SHOOK v. BERRYHILL

Filing 18

ORDER THAT PLAINTIFF'S OBJECTIONS 16 ARE OVERRULED; THE COURT APPROVBES AND ADOPTS MAGISTRATE JUDGE DAVID R. STRAWBRIDGE'S REPORT AND RECOMMENDATION 14 ; PLAINTIFF'S REQUEST FOR REVIEW 10 IS DENIED; AND, THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/28/2019. 03/28/2019 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TINA MARIE SHOOK
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY

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CIVIL ACTION
NO. 17-3035

O R D E R
AND NOW, this 28th day of March, 2019, upon
consideration of the parties’ submissions, the record, the
Report and Recommendation of United States Magistrate Judge
David R. Strawbridge, and Plaintiff’s objections thereto, it is
hereby ORDERED that:
(1)

Plaintiff’s objections (ECF No. 16) are

OVERRULED;1

The Court has carefully considered Tina Shook’s
objections to Judge Strawbridge’s Report and Recommendation
(”R&R”). There is no need to repeat the history or facts of the
case as Judge Strawbridge’s R&R adequately relays that
information.
1

The Court concludes that Judge Strawbridge has
correctly and sufficiently addressed Shook’s arguments and,
thus, adopts his R&R. Nonetheless, the Court will address the
three issues raised in the objections de novo. Cont’l Cas. Co.
v. Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998).
a.
Shook first contends that Judge Strawbridge erred in
finding that the ALJ’s conclusions that her impairments did not
meet or equal Listings 1.02 and 1.06 (both of which require an
inability to ambulate effectively) were supported by substantial
evidence and legally adequate.

Shook asserts that the evidence establishes that she
meets or equals the Listings in that, inter alia, she has been
unable to effectively ambulate during her period of disability,
despite attempts to do so. The ALJ concluded that the evidence
did not show an inability to ambulate but instead showed the
general resolution of her physical impairments with occasional
flair-ups of pain necessitating the use of assistive devices.
Judge Strawbridge concluded that substantial evidence supported
the ALJ’s determination. R&R 13-16. The Court agrees with Judge
Strawbridge’s analysis and, as he recognized, even if there is
substantial evidence to support both views, this Court must
affirm the ALJ’s view. Hartranft v. Apfel, 181 F.3d 358, 360 (3d
Cir. 1999).
b.
Second, Shook argues that Judge Strawbridge
erroneously found that the ALJ’s credibility evaluation was
supported by substantial evidence and legally sound.
Shook asserts that the ALJ should not have considered
the fact that she received unemployment benefits for six months
during her alleged period of disability when weighing the
credibility of her testimony. The Third Circuit has explained
that it is “entirely proper for the ALJ to consider that [a
claimant’s] receipt of unemployment benefits [is] inconsistent
with a claim of disability during the same period.” Myers v.
Barnhart, 57 F. App’x 990, 997 (3d Cir. 2003) (nonprecedential). Shook disagrees with this assessment and explains
at length why the social security system and the unemployment
system are fundamentally different and why Myers is
distinguishable. As described by Judge Strawbridge, this was but
one factor considered by the ALJ. R&R 19-20. Moreover, the Court
agrees with the reasoning of the Third Circuit in Myers that
this is not an impermissible consideration.
Shook also argues that the ALJ did not adequately
consider the limitations to her daily activities listed in her
Function Report when making his credibility determination. See
Tr. 176-183. Judge Strawbridge concluded that the ALJ was not
required to cite every limitation alleged in the eight-page
Function Report. R&R 20. Judge Strawbridge also asserted that
most of the limitations Shook contends were not mentioned by the
ALJ were, in fact, discussed when the ALJ summarized her hearing
testimony. Id. The Court agrees with Judge Strawbridge’s
2

(2)

The Court APPROVES and ADOPTS Magistrate Judge

David R. Strawbridge’s Report and Recommendation (ECF No. 14);
(3)

Plaintiff’s request for review (ECF No. 10) is

assessment that the ALJ adequately described Shook’s daily
activities and that his assessment was supported by substantial
evidence.
c.
Third, Shook asserts that Judge Strawbridge erred in
concluding that the ALJ’s RFC assessment was supported by
substantial evidence. Primarily, Shook contends that the ALJ
erred by not including limitations regarding the use of her
hands and the need to keep her foot elevated. The Court agrees
with Judge Strawbridge that substantial evidence supports the
ALJ’s RFC assessment, including that these were not necessary
restrictions. R&R 21-24. Again, Shook argues that the evidence
merely shows isolated moments of improvement amid long stretches
of disability, while the ALJ perceived the evidence as
indicating a general ability to work with momentary flare-ups of
symptoms. After considering the medical evidence, the ALJ
evidently viewed Shook’s need to raise her leg and use bilateral
crutches as transient and not a necessary part of her RFC. In
that the ALJ’s view is supported by substantial evidence, it is
of no moment whether the evidence could potentially support a
different view. Hartranft, 181 F.3d at 360.
Shook also contends that Judge Strawbridge erred in
relying on the absence of a physician’s disability opinion in
affirming the ALJ’s conclusions. She correctly notes that the
ultimate disability determination is reserved for the ALJ.
However, she is incorrect that the absence of a physician’s
disability opinion is irrelevant. Indeed, “[w]hile the absence
of [a statement of disability by a claimant’s doctor] is not
dispositive of the issue of disability, it is surely probative
of non-disability.” Thompson v. Halter, 45 F. App’x 146, 148 (3d
Cir. 2002) (non-precedential).
d.
Because the ALJ did not commit a reversible error and
his decision is supported by substantial evidence, Shook’s
objections must be overruled, the R&R adopted, and the ALJ’s
decision affirmed.
3

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.

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