Opinion
Civil No. 3:18-CV-01958
09-06-2019
SUGEILY FELICIA CASTILLO, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
In this case we are called upon to determine whether substantial evidence supported the findings of an Administrative Law Judge (ALJ) that the plaintiff, Sugeily Castillo, who was unemployed during the period of her claimed disability, could nevertheless work full-time in a limited capacity.
For Administrative Law Judges (ALJs) evaluating cases like Castillo's, Social Security disability determinations frequently entail an informed assessment of competing medical opinions coupled with an evaluation of a claimant's subjective complaints. Once the ALJ completes this task, on appeal it is the duty and responsibility of the district court to review these ALJ findings, judging the findings against a deferential standard of review which simply asks whether the ALJ's decision is 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), a quantum of proof which "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).
In the instant case, an ALJ denied Castillo's application for Social Security Disability Insurance Benefits based on a determination that Castillo was not disabled and could perform a limited range of light work. Mindful of the fact that 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), we find that substantial evidence supported the ALJ's findings in this case. Therefore, for the reasons set forth below, we will recommend that this court affirm the decision of the Commissioner denying this claim.
II. Statement of Facts and of the Case
A. The Plaintiff's Background and Medical History
Ms. Castillo is a 38-year old woman who speaks little English and does not possess either a high school degree or GED. (Tr. 48). She currently lives with her friend, Celeste Rivera ("Rivera"). (Tr. 53). Over the past fifteen years, Castillo has worked as a line seamstress, poultry de-boner, server, and lumber cutter for Weaver Lumber. (Tr. 48). In October of 2014, Castillo injured her back and right arm and shoulder while working at Weaver Lumber. (Tr. 364). She was diagnosed with adhesive capsulitis of the right shoulder and bicipital tenosynovitis which she claims caused her, and continues to cause her, great pain in her right shoulder and arm. (Tr. 369). She has not worked since that time. (Tr. 24). After her injury, she was treated by an orthopedist and a physical therapist and was taking medication for pain management in addition to shoulder injections. (Tr. 376, 502). Eventually, she underwent shoulder arthroscopy, but claims that her pain persisted. (Tr. 49-51, 482). In early 2016, Castillo received an MRI which revealed apparent scoliosis and multilevel degenerative disc disease, but some movement during the MRI degraded its accuracy. (Tr. 29). Her medical records demonstrate a course of pain management treatment effectuated through routine visits to her primary care provider at Good Samaritan Family Practice Center, who prescribed pain medications and muscle relaxers to make her more comfortable. (Tr. 540-72).
Castillo also began treatment for depression and other mental health issues in the fall of 2014. (Tr. 402, 405, 418). She saw a specialist at Philhaven for a psychiatric evaluation in November of 2014 and has continued outpatient treatment, evaluation, and therapy through at least 2017 to manage her medications and symptoms. (Tr. 418, 451, 887). She complained of auditory and visual hallucinations, severe depression, anxiety, irritability, sleeplessness, paranoia, panic attacks, crying spells, and, at times, thoughts of harming herself and others. (Tr. 581, 590, 592, 605, 626, 675). While certain complaints appear more sporadic throughout her treatment records, she claimed that her depression, anxiety, panic attacks, and crying spells were still present at the hearing with the ALJ on July 14, 2017. (Tr. 53-54, 73).
On March 17, 2015, Castillo saw Spencer Long, M.D. for an independent medical consultative examination. (Tr. 461). Castillo reported pain in her right shoulder and back as well as depression. (Id.) Dr. Long found a decreased range of motion with Castillo's right hand and arm which would prevent her from ever reaching, lifting, carrying, and pushing or pulling, but allowed for occasional handling, fingering, or feeling. (Tr. 466, 472-75). Otherwise, Castillo appeared to be in no acute distress, despite her reports of back pain, and was able to walk with a normal gait, squat fully, walk on her toes and heels without difficulty, and did not need assistance changing for the exam, getting on or off the exam table, or getting up from a chair in the exam room. (Tr. 462). Castillo claimed it was too painful to bend for Dr. Long to examine her back for scoliosis, but a subsequent X-ray of her spine revealed no significant abnormality. (Tr. 465). Dr. Long filled out a medical source statement in which he found that Castillo could sit for 8 hours, stand for 40 minutes, and walk for 30 minutes total in an 8 hour workday. (Tr. 467). He also stated that she could occasionally climb stairs and ramps, but never ladders or scaffolds, and that she could occasionally kneel, but never crouch, crawl, or stoop. (Tr. 469). Dr. Long diagnosed her with a right shoulder injury, pain and weakness of the right shoulder, arm, and hand with a tremor, thoracic back pain, and a history of scoliosis. (Tr. 463).
On the same date, Castillo saw Michael DeWulf, Ph.D. for an independent psychological consultative examination. (Tr. 451). She reported difficulty sleeping, depression, crying spells, irritability, social withdrawal, anxiety, and auditory and visual hallucinations. (Tr. 452). Dr. DeWulf found her coherent and goal-oriented with no evidence of hallucinations, delusions, or paranoia during the course of the evaluation. (Tr. 453). Her attention and concentration appeared mildly impaired, which Dr. DeWulf attributed to either a learning disability or emotional distress stemming from her mental health problems. (Id.) Overall, he found the results of the exam consistent with psychiatric and cognitive problems, but did not find her impairments significant enough to interfere with her ability to function on a daily basis. (Tr. 454). He diagnosed her with schizophrenia, persistent depressive disorder, and an anxiety disorder, and recommended that she continue on the course of treatment she had been receiving. (Id.) Dr. DeWulf also filled out a medical source statement in which he found that Castillo faced mild limitations in understanding, remembering, and carrying out complex instructions, interacting appropriately with the public, supervisors, and co-workers, and responding appropriately to usual work situations and changes in work routine, whereas she faced no limitation with understanding, remembering, and carrying out simple instructions. (Tr. 456-57). He attributed these mild difficulties to a possible learning disability and hallucinations and depression. (Id.)
Castillo's medical records thereafter indicate intermittent issues with hypertension and persistent complaints of shoulder and arm pain which she often rated at a "ten out of ten" pain level, but curiously, routine visits to her primary care provider indicate that she, at all times, appeared well and lacked signs of acute distress. (Tr. 478, 576). Likewise, she reported depression and intermittent auditory and visual hallucinations, but primary care providers, and some psychologists, did not report witnessing any objective impairments attributable to these claims.
In September of 2016 and January of 2017, Castillo underwent mental residual functional capacity assessments from Nhien Duc Nguyen, M.D. (Tr. 766-69). In this initial 2016 assessment Dr. Nguyen opined that Castillo suffered from marked limitations in her ability to understand, remember, and carry out short and simple instructions, and extreme limitations once those instructions became detailed or complex. (Tr. 729). She also reportedly faced extreme limitations with maintaining attention, concentration, punctuality, and socially appropriate behavior. (Tr. 729-30). She faced moderate limitations only with sustaining a routine, asking simple questions, and recognizing and responding to normal hazards, whereas the remainder of her ratings were either marked or extreme. (Tr. 729-31). In contrast, Dr. Nguyen's 2017 assessment revealed a few more areas of Castillo's functioning where she faced moderate limitations, rather than the previous marked or extreme ratings. (Tr. 767-69). Nevertheless, Dr. Nguyen did not believe that Castillo could work since she was too depressed and "still psychotic." (Tr. 769).
B. The ALJ's Determination
Castillo first applied for disability and disability benefits on October 30, 2014, alleging an onset date of October 16, 2014. (Tr. 22). The claim was denied, and Castillo requested a hearing, which was held on July 14, 2017. (Tr. 74). In a decision dated August 21, 2017, the ALJ found the following: (1) Castillo met the insured status requirements of the Social Security Act through December 31, 2019; (2) Castillo had not engaged in substantial gainful activity since October 16, 2014, the alleged onset date; (3) Castillo did not have an impairment that met the severity of the listed impairments; (4) Castillo could perform light work, with restrictions on the use of her right extremity, provided she was limited to simple and routine tasks at a slower pace than production rate pace, and permitted only occasional interactions with co-workers, but never around the public; and finally (5) Castillo could not perform her past work, but could perform light work as a cleaner or housekeeper, a bakery worker on the conveyor line, or a potato chip sorter. (Tr. 24-35). Thus, Castillo was found not disabled.
Using the five-step sequential analysis, the ALJ first found that Castillo met the insured status requirements through December 31, 2019, and that she had not engaged in substantial gainful activity since October 16, 2014, the alleged onset date. (Tr. 24). At Step 2, the ALJ found severe impairments of anxiety, depression with psychosis, adhesive capsulitis of the right shoulder, bicipital tenosynovitis, hypertension, cervical degenerative disc disease, scoliosis, cervicalgia, and mild right hand tremors. (Tr. 24-25). However, at Step 3, it was determined that these severe impairments did not meet or equal the severity of the listed impairments. (Tr. 25).
Between Steps 3 and 4, the ALJ fashioned a residual functioning capacity ("RFC"), taking into account Castillo's limitations:
[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except with frequent reaching, handling, fingering, and feeling with the right upper extremity, occasional balancing, stooping, kneeling, and crouching but never climbing ropes or scaffolds or crawling. The claimant is limited to simple routine tasks, but not at a production rate pace, such as assembly line work. She can have occasional interaction with coworkers or supervisors but never work around the public.(Tr. 27).
In making this determination, the ALJ considered Castillo's symptoms to the extent which they could reasonably be accepted as consistent with the objective medical evidence, as well as the medical and opinion evidence on the record. (Id.) The ALJ found that Castillo's statements regarding the intensity, persistence, and limiting effects of her symptoms were inconsistent with the medical evidence on the record. (Tr. 31). As part of this assessment the ALJ was also required to evaluate multiple medical opinions. In this regard the ALJ gave great weight to the state agency medical consultant responsible for the initial disability determination, Louis Poloni, Ph.D., who opined that Castillo was able to lift 50 pounds occasionally and 25 frequently, stand or walk for 6 hours, and sit for 6 hours with limited right overhead reaching. In contrast, the ALJ gave little weight to the opinions of Dr. Long, the examining source from 2015, and Dr. Nguyen, Castillo's treating psychologist from 2014-17, and partial weight to the opinion of Dr. DeWulf, also an examining source from 2015. (Tr. 32-33). Lastly, the ALJ found the testimony of Castillo's friend, Rivera, regarding the severity of Castillo's impairments to be only partially persuasive. (Tr. 31).
Given this RFC assessment, the ALJ found at Step 4 that Castillo could not perform any of her past relevant work. (Tr. 34). However, it was determined at Step 5 that there were jobs in significant numbers in the national economy that Castillo could perform, including a cleaner or housekeeper, a bakery worker on the conveyor line, or a potato chip sorter. (Tr. 35). These jobs were identified by the vocational expert ("VE") at the administrative hearing in response to the ALJ's hypothetical, which posed a question of what jobs a claimant with Castillo's age, experience, education, and limitations could perform. (Tr. 68). The VE testified that the three jobs identified were consistent with the Dictionary of Occupational Titles ("DOT"). (Tr. 72). Ultimately, the ALJ determined that Castillo was not disabled and was not entitled to benefits. (Tr. 35). This appeal followed. (Doc. 1).
Castillo raises four issues in her appeal. First, Castillo argues that the ALJ erred by failing to consider the extent of the limitations on her RFC caused by what the ALJ had identified as severe impairments, i.e., Castillo's anxiety, depression with psychosis, right shoulder injuries, and back injuries. Second, she similarly claims that the ALJ erred by failing to factor in her right arm and shoulder weakness, sleep disorder, and paranoia to his RFC determination, and that he accordingly mischaracterized them as non-severe impairments. Third, she asserts that the state agency medical consultant's opinion was afforded too much weight in the ALJ's determination. Finally, she challenges the ALJ's decision for failing to consider the side effects from her medications on her RFC.
III. Discussion
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 the claimant is disabled, but rather whether the Commissioner's finding that he 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 . . . .").
Several fundamental legal propositions flow from this deferential standard of review. First, when conducting this review "we are mindful that we must not substitute our own judgment for that of the fact finder." Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is simply to determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, "this Court requires the ALJ to set forth the reasons for his decision." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000). 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
meaningful 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).
Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.
B. Initial Burdens of Proof , Persuasion, and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. §§ 404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520(a), 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).
Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (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), 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 impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that "[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant." Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: "There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC." Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that "the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided." Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where a well-supported medical source has opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living to fashion an RFC, courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015). In either event, once the ALJ has made this determination, our review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018).
At Steps 1 through 4, 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. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. §§ 404.1512, 416.912; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show that jobs exist in significant numbers 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(f), 416.912(f); 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 his or her disability determination. Thus, in order 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).
C. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence
The Commissioner's regulations also set standards for the evaluation of medical evidence, and define medical opinions as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. 20 C.F.R. § 404.1527(c).
In deciding what weight to accord to competing medical opinions and evidence, the ALJ is guided by factors outlined in 20 C.F.R. § 404.1527(c). "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker." SSR 96-6p, 1996 WL 374180 at *2. Treating sources have the closest ties to the claimant, and therefore their opinions are generally entitled to more weight. See 20 C.F.R. § 404.1527(c)(2) ("Generally, we give more weight to opinions from your treating sources . . . ."); 20 C.F.R. § 404.1502 (defining treating source). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. 20 C.F.R. §§ 04.1527(c)(2); see also SSR 96-2p, 1996 WL 374188 (explaining that controlling weight may be given to a treating source's medical opinion only where it is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and it is not inconsistent with the other substantial evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinions: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c).
At the initial level of administrative review, State agency medical and psychological consultants may act as adjudicators. See SSR 96-5p, 1996 WL 374183 at *4. As such, they do not express opinions; they make findings of fact that become part of the determination. Id. However, 20 C.F.R. § 404.1527(e) provides that at the ALJ and Appeals Council levels of the administrative review process, findings by nonexamining State agency medical and psychological consultants should be evaluated as medical opinion evidence. Therefore, ALJs must consider these opinions as expert opinion evidence by nonexamining physicians and must address these opinions in their decisions. SSR 96-5p, 1996 WL 374183 at *6. Opinions by State agency consultants can be given weight "only insofar as they are supported by evidence in the case record." SSR 96-6p, 1996 WL 374180 at *2. In appropriate circumstances, opinions from nonexamining State agency medical consultants may be entitled to greater weight than the opinions of treating or examining sources. Id. at *3.
Oftentimes, an ALJ must evaluate medical opinions and records tendered by both treating and non-treating sources. Judicial review of this aspect of ALJ decision-making is guided by several settled legal tenets. First, when presented with a disputed factual record, it is well-established that "[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). Thus, "[w]here . . . the opinion of a treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or for the wrong reason.' " Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Mason, 994 F.2d at 1066). Therefore, provided that the decision is accompanied by an adequate, articulated rationale, it is the province and the duty of the ALJ to choose which medical opinions and evidence deserve greater weight.
On this score, as we have also noted:
[T]reating physician opinions do not control this determination. State agency doctors are also entitled to have their opinions given careful consideration. As the court of appeals has observed:Deiter v. Berryhill, No. 3:16-CV-2146, 2018 WL 1322067, at *6 (M.D. Pa. Feb. 5, 2018), report and recommendation adopted, No. 3:16-CV-2146, 2018 WL 1315655 (M.D. Pa. Mar. 14, 2018). See Shoemaker v. Colvin, No. 3:16-CV-2304, 2018 WL 3245011, at *10 (M.D. Pa. Apr. 5, 2018), report and recommendation adopted sub nom. Shoemaker v. Berryhill, No. 3:16-CV-2304, 2018 WL 3239903 (M.D. Pa. July 3, 2018).
"[t]he law is clear . . . that the opinion of a treating physician does not bind the ALJ on the issue of functional capacity[;]" Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d Cir. 2011). State agent opinions merit significant consideration as well. See SSR 96-6p ("Because State agency medical and psychological consultants . . . are experts in the Social Security disability programs . . . 20 C.F.R. §§ 404.1527(f) and 416.927(f) require [ALJs] . . . to consider their findings of fact about the nature and severity of an individual's impairment(s) . . . ."). Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Further, in making this assessment of medical evidence:
An ALJ is [also] entitled generally to credit parts of an opinion without crediting the entire opinion. See Thackara v. Colvin, No. 1:14-CV-00158-GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015); Turner v. Colvin, 964 F. Supp. 2d 21, 29 (D.D.C. 2013) (agreeing that "SSR 96-2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions"); Connors v.
Astrue, No. 10-CV-197-PB, 2011 WL 2359055, at *9 (D.N.H. June 10, 2011). It follows that an ALJ can give partial credit to all medical opinions and can formulate an RFC based on different parts from the different medical opinions. See e.g., Thackara v. Colvin, No. 1:14-CV-00158-GBC, 2015 WL 1295956, at *5 (M.D. Pa. Mar. 23, 2015).Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016).
D. The ALJ's Decision is Supported by Substantial Evidence.
In this setting, we are mindful that we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. Rather, we must simply ascertain whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and "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). Judged against these deferential standards of review, we find that substantial evidence supported the decision by the ALJ that Castillo could perform a limited range of light work and was not disabled.
As we have stated, Castillo attacks the ALJ's decision on four grounds: first, that the ALJ abused his discretion by failing to consider the full impact that her severe impairments (adhesive capsulitis of the right shoulder, bicipital tenosynovitis, cervical degenerative disc disease, scoliosis, cervicalgia, right hand tremors, hypertension, anxiety, and depression with psychosis) have on her RFC; second, that the ALJ failed to consider the effects of her right arm and shoulder weakness, sleep disorder, and paranoia on her RFC, which were mischaracterized as non-severe impairments; third, that the improperly weighed the medical evidence; and fourth, that the ALJ failed to consider the side effects from her medications on her RFC. We will address each of Castillo's arguments in turn.
1. The ALJ Considered the Impact of Castillo's Severe Impairments on her RFC.
The ALJ found that Castillo's medical records belie her assertions regarding the intensity, severity, and limiting nature of her impairments regarding her right arm and shoulder. The ALJ noted that the EMG and MRI that were conducted after Castillo's injury in the lumber yard in 2014 were unremarkable with the MRI merely revealing "non-specific disk bulges." (Tr. 28). Likewise, the X-rays of her lumbar spine showed no abnormalities, contrary to her assertion that her history of scoliosis was debilitating and caused her pain. The ALJ also determined that, while Castillo continued to report severe pain in her right arm and shoulder to her treating and evaluating physicians in the years following her injury, indeed, reporting "ten out of ten pain to providers, they observed her in no acute distress." (Tr. 29). In fact, providers found her with a greater strength and range of motion than she had claimed. (Id.) The ALJ identified that Castillo received "routine and conservative care," which is inconsistent with her allegations of life-inhibiting back, shoulder, and arm pain. (Id.) Similarly, she took Benztropine for her right hand tremors, which appeared to effectively treat the problem. (Id.)
Castillo continued to allege that she was in severe pain from her right arm, shoulder, and back during the administrative hearing. (Tr. 49-50). However, her friend, Celeste Rivera, also testified that Castillo would occasionally help around the house with cooking meals, laundry, and cleaning when she was feeling well—tasks inconsistent with persistent and debilitating back, shoulder, and arm pain. (Tr. 65).
With respect to her hypertension, the medical records indicate that Castillo took medication after her diagnosis that brought her blood pressure under control. (Tr. 29). The ALJ found that follow-up examinations generally revealed that her hypertension was managed, thus rendering it a non-issue as an impairment. (Id.)
Lastly, concerning Castillo's mental health impairments, the ALJ found that the medical records do not support her reports of crippling anxiety and depression. As with treatment for her right arm, shoulder, and back, Castillo received routine and conservative care, managed by medication which appeared to yield improvements. (Tr. 30). She arrived appropriately dressed and groomed at almost all appointments and responded cooperatively to questions from her providers. While she consistently alleged auditory and visual hallucinations, there is nothing in her treatment records to indicate that these reported symptoms were identified as disabling by providers. The ALJ noted that Castillo did not receive intensive or extensive mental health treatment and was never admitted or partially admitted to a psychiatric hospital. (Tr. 30). Her therapy and counselling sessions at Philhaven were conducted on an outpatient basis, and her records reflected general improvement in 2017. (Id.)
In addition to the medical records, Castillo's friend, Rivera, again testified to Castillo's general demeanor around the home. While much of her time is apparently spent in her room, Castillo does come out to help with cooking meals, light household chores, and caring for the children in the home when she feels well enough. (Tr. 31, 65). Rivera also reported that Castillo had gone out with her on a few occasions to the store and the casino. (Id.) Castillo also routinely attended appointments and testified at the administrative hearing that she did not miss any. (Tr. 52). Further, Castillo had told her provider at Philhaven that she baked some desserts for the 2016-17 holiday season and felt good seeing her children happy. (Tr. 789). The ALJ overall found that these behaviors ran counter to Castillo's claims of severe and debilitating depression with psychosis and anxiety.
Thus, the ALJ's consideration of the effects of these severe impairments was thorough and the ALJ's conclusions were supported by substantial evidence, that is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). It appears that Castillo invites us reweigh the evidence by giving more weight and credit to her own testimony than the objective medical evidence. This we cannot do. There is sufficient evidence within the record to support the ALJ's RFC determination. Thus, while the evidence might have arguably supported some other conclusions, we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); see also Gonzalez v. Astrue, 537 F.Supp.2d 644, 657 (D. Del. 2008) ("In determining whether substantial evidence supports the Commissioner's findings, the Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of the record.") (internal citations omitted)). Rather, we must simply ascertain whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971), and "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). "[T]he 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 this case, the ALJ was confronted by a record marked by contrasting opinions and inconsistencies in Castillo's abilities and limitations. In reconciling the discordant and conflicting threads of evidence, the ALJ found the medical records more persuasive and gave greater weight to those opinions that were consistent with Castillo's treatment records. This is sufficient to support the ALJ's RFC assessment.
2. The ALJ Considered the Impact of Castillo's Right Arm Impairments , Problems Sleeping, and Paranoia in the RFC Assessment.
Castillo claims that the ALJ completely failed to mention her right arm and shoulder weakness, sleep issues, and paranoia in his decision. However, the ALJ's decision indicates otherwise. As we have explained, the ALJ found that Castillo's medical records contradicted her assertions regarding the intensity, severity, and limiting nature of her impairments regarding her right arm and shoulder. (Tr. 33). Specifically, with regard to the weakness in her arm and shoulder, the ALJ determined that the limitations are "somewhat supported by the decreased range of motion and decreased strength in the right shoulder and right hand. However, the examination findings by Dr. Long[,] taken as a whole[,] utterly fail to support no lifting or carrying in any amount." (Tr. 32). Further, the ALJ reiterated that:
While the record is sufficient to establish the claimant's medically determinable impairments, the medical evidence of record does not support the degree of symptoms—depressed mood, paranoia, crying spells, audio and visual hallucinations, anxiousness, nervousness, difficulty sleeping, self-isolation, panic attacks, decreased energy, problems focusing, short attention span, forgetfulness, decreased
energy and motivation, right shoulder pain, right upper extremity pain and weakness, and neck pain—and resulting functional limitations alleged by the claimant.(Tr. 33) (emphasis added). There is sufficient evidence in the record to indicate that these impairments were effectively treated or managed with medication in a routine and conservative manner, thus rejecting the notion that these difficulties were severe. For instance, Castillo reported having better sleep and less difficulty sleeping after receiving a CPAP machine. Her pain had been managed, as explained above, and she reported that her paranoia had lessened after receiving continued treatment from her physician at Philhaven. (Tr. 32). Furthermore,
[E]ven if an ALJ erroneously determines at step two that one impairment is not "severe," the ALJ's ultimate decision may still be based on substantial evidence if the ALJ considered the effects of that impairment at steps three through five. However, where it appears that the ALJ's error at step two also influenced the ALJ's RFC analysis, the reviewing court may remand the matter to the Commissioner for further consideration. See Nosse v. Astrue, No. 08-[CV-1173, 2009 WL 2986612, *10] (W.D.Pa. Sept.17, 2009).McClease v. Comm. of Soc. Sec., No. 8-CV-1673, 2009 WL 3497775, *10 (E.D. Pa. Oct. 28, 2009). Here the ALJ's opinion reflects a consideration of all of Castillo's impairments throughout this sequential analysis. Therefore this claim would not afford the plaintiff any relief on appeal. Simply put, since there is sufficient evidence on the record to support the ALJ's consideration with regard to Castillo's RFC on this score, we will not reweigh the evidence to give Castillo's self-reported symptoms controlling weight. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations"); see also Gonzalez v. Astrue, 537 F. Supp. 2d 644, 657 (D. Del. 2008) ("In determining whether substantial evidence supports the Commissioner's findings, the Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of the record") (internal citations omitted)).
3. The ALJ Properly Considered and Weighed the Medical Evidence on the Record.
Castillo next argues that the ALJ erred when he relied on the opinion of Dr. Poloni, the state agency medical consultant, in making his disability determination. Castillo asserts that the opinions of her treating physician were not afforded sufficient weight in making the RFC determination. Specifically, Castillo appears to focus her argument on the weighting of her mental health provider's opinions. We disagree.
In the instant case, the ALJ was presented with several opinions regarding Castillo's mental health, including the opinions of Dr. DeWulf, Dr. Nguyen, and Dr. Poloni. With respect to Dr. DeWulf, the ALJ afforded his opinion partial weight because his diagnoses appeared to be based on Castillo's self-reporting, rather than his observations or review of her medical records. (Tr. 32). However, his reports that Castillo faced mild limitations in memory, attention, and concentration were generally consistent with her everyday functioning. (Id.)
The ALJ afforded little weight to the opinions of Dr. Nguyen because the objective medical records did not support the significant limitations that Dr. Nguyen reported. The ALJ reasoned that with the number of areas of "marked" and "extreme" limitations in Castillo's functioning, Dr. Nguyen should have recommended a treatment plan for more intensive psychiatric care, rather than the conservative and routine care she was already receiving. (Tr. 33). Rather, "no such recommendations were made, nor did the claimant require or receive such intensive psychiatric care." (Id.) The ALJ also found that Castillo's "daily activities suggest[ed] greater functioning than the limitations in Dr. Nguyen's opinions," and that the opinions seemed to be based on the "subjective reporting of the claimant." (Id.)
Lastly, the ALJ considered the opinion of Dr. Poloni, the state agency psychologist, and gave his opinion partial weight. (Tr. 32). Dr. Poloni had indicated his belief that Castillo's "depressive disorder with psychosis would improve following treatment and by October 2015, she would be able to resume employment without significant limitation." (Id.) The ALJ found that Castillo's records largely mirrored Dr. Poloni's predictions in that the routine and conservative care she received improved her symptoms, but noted that issues regarding an individual's capacity to work are reserved for the Commissioner's determination. (Id.)
Provided that the ALJ's decision is accompanied by an adequate, articulated rationale, it is the province and the duty of the ALJ to choose which medical opinions and evidence deserve greater weight. See e.g., Deiter v. Berryhill, No. 3:16-CV-2146, 2018 WL 1322067, at *6 (M.D. Pa. Feb. 5, 2018), report and recommendation adopted, No. 3:16-CV-2146, 2018 WL 1315655 (M.D. Pa. Mar. 14, 2018). According to the provisions of Social Security Ruling 96-5p, while Social Security is not bound by treating source medical opinions on "issues reserved to the Commissioner," adjudicators must weigh medical source statements under the rules outlined in 20 CFR §§ 404.1527 and 416.927, providing appropriate explanations for rejecting such opinions. In this case, the ALJ considered all three medical opinions and explained why greater weight was given to the state agency medical consultant, rather than Castillo's treating physician. The ALJ noted that Dr. Nguyen's opinion was unreasonably restrictive in light of the objective medical evidence, and that Dr. Poloni and Dr. DeWulf produced reports which sufficiently accounted for any mental health limitations that Castillo presented. The ALJ sufficiently explained his decision to afford little weight to Dr. Nguyen's opinions, noting that the opinions were inconsistent with medical records and with Castillo's own description of her activities. Moreover, the administrative record provides sufficient support for the choices made by the ALJ, and substantial evidence supports the finding that Dr. DeWulf and Dr. Poloni's opinions are more congruent with Castillo's treatment records and reported activities of daily living.
In particular, when conflicts exist in the medical opinion evidence, the ALJ is entitled to rely upon a state agency expert's opinion. "In this regard, it is well-settled that 'State agent opinions merit significant consideration as well.' Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing SSR 96-6p ('Because State agency medical and psychological consultants ... are experts in the Social Security disability programs, ... 20 C.F.R. §§ 404.1527(f) and 416.927(f) require [ALJs] ... to consider their findings of fact about the nature and severity of an individual's impairment(s)....')) Rockey, v. Berryhill, No. 1:18-CV-1219, 2019 WL 4196572, at *9 (M.D. Pa. May 6, 2019). Accordingly, there was no error here in placing reliance upon the state agency expert's opinion. At bottom, it appears that Castillo is again requesting that this court re-weigh the evidence. This we may not do. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); see also Gonzalez v. Astrue, 537 F. Supp. 2d 644, 657 (D. Del. 2008) ("In determining whether substantial evidence supports the Commissioner's findings, the Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of the record.") (internal citations omitted)). Rather, our task is simply to determine whether the ALJ's decision is supported by substantial evidence, a quantum of proof which, again, is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and "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, 487 U.S. at 565. We find that the ALJ has met this threshold here and decline to reweigh the medical opinions in favor of Castillo's providers.
4. The ALJ Considered the Side Effects of Castillo's Medications on her RFC.
Castillo claims that the ALJ failed to consider the impact of the "drowsiness" she experiences as a side effect of her psychiatric medication in formulating the RFC. However, the ALJ's decision reads to the contrary. As we have explained, the ALJ found that Castillo's medical records contradicted her assertions regarding the intensity, severity, and limiting nature of her symptoms. (Tr. 33). We find this side effect to fall under the ALJ's categorization of Castillo's symptoms, despite the ALJ failing to specifically reference Castillo's "tiredness" or "drowsiness" in his decision. The ALJ determined that:
While the record is sufficient to establish the claimant's medically determinable impairments, the medical evidence of record does not support the degree of symptoms—depressed mood, paranoia, crying spells, audio and visual hallucinations, anxiousness, nervousness,
difficulty sleeping, self-isolation, panic attacks, decreased energy, problems focusing, short attention span, forgetfulness, decreased energy and motivation, right shoulder pain, right upper extremity pain and weakness, and neck pain—and resulting functional limitations alleged by the claimant.(Tr. 33) (emphasis added). Further, there is a general lack of evidence in the record regarding Castillo's complaints of drowsiness. As the Commissioner points out in her brief, the only mention of Castillo suffering from drowsiness as a side effect of her medications occurred at the administrative hearing in a passing question from her counsel as to whether her medications made her feel tired, to which she responded "yes." (Tr. 55).
We would note that had the claimed side effect been pervasive or severe, Castillo likely would have mentioned it to her providers before the administrative hearing on July 14, 2017, thus resulting in its appearance in the medical records, rather than its current conspicuous absence. Had this been the case, we would be more inclined to find that Castillo's drowsiness should have played a greater role in her RFC determination than the ALJ otherwise considered. --------
We find that the ALJ's discussion of Castillo's symptoms, including decreased energy, and the resulting conclusion that the medical evidence does not support the degree or severity of her symptoms adequately addresses her argument that the ALJ failed to consider this particular side effect on her RFC. Since there is sufficient evidence on the record to support the ALJ's consideration with regard to Castillo's RFC on this score, we will not reweigh the evidence to give Castillo's self-reported symptom controlling weight. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); see also Gonzalez v. Astrue, 537 F. Supp. 2d 644, 657 (D. Del. 2008) ("In determining whether substantial evidence supports the Commissioner's findings, the Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of the record.") (internal citations omitted)).
In sum, the ALJ's assessment of the evidence in this case fully complied with the dictates of the law and was supported by substantial evidence. This is all that the law requires, and all that a claimant like Castillo can demand in a disability proceeding. Thus, notwithstanding that this evidence might have also supported a different finding, we are obliged to affirm this ruling once we find that it is "supported by substantial evidence, 'even [where] this court acting de novo might have reached a different conclusion.' " Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations, we conclude that substantial evidence supported the ALJ's evaluation of this case. Therefore, we recommend that the district court affirm this decision, direct that judgment be entered in favor of the defendant, and instruct the clerk to close this case.
IV. Recommendation
In summary, we find that the ALJ's decision represents the careful and methodical assessment of the factual, medical, and opinion evidence that was presented. The decision was adequately explained and based upon substantial evidence that the ALJ evaluated in accordance with prevailing legal and regulatory guidelines and should therefore be affirmed and Castillo's appeal denied.
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 6th day of September, 2019.
/S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge