Opinion
CIVIL 1:21-CV-1535
06-07-2022
CHERYL NORTHCRAFT, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1], Defendant
Mariani Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
The instant Social Security appeal calls upon us to assess a disability denial made at the preliminary stages of the five-step sequential process which controls such appeals. Social Security appeals are governed by a familiar five-step sequential analysis. The second stage of this process entails determining whether the claimant has any medically determinable severe impairments. This Step 2 severity inquiry has aptly been described as a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec.,370 F.3d 357, 360 (3d Cir. 2004). Therefore, we are cautioned that any doubt as to whether this showing has been made is to be resolved in favor of the applicant, and Step 2 denials of benefits should be reviewed with close scrutiny. Id.
So it is in the instant case.
On October 2, 2019, Cheryl Northcraft applied for Social Security disability benefits citing an array of medical, neurological, and psychological impairments. Northcraft alleged an onset of disability on January 1, 2016, and her date last insured for purposes of the Act was December 31, 2016. During this relevant time frame, Northcraft presented only limited medical records in support of her disability claim. These records, however, described ongoing and chronic medical issues. Moreover, the medical records provided an explanation for Northcraft's intermittent treatment of these concerns, since the clinical records disclosed that Northcraft lacked health insurance at the time of the alleged onset of these impairments. Moreover, records from Northcraft's pain management specialist over the span of three years from 2016 through 2019 reflected an ongoing and longstanding pattern of temporary pain relief followed by the onset of new symptoms. Finally, one treating source, albeit a treating source who did not begin to care for Northcraft until two years after her date last insured, opined that the plaintiff's medical conditions were totally disabling and had existed to many years prior to her date last insured.
Despite this evidence which provided a basis for Northcraft's claim, the ALJ accepted the opinions of two state agency experts that she had not met the de minimus threshold showing required at Step 2, and denied her claim at this preliminary step without any further analysis of the claim.
While we acknowledge that the evidentiary support for this claim prior to the date last insured is somewhat modest, taking all of the longitudinal evidence into account, and mindful of the fact that “because step two is to be rarely utilized as basis for the denial of benefits, [] its invocation is certain to raise a judicial eyebrow,” McCrea, 370 F.3d at 361, we recommend that this case be remanded for further consideration by the Commissioner.
II. Statement of Facts and of the Case
On October 2, 2019, Cheryl Northcraft applied for Social Security disability benefits under Title II of the Social Security Act citing an array of medical, neurological, and psychological impairments. (Tr. 20). Specifically, Northcraft alleged that she had become disabled due to the combined effects of occipital neuralgia, trigeminal neuralgia, fibromyalgia, depression, and anxiety. (Tr. 80-1).Northcraft alleged an onset of disability in January of 2016, and her date last insured under the Act was December 31, 2016. (Tr. 20, 22). Thus, this one-year period constituted the critical time frame for this disability appeal.
Trigeminal neuralgia and occipital neuralgia are chronic pain conditions affecting the face and head.
During this period, it was reported that Northcraft, who was self-employed, lacked health insurance, a circumstance which may have affected the frequency and intensity of the health care she received. (Tr. 306). However, during this relevant time period, Northcraft was seen and treated for what have been described as longstanding and chronic conditions on a number of occasions. For example, on June 8, 2016, Northcraft was seen at Summit Primary Care where she was seeking follow up care for her occipital neuralgia. (Tr. 303). At that time it was reported that Northcraft had a history of chronic pain related to her neuralgia. (Id.)
Northcraft also treated with the Pain Institute of Central Pennsylvania during 2016. Medical records identify at least four medical encounters which Northcraft had with pain management clinical staff in 2016. On July 21, 2016, Northcraft sought treatment at this pain management clinic citing chronic headaches and neck pain which she had experienced for some ten years. (Tr. 374). Northcraft also reported depression and anxiety incident to her chronic pain. (Id.) Medical staff prescribed nerve block treatment, injections, and pain medications. (Tr. 375).
Northcraft was then seen and treated by pain management personnel on three more occasions in 2016-September 22, 2016, October 27, 2016, and December 1, 2016. (T. 377-82). In these clinical encounters, Northcraft reported improvement in her pain levels as a result of the treatment she received. Indeed, she occasionally described significant improvement in her pain levels, but Northcraft also continued to report experiencing significant recurrent pain at multiple sites. (Id.)
This pattern of pain management treatment marked by episodic reported improvement, coupled with recurrent pain, continued for more than two years following Northcraft's date last insured in December of 2016. Between January of 2017 and October of 2019, Northcraft was treated at the Pain Institute of Central Pennsylvania on at least seventeen occasions. (Tr. 384-417). During these clinical encounters, Northcraft consistently reported some episodic improvement in her pain levels, but continued to describe the chronic, recurring pain that she experienced. (Id.) Northcraft's treatment notes at the Pain Institute were also replete with references to Northcraft's lack of health insurance. (Tr. 392, 394, 397, 399, 401, 403, 405, 409, 411).
In 2019, Northcraft also was seen and assessed for surgical treatment of her neuralgia by Penn State Health. (Tr. 339-41, 423-29). However, once again, Northcraft's reported lack of health insurance limited her treatment options. (Id.) Finally, in January of 2019, began treating with Dr. William Bossart at Wellspan Health. (Tr. 345-57, 446). During the course of this treatment, Dr. Bossart also confirmed Northcraft's lack of health insurance and diagnosed her as suffering from occipital neuralgia, trigeminal neuralgia, and intense fibromyalgia. (Id.) Dr. Bossart characterized these conditions as chronic and longstanding and indicated that the impairments may have existed for as much as ten years. Thus, by January of 2020, Dr. Bossart was describing these conditions as intractable, stating “I do not have more to offer at this time other than to continue” her treatment regime which included injections, painkillers, and medical marijuana. (Tr. 446).
As Northcraft's treating source, Dr. Bossart completed Medical Source Statements describing Northcraft's ability to perform work on September 9, 2019 and November 3, 2020. (Tr. 363-69, 454-60). In these medical source statements, Dr. Bossart described Northcraft's chronic pain as totally disabling, and opined that she had suffered from these conditions for nine to ten years. (Tr. 368, 459). Dr. Bossart's medical assessment stood in stark contrast to the views expressed by two state agency experts, Dr. Toni Parmalee and Dr. Michael Mesaros, who opined in January and July of 2020 based upon their review of Northcraft's 2016 treatment records that there was insufficient evidence to establish any medically severe impairments on the plaintiff's part. (Tr. 80-95).
It was against the backdrop of this medical opinion and clinical evidence that an ALJ conducted a hearing on Northcraft's disability application on December 16, 2020. (Tr. 30-50). Northcraft testified at this hearing, describing her ongoing physical and emotional impairments due to her neuralgia and fibromyalgia. (Tr. 3747). No Vocational Expert testimony was elicited at this hearing.
On January 7, 2021, the ALJ issued a decision denying Northcraft's application for disability benefits. (Tr. 17-25). In this decision, the ALJ first concluded that Northcraft had not engaged in substantial gainful activity between the date of her alleged onset of disability, January of 2016, and her date last insured, December 31, 2016. (Tr. 22). The ALJ then found at Step 2 of the sequential analysis which governs disability claims that Northcraft suffered from no medically determinable impairments. (Tr. 23).
The ALJ reached this Step 2 determination while acknowledging that:
The claimant alleges that her conditions affected lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, hearing, stair climbing, seeing, remembering, completing tasks, concentrating, understanding, following instructions, using her hands, and getting along with others prior to the date last insured.(Id.)
Moreover, the ALJ reached this conclusion, denying Northcraft's claim at this threshold, de minimus step in the claims evaluation process, based upon the opinions of the state agency experts who concluded that there was insufficient evidence to establish any medically determinable impairments for Northcraft, finding those opinions “persuasive.” (Tr. 24).
While the ALJ relied upon these state agency expert opinions to dismiss this claim at Step 2, the ALJ also concluded that the modest medical records from 2016 did not establish a disabling level of impairment for Northcraft. Thus, the ALJ discounted these treatment records, although this analysis did not take into account the fact that Northcraft's lack of health insurance may have limited her treatment options. Nor did this evaluation of the clinical evidence examine Northcraft's entire longitudinal history of chronic pain treatment which began in 2016 and continued up through 2020. (Id.) Finally, the ALJ discounted the treating source opinion of Dr. Bossart, who concluded that Northcraft suffered from longstanding, severe and disabling impairments, finding that this opinion, which was rendered after the date last insured, was not persuasive. (Id.)
Having made these findings at the outset of this claims analysis, the ALJ went no further. Instead, based solely upon this Step 2 determination the ALJ concluded that Northcraft had not met the stringent standard prescribed for disability insurance benefits and denied her claim. (Id.)
This appeal followed. On appeal, Northcraft argues, inter alia, that the ALJ erred in this Step 2 determination and resolution of her case. While we find that this is a close case, given the limited medical evidence available to the ALJ relating to the severity of Northcraft's condition in 2016, recognizing that “because step two is to be rarely utilized as basis for the denial of benefits, [] its invocation is certain to raise a judicial eyebrow,” McCrea, 370 F.3d at 361, we recommend that this case be remanded for further consideration by the Commissioner.
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 Supreme Court has recently underscored for us the limited scope of our 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, 139 S.Ct. at 1154.
The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The 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, 399 F.3d at 552). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather, our task is to simply 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. Admin., 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). The definition of a disability for a child age 18 or older is the same definition used to determine a disability for purposes of SSI or disability insurance benefits. See 42 U.S.C. § 402(d)(1)(B); 42 U.S.C. § 423(d).
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).
In this case we are presented with a claim which was denied at Step 2 of this sequential analysis without any further scrutiny. In this setting, a series of special considerations are triggered. Step 2 of this sequential analysis is often the first substantive benchmark an ALJ must address and is governed by familiar legal standards:
With respect to this threshold showing of a severe impairment, the showing required by law has been aptly described in the following terms: “In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a ‘de minimus screening device to dispose of groundless claims.' McCrea v. Comm. of Soc. Sec.,370 F.3d 357, 360 (3d Cir.2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir.2003). ‘Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.' Id. ” Velazquez v. Astrue, No. 07-5343, 2008 WL 4589831, *3 (E.D.Pa., Oct.15, 2008). Thus, “[t]he claimant's burden at step two is ‘not an exacting one.' McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir.2004). This step should be ‘rarely utilized' to deny benefits. Id. at 361. Rather, ... [a]n individual should be denied benefits at step two only if the impairment he presents is a ‘slight abnormality' that has ‘no more than a minimal effect on [his] ability to work.' Id.” Kinney v. Comm'r of Soc. Sec., 244 Fed.Appx. 467, 469-70 (3d Cir.2007). Accordingly, “[d]ue to this limited function, the Commissioner's determination to deny an applicant's request for benefits at step two should be reviewed with close scrutiny.” McCrea v. Commissioner of Social Sec., 370 F.3d 357, 360 (3d Cir.2004).Dotzel v. Astrue, No. 1:12-CV-1281, 2014 WL 1612508, at *4 (M.D. Pa. Apr. 22, 2014). 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); see also Salles v. Comm. of Soc. Sec., 229 Fed. App'x 140, 145, n. 2 (3d Cir. 2007) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (“Because the ALJ found in Salles's favor at Step Two, even if he had erroneously concluded that some of her impairments were non-severe, any error was harmless.”).Stouchko v. Comm'r of Soc. Sec., No. 1:12-CV-1318, 2014 WL 888513, at *10 (M.D. Pa. Mar. 6, 2014). Simply put, “because step two is to be rarely utilized as basis for the denial of benefits, [] its invocation is certain to raise a judicial eyebrow.” McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 361 (3d Cir. 2004) (citing SSR 8528, 1995 WL 56856, at *4 (‘Great care should be exercised in applying the not severe impairment concept')).
C. This Case Should Be Remanded for Further Consideration of the Step 2 Evaluation.
Recognizing the unusual procedural posture of this case, which involves a threshold Step 2 denial of a disability claim without any further analysis, we believe that a remand of this case for a more thorough consideration of Northcraft's claim is appropriate. We reach this conclusion because we recognize, as many courts have acknowledged, that this Step 2 analysis is simply a de minimus screening device for disposing of plainly groundless claims. Given the limited role which a Step 2 evaluation plays in this disability determination process, we are cautioned that all reasonable doubts regarding the sufficiency of a claim at Step 2 are to be resolved in favor of the claimant. Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 547 (3d Cir. 2003).
Here, while the modest medical evidence relating to Northcraft's condition in 2016 makes this an exceedingly close case, understanding that “[a]ny doubt as to whether this showing has been made is to be resolved in favor of the applicant,” McCrea, 370 F.3d at 360, we conclude that a remand is appropriate. Viewing the evidence at Step 2 through this analytical lens which resolves doubts in the claimant's favor, we find that Northcraft's evidence, while modest, was sufficient to meet this threshold requirement. That evidence included a treating source opinion which described her conditions as severe and disabling. Notably, this treating source, Dr. Bossart, opined that Northcraft had suffered from these impairments for nine to ten years. Thus, the sole medical opinion from a treating source described Northcraft's condition prior to her date last insured. This medical opinion, in turn, was corroborated, at least to some degree, by treatment notes which documented Northcraft's care between 2016 and 2020. These treatment records identified ongoing, chronic pain experienced by Northcraft. Moreover, Northcraft herself testified to the disabling impact of these conditions upon her in 2016. In our view, given that step 2 is to be rarely utilized as basis for the denial of benefits, this evidence was sufficient to allow the claim to move forward.
Beyond failing to adequately take into account the de minimus nature of the claimant's burden at Step 2, we believe that this Step 2 analysis was flawed in several other respects. For example, while the ALJ cited the fact that Dr. Bossart's opinion was rendered more than two years after Northcraft's date last insured as grounds for entirely discounting that opinion at Step 2, the Third Circuit has not adopted such a categorical approach to rejecting retrospective medical opinions as this threshold stage of the disability analysis. Quite the contrary, when considering a claim at Step 2, the Court of Appeals has cautioned that:
Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability, can support a finding of past impairment. See Loza v. Apfel, 219 F.3d 378, 396 (5th Cir. 2000); Likes v. Callahan, 112 F.3d 189, 191 (5th Cir. 1997). Thus, even non-contemporaneous records of [impairments] are relevant to the determination of whether their onset occurred by the date [the claimant] alleges. See Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir. 1990).Newell, 347 F.3d at 547.
In addition, the ALJ's Step 2 denial of this claim may have erred by citing Northcraft's limited treatment history in 2016 without also considering the undisputed fact that Northcraft lacked medical insurance during this time. On this score, we are again guided by circuit precedent. Specifically, the court of appeals' decision in Newell suggests that when “the record demonstrates that her income during the germane period was very low and that she did not have medical insurance, circumstances that support [a] claim that she could not afford treatment,” the lack of health insurance is yet another factor which weighs against denial of this claim at Step 2. Id.
Finally, we have carefully considered whether any Step 2 errors by the ALJ may be deemed harmless in this case. However, given the fact that the ALJ's consideration of this case began and ended at Step 2, without any further examination of the merits of this claim, we have no basis for making a harmless error determination in this case. Instead, we are simply left with a Step 2 finding which seems to run afoul of the guiding principles which govern the preliminary analysis of these disability claims.
Yet, while case law calls for a remand and further proceedings by the ALJ in this case, assessing this claim, nothing in our opinion should be construed as suggesting what the outcome of that final and full analysis should be. Rather, that final assessment of the evidence must await a thorough consideration and development of this evidence on remand by an ALJ. Therefore, nothing in this Report and Recommendation should be deemed as expressing a view on what the ultimate outcome of any reassessment of this evidence should be. Rather, that task should remain the duty and province of the ALJ on remand.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that this case be REMANDED for further consideration by the Commissioner.
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.