Valora v. Kijakazi

Full title: ARMANDO VALORA Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of…

Court: United States District Court, Middle District of Pennsylvania

Date published: Feb 10, 2022

CIVIL 1:20-CV-1224 (M.D. Pa. Feb. 10, 2022)

Opinion

CIVIL 1:20-CV-1224

02-10-2022

ARMANDO VALORA Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1] Defendant.

Martin C. Carlson United States Magistrate Judge

Mariani, Judge

REPORT AND RECOMMENDATION

Martin C. Carlson United States Magistrate Judge

I. Introduction

The Supreme Court has underscored for us the limited scope of our substantive review when considering Social Security appeals, noting that:

The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. __, __, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

Armando Valora is a pizza chef and former small business owner. Though he had previously been relatively focused on his fitness and wellbeing, the stresses of owning his own restaurant contributed to a decline in his health beginning in 2015, when he started gaining weight and was eventually hospitalized after developing diabetes. Since then, Valora has experienced a myriad of physical health problems including congestive heart failure, for which he underwent aortic valve replacement surgery in November of 2016, obesity, and migraine headaches. He also underwent emergency surgery for an umbilical hernia in 2017, and has dealt with gallstones, sleep apnea, and other physical ailments.

Despite Valora's acute and ongoing medical issues, he has consistently maintained employment, with small gaps for surgery and recovery, since at least 1997, when his work history began, including at the time of his disability hearing when he was working part-time as a pizza baker. He also lives alone and attends to many of his own daily activities.

Against this backdrop, Valora applied for supplemental security income under Title XVI of the Social Security Act on January 13, 2017, alleging a physical disability commencing on September 15, 2016. A hearing was held before an Administrative Law Judge (“ALJ”), who found that Valora was not disabled since the date his application was filed. Valora now appeals this decision, arguing that the ALJ's decision is not supported by substantial evidence. However, after a review of the record, and mindful of the fact that substantial evidence “means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, '” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019), we find that substantial evidence supported the ALJ's findings in this case. Therefore, for the reasons set forth below, we will recommend that the court affirm the decision of the Commissioner.

II. Statement of Facts and of the Case

Valora filed the instant Title XVI claim for disability benefits on January 13, 2017 alleging an onset date of his disability of September 15, 2016. (Tr. 15). His claim was denied on May 22, 2017. (Tr. 82). Valora filed an untimely request for a hearing, with Good Cause due to his open-heart surgery, (Tr. 88-89), and on February 6, 2019, appeared before an ALJ. (Tr. 35). He alleged disability due to cardiomyopathy, aortic valve replacement surgery, visual disturbances, hernias, gall bladder problems, high cholesterol, hypertension, and diabetes. (Tr. 194). Valora has less than a high school education, having completed 6^th grade when he stopped going to school in Mexico at age 11. (Tr. 39-40). Though it is his second language, he can speak, read, write, and understand English. (Tr. 193). His past work history indicates he worked as a pizza cook from 1997 until 2011, then owned his own pizza restaurant from 2011 until the date of the alleged onset of his disability, September 15, 2016. (Tr. 195). At the time of his hearing, he was working part-time as a pizza cook. (Tr. 49).

With respect to these alleged impairments, the clinical record, medical opinions, and the plaintiff's activities of daily living revealed the following: Valora worked full-time as a pizza cook from at least 1997 until 2011. (Tr. 195). From 2011 until around the time of the onset his alleged disability² he was a business owner running a pizza shop called Little Mama's. (Tr. 53, 195). He testified at the hearing that, at the time he began operating as a sole proprietor, he was healthy and weighed about 185 pounds. (Id.) According to Valora, the stress of running his business and working 80 to 90 hours per week led him to gain weight and develop diabetes, (Id.), and, around 2015, he fell very ill with diabetes and was hospitalized. (Tr. 44). Then, beginning in 2016, he began having heart failure which manifested as severe shortness of breath. A series of medical interventions began in April of 2016, when he was hospitalized for six days following severe shortness of breath, fever, and flulike symptoms. (Tr. 361). At that time, his acute diagnosis was influenza B and pneumonia which worsened his past physical ailments, (Tr. 365), and an EKG displayed moderate to severe aortic stenosis. (Tr. 358). At the time of his hospitalization, Valora admitted that he had not had any medical care or follow up in two years, (Tr. 354), and had not taken his blood pressure, cholesterol, or diabetes medications for the last year or so prior. (Tr. 365). Following his April 2016 hospitalization, Valora returned to work full-time running his pizza shop. (Doc. 19, at 3).

2 The record is unclear about exactly when Valora sold his restaurant and began working as an employee. His work history indicates he owned the business until the onset of his disability in September 2016, but he testified at the hearing that he sold the business in 2015. His medical records reflect that he told his cardiologist, Dr. Lesko, that he sold his restaurant at his appointment on July 25, 2017.

Valora was hospitalized again on September 17, 2016, after presenting at the emergency room with severe shortness of breath and evidence of congestive heart failure. (Tr. 289). He was diagnosed with acute congestive heart failure, cardiomyopathy, moderate to severe aortic stenosis, type two diabetes, morbid obesity, cholelithiasis, and suspected sleep apnea. (Tr. 292). He was released from the hospital after five days but returned to the emergency room just a few months later, in November of 2016, with shortness of breath and chest pain. (Tr. 417). This time, he was transferred to Geisinger Medical Center, (Tr. 448), where he underwent aortic valve replacement surgery. (Tr. 574-76). He was discharged on December 3^rd, 2016, (Tr. 604), and returned to work at his restaurant just one week after his surgery. (Tr. 45).

Valora's surgery follow-ups noted normal post-surgery condition. On January 3^rd, 2017 he was examined by Dr. Friscia for his surgery follow-up, who noted Valora was doing well overall and recommended he start cardiac rehabilitation. (503). He also had regular visits with cardiologist, Dr. Lesko. At his first postoperative cardiology appointment, Valora reported dizziness, fatigue, and some problems with upper arm strength, but denied any chest pain or shortness of breath. (Tr. 496). Dr. Lesko noted that, after learning Valora returned to work only one week after surgery, he counseled him to take things a little slower to allow himself a chance to recover. (Id.) His post-operative echocardiogram noted improvement, (Tr. 492), and a follow-up in February 2017 noted only slight shortness of breath with some squeezing in his chest with activity and some residual chest wall pain from surgery. (Tr. 843-44). Follow-ups with Dr. Lesko in March and July noted unremarkable findings from a cardiac standpoint and noted his condition was optimally medically managed. (Tr. 971, 1489). In early 2018, Valora reported feeling well at a cardiac follow-up with PA-C Roan, noting no chest pain, shortness of breath, palpitations, dizziness, syncope, orthopnea, PND, or increased lower extremity edema. (Tr. 1567). Though at his appointment in May 2018 Valora reported intermittent dizziness and changes in vision, (Tr. 1666), and his EKG report showed possible left atrial enlargement, incomplete right bundle branch bock, but normal ECG, (Tr. 1675), he reported no chest pain or shortness of breath up steps. (Tr. 1676).

In January of 2017, Valora also started seeing a neurologist and ophthalmologist for headaches and dizziness with blurred vision and temporary blindness. He reported to neurologist Dr. Schaefer on January 25, 2017 that he had headaches two to three times per week for the last two years with lightheadedness and vision dimming. (Tr. 486). Suspecting probable classic migraines, but with the unusual visual phenomenon of blindness, Dr. Schaefer referred Valora to an ophthalmologist to check for ocular causes of his symptoms. (Id.) She recommended he begin Topamax to resolve symptoms but suggested waiting until an examination with an ophthalmologist took place. (Tr. 488). Valora reported tunnel vision two to three times per week to the ophthalmologist on February 6, 2017 and was diagnosed with classic migraines and prescribed Topamax. (Tr. 1025). In January 2018, Valora reported to Dr. Schaefer that the Topamax had been helpful in reducing his visual phenomenon. (Tr. 1455), however at his next appointment in April of 2018 he reported two incidents of having the worst headache of his life followed by five minutes of vertigo. (Tr. 1627). Dr. Schaefer also indicated the Topamax may have been causing paranoid symptoms, so Topamax was reduced. (Tr. 1628).

Valora was also referred by his PCP to a sleep specialist, Dr. King, to address his possible sleep disordered breathing. His chief complaint at his initial appointment on February 24, 2017 was that he snored a lot and did not feel rested from sleeping. (Tr. 831). Dr. King found a high probability for obstructive sleep apnea or obesity hypoventilation syndrome. (Tr. 835). Weight loss was advised and polysomnography ordered. (Id.)

In the midst of Valora's cardiac and neurological treatments, he was also seen by a weight loss specialist to address his obesity starting in January 2017. (Tr. 922). At an appointment in February of 2017, it was noted he had lost 13 pounds using a combination of light exercise and portion control. (Tr. 923). The record of this appointment also reported persistent worsening RUQ abdominal pain, and the doctor advised Valora to be further evaluated and, in the meantime, go to the ER if the abdominal pain worsened. (Tr. 925). At the request of his PCP, Valora saw general surgeon, Dr. Yang, who noted his six-month history of gallstones and RUQ pain when he eats food. (Tr. 836). Dr. Yang recommended laparoscopic cholecystectomy and open repair of an umbilical hernia, (Tr. 963), and the surgery was successfully performed on April 6^th, 2017. (Tr. 1298, 1303). Unfortunately, the hernia surgery resulted in later complications. In May of 2018, Valora presented to the emergency room with pinpoint periumbilical pain and a bulge located in the vicinity of the previously repaired umbilical hernia. (Tr. 1124). A CT scan revealed a recurrent incisional hernia with strangulation incarceration and abscess, and surgery was performed to repair it. (Id.) Following that surgery, Valora experienced issues with his wound healing and required hospitalization on two occasions for surgical drainage of the wound seroma, (Tr. 1079, 1046-47), despite a wound vacuum being in place until August of 2018. (Tr. 1340). He also required skilled nursing care in his home three times per week from June 13^th, 2018 until July 14^th, 2018 to attend to the wound vacuum. (Tr. 1352-55). He was released from wound care in August of 2018. (Tr. 1340).

In addition to his treatment notes, the record also includes RFC determinations by several medical experts: the medical opinion of a State agency medical advisor, Dr. Diane Fox, an assessment by claimant's treating cardiologist Dr. Michael Gerard Lesko, and a physical therapy functional capacity evaluation and RFC evaluation by Dr. George Fatula, Jr., DPT.

In May 2017, state agency medical advisor, Dr. Fox, examined Valora's medical records and conducted an examination and placed him between the sedentary and light ranges of work. Dr. Fox opined that Valora could occasionally list and/or carry 20 pounds and frequently lift and/or carry 10 pounds. (Tr. 77). Further, she determined he could stand and/or walk for a total of 4 hours and sit with normal breaks for a total of about 6 hours in an 8-hour workday. (Id.) He could occasionally climb ramps/stairs and ladders, balance, stoop, kneel, crouch, and crawl. (Id.) While she found that, due to Valora's heart condition, he had environmental limitations, including avoiding concentrated exposure to extreme cold, heat, humidity, fumes, and hazards, he had no communicative, visual, or manipulative limitations. (Tr. 77-78). Dr. Fox noted that, although Valora reported fatigue, variable blood sugar readings from his diabetes, abdominal pain from gallstones, and migraine headaches, he was able to live alone, manage his personal care independently, do light household chores, drive, shop, work part-time, and care for his son two days per week. (Tr. 78). Thus, although she opined that Valora did not have the functional capacity to perform his past work due to exertional limitations, he was able to perform sedentary work at a skilled level. (Id.)

In January 2018, Valora's cardiologist, Dr. Lesko, also completed an RFC questionnaire, noting that Valora had a marked limitation of physical activity and could only tolerate low stress jobs. (Tr. 1021-22). He also opined that Valora should avoid concentrated exposure to wetness and should avoid even moderate exposure to extreme cold or heat, humidity, solvents/cleaners, and chemicals. (Tr. 1024). Dr. Lesko further noted that Valora may sometimes need to take unscheduled breaks during an 8-hour working day, but that he did not need a job that permitted shifting positions at will from sitting, standing, or walking. (Tr. 1023).

Dr. Fatula, DPT, also conducted a physical therapy evaluation on February 12, 2019. Based on the assessments performed during the examination, Dr. Fatula placed Valora into the light work level for 12 instant knuckle lifts, knuckle to shoulder lift, shoulder to overhead lifting, and carrying 40 feet. (Tr. 1882). Valora fell into the sedentary to light work level for floor to knuckle preferred and was unable to perform the floor to knuckle leg lift. (Id.) Dr. Fatula opined that Valora could frequently reach, occasionally bend, twist, kneel, and climb, but he could never squat, crawl, or balance. (Tr. 1882-83).

Dr. Fatula also completed an RFC questionnaire in February 2019. His RFC evaluation determined that Valora's symptoms would be severe enough to frequently interfere with his attention and concentration needed to perform even simple tasks. (Tr. 1886). Further, he opined that Valora could sit for only 30 minutes before needing to get up and could stand for only 15 minutes before needing to sit down or walk around, but that he could stand for a total of about 2 hours and sit for about 4 hours in an 8-hour working day. (Id.) Unlike Dr. Lesko, Dr. Fatula found that Valora needed a job that permitted shifting positions at will from sitting, standing, or walking. (Tr. 1887). He noted that Valora could reach overhead 33-66% of an 8hour day, could occasionally lift up to 20 pounds, twist, stoop, and climb stairs, but could never crouch or climb ladders. (Id.) Finally, he opined that Valora's impairments were likely to product “good days” and “bad days.” (Tr. 1888).

It is against this medical backdrop that the ALJ held a hearing on Valora's claim on February 6, 2019. (Tr. 33). At the hearing, Valora and a Vocational Expert (“VE”) testified. (Tr. 32-71).

Valora testified that he believed he was disabled because he could not work long hours due to fatigue, that he loses his vision sometimes, gets dizzy, and feels like he is going to pass out. (Tr. 43). He elaborated that he lost his previous job at Brother's Pizza due to his symptoms requiring him to frequently be sent home. (Id.) Valora stated that he is 5'7” tall and weighs about 300 pounds. (Tr. 46). He noted that he can only walk for about 20 minutes before getting dizzy, (Tr. 46), cannot lift more than 35 pounds, (Tr. 57), and sometimes uses a cane. (Tr. 56). Despite the symptoms he described, Valora testified that, at the time of the hearing, he was working three to four hours, four days per week at the pizza restaurant he previously owned, Little Mama's. (Tr. 49). He noted that he cooks, grocery shops, cleans his house, does light exercise, and does his own laundry, (Tr. 49-50), though he must have someone carry it to the laundry for him due to his limitations in lifting. (Tr. 57). While he testified that he has a license, he does not drive due to his sleeping disorder causing him fatigue. (Tr. 40).

The vocational expert classified Valora's past work as pizza baker, though the parties agreed at the hearing that his past work would be a composite job of pizza baker and food service manager because he also conducted the managerial tasks of owning a pizza restaurant during part of his work history. (Tr. 64-67). The VE testified that this past work was a skill position, SVP of seven with light exertional level. (Tr. 67). She further testified that an individual with Valora's age, education, and past job experience, but limited to sedentary work, only sitting for six hours and standing and walking for four hours, with the occasional ability to climb ramps, stairs, ladders, ropes, and scaffolds, occasionally balance, stoop, kneel, crouch and crawl, and needing to avoid concentrated exposure to extreme cold, heat, humidity, fumes, odors, dusts, gases, poor ventilation and hazards such as machinery and heights could not perform any of Valora's past work. (Tr. 68). However, the VE determined there were other jobs in the national economy that such a hypothetical individual could perform, including order clerk, lens inserter, and document preparer. (Id.) The VE noted that the hypothetical individual could perform those jobs even if limited to simple, routine tasks, but could not perform any of them if the individual would need to be absent from work three to four times per month or if the individual needed to take unscheduled breaks up to or lasting an hour. (Tr. 69).

By a decision dated April 2, 2019, the ALJ denied Valora's application for benefits. (Tr. 12-27). In that decision, the ALJ first concluded that Valora had not engaged in any substantial gainful activity since January 13, 2017, the application date. (Tr. 17). He noted that the record showed earnings of $6,092.19 in 2017 and $2,049.89 in 2018, and that Valora testified he was working 20 hours per week at the time of the hearing, but found this work did not constitute substantial gainful activity after the alleged onset date. (Id.)

At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Valora had the following severe impairments: congestive heart failure and aortic valve stenosis status post aortic valve replacement, migraine headaches with intermittent vision loss, pterygium bilaterally, and obesity. (Id.) The ALJ also noted that Valora was diagnosed with other medical conditions, such as gastroesophageal reflux disease, gallstones, an umbilical hernia, vitiligo, obstructive sleep apnea, and diabetes mellitus, but that those impairments were non-severe. (Tr. 18). Specifically, he noted that Valora's gallstones required no ongoing treatment and did not last 12 months, his umbilical hernia surgery was successful for over a year and also did not last 12 months, his vitiligo did not cause any functional limitations, and his sleep apnea and diabetes are well controlled and caused no functional limitations. (Id.) At Step 3, the ALJ determined that Valora did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 19). The ALJ specifically considered the listings in section 2.00 and 4.00. (Id.) The ALJ also noted that, although there is no independent listing for obesity, she considered the effect of that impairment in evaluating whether Valora met or equaled a listing. (Id.)

Between Steps 3 and 4, the ALJ fashioned a residual functional capacity (“RFC”), considering Valora's limitations from his impairments:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except that he is limited to sitting for 6 hours in an 8-hour day, and standing and walking for 4 hours in an 8hour day. He can occasionally climb ramps, stairs, ladders, ropes, and scaffolds. He can occasionally balance, stoop, kneel crouch, and crawl. He must avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, poor ventilation, solvents, cleaners, chemicals, perfumes, soldering fluxes, smoke, and hazards such as machinery and heights. He is limited to the performance of simple, routine tasks.

(Tr. 19).

Specifically, in making the RFC determination, the ALJ considered all Valora's symptoms and the extent to which these symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence. (Id.) The ALJ also considered the medical opinions and prior administrative medical findings. (Id.) In assessing Valora's symptoms, the ALJ followed a two-step process, determining first whether there was an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or symptoms, and then evaluating the intensity, persistence, and limiting effects of such symptoms to determine the extent to which they limit claimant's functional limitations. (Tr. 20). After applying this two-step process, the ALJ found that Valora's medically determinable impairments could reasonably be expected to cause his alleged symptoms, but his statements concerning the intensity, persistence and limiting effects of those symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Id.)

On this score, the ALJ noted that, although Valora testified he was unable to work because of fatigue, dizziness, vision loss, migraines, and feeling like he will pass out, he was capable of performing a wide and varied range of activities of daily living, including working part-time, cooking, shopping, doing laundry, and taking public transportation. (Tr. 23). The ALJ also noted that, since Valora's heart surgery, he required only routine and conservative treatment for his heart condition, with few cardiac complaints, all which were managed with medication. (Id.) And, although he complained of dizziness, the ALJ noted that the medical record identified no neurological or cardiac etiology which would explain those symptoms. (Id.) As to Valora's migraine headaches, the ALJ noted Valora's inconsistent testimony regarding whether the medication prescribed to treat his migraines, Topamax, helped with his symptoms, but referenced the medical record which reflected that Valora reported to his neurologist that his symptoms were generally well-controlled with Topamax, that he reported only a few headaches per month, and that his visual symptoms only lasted a few minutes. (Id.) Thus, the ALJ concluded that, while Valora had impairments that more than minimally impacted his ability to engage in work related activities, she was not persuaded that the degree of impairment rendered him disabled. (Id.)

In making his determination, the ALJ considered the reports of the medical experts, noting that the ALJ would not defer to or give controlling weight to any prior medical findings or opinions. The ALJ gave little weight to the opinion of the State agency medical advisor, Dr. Fox. The ALJ noted that Dr. Fox's opinion that Valora could lift and carry 20 pounds occasionally, and 10 pounds frequently, stand and/or walk for about 4 hours in an 8-hour workday, and sit for about 6 hours in an 8-hour workday, had unlimited ability to push and pull, but only occasionally climbing, balancing, stooping, kneeling, crouching, and crawling and that he must avoid concentrated exposure to extreme cold, heat, humidity, pulmonary irritants, and hazards such as machinery and heights did not adequately address Valora's ongoing complaints of fatigue, headaches, and visual changes. (Id.) Accordingly, she found Valora's condition required the additional limitations of a sedentary range of work and gave Dr. Fox's opinion little weight. (Tr. 24).

Conversely, the ALJ gave great weight to the findings of Valora's treating cardiologist, Dr. Lesko. The ALJ found that Dr. Lesko's opinion that claimant could perform only low-stress work, would need to avoid concentrated exposure to wetness and dust, even moderate exposure to extreme cold, heat, humidity, solvents and cleaners, and chemicals, and all exposure to cigarette smoke, perfumes, soldering fluxes, fumes, odors, and gasses, to be consistent with Valora's cardiac condition because these findings reasonably restrict Valora from conditions that could exacerbate his symptoms. (Tr. 24).

The ALJ also considered the physical therapy functional capacity evaluation and residual capacity questionnaire submitted by Dr. Fatula. The ALJ gave Dr. Fatula's physical therapy functional capacity evaluation limiting Valora to between sedentary and light ranges of work generally good weight but declined to adopt it outright. (Id.) The ALJ erred on the side of being more restrictive than Dr. Fatula suggested, limiting him to sedentary work based on his cardiac history. (Id.) This determination was also supported by the fact that Dr. Fatula's findings that Valora fell into the light work level for 12 instant knuckle lifts, knuckle to shoulder lift, shoulder to overhead lifting, and carrying 40 feet, the sedentary to light work level for floor to knuckle preferred, frequent category for reaching, occasional categories for bending, twisting, kneeling, and climbing, and the never categories for squatting crawling and balancing, were based on a one-time evaluation. (Id.)

The ALJ also gave only partial weight to the RFC questionnaire completed by Dr. Fatula, noting that his opinion that Valora's symptoms would frequently interfere with his attention and concentration, that he could walk two blocks without rest or severe pain, sit for 20 minutes at a time and about 4 hours total, would need to be permitted to alternate between sitting and standing at will, could use his upper extremities 33-66% of the time, and that he was likely to have good days and bad days was inconsistent with Dr. Fatula's own examination of Valora for the physical therapy functional capacity evaluation. (Tr. 24). The ALJ specifically noted that the limitation in the use of Valora's upper extremities was not supported by his diagnoses or his work as a pizza maker, and the limitation to sitting for only 4 hours total in an 8-hour day was not supported by either his impairments or Dr. Fatula's examination. (Id.)

Having arrived at this RFC assessment, the ALJ found at Step 4 that Valora was unable to perform any past relevant work as it is actually and generally performed. (Tr. 25). Between Step 4 and Step 5, the ALJ concluded that Valora was 40 years old, which is defined as a younger individual age 18-44 on the date the application was filed. (Id.) She noted that Valora has a limited education and is able to communicate in English. (Id.) The ALJ further determined that transferability of job skills was not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant was “not disabled, ” whether or not he had transferable job skills. (Id.)

The ALJ then made a finding at Step 5 that Valora could perform work available in the national economy as order clerk, lens inserter, and document preparer. (Tr. 26). In doing so, the ALJ considered Valora's residual functional capacity, age, education, and work experience in conjunction with the Medical Vocational Guidelines. The ALJ found that Valora's ability to perform all, or substantially all, of the requirements of sedentary work was impeded by additional limitations. (Id.) Thus, the ALJ posed hypothetical questions to a vocational expert at the hearing to determine if jobs existed in the national economy for an individual such as Valora, who could perform sedentary work but is limited to sitting for 6 hours in an 8-hour day, and standing and walking for 4 hours in an 8-hour day, can occasionally climb ramps, stairs, ladders, ropes, and scaffolds, can occasionally balance, stoop kneel, crouch, and crawl, but must avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, poor ventilation, solvents, cleaners, chemicals, perfumes, soldering fluxes, smoke, and hazards such as machinery and heights, and is limited to the performance of simple, routine tasks. (Tr. 25). The VE testified that, given all of these factors, and considering Valora's age, education, and work experience, there existed jobs in the national economy that Valora could perform. (Id.) The ALJ concluded that Valora was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. (Id.) Accordingly, the ALJ concluded that Valora did not meet the stringent standard for disability set by the Act and denied his claim. (Id.)

Valora filed a timely request for review of the ALJ's opinion with the Appeals Council, which was denied on May 12, 2020. (Tr. 1). This appeal followed. (Doc. 1). On appeal, Valora argues that the ALJ erred in giving only partial weight to the opinion of Dr. Fatula, failed to properly evaluate the plaintiff's subjective complaints, and failed to reconcile conflicts between the VE's testimony and the DOT. He also alleges that the ALJ's credibility finding and finding that the occupation of lens inserter exists in significant numbers in the national economy were not supported by substantial evidence. (Doc. 19, at 7-8). This case is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below, we will recommend that the court affirm the decision of 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 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 which 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 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); see also 20 C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). 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). 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).

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). 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).

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, “[t]here 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 Fed.Appx. 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 identified limitations that 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. Biller, 962 F.Supp.2d at 778-79. 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 the facts and evidence. See Titterington v. Barnhart, 174 Fed.Appx. 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. 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 number 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); 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 this 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 706-07. 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).

B. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence

Valora filed the instant disability application in January 2017, just before a paradigm shift in the manner in which medical opinions were evaluated when assessing Social Security claims. Prior to March 2017, ALJs were required to follow regulations which defined medical opinions narrowly and created a hierarchy of medical source opinions with treating sources at the apex of this hierarchy. The Commissioner's regulations 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 afford 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 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). These benchmarks, which emphasize consideration of the nature of the treating relationship, also call for careful consideration of treating source opinions.

Indeed, this court has often addressed the weight which should be afforded to a treating source opinion in a Social Security disability appeals and emphasized the importance of such opinions for informed decision-making in this field. Recently, we aptly summarized the controlling legal benchmarks in this area in the following terms:

Under applicable regulations and the law of the Third Circuit, a treating medical source's opinions are generally entitled to controlling weight, or at least substantial weight. See, e.g., Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20 CFR § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)). Oftentimes referred to as the “treating physician rule”, this principle is codified at 20 CFR 404.1527(c)(2), and is widely accepted in the Third Circuit. Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); See also Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986). The regulations also address the weight to be given a treating source's opinion: “If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case, we will give it controlling weight.” 20 CFR § 404.1527(c)(2). “A cardinal principle guiding disability, eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on continuing observation of the patient's condition over a prolonged

period of time.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations omitted); See also Brownawell v. Commissioner of Social Security, 554 F.3d 352, 355 (3d Cir. 2008). In choosing to reject the treating physician's assessment, an ALJ may not make “speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation, or lay opinion.” Morales v. Apfel, supra at 317.

Morder v. Colvin, No. 3:16-CV-213, 2016 WL 6191892, at *10 (M.D. Pa. Oct. 24, 2016).

Thus, an ALJ may not unilaterally reject a treating source's opinion and substitute the judge's own lay judgment for that medical opinion. Instead, the ALJ typically may only discount such an opinion when it conflicts with other objective tests or examination results. Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-03 (3d Cir. 2008). Likewise, an ALJ may conclude that discrepancies between the treating source's medical opinion and the doctor's actual treatment notes justifies giving a treating source opinion little weight in a disability analysis. Torres v. Barnhart, 139 Fed.Appx. 411, 415 (3d Cir. 2005). Finally, “an opinion from a treating source about what a claimant can still do which would seem to be well-supported by the objective findings would not be entitled to controlling weight if there was other substantial evidence that the claimant engaged in activities that were inconsistent with the opinion.” Tilton v. Colvin, 184 F.Supp.3d 135, 145 (M.D. Pa. 2016). However, in all instances in social security disability cases the ALJ's decision, including any ALJ judgments on the weight to be given to treating source opinions, must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. Indeed, this principle applies with particular force to the opinion of a treating physician. See 20 C.F.R. §404.1527(c)(2) (“We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion”). “Where a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or the wrong reason.'” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066)); see also Morales, 225 F.3d at 317. Therefore, the failure on the part of an ALJ to fully articulate a rationale for rejecting the opinion of a treating source may compel a remand for further development and analysis of the record.

D. Legal Benchmarks for the ALJ's Assessment of a Claimant's Alleged Symptoms

The interplay between the deferential substantive standard of review that governs Social Security appeals, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is also illustrated by those cases which consider analysis of a claimant's reported symptoms. When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:

[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility. See Diaz v. Comm'r, 577 F.3d 500, 506 (3d Cir.2009) (“In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his evaluation of the evidence [and] assessment of the credibility of witnesses....”). However, the ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir.1983)); see also Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir.2006) (stating that an ALJ is required to provide “specific reasons for rejecting lay testimony”). An ALJ cannot reject evidence for an incorrect or unsupported reason. Ray v. Astrue, 649 F.Supp.2d 391, 402 (E.D.Pa.2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)).

Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).

Yet, it is also clear that:

Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling (“SSR”) 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.

McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015) (footnotes omitted). Thus, we are instructed to review an ALJ's evaluation of a claimant's subjective reports of symptoms under a standard of review which is deferential with respect to the ALJ's well-articulated findings, but imposes a duty of clear articulation upon the ALJ so that we may conduct meaningful review of the ALJ's conclusions.

In the same fashion that medical opinion evidence is evaluated, the Social Security Rulings and Regulations provide a framework under which the severity of a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3p. It is important to note that though the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled.”). It is well-settled in the Third Circuit that “[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. §404.1529). When evaluating a claimant's symptoms, the ALJ must follow a two-step process in which the ALJ resolves whether a medically determinable impairment could be the cause of the symptoms alleged by the claimant, and subsequently must evaluate the alleged symptoms in consideration of the record as a whole. SSR 16-3p.

First, symptoms, such as pain or fatigue, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p. During the second step of this credibility assessment, the ALJ must determine whether the claimant's statements about the intensity, persistence or functionally limiting effects of his or her symptoms are substantiated based on the ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 16- 3p. This includes but is not limited to: medical signs and laboratory findings, diagnosis and other medical opinions provided by treating or examining sources, and other medical sources, as well as information concerning the claimant's symptoms and how they affect his or her ability to work. Id. The Social Security Administration has recognized that individuals may experience their symptoms differently and may be limited by their symptoms to a greater or lesser extent than other individuals with the same medical impairments, signs, and laboratory findings. SSR 16-3p.

Thus, to assist in the evaluation of a claimant's subjective symptoms, the Social Security Regulations identify seven factors which may be relevant to the assessment of the severity or limiting effects of a claimant's impairment based on a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include: activities of daily living; the location, duration, frequency, and intensity of the claimant's symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her symptoms; treatment, other than medication that a claimant has received for relief; any measures the claimant has used to relieve his or her symptoms; and, any other factors concerning the claimant's functional limitations and restrictions. Id.; see also George v. Colvin, No. 4:13-CV-2803, 2014 WL 5449706, at *4 (M.D. Pa. Oct. 24, 2014); Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1995999, at *9 (M.D. Pa. Apr. 8, 2019), report and recommendation adopted sub nom. Koppenhaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D. Pa. May 6, 2019); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8-9 (M.D. Pa. Sept. 30, 2015).

E. Legal Benchmarks for Assessing a Claimant's Obesity

The interplay between this deferential substantive standard of review, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is aptly illustrated by those cases which consider analysis of the compounding effect of obesity upon disability claimants. In this regard, the leading case addressing this issue is Diaz v. Comm'r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009). In Diaz, the ALJ found at Step 2 of the analytical process that Diaz's obesity was a severe impairment, but then neglected to address the exacerbating effect of this condition at Step 3 or in any other subsequent steps in the disability analysis.

On these facts, the Court of Appeals remanded the case for further consideration by the Commissioner and provided guidance regarding the duty of articulation required from ALJs in this setting. Thus, the Court of Appeals explained that “an ALJ must meaningfully consider the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.” Diaz, 577 F.3d at 504. While imposing this responsibility of articulation upon ALJs, the appellate court did not endeavor to impose some strict formulaic requirements upon these administrative adjudicators. Quite the contrary, the Court made it clear that “[t]he ALJ, of course, need not employ particular ‘magic' words: ‘[Case law] does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.'” Diaz, 577 F.3d at 504 (citations omitted).

The Court of Appeals also made it abundantly clear that its decision related to the ALJ's duty to adequately articulate the rationale underlying any decision denying benefits and did not in any way alter the very deferential substantive standard of review in these cases. As the Court noted,

Were there any discussion of the combined effect of [obesity upon] Diaz's impairments, we might agree with the District Court [and affirm the ALJ decision]. However, absent analysis of the cumulative impact of Diaz's obesity and other impairments on her functional capabilities, we are at a loss in our reviewing function.

Diaz, 577 F.3d at 504 (emphasis in original). By noting that “any discussion of the combined effect of [obesity upon] Diaz's impairments” would have been sufficient, the appellate court underscored the continuing vitality of the deferential standard of review that applies in these cases.

Thus, fairly construed, Diaz holds that where an ALJ has defined a claimant's obesity as a severe impairment at Step 2 of this analysis, there is a basic duty of articulation that is owed the claimant, explaining how that obesity affects the issue of disability. However, once that duty of articulation is met, the substantive standard of review remains highly deferential. Applying this analytical paradigm, following Diaz it has been held that a single cursory assurance that an ALJ has considered a claimant's obesity may be insufficient to satisfy the requirement that “an ALJ must meaningfully consider the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.” Diaz, 577 F.3d at 504; see also Sutherland v. Berryhill, No. 3:17-CV-00124, 2018 WL 2187795, at *9 (M.D. Pa. Mar. 6, 2018), report and recommendation adopted sub nom. Sutherland v. Berryhill, No. CV 3:17-0124, 2018 WL 2183359 (M.D. Pa. May 11, 2018). However, a statement by an ALJ in a decision denying benefits that the ALJ has “considered any additional and cumulative effects of obesity, ” when coupled with even a brief factual analysis of the medical evidence as it relates to obesity and impairment is sufficient to satisfy this duty of articulation. Cooper v. Comm'r of Soc. Sec., 563 Fed.Appx. 904, 911 (3d Cir. 2014). Further, when an ALJ considers the role of a claimant's obesity, evaluating it within the context of the overall record, consistent with the appropriate guidelines, this duty is satisfied. Woodson v. Comm'r Soc. Sec., 661 Fed.Appx. 762, 765 (3d Cir. 2016). Finally, this responsibility is met when the ALJ explicitly considers the claimant's obesity when assessing that claimant's residual functional capacity. Hoyman v. Colvin, 606 Fed.Appx. 678, 680 (3d Cir. 2015). Medina v. Berryhill, No. 3:17-CV-1941, 2018 WL 3433290, at *6-7 (M.D. Pa. June 8, 2018), report and recommendation adopted, No. CV 3:17-1941, 2018 WL 3426408 (M.D. Pa. July 16, 2018).

It is against these legal benchmarks that we assess the instant appeal.

F. The ALJ's Decision was 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, 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. Judged against these deferential standards of review, we find that substantial evidence supported the decision by the ALJ that Valora was not disabled.

Valora argues that the ALJ's finding that the opinion of Dr. Fatula is entitled to only partial weight is not supported by substantial evidence. We find the ALJ's analysis of the weight to be afforded to Dr. Fatula's medical opinion draws adequate support from the administrative record. At the outset, we note that the question of disability is a legal determination and is not wholly dictated by medical opinions. Indeed, it is well settled that “[t]he ALJ-not treating or examining physicians or State agency consultants-must make the ultimate disability and RFC determinations.” Chandler, 667 F.3d at 361. Further, in making this assessment of medical opinion evidence, “[a]n ALJ is [also] entitled generally to credit parts of an opinion without crediting the entire opinion.” Durden, 191 F.Supp.3d at 455.

Regarding the ALJ's analysis of Dr. Fatula's opinion, we note that the ALJ typically may only discount such an opinion when it conflicts with other objective tests or examination results. Johnson, 529 F.3d at 202-03. However, controlling weight can be given to treating physicians, and in deciding the weight given to non-controlling medical opinions, the ALJ can consider the 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; the extent to which the basis for the sources' conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole. 20 C.F.R. §404.1527(c).

Consistent with the “treating physician rule, ” Morder, 2016 WL 6191892, at *10, the ALJ gave great weight to the opinion of Valora's treating cardiologist, Dr. Lesko. Thus, in determining what weight to give Dr. Fatula's non-controlling medical opinion, the ALJ was entitled to consider factors such as the frequency of examination, and the extent to which Dr. Fatula's opinion was consistent with the record, supported by evidence, and adequately explained. On this score, the ALJ considered both Dr. Fatula's physical therapy functional capacity evaluation and his opinion of the medical record as expressed in the RFC questionnaire. The ALJ appropriately noted that Dr. Fatula's physical therapy functional capacity evaluation and accompanying RFC questionnaire were based on a single examination but gave the physical therapy functional capacity evaluation generally good weight, despite finding it appropriate to assign a more restrictive limitation of sedentary work due to his cardiac issues.

On the other hand, the ALJ noted inconsistencies between that evaluation and Dr. Fatula's subsequent RFC determination, finding several of his opinions on that questionnaire to be unsupported by the medical record. Specifically, the ALJ found that Dr. Fatula limiting Valora to sitting for only 4 hours total in an 8-hour day was not supported by Dr. Fatula's own examination or by Valora's impairments. She similarly gave limited weight to the limitation in the use of Valora's upper extremities, finding no support for this limitation in either claimant's diagnoses nor his work as a pizza maker.

The plaintiff argues that these credibility determinations by the ALJ are not supported by substantial evidence. As to Dr. Fatula's sitting limitation findings, the plaintiff argues that Valora's severe aortic stenosis and major heart surgery support such a limitation, and that the ALJ's rejection of this limitation suggests she would require “a more classic impairment, such as a spinal disorder, to qualify for a significant sitting limitation.” (Doc. 19, at 12). The record is devoid of any such suggestion by the ALJ. In fact, the ALJ gave Valora's cardiac history explicit consideration in limiting him to sedentary work. Further, the only evidence in Dr. Fatula's findings that would limit Valora's sitting tolerance are Valora's own statements during the examination that he could sit for only 20-30 minutes before needing to change positions due to back and knee discomfort. (Tr. 1880). However, though the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled.”). Valora's medical records, beyond his statements to Dr. Fatula, provide no support for a sitting limitation such as that recommended by Dr. Fatula. Further, Valora's treating cardiologist, Dr. Lesko, whose opinion may be given great or even controlling weight by the ALJ, suggested no such limitation.

The same can be said for Dr. Fatula's limitation on Valora's upper extremities. While the ALJ considered Valora to have several severe impairments, including congestive heart failure, aortic valve stenosis, migraine headaches with intermittent vision loss, pterygium bilaterally, and obesity, nothing in the medical record, nor from Valora's own statements or testimony, would suggest he have a limitation on the usage of his upper extremities. Further, Dr. Fatula's physical therapy evaluation was inconsistent with such a finding, as it noted he could frequently reach. Finally, despite the ALJ's rejection of those two portions of Dr. Fatula's opinion, the plaintiff's argument ignores the fact that the ALJ's ultimate RFC determination was more conservative and restrictive than that suggested by Dr. Fatula, placing him in a sedentary work category, which would seemingly be of benefit to the plaintiff and in line with the determination of his treating physician. Accordingly, we find there was substantial evidence to support the weight given by the ALJ to Dr. Fatula's RFC determination. We further conclude that Valora was not prejudiced by the ALJ's decision too impose even greater limitations upon the plaintiff than those suggested by Dr. Fatula.

Valora also argues that the ALJ made multiple errors regarding his evaluation of Valora's alleged symptoms. At the outset, we reiterate that “[a]n ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony.” McKean, 150 F.Supp.3d at 415-16. Further, “the ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility.” Zirnsak, 777 F.3d at 612-13. In this case, the ALJ assessed the severity of Valora's symptoms in accordance with the regulations and provided an adequate explanation for her finding that Valora's statements regarding the intensity and persistence of his symptoms were not entirely consistent with the objective medical evidence.

In evaluating a claimant's subjective systems, the ALJ should consider his activities of daily living; the location, duration, frequency, and intensity of the claimant's symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her symptoms; treatment, other than medication that a claimant has received for relief; any measures the claimant has used to relieve his or her symptoms; and, any other factors concerning the claimant's functional limitations and restrictions. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Here, in accordance with the regulations, the ALJ considered the intensity, persistence, and limiting effects of Valora's symptoms, as well as the extent to which his obesity contributes to his functional limitations. The ALJ first noted that Valora's alleged symptoms suggested a greater level of severity of impairment than can be shown by the objective medical evidence alone. The plaintiff avers that the ALJ erred in failing to mention significant findings by medical providers when she noted the plaintiff had only minimal cardiac complaints after his surgery. It is true that Valora's cardiac condition was not cured by his surgery, but the ALJ gave great weight to his cardiac condition and restricted him from conditions that would exacerbate his cardiac symptoms. Further, though Valora points out an abnormal EKG in May 2018, the ALJ correctly noted that Valora reported few cardiac complaints for which he was previously hospitalized, including shortness of breath, and the medical record supports the ALJ's determination that he required only routine and conservative treatment for his heart condition. Further, other subjective symptoms for which Valora testified he is disabled, including dizziness, were not explained by any cardiac or other neurological etiology. Finally, the ALJ noted that Valora's testimony that he was disabled due to having migraines several times per week was not supported by the treatment evidence showing his migraines were well controlled by his medication, Topamax, and his reports to his neurologist that he had only a few headaches per month. With regard to the ALJ's consideration of the intensity of the headaches reported and the inconsistencies in the plaintiff's testimony about whether his headaches were well-controlled or resolved, we note that the ALJ clearly articulated her findings, meeting our deferential standard of review.

The ALJ also found that, despite Valora's allegations, he was capable of performing a wide and varied range of activities of daily living, including working part-time, cooking, shopping, doing laundry, and taking public transportation. Valora argues that the ALJ mischaracterized his activities of daily living, noting that she ignored the fact that he needed to come home and rest for 30-60 minutes after work, needed to take breaks at work due to his sore legs and feet, that he relied upon friends to take him to the store and carry his laundry, and that he did not have public transportation available at his apartment building. First, although it is well recognized that an ALJ is not required to credit statements by an individual regarding his subjective symptoms, Chandler, 667 F.3d at 363, here, the allegations that Valora avers the ALJ failed to credit are not inconsistent with the ALJ's characterization of his condition nor with her ultimate RFC determination limiting him to sedentary work. Despite his need to rest after work and take breaks, the ALJ accurately characterized Valora as working a four-hour shift on his feet, and being able to cook, shop, and do laundry. Valora testified as such at his hearing. Further, the lack of availability of transportation is not relevant to Valora's disability determination nor the ALJ's assessment of his activities of daily living. Because Valora's own statements support the ALJ's characterization of his activities of daily living, we find the ALJ's evaluation of Valora's subjective complaints to be supported by substantial evidence.

Finally, Valora argues that the ALJ made several errors in her analysis at Step 5 regarding whether Valora is capable of performing other available work that exists in significant numbers in the national economy. He first argues that he does not have the intellectual capacity to perform the occupations of Order Clerk or Document Preparer, asserting that his limited education, with English being his second language, would prevent him from being able to perform these positions. The plaintiff points us to the Dictionary of Occupational Titles, which describes the General Educational Development (“GED”) required of each occupation. The positions of Order Clerk and Document Preparer require Level 3 reasoning development, Level 1 mathematical development, and Level 2 language development.

The plaintiff takes issue with the level 2 language development requirement, noting that, because he only completed up to 6^th grade in Mexico, and English is his second language, he is not capable of communicating at a Level 2 for language development. According to the Dictionary of Occupational Titles, a guide developed by the U.S. Department of Labor and typically relied upon by vocational experts in social security determinations, Level 2 language development requires one to have a:

Passive vocabulary of 5, 000-6, 000 words . . . [r]ead at rate of 190-215 words per minute . . . [w]rite compound and complex sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs . . . [and ] [s]peak clearly and distinctly with appropriate pauses and emphasis, correct pronunciation, variations in word order, using present, perfect, and future tenses.

Dictionary of Occupational Titles (4^th Ed., Rev. 1991) - APPENDIX C. https://www.dol.gov/agencies/oalj/public/dot/references/dotappc. These language requirements are further clarified in the Social Security Administration, Program Operations Manual System (“POMS”) DI 25015.101, Education as a Vocational Factor. “[T]he Social Security Administration's Program Operations Manual System [‘POMS'], [are] ‘the publicly available operating instructions for processing Social Security claims.' ‘While these administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect.'” Artz v. Barnhart, 330 F.3d 170, 176 (3d Cir. 2003) (quoting Wash. Dept. of Social Servs. v. Keffeler, 537 U.S. 371, 385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003)). The POMS guidance delineates Level 2 education as “formal schooling completed at a level of 6^th grade or less (in any country), ” and provides the following guidance on how to apply the illiteracy category (L1):

[I]f the claimant has completed at least a 4^th grade education (in any country), it is generally appropriate to find the claimant is literate and assign the claimant to another, more appropriate education category listed below in DI 25015.010C. 2-4 because most people learn to read and write by the time they complete 4^th grade.

The assertion that Valora is incapable of performing a job at a Level 2 language requirement is inconsistent with the evidence in the record. At the outset, Valora's work history and hearing testimony demonstrate that his past work included owning a pizza restaurant, a composite occupation that the VE classified as food service manager, which requires a language level of 4.³ Although Valora asserts his wife did the paperwork for the restaurant, he testified that he was the sole owner and that he at least managed the hiring, firing, and management of the restaurant's employees. (Tr. 67).

3 Dictionary of Occupational Titles (4^th Ed., Rev. 1991) - Occupational Group. https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOT01E

Further, the hearing transcript demonstrates Valora testified clearly and precisely in English at his disability hearing without the assistance of a translator and with seemingly little difficulty in understanding the questions asked of him or articulating his experience. Although the record indicates his ex-wife, Julie Valora, completed his function and work history reports, (Tr. 203-213; 214-222), Valora completed his own Disability Report in which he indicated he reads and understands English. (Tr. 193). His completion of the detailed form further demonstrates his ability to complete paperwork in English. Further, although the plaintiff was often accompanied to medical appointments by his father-in-law, girlfriend, or son, the medical records indicate that all communication between provider and patient was done directly with Valora himself. (Tr. 498, 839, 1666). On one occasion a physician noted that Valora's father-in-law accompanied him because, “he is assisting Armando navigate his current overwhelming healthcare issues, ” but made no mention of his inability to communicate. (Tr. 839). Finally, although Valora received assistance from a community health assistant, the stated reason for the referral was “to assess needs and to provide education and resources, ” (Tr. 1807), and the records of such visits indicate they were primarily to provide care coordination and assistance with navigating his finances. (Tr. 1807-1878). There is no mention that support services were provided to assist Valora with communication, nor is there any indication that such services were provided in a language other than English. (Id.) In fact, the record is devoid of any evidence that Valora was incapable of communicating in English. Thus, under our deferential standard that requires only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” we find there was substantial evidence to support a finding that Valora was capable of performing these positions.

Valora also contests his ability to perform work that requires Level 3 reasoning development. However, even disregarding his past work managing his own restaurant, which requires level 4 reasoning, according to the Dictionary of Occupational Titles, the position of Pizza Baker, which it is undisputed has been Valora's primary occupation for the duration of his work history, requires Level 3 reasoning development.⁴ And, although the ALJ determined Valora is unable to perform any past relevant work, this determination was due to his physical impairments; there is nothing in the record to indicate that Valora has alleged any intellectual disability. Here, again, the record supports a finding that the plaintiff is capable of such reasoning.

4 Dictionary of Occupational Titles (4^th Ed., Rev. 1991) - Occupational Group. https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOT03A

Valora also contests the VE's testimony that the occupation of lens inserter exists in significant numbers in the national economy. On this score, “[w]ork exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which [the claimant is] able to meet with [the claimant's] physical and mental abilities and vocational qualifications.” 20 C.F.R. §§ 404.1566(a), 416.966(a). Further, the Social Security regulations specifically require that the Commissioner identify “a significant number of jobs (in one or more occupations ) having requirements which [the claimant is] able to meet with [his or her] physical or mental ability and vocational qualifications.” 20 C.F.R. §§ 404.1566(b), 416.966(b) (emphasis added ). The Third Circuit has provided us with benchmarks regarding what constitutes a substantial number of jobs in the national economy, finding that, “the testimony from the vocational expert that 20, 000 jobs were available in the national economy is sufficient to support a finding that work exists in significant numbers.” Young v. Astrue, 519 Fed.Appx. 769, 772 (3d Cir. 2013) (citing Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (holding that vocational expert testimony that there were 10, 000 jobs nationally was sufficient to show a significant number)). Thus, to argue that the ALJ erred at step 5 in finding there existed jobs in significant numbers in the national economy that Valora could perform, the plaintiff asks us to find that Valora is limited to only performing the occupation of Lens Inserter because his language and reasoning abilities preclude him from performing the duties of the other occupations identified by the VE of order clerk (40, 000 jobs available in the national economy) and document preparer (60, 000 jobs available in the national economy). Having found substantial evidence supported the ALJ's determination that Valora could perform such occupations, we need not opine as to whether the 5, 000 jobs which exist in the national economy under the occupation of Lens Inserter would constitute a “significant number” under the regulations since in the aggregate the VE identified more than 100, 000 jobs Valora could perform. Accordingly, substantial evidence supported the ALJ's finding that a significant number of jobs exist in the national economy that the plaintiff could perform.

Accordingly, the ALJ found that, because it appeared Valora could perform sedentary work with certain limitations, he had not met the stringent standard for disability set by law. It is the right and responsibility of the ALJ to make such assessments, and we find that substantial evidence supported the ALJ's decision in the instant case. Thus, at bottom, it appears that Valora is requesting that this Court re-weigh the evidence. This we may not do. See, e.g., Rutherford, 399 F.3d at 552 (quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (“In the process of reviewing the record for substantial evidence, we may not ‘weigh the evidence or substitute our own conclusions for those of the fact-finder”')). Because we cannot re-weigh the evidence, and because we find that the ALJ properly articulated that substantial evidence did not support this disability claim, we recommend that the court affirm the ALJ's decision in this case.

In closing, the ALJ's assessment of the evidence in this case 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 can demand in a disability proceeding. Thus, notwithstanding the argument that this evidence might have been viewed in a way which would 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 find that substantial evidence supported the ALJ's evaluation of this case.

IV. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the decision of the Commissioner be AFFIRMED.

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.