26, 2019, before an administrative law judge, Gwendolyn M. Hoover (the “ALJ”). In addition to the plaintiff herself, the ALJ received testimony from an impartial vocational expert, Andrew Caporale. The plaintiff was represented by counsel at the hearing. At the hearing, Green amended her alleged onset date to March 28, 2018.
On January 31, 2020, the ALJ denied Green's application for benefits in a written decision. The ALJ followed the familiar five-step sequential evaluation process in determining that Green was not disabled under the Social Security Act. See generally Myers v. Berryhill, 373 F.Supp.3d 528, 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation process). At step one, the ALJ found that Green had not engaged in substantial gainful activity since her alleged disability onset date. At step two, the ALJ found that Green had the severe impairments of: obesity; degenerative disc disease of the lumbar spine; fibromyalgia; and degenerative joint disease of the bilateral hips. At step three, the ALJ found that Green did not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Between steps three and four of the sequential evaluation process, the ALJ assessed Green's residual functional capacity (“RFC”). See generally Myers, 373 F.Supp.3d at 534 n.4 (defining RFC). After evaluating the relevant evidence of record, the ALJ found that Green had the RFC to perform “light work” as defined in 20 C.F.R. § 404.1567(b) except:
The Social Security regulations define “light work” as a job that “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
[T]he claimant can stand or walk four hours total in an eight-hour workday; sit for at least four hours total in an eight-hour workday; frequently balance and climb ramps or stairs; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch, and crawl; and tolerate no concentrated exposure to humidity, dampness, and respiratory irritants-such as fumes, odors, dusts, gases, chemicals, and work in poorly ventilated area.(Tr. 20).
In making these factual findings regarding Green's RFC, the ALJ considered her symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec. Ruling 163p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also considered and articulated how persuasive she found the medical opinions and prior administrative medical findings of record. See generally 20 C.F.R. § 404.1520c.
At step four, based on this RFC and on testimony by the vocational expert, the ALJ concluded that Green was unable to perform her past relevant work as a motor vehicle assembler, DOT # 806.684-010, as actually and generally performed.
At step five, the ALJ found that, considering her age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Green can perform. (Tr. 24). Specifically, the ALJ relied upon the testimony of the vocational expert as to which jobs the hypothetical individual with Green's age, education, work experience, and residual functional capacity could perform. The vocational expert testified that such a hypothetical person could perform occupations of: inspector/hand packager, DOT #559.687-074, with 400,000 positions available nationally; information clerk, DOT #237.367-018, with 71,000 positions available nationally; or electrical accessories assembler, DOT #729.687-010, with 117,000 positions available nationally. (Tr. 24). Based on this finding, the ALJ concluded that Green was not disabled for Social Security purposes.
The plaintiff sought further administrative review of her claims by the Appeals Council, but her request was denied on July 6, 2020, making the ALJ's January 2020 decision the final decision of the Commissioner subject to judicial review by this court.
Green timely filed her complaint in this court on January 1, 2021. (Doc. 1). The Commissioner has filed an answer to the complaint on June 2, 2021, together with a certified copy of the administrative record. (Docs. 15, 16). Both parties have filed their briefs, and this matter is now ripe for decision. (Docs. 17, 20, 21).
III. DISCUSSION
A. The ALJ properly evaluated and discussed obesity as an impairment.
The plaintiff contends that the ALJ's decision is not supported by substantial evidence because the ALJ failed to adequately consider Green's obesity, either alone or in combination with her other impairments. In particular, the plaintiff notes that her BMI was between 34 and 38 during the period at issue, but the ALJ's “perfunctory” discussion failed to explain how she considered this particular statistic or how it did not exacerbate her other impairments. Other than the specific reference to her BMI, however, the plaintiff does not articulate any particular error by the ALJ. She does not point to any particular functional limitations that result from her obesity.
In Social Security Ruling 19-2p, the agency recognized that “[p]eople with obesity have a higher risk for other impairments, and the effects of obesity combined with other impairments can be greater than the effects of each of the impairments considered separately.” Soc. Sec. Ruling 19-2p, 2019 WL 2374244, at *2. At step two of the five-step sequential evaluation process, the ruling provided that, in evaluating obesity, the agency would “consider all symptoms, such as fatigue or pain that could limit functioning.” Id. at *3. However, the ruling expressly noted that “[n]o specific weight or BMI establishes obesity as a ‘severe' or ‘not severe' impairment.” Id. at *4. At step three of the five-step sequential evaluation process, the ruling noted that “[o]besity is not a listed impairment; however, the functional limitations caused by the [medically determinable impairment] of obesity, alone or in combination with another impairment(s), may medically equal a listing. Id. In determining the claimant's RFC before steps four and five, the ruling provided that “[w]e must consider the limiting effects of obesity when assessing a person's RFC.... As with any other impairment, we will explain how we reached our conclusion on whether obesity causes any limitations.” Id.
At step two, the ALJ found Green's obesity to be a severe impairment. (Tr. 17). The plaintiff does not challenge this finding.
At step three, the ALJ expressly considered Green's obesity, stating:
Regarding Obesity, this disorder s established as a medically determinable impairment by calculation of the claimant's Body Mass. Index (BMI), which has ranged from 33 to 39 since the alleged onset date,, consistent with moderate obesity. Accordingly, as appropriate under SSR 19-2p, I have evaluated the claimant's obesity, both alone and in combination with her other severe impairments, to determine potential listing-level severity. I note that the
claimant never reported or testified to any limitation specifically related to obesity. Similarly, the claimant's treating medical providers have only briefly mentioned the claimant's weight in connection with her other impairments, counseling for diet and exercise, but without notation of body systems abnormalities or functional restriction on examination suggestive of resultant limitations or recommendation for bariatric surgery, dedicated nutritional counseling, or any other form of treatment that might, by nature of the prescribed course of treatment itself, suggest a listing-level disorder. Accordingly, based upon a thorough review of the medical records and opinion evidence, . . . I find that the claimant's obesity, alone or in combination with her other severe impairments, does not result in sufficient symptoms or functional impairment to meet or medically equal a listed impairment.(Tr. 19) (citations omitted).
In determining Green's RFC between steps three and four, the ALJ expressly considered her obesity, stating:
Even when her moderate obesity is considered - BMI 33 to 39 during the period at issue [--] the claimant's presentation upon objective examination does not suggest functional loss greater than that accommodated in the above residual functional capacity assessment. Given this evidence, I find restriction to the light exertional base with further limitation on postural activities warranted; however, I find the objective medical evidence does not support further physical or mental limitations, as alleged.(Tr. 22) (citations omitted).
Based on the foregoing, it is evident that the ALJ did indeed consider Green's obesity throughout the five-step sequential evaluation process, consistent with the agency's guidelines, including those set forth in Social Security Ruling 19-2p. While the plaintiff clearly disagrees with the ALJ's conclusions, beyond a generalized and unsupported assertion that her weight might potentially exacerbate her other impairments of fibromyalgia, degenerative disc disease of the lumbar spine, and degenerative joint disease, she has failed to point to any evidence demonstrating functional limitations caused by her obesity beyond those found by the ALJ. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (“[E]ven if we assume . . . that [the claimant's] obesity could be a factor, [the claimant] 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 to stand, walk and manipulate her hands and fingers. That generalized response is not enough to require a remand ....”); see also Carter v. Comm'r of Soc. Sec., 805 Fed. App'x 140, 143 (3d Cir. 2020) (holding that remand was not required where claimant relied on prior agency policy ruling “stating that obesity can impair one's ability to perform basic work activities” but failed to “specify[] how her obesity . . . affected her ability to perform basic work activities”); Woodson v. Comm'r Soc. Sec., 661 Fed. App'x 762, 765 (3d Cir. 2016) (“[The claimant] simply speculates about how his obesity might exacerbate other impairments .... But [the claimant] never points to specific medical evidence in the record to demonstrate that his obesity, in combination with other impairments, is sufficiently disabling.”). “The ALJ's failure to explicitly delineate where obesity may have caused or contributed to specific symptoms and functional limitations does not undermine the entire analysis, when ultimately the ALJ properly characterized the symptoms and functional limitations.” Dietrich v. Saul, 501 F.Supp.3d 283, 294 (M.D. Pa. 2020).
Accordingly, we find the ALJ's evaluation of the claimant's obesity, either alone or in combination with other impairments, throughout the five-step sequential evaluation process, is supported by substantial evidence and was reached based upon a correct application of the relevant law.
B. The ALJ properly evaluated and considered plaintiff's symptoms.
The plaintiff contends that the ALJ's decision is not supported by substantial evidence because the ALJ erred in her evaluation of Green's symptoms, including her subjective complaints of pain. See generally 20 C.F.R. § 404.1502(i) (“Symptoms means your own description of your physical or mental impairment.”).
Standing alone, a claimant's allegation of pain or other symptoms is not enough to establish an impairment or disability. 20 C.F.R. § 404.1529(a); Prokopick v. Comm'r of Soc. Sec., 272 Fed. App'x 196, 199 (3d Cir. 2008) (“Under the regulations, an ALJ may not base a finding of disability solely on a claimant's statements about disabling pain ....”). “An
ALJ is permitted to reject a claimant's subjective testimony as long as he or she provides sufficient reasons for doing so.” Prokopick, 272 Fed. App'x at 199 (citing Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999)).
When evaluating a claimant's subjective allegations of pain or other symptoms, an ALJ utilizes a two-step process. Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *2 (revised Oct. 25, 2017). First, the ALJ must determine whether there is a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. Id. at *3; see also 20 C.F.R. § 404.1529(b). A claimant cannot be found to be “disabled based on alleged symptoms alone.” Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *4. Once the ALJ has found that a medically determinable impairment has been established, the ALJ must then evaluate the claimant's allegations about the intensity, persistence, or functionally limiting effects of his or her symptoms against the evidence of record. Id. This evaluation requires the ALJ to consider “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.
Here, in evaluating the plaintiff's symptoms the ALJ expressly considered and extensively discussed both the medical and non-medical evidence in the record. (Tr. 20-23). This included the plaintiff's statements regarding the limiting effects of her symptoms. Based on his consideration of the whole record, the ALJ properly concluded that, while Green's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 21.)
The plaintiff argues that the ALJ erred in considering her activities of daily living in the course of evaluating her symptoms. But it has long been well established that the extent of a claimant's daily activities may be a factor in evaluating the claimant's symptoms. See 20 C.F.R. § 404.1529(c)(3); Turby v. Barnhart, 54 Fed. App'x 118, 121 n.1 (3d Cir. 2002) (“Although certainly disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity, it is nonetheless appropriate for the ALJ to consider the number and type of activities in which the claimant engages.”) (citation, brackets, and internal quotation marks omitted).
The plaintiff notes that the ALJ had remarked that Green's treatment had been routine and conservative. But an ALJ may properly consider the fact that conservative treatment of a claimant's medical condition contradicted the degree of severity alleged by the claimant. See Myers v. Comm'r of Soc. Sec., 684 Fed. App'x 186, 192 (3d Cir. 2017); Garrett v. Comm'r of Soc. Sec., 274 Fed. App'x 159, 164 (3d Cir. 2008); Dietrich v. Saul, 501 F.Supp.3d 283, 297 (M.D. Pa. 2020); Antoniolo v. Colvin, 208 F.Supp.3d 587, 597 (D. Del. 2016).
Citing Social Security Ruling 16-3p, the plaintiff argues that the ALJ failed to properly question her regarding her treatment motivations and decisions. But that ruling's language is permissive in that it states that the ALJ “may need to contact the individual regarding [a] 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.” Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *9 (republished Oct. 25, 2017) (emphasis added). “The ALJ is not obligated to questions a claimant; rather, [the ruling] places such a judgment within the ALJ's discretion.” Kreitz v. Berryhill, Civil No. 3:16-cv-02406, 2018 WL 4102861, at *5 (M.D. Pa. June 6, 2018).
Finally, the plaintiff appears to suggest that the ALJ simply “disregarded” her fibromyalgia and her subjective complaints of pain. It is evident from the ALJ's written decision, however, that she considered the plaintiff's fibromyalgia and her subjective complaints of pain fully and in accordance with the requirements of both Social Security Ruling 12-2p, 2012 WL 3104869, concerning the evaluation of fibromyalgia, and Social Security Ruling 16-3p, 2017 WL 5180304, regarding the evaluation of symptoms.
Although Green disputes the outcome of the ALJ's analysis of the evidence of record, it is clear that the ALJ properly evaluated the Green's symptoms in accordance with the applicable regulations, and that the ALJ reasonably concluded that, notwithstanding Green's subjective complaints of pain and other symptoms, the evidence as a whole did not support physical or mental limitations in excess of those set forth in the ALJ's RFC determination. While this same evidence might have also reasonably supported the adoption of substantially greater limitations, it did not compel such a finding.
Accordingly, we find the ALJ's evaluation of the plaintiff's symptoms, including subjective complaints of pain, is supported by substantial evidence and was based upon a correct application of the relevant law.
IV. Recommendation
Based on the foregoing, we conclude that the Commissioner's finding that Green was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Accordingly, it is recommended that the decision of the Commissioner of Social Security be AFFIRMED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 25, 2022. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.