Opinion
Civil Action 4:22-CV-1493
07-31-2023
RUTH R.,[1] Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration Defendant
MARIANI, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Ruth R. (“Plaintiff”), an adult who lives in 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 the undersigned magistrate judge to issue a report and recommendation. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, we find the Commissioner's final decision is not supported by substantial evidence. Accordingly, it is RECOMMENDED that the Commissioner's final decision be VACATED and this case be REMANDED to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
II. BACKGROUND & PROCEDURAL HISTORY
On July 17, 2019, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 16; Doc. 11-2, p. 17). In this application, Plaintiff alleged she became disabled on June 1, 2019. Id. She later amended her onset date to December 19, 2019, the last day she worked. Id. Plaintiff alleges that she cannot work because of the following conditions: depression and anxiety. (Admin. Tr. 243; Doc. 11-6, p. 15). Plaintiff alleges that the combination of these conditions affects her ability to talk, complete tasks, concentrate, understand, and follow instructions. (Admin. Tr. 303; Doc. 11-6, p. 75). Plaintiff has a high school education, and earned a certificate in secretarial school. (Admin. Tr. 244; Doc. 11-6, p. 16).
On March 9, 2020, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 16; Doc. 11-2, p. 17). On September 3, 2020, Plaintiff's application was denied on reconsideration. Id. On September 16, 2020, Plaintiff requested an administrative hearing. Id.
On September 20, 2021, Plaintiff, assisted by her counsel, appeared and testified during an online video hearing before Administrative Law Judge Scott M. Staller (the “ALJ”). (Admin. Tr. 16, 25; Doc. 11-2, pp. 17, 26). On September 29, 2021, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 25; Doc. 11-2, p. 26). On December 2, 2021, Plaintiff requested review by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 202; Doc. 11-4, p. 128).
On July 27, 2022, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1; Doc. 11-2, p. 2).
On September 23, 2022, Plaintiff filed a complaint in the district court. (Doc. 1). In the complaint, Plaintiff alleges that the ALJ's decision denying the application “is not supported by substantial evidence and is based on the incorrect application of legal principles and the application of incorrect legal principles.” (Doc. 1, ¶ 13). As relief, Plaintiff requests that the Court reverse the ALJ's decision and either award benefits or remand this case for a new administrative hearing. (Doc. 1, ¶ 14).
On November 21, 2022, the Commissioner filed an answer. (Doc. 10). In the answer, the Commissioner maintains that the decision denying Plaintiff's application is correct, was made in accordance with the law and regulations, and is supported by substantial evidence. (Doc. 10, ¶ 9). Along with her answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 11).
Plaintiff's Brief (Doc. 12), the Commissioner's Brief (Doc. 13), and Plaintiff's Reply (Doc. 14) have been filed. This matter is now ready to decide.
III. LEGAL STANDARDS
Before delving into the merits of this case, it is helpful to restate the familiar legal principles governing judicial review of social security appeals, and the five-step sequential evaluation process. We will also discuss the legal standards relevant to the arguments Plaintiff raised in this case.
A. Substantial Evidence Review - the Role of This Court
A district court's review of ALJ decisions in social security cases is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. 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.” Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. A single piece of evidence is not substantial if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the record. 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.” In determining whether the Commissioner's decision is supported by substantial evidence under sentence four of 42 U.S.C. § 405(g) the Court may consider any evidence in the record made before the ALJ.
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).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001) (“when the Appeals Council has denied review the district court may affirm, modify, or reverse the Commissioner's decision, with or without a remand based on the record that was made before the ALJ (Sentence Four review).”). The claimant and Commissioner are obligated to support each contention in their arguments with specific reference to that record where appropriate. L.R. 83.40.4; United States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014) (“parties . . . bear the responsibility to comb the record and point the Court to the facts that support their arguments.”); Ciongoli v. Comm'r of Soc. Sec., No. 15-7449, 2016 WL 6821082 (D.N.J. Nov. 16, 2016) (noting that it is not the Court's role to comb the record hunting for evidence that the ALJ overlooked).
The Supreme Court has underscored the limited scope of district court review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.___,___, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
To determine whether the final decision is supported by substantial evidence, the court must decide not only whether “more than a scintilla” of evidence supports the ALJ's findings, but also whether those findings were made based on a correct application of the law. In doing so, however, the court is enjoined to refrain from trying to re-weigh evidence and “must not substitute [its] own judgment for that of the fact finder.”
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 ....”).
Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).
Furthermore, meaningful review cannot occur unless the final decision is adequately explained. As the Court of Appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements . . . are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir. 2004). The ALJ, of course, need not employ particular “magic” words: “Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.” Jones, 364 F.3d at 505.
Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
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.” 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. 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(d)(1)(A); see also 20 C.F.R. § 404.1505(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 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”).
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).” 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.
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).
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 from engaging in any of his or her past relevant work. 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.
C. Guidelines For The Evaluation of Severity At Step Two
In this case, we are presented with a claim that was denied at step two, without any further scrutiny. In this unusual setting, a series of special considerations apply.
Step two is the first substantive benchmark an ALJ must address. At this step, the ALJ makes two threshold inquiries: (1) whether the impairments that form the basis of a claimant's application are medically determinable or non-medically determinable, and (2) whether those impairments are severe or non-severe. An impairment, or combination of impairments, is not severe if it does not significantly limit a claimant's ability to do basic work activities. Conversely, an impairment is “severe” if it does significantly limit a claimant's physical or mental ability to do basic work activities.
20 C.F.R. § 404.1522(a); see also 20 C.F.R. § 404.1522(b) (defining basic work activities).
The phrase, “significantly limits,” as used in this context, is somewhat misleading. It is not synonymous with “disability.” Rather, it has been described as “more than a minimal effect” on a claimant's physical or mental ability to perform basic work activities. On this score, the Third Circuit Court of Appeals has observed that “[t]he step two severity inquiry is a ‘de minimis screening device to dispose of groundless claims.” As is especially relevant in this case, where there is any reasonable doubt as to whether a claimant has met their burden at this step, the matter must “be resolved in favor of the applicant.” “[A]lthough the standard for substantial evidence at step two is the same as at all other steps, ‘because step two is to be rarely utilized as a basis for the denial of benefits . . . its invocation is certain to raise a judicial eyebrow.'”
SSR 85-28, 1985 WL 56856.
McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (quoting Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003)).
Newell, 347 F.3d at 546-47.
McClease v. Comm'r of Soc. Sec., No. Civ. A. 08-1673, 2009 WL 3497775, at *4 (E.D. Pa. Oct. 28, 2009) (quoting McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360-61 (3d Cir. 2004)).
D. Guidelines for the ALJ's Evaluation of Mental Impairments
The Commissioner's regulations set out a special technique for the evaluation of mental impairments. This “special technique” is sometimes referred to as the Psychiatric Review Technique (“PRT”) or the paragraph B criteria. First, the ALJ is required to evaluate the claimant's “pertinent symptoms, signs, and laboratory findings” to determine whether the claimant has one or more medically determinable mental impairments.” Second, the ALJ is required to rate the degree of functional limitation (none, mild, moderate, marked, or extreme) resulting from the impairment across the following four broad functional areas: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself.
SSR 96-8p refers to the “psychiatric review technique” described in 20 C.F.R. § 404.1520a. 1996 WL 374184, at *4. The broad functional areas analyzed as part of this special technique are the same areas that are assessed in “paragraph B” of the mental disorder listings in 20 C.F.R. Pt. 404, Subpt. P. App. 1.
20 C.F.R. § 404.1520a. The points on the rating scale are defined in the listing of impairments. 20 C.F.R. Pt. 404, Subpt. P. App. 1 § 12.00(F)(2). The broad functional areas are also defined in the listing of impairments. 20 C.F.R. Pt. 404, Subpt. P. App. 1 § 12.00(E).
After an ALJ rates the degree of functional limitation across these broad categories, he or she will use those ratings to determine the severity of a claimant's mental impairments. If the claimant has “no” or “mild” limitations across all categories, the impairment will be found non-severe at step two “unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities.” If an impairment is found severe, the ratings will be used to determine whether the claimant's mental impairments meet or medically equal a listed impairment at step three.
Where a claimant has at least one severe impairment, but does not have an impairment that meets or equals a listing, a more detailed functional assessment is required. As explained in SSR 96-8p:
the limitations identified in the “paragraph B” . . . criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing
various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF.With this legal background we now turn to the specifics of this appeal.
SSR 96-8p, 1996 WL 374184, at *4.
IV. DISCUSSION
Plaintiff raises the following issues in her statement of errors:
(1) “The ALJ erred in finding that Ms. [R.] had no severe impairment at step two of the sequential evaluation process.” (Doc. 12, p. 1).
(2) “The ALJ's multiple errors with symptom evaluation compel reversal.” Id.
We will begin our analysis by summarizing the ALJ's findings, and then will address Plaintiff's first argument, that substantial evidence does not support the ALJ's conclusion at step two. Because we find this argument presents a basis for remand, we decline to address Plaintiff's second argument.
Burns v. Colvin, 156 F.Supp.3d 579, 598 (M.D. Pa. 2016) (declining to address the claimant's remaining argument because a remand could produce different results on these claims, “making discussion of them moot.”).
A. The ALJ's Decision Denying Plaintiff's Application
In his September 2021 decision, the ALJ found that Plaintiff meets the insured status requirement of Title II of the Social Security Act through December 31, 2024. (Admin. Tr. 18; Doc. 11-2, p. 19). Then, Plaintiff's application was evaluated at steps one and two of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between December 19, 2019, (Plaintiff's alleged onset date) and September 29, 2021, (the date the ALJ decision was issued) (“the relevant period”). (Admin. Tr. 18; Doc. 11-2, p. 19).
At step two, the ALJ found that, during the relevant period, Plaintiff did not have any medically determinable severe impairments. (Admin. Tr. 19; Doc. 11-2, p. 20). He found that Plaintiff had medically determinable non-severe impairments of breast cancer, depressive disorder, anxiety disorder, obesity, tibia stress fracture, and right knee osteoarthritis. Id.
The ALJ concluded at step two that Plaintiff was not disabled because she did not have any medically determinable severe impairment during the relevant period.
B. Substantial Evidence Does Not Support the ALJ's Denial of Benefits At Step Two
Plaintiff argues that substantial evidence does not support the ALJ's conclusion that her mental impairments (depressive disorder and anxiety disorder) are not severe. Recognizing the unusual procedural posture of this case, we find that Plaintiff's argument has considerable merit.
As discussed in the legal standard section of this Report, step two is rarely utilized to deny benefits, and any reasonable doubt as to whether a claimant has demonstrated the existence of a “severe” impairment is to be resolved in his or her favor. Viewing the evidence in this case through that analytical lens, we find that substantial evidence does not support the ALJ's conclusion that Plaintiff has no severe mental impairment. Notably, the evidence in this case includes two opinions by Plaintiff's treating psychiatrist, Gale Georgeff, M.D. (“Dr. Georgeff”), assessing limitations that are definitely consistent with a severe mental impairment, and likely also consistent with a finding of total disability. (Admin. Tr. 542-550; Doc. 11-7, pp. 183-191) (November 6, 2020 mental impairment questionnaire); (Admin. Tr. 587-595; Doc. 11-7, pp. 228-236). Similarly, albeit on a physical RFC assessment questionnaire, treating Certified Registered Nurse Practitioner Ranee Reilly (“CRNP Reilly”) reported that Plaintiff could not perform even low stress work, would be absent two days per month as a result of her impairment or treatment, and that Plaintiff had difficulty with tasks due to problems maintaining concentration. (Admin. Tr. 551-556; Doc. 11-7, pp. 193-198); (Admin. Tr. 602-605; Doc. 11-7, pp. 243-246). Although the ALJ is certainly not required to credit these opinions, when pitted against opinions by state agency consultants who had access to less than half of the medical evidence in this record (some of which pre-date Plaintiff's amended onset date), these more recent competing opinions certainly create a reasonable doubt as to whether Plaintiff has shown she has a severe mental impairment.
The Commissioner sets out the correct standard for evaluating claims at step two, and also correctly argues that the relevant inquiry is not whether Plaintiff was diagnosed with an impairment, but instead whether that impairment limits Plaintiff's ability to do basic work activities. The Georgeff and Reilly opinions support the conclusion that Plaintiff's mental impairments cause such limitations.
The Commissioner also argues that an ALJ may properly rely on a state agency consultant opinion to support his or her step two analysis, and that the ALJ in this case relied on two such state agency consultant opinions. The cases she cites, however, are distinguishable from this case on their facts.
In the relevant section of her brief, the Commissioner cites to: Thelosen v. Comm'r of Soc. Sec., 384 Fed.Appx. 86, 91 (3d Cir. 2010); Kirk v. Comm'r of Soc. Sec., 177 Fed.Appx. 205, 207 (3d Cir. 2006) and Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). (Doc. 13, pp. 11-12). None of these cases address the scenario presented here. In Chandler, the Third Circuit held that an ALJ could rely on a state agency consultant opinion to support an RFC assessment. In Kirk, the Third Circuit affirmed an ALJ's finding that an impairment was non-severe at step two. It reasoned that the record lacked meaningful support of Kirk's self-serving allegations of debilitating anxiety, and that a claimant's unsupported allegations, standing alone, are insufficient to sustain the claimant's burden of showing a severe impairment. Unlike Kirk, Plaintiff's allegations in this case are supported by opinions from two treating sources. In Thelosen, the claimant applied for childhood disability benefits, disability insurance benefits, and supplemental security income. The claimant met the eligibility requirements for childhood disability benefits through October 13, 1995, and did not prove she had a severe impairment on or before that date. The claimant met the eligibility requirements for disability insurance benefits through March 31, 2001, but did not prove she had a severe impairment on or before that date. The claimant was awarded supplemental security income as of her earliest date of eligibility, June 25, 2002. She appealed the denials of the childhood disability and disability insurance benefit applications. The record in that case did not include any medical opinion that supported the existence of a severe impairment before the claimant's eligibility under the other two programs expired.
We find that the issue presented in this case more closely aligns with Garcia-Sierra v. Kijakazi, No. 21-CV-458-RAL, 2023 WL 125082 (E.D. Pa. Jan. 5, 2023). In Garcia-Sierra, the record included two medical opinions about the claimant's mental impairments; a consultative examiner assessed that the claimant had mild and moderate limitations, and a state agency consultant found only mild limitations and assessed that the claimant's mental impairment was non-severe. The ALJ, relying on the state agency consultant, found that the claimant's mental impairment was non-severe. On appeal to the District Court, the claimant argued that substantial evidence did not support the ALJ's step two evaluation. The Court agreed, reasoning that:
At step two it is error for the ALJ to weigh the evidence in the claimant's favor against the unfavorable opinions of a consulting and reviewing examiner. See Magwood v. Comm'r of Soc. Sec., 417 Fed.Appx. 130, 132 (3d Cir. 2008). Which means that weighing and discounting the favorable (to claimant) opinion of the only mental health specialists to have examined Ms. Garcia was error, at step two.
While Magwood was not precedential, the opinion of Judges Smith, McKee and Scirica carries weight. Step two involves a search in the record for credible evidence of severity, not a weighing of conflicting evidence. The bar is set low - deliberately so. The weighing of conflicting evidence comes later in the process, at steps three through five. I conclude that it was error for the ALJ to find Ms. Garcia's mental condition non-severe at step two.Garcia-Sierra, 2023 WL 125082, at *3. Unlike this case, however, in Garcia-Sierra, the ALJ's error was deemed “harmless” because at least one severe impairment was identified, and the ALJ moved on to step three.
Applying the same analytical framework set out in Magwood, and Garcia-Sierra, we find that substantial evidence does not support the ALJ's evaluation of Plaintiff's mental impairments at step two. The evidence Plaintiff adduced, including opinions from two treating sources consistent with a finding of total disability, records showing that she regularly saw a psychiatrist and was prescribed multiple psychotropic medications to manage her symptoms, coupled with her own testimony, is sufficient to satisfy step two's de minimis threshold. Moreover, we find that the ALJ's error in this regard resulted in clear prejudice, as the ALJ did not continue on to evaluate Plaintiff's claim at steps three, four or five of the sequential evaluation process.
Accordingly, it is recommended that this matter be remanded to the Commissioner for further proceedings.
Although the law calls for a remand and further proceedings in this case, nothing in this report should be construed as suggesting what the outcome of those proceedings should be. That final assessment must await thorough consideration and, if necessary, development of the evidence on remand.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) The final decision of the Commissioner be VACATED.
(2) This case be REMANDED to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
(3) Final judgment be issued in favor of Ruth R.
(4) The Clerk of Court be DIRECTED to close this case.
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.