HOAK v. BERRYHILL

Filing 22

ORDER THAT PLAINTIFF'S OBJECTIONS 19 ARE OVERRULED, ETC.; THE COURT APPROVES AND ADOPTS MAGISTRATE JUDGE LLORET'S REPORT AND RECOMMENDATION 18 ; PLAINTIFF'S REQUEST FOR REVIEW 14 IS DENIED; AND, THE CLERK OF COURT SHALL MARK THIS ACTION CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 09/21/2018. 09/21/2018 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID HOAK
v.
NANCY BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY

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CIVIL ACTION
NO. 17-1226

O R D E R
AND NOW, this 21st day of September, 2018, it is
hereby ORDERED that:
(1)

Plaintiff’s objections (ECF No. 19) are

OVERRULED;1

1

The Court has carefully considered Plaintiff’s
objections to Magistrate Judge Richard A. Lloret’s Report and
Recommendation (”R&R”) and the Commissioner’s response to the
objections. There is no need to repeat the history or facts of
the case as Judge Lloret’s R&R adequately relays that
information.
The Court concludes that Judge Lloret has correctly
and sufficiently addressed Plaintiff’s arguments, and, thus,
adopts his R&R. Nonetheless, reviewing the issues raised in the
objections de novo, Cont’l Cas. Co. v. Dominick D’Andrea, Inc.,
150 F.3d 245, 250 (3d Cir. 1998), the Court further concludes
that:
a.
When assessing the credibility of Plaintiff’s
complaints of pain, the ALJ properly considered that EMG studies
failed to support Plaintiff’s assertions of a neck impairment
and left arm pain. While a claimant’s statements of pain cannot
be disregarded solely based on a lack of supportive medical
evidence, SSR 96-7p, contrary to Plaintiff’s objection, that is
not what occurred here. As discussed by Judge Lloret, the ALJ
considered a number of factors in assessing the credibility of
Plaintiff’s complaints, including both medical and non-medical
evidence. See R&R at 14-17, ECF No. 18. Regarding neck and left

arm pain specifically, in addition to the EMG studies showing no
significant issues, the ALJ also noted that Plaintiff’s neck
surgery helped with his left arm pain and that “[n]otes of
treatment also establish that while the claimant reports
experiencing occasional radiation of pain to his left upper
extremity, the claimant realized improvement in this symptom
such that he was able to reduce his Vicodin use.” ALJ Decision
at 25-26, ECF No. 12-2. The ALJ did not base his assessment
regarding neck and left arm pain on a lack of medical evidence,
but instead, based it on substantial evidence in the record. The
Court finds no error regarding the ALJ’s analysis.
b.
Contrary to Plaintiff’s objection, the ALJ did not err
in considering Plaintiff’s daily activities when determining the
credibility of Plaintiff’s assertions of limitation. While an
ALJ must be careful not to make determinations based on sporadic
activities, Smith v. Califano, 637 F.2d 969, 971-72 (3d Cir.
1981), an ALJ must factor daily activities into his or her
analysis. SSR 96-7p, 20 C.F.R. § 404.1529(c)(3)(i). Here, as
stated by Judge Lloret, “the activities, taken together with the
medical evidence, constitute substantial evidence supporting the
ALJ’s conclusion that [Plaintiff’s] subjective evaluation of his
own limitations was not entirely credible in light of the
evidence in the administrative record.” R&R at 15. Judge Lloret
continued that the “multitude” of regularly performed activities
cited by the ALJ indicates that the ALJ did not cherry-pick
activities or rely on mere sporadic activity in making his
determination. R&R at 16. The Court agrees that the ALJ did not
err in considering this evidence.
c.
Similarly, the ALJ did not err in considering the fact
that Plaintiff pursued job interviews when assessing his ability
to work. As stated by Judge Lloret, “the ALJ properly considered
the interview evidence because [Plaintiff] held himself out to
potential employers as willing and able to work.” R&R at 16; see
Myers v. Barnhart, 57 Fed. App’x 990, 997 (3d Cir. 2003) (nonprecedential) (finding that “it was entirely proper for the ALJ
to consider that [the plaintiff’s] receipt of unemployment
benefits was inconsistent with a claim of disability during the
same period” because an application for unemployment benefits
requires an admission of ability to work). Judge Lloret
reasonably concluded that “[w]hen a person applies for a job, he
is ordinarily understood to believe, if not tacitly to assert,
2

(2)

The Court APPROVES and ADOPTS Magistrate Judge

Richard A. Lloret’s Report and Recommendation (ECF No. 18);
(3)

Plaintiff’s request for review (ECF No. 14) is

DENIED; and
(4)

The Clerk of Court shall mark this case as

CLOSED.
AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

that he is able to do the work the job entails. This tacit
assertion makes it more likely that [Plaintiff] retained the
physical capacity to work, and less likely that he was
physically incapable to work. Likelihood, not certainty, is the
touchstone of relevance.” R&R at 16-17. Judge Lloret further
noted that the ALJ’s consideration of the Plaintiff’s decision
to interview for jobs was but one of many “factors found
throughout the record, including objective medical evidence and
a host of daily activities” properly relied upon by the ALJ as
substantial evidence. R&R at 17. The Court concludes that the
ALJ did not err in considering this evidence.
In that the ALJ did not commit a reversible error and
his decision is supported by substantial evidence, Plaintiff’s
objections must be overruled, the R&R adopted, and the ALJ’s
decision affirmed.
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