Opinion
CIVIL NO: 3:17-CV-01334
09-18-2018
STEVEN BROOKS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Judge Mariani) () REPORT AND RECOMMENDATION
I. Introduction.
This is a social security action brought under 42 U.S.C. § 405(g) (2018). The plaintiff, Steven Brooks ("Brooks"), seeks judicial review of the final decision of the Acting Commissioner of Social Security ("Commissioner") denying his claim for disability benefits and supplemental security income. We have jurisdiction over the case pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). For the reasons that follow, we find that the Commissioner's decision does not properly evaluate Brooks's obesity and recommend vacating and remanding the case on that basis.
II. Background and Procedural History.
We refer to the transcript provided by the Commissioner. See docs. 8-1 to 8-12. On July 11, 2016, Brooks applied for Social Security Disability Insurance benefits and Supplemental Security Income. Doc. 8-5 at 193-94, 195-203. Both of these claims were denied initially on October 13, 2016. Doc. 8-3. Following the initial denial of Brooks's claims, the case went before Administrative Law Judge Richard E. Guida ("ALJ"), who concluded on April 10, 2017, that Brooks did not have a disability and denied Brooks benefits on that basis. Doc. 8-2 at 36. Brooks requested review of the ALJ's decision before the Social Security Administration's Appeals Council, but his request for review was denied on June 30, 2017. Doc. 8-2 at 2-5. Brooks then filed a complaint with this court on July 28, 2017, seeking judicial review of the Commissioner's final decision to deny him benefits. Doc. 1.
The facts of the case are well known to the parties and will not be repeated here. Instead, we will recite only those facts that bear on Mr. Brooks's claims. --------
III. Legal Standards.
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 substantial evidence supports the findings of the final decision maker. See 42 U.S.C. § 405(g) (2018); 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 is "more than a mere scintilla." Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "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.'" Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). "A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence." Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1994) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). 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 an administrative agency's findings from being supported by substantial evidence." Port Norris Express Co. v. Interstate Commerce Comm'n, 697 F.2d 497, 502 (3d Cir. 1982) (quoting Consolo v. Fed. Mar. 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) (citing Smith, 637 F.2d at 970).
The question before this court, therefore, is not whether Brooks was disabled, but whether substantial evidence supports the Commissioner's finding that he was not disabled and whether the Commissioner correctly applied the relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation.
To receive disability insurance benefits pursuant to Title II and Title XVI of the Social Security Act, 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), 1382c(a)(3)(A) (2018); see also 20 C.F.R. §§ 404.1505(a), 416.905(a) (2018). 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), 1382c(a)(3)(B); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). In addition, 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).
The ALJ follows a five-step sequential-evaluation process to determine whether the claimant is disabled. 20 C.F.R. § 404.1520(a); 20 C.F.R. §416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience, and residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The ALJ must also assess a claimant's RFC between steps three and four. The RFC is "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. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft, 181 F.3d at 359 n.1); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
During the five-step process, "the claimant bears the burden of proof at steps one through four and the Commissioner bears the burden of proof at step five." Smith v. Comm'r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010). Thus, at step five of the analysis, the burden shifts to the ALJ, who "must show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity." Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).
The ALJ's disability determination must also meet certain basic substantive requirements. Most significantly, the ALJ's decision must provide "a clear and satisfactory explication of the basis on which [the decision] rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). "[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. Admin., 181 F.3d 429, 433 (3d Cir. 1999). "This explanation provides us with a basis on which to assess whether 'significant probative evidence was not credited or [was] simply ignored.'" Id. (quoting Cotter 642 F.2d at 705).
IV. The ALJ's Decision Denying Brooks's Claim.
On April 10, 2017, the ALJ issued a decision denying Brooks benefits. Doc. 8-2. At step one of the five-step process, the ALJ found that Brooks had not engaged in substantial gainful activity since May 1, 2016. Id. at 41. At step two, the ALJ found that Brooks had severe impairments, including "degenerative disc disease; obesity; generalized anxiety disorder; bipolar disorder; major depressive disorder; panic disorder; schizophrenia; and substance abuse." Id. The ALJ found that those impairments had "significantly limited the claimant's ability to perform basic work activities...." Id.
At step three of the process, the ALJ found that Brooks did not have an impairment or combination of impairments meeting the severity of a listed impairment under the regulations. Id. at 42. The ALJ noted that Brooks's impairments did not meet the requirements of listing 1.04 because Brooks did not have a sufficient disorder of the spine. Id. The ALJ also noted that "[t]he claimant's obesity has been evaluated in conjunction with listing 1.04." Id.
The ALJ concluded that none of Brooks's mental impairments met the requirement of a listed impairment . Id. The ALJ acknowledged Brooks's moderate limitations in "understanding, remembering, or applying information," but noted that Raymond Johnson, a treating psychiatrist, had observed Brooks as having "intact recent and remote memory." Id. The ALJ observed that although Brooks had moderate limitations in interacting with others, he spent time with others, had never lost a job because of problems with other people, and was cooperative. Id.
Per the ALJ, although Brooks had moderate limitations "with regard to concentrating, persisting, or maintaining pace," he was nonetheless able to watch television, read the Bible, and read the sports section of the newspaper. Id. at 43. The ALJ acknowledged Brooks's moderate limitations in adapting or managing himself, but noted that Brooks could make his bed, vacuum, and shop for clothing. Id. The ALJ concluded that "the record does not establish that the claimant has only marginal adjustment, that is, a minimal capacity to adapt to changes in the claimant's environment or to demands that are not already part of the claimant's daily life." Id. The ALJ based this conclusion on Brooks's ability to use public transportation without assistance. Id.
The ALJ concluded that Brooks had the RFC to "perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)" but stated that Brooks's work should be "limited to simple and routine tasks, involving only simple, work-related decisions, and with few, if any, work place changes." Id. The ALJ found that Brooks should be "limited to only occasional interaction with supervisors, co-workers, and the public." Id.
The ALJ found Brooks's symptoms to include "mental issues"; trouble sleeping; problems with "memory, concentration and understanding as well as his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, see, complete tasks, follow instructions, use his hands, and get along with others." Id. at 44. The ALJ acknowledged that Brooks's impairments could cause such symptoms, but concluded that such symptoms were "not entirely consistent with the medical evidence and other evidence in the record...." Id.
In analyzing Brooks's physical impairments, the ALJ acknowledged that Brooks had degenerative disc disease that had allegedly caused a number of symptoms, but concluded that "[d]espite the claimant's degenerative disc disease, records from the Bethesda Mission on May 17, 2016 show that the claimant ambulates normally and has no weakness." Id. at 45. The ALJ then noted that the opinions of a number of treating physicians in the case did not indicate Brooks had significant issues as a result of his degenerative disc disease. Id. The ALJ considered Brooks's previous admission to Harrisburg Hospital with acute knee pain, but noted the statement of Brian Harris, an examining radiologist, who "observed that an x-ray of the claimant's left knee on October 27, 2016 reveal[ed] a small suprapatellar knee joint effusion without definite acute osseous abnormality" and that "[r]ecords from Harrisburg Hospital on October 28, 2016 show[ed] that the claimant ambulates without difficulty." Id.
In considering the issue of obesity, the ALJ acknowledged that Brooks had obesity, but found that "[d]espite the claimant's obesity, there is no indication in the medical evidence of record that the claimant has the obesity related complications of hyperlipidemia or gallbladder disease." Id.
The ALJ next analyzed Brooks's mental impairments, including, inter alia, generalized anxiety disorder, major depressive disorder, bipolar disorder, panic disorder, schizophrenia, and substance abuse. Id. The ALJ reasoned that "[d]espite the claimant's mental impairments, records from the Bethesda Mission on June 9, 2016 indicate that the claimant has a logical and linear thought process" and that "[s]aid records also indicate that the claimant's alcohol, cocaine and heroin abuse ceased in April, when the claimant came to the Bethesda Mission." Id. at 46. The ALJ found that based on the testimony of treating physicians, Brooks did not have suicidal or homicidal ideation, had intact recent and remote memory, had a normal mood and affect, and had only a mildly impaired sensorium. Id.
In considering Brooks's physical impairments, the ALJ assigned "little weight to the claimant's statement and testimony that he uses a cane." Id. The ALJ reasoned that Brooks's statement and testimony were inconsistent with the record and that medical records showed that "the claimant ambulates without difficulty." Id.
The ALJ next analyzed the opinions of a number of doctors involved in the case. The ALJ assigned great weight to the opinion of Peter Garito, Ph.D., because "Dr. Garito's opinion that the claimant has no worse than moderate limitations approximates the claimant's medical abnormalities occurring in the context of drug abuse and evidence of symptom exaggeration." Id. The ALJ assigned little weight to the opinion of Shaun Colburn, M.D., that "the claimant is not able to do any activity that places strain on his back," noting that Colburn's opinion was "merely a declaration" and was not supported by the record or other medical testimony in the case. Id. The ALJ also assigned little weight to the opinion of Christopher Gipe, M.S., that Brooks had marked restrictions. Id. The ALJ acknowledged Gipe's statement that Brooks had quit drinking and abusing drugs, but noted that two days prior to Gipe's statement Brooks had engaged in drug-seeking behavior. Id. at 46-47. The ALJ further found Mr. Gipe's statement to be inconsistent with the opinion of Mustafa Kaleem, M.D., that Brooks was "engaging in symptom exaggeration." Id. at 47.
The ALJ assigned "little weight to Dr. Whitney's responses to a Physical Residual Functional Capacity Questionnaire date January 18, 2017." Id. The ALJ reasoned that Dr. Whitney had only seen Brooks for a limited time and that the record indicated that Dr. Whitney had only seen Brooks once. Id. The ALJ also assigned little weight to the opinion of Michael Van Scoy, M.D., that Brooks was "temporarily disabled from December 7, 2016 to December 5, 2017," Id. stating that Van Scoy's opinion constituted the type of declaration that was reserved for the Commissioner. Id. Finally, the ALJ assigned little weight to two opinions from Dr. Johnson—Dr. Johnson's response to a Mental Impairment Questionnaire and Dr. Johnson's opinion that Brooks had GAF scores of 46 and below. Id. The ALJ noted that Dr. Johnson's response to the questionnaire was based on only one visit with Brooks and that Dr. Johnson's opinion of Brooks's GAF scores were inconsistent with the record and Dr. Johnson's other testimony in the case. Id. The ALJ further noted that GAF scores were no longer included in the Diagnostic and Statistical Manual of Mental Disorders. Id.
At step four of the five-step analysis, the ALJ found that Brooks was unable to perform any past relevant work because all of Brooks's past relevant work exceeded his RFC. Id. At step five, the ALJ found that there were a significant number of jobs that Brooks could perform, including marker; bakery worker; and inspector and packager. Id. The ALJ concluded that Brooks was not disabled and denied him benefits on that basis. Id.
V. Discussion.
On appeal, Brooks challenges the Commissioner's decision on four bases: (1) that the ALJ failed to properly evaluate Brooks's obesity; (2) that substantial evidence does not support the ALJ's step three evaluation; (3) that substantial evidence does not support the ALJ's RFC assessment; and (4) that substantial evidence does not support the ALJ's evaluation of the opinion evidence. Doc. 9. We focus our discussion on Brooks's first claim of error. Because we find that the ALJ did not properly evaluate Brooks's obesity, we recommend vacating the ALJ's decision and remanding the case for further proceedings.
A. Analysis of Obesity—The Legal Standard.
"Obesity is a medically determinable impairment that is often associated with disturbance of the musculoskeletal system, and disturbance of this system can be a major cause of disability in individuals with obesity." 20 C.F.R. § 404 subpt. P, app. 1, at 1.00(Q) (2018). "[W]hen determining whether an individual with obesity has a listing-level impairment or combination of impairments, and when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's residual functional capacity, adjudicators must consider any additional and cumulative effects of obesity." Id. An ALJ must consider a claimant's obesity in determining (1) whether "[t]he individual has a medically determinable impairment"; (2) whether "[t]he individual's impairment(s) is severe"; (3) whether "[t]he individual's impairment(s) meets or equals the requirements of a listed impairment in the listings" under 20 C.F.R. § 404; and (4) whether "[t]he individual's impairment(s) prevents him or her from doing past relevant work and other work that exists in significant numbers in the national economy." SSR 02-1p, 67 Fed. Reg. 57859, 57861 (Sep. 12, 2002), 2002 WL 31026506.
Despite obesity not being a listed impairment under 20 C.F.R. § 404, see Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46122, 46124 (Aug. 24, 1999), 1999 WL 637689 (deleting listing for obesity from Appendix 1, Subpart P of Section 404), obesity can still be sufficient to establish a listing if the obesity is severe. "If an individual has the medically determinable impairment obesity that is 'severe' ..., we may find that the obesity medically equals a listing." SSR 02-1p, 67 Fed. Reg. at 57861.
"There is no specific level of weight or BMI that equates with a 'severe' or a 'not severe' impairment." Id. at 57862. "Neither do descriptive terms for levels of obesity (e.g., 'severe,' 'extreme,' or 'morbid' obesity) establish whether obesity is or is not a 'severe' impairment for disability program purposes." Id. "Rather, we will do an individualized assessment of the impact of obesity on an individual's functioning when deciding whether the impairment is severe." Id. "[O]besity is a 'severe' impairment when, alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual's physical or mental ability to do basic work activities." Id. at 57861-62.
Social Security Ruling 02-1p makes clear that obesity "may be a factor in both 'meets' and 'equals' determinations." Id. at 57862. "Because there is no listing for obesity, we will find that an individual with obesity 'meets' the requirements of a listing if he or she has another impairment that, by itself, meets the requirements of a listing." Id. at 57862. "We may also find that obesity, by itself, is medically equivalent to a listed impairment...." Id. "We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment."
Third Circuit precedent gives us further guidance on the issue of obesity in a Social Security case. In Rutherford v. Barnhart, the Third Circuit held that a remand was not warranted on the issue of obesity where the claimant had not specifically relied on her obesity as a basis for establishing her disability at the administrative level. Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005). The court in Rutherford adopted the reasoning of the Seventh Circuit in Skarbek v. Barnhart, noting that the opinion in Skarbek "might well have been written for [the Rutherford] case." Id. at 552 (citing Skarbek v. Barnhart, 390 F.3d 500 (7th Cir. 2004)). The Rutherford court included a lengthy quotation from Skarbek:
An ALJ is required to consider impairments a claimant says he has, or about which the ALJ receives evidence. Although Skarbek did not specifically claim obesity as an impairment (either in his disability application or at his hearing), the references to his weight in his medical records were likely sufficient to alert the ALJ to the impairment. Despite this, any remand for explicit consideration of Skarbek's obesity would not affect the outcome of this case. Notably, Skarbek does not specify how his obesity further impaired his ability to work, but speculates merely that his weight makes it more difficult to stand and walk. Additionally, the ALJ adopted the limitations suggested by the specialists and reviewing doctors, who were aware of Skarbek's obesity. Thus, although the ALJ did not explicitly consider Skarbek's obesity, it was factored indirectly into the ALJ's decision as part of the doctors' opinions.Id. at 552-53 (quoting Skarbek, 390 F.3d at 504). The Rutherford court adopted this reasoning, concluding that:
[A] remand is not required here because it would not affect the outcome of the case. Rutherford never mentioned obesity as a condition that contributed to her inability to work, even when asked directly by the ALJ to describe her impairments. ... Rutherford has not specified how [her obesity] would affect the five-step analysis undertaken by the ALJ, beyond an assertion that her weight makes it more difficult for her to stand, walk and manipulate her hands and fingers. That generalized response is not enough to require a remand, particularly when the administrative record indicates clearly that the ALJ relied on the voluminous medical evidence as a basis for his findings regarding her limitations and impairments.Id. at 553. Rutherford therefore stands for the proposition that a remand is not required on the issue of obesity where there is no indication that a different resolution of the issue would change the ultimate outcome of the case. See id. at 553 ("[A] remand is not required here because it would not affect the outcome of the case.").
In Diaz v. Comm'r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009), the Third Circuit again considered the issue of when a remand is required on the issue of obesity. The court in Diaz distinguished the facts of the case from those in Rutherford: "[I]n Rutherford, the claimant did not assert obesity as an impairment, nor did the ALJ note, or discuss, it.... Here, by contrast, Diaz asserted—and the ALJ specifically determined—that Diaz's obesity constituted a severe impairment." Id. at 504. The court continued: "Further, we cannot conclude, as we did in Rutherford, that Diaz's obesity had no impact, alone or in combination with her other impairments, on her workplace performance. To the contrary, Diaz's morbid obesity would seem to have exacerbated her joint dysfunction as a matter of common sense, if not medical diagnosis." Id. The Diaz court ultimately remanded the case on the issue of obesity, noting that "the ALJ, having recognized obesity as an impairment, should determine in the first instance whether, and to what extent, Diaz's obesity, in combination with her asthma, diabetes, arthritis, back pain, and hypertension, impacted her workplace performance." Id. at 505.
B. The ALJ Did Not Properly Evaluate Brooks's Obesity.
Rutherford and Diaz guide our analysis of whether a remand is required in this case. Under Rutherford, a remand is not required on the issue of obesity where there is no indication in the record that a different disposition on the issue would change the ultimate outcome of the case. See Rutherford, 399 F.3d at 553. Under Diaz, on the other hand, a remand is required where the ALJ has recognized obesity as an impairment, but has not adequately evaluated its impact. See Diaz, 577 F.3d at 505.
The facts of the present case do not exactly align with either Rutherford or Diaz. Like the applicant in Rutherford, Brooks did not specifically rely on his obesity as a basis for his claim of disability, even when asked on direct examination if there was "anything else about [his] symptoms that [he] would like the Judge to know about..." Doc. 8-2 at 71. However, despite the fact that Brooks did not specifically rely on his obesity—and like the case in Diaz—the ALJ still found that Brooks's obesity constituted a severe impairment. Id. at 41.
Severe obesity by itself can be sufficient to medically equal a listing at step three of the five-step process. SSR 02-1p, 67 Fed. Reg. at 57861 ("If an individual has the medically determinable impairment obesity that is 'severe' ..., we may find that the obesity medically equals a listing."). Despite finding that Brooks had severe obesity, however, the ALJ did not consider whether the severe obesity medically equaled a listing. Instead the ALJ's opinion focused on whether Brooks's obesity contributed to a listing under listing 1.04 and whether Brooks had hyperlipidemia or gallbladder disease. See Doc. 8-2 at 42, 45.
Since the ALJ specifically found that Brooks had severe obesity, the case is analogous to the Third Circuit's reasoning in Diaz: "the ALJ, having recognized obesity as an impairment, should determine in the first instance, whether, and to what extent, [Brooks's] obesity ... impacted [his] workplace performance." See Diaz, 577 F.3d at 505. Moreover, the ALJ, having found that Brooks's obesity constituted a severe impairment, was required to analyze whether Brooks's obesity was sufficient to medically equal a listing. See id.; SSR 02-1p, 67 Fed. Reg. at 57861. Absent any discussion of either of these issues, we cannot say with certainty that a remand "would not affect the outcome of the case." Rutherford, 399 F.3d at 553. Therefore, we recommend that the court vacate the ALJ's judgment and remand the case for further proceedings on the issue of Brooks's obesity.
C. Brooks's Remaining Claims of Error.
Because we recommend that this case be vacated and remanded on the issue of obesity, we will not address Brooks's remaining claims of error. See Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016) ("A remand may produce different results on these claims, making discussion of them moot.").
VI. Recommendation.
For the foregoing reasons, we recommend that the judgment of the ALJ be vacated and the case remanded for further proceedings on the issue of Brooks's obesity.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.
Submitted this 18th day of September , 2018 .
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge