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Moore v. Saul

United States District Court, D. New Hampshire

December 13, 2019

Bruce Scott Moore II
v.
Andrew Saul, Commissioner Social Security Administration

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Bruce Scott Moore II challenges the denial of his application for disability insurance benefits pursuant to 42 U.S.C. § 405(g). He contends that the Administrative Law Judge (“ALJ”) improperly evaluated medical opinions in his record. The Commissioner, in turn, moves for an order affirming the ALJ's decision. Finding no reversible error, the court recommends that the district judge deny Moore's motion and grant the Commissioner's motion.

         I. STANDARD OF REVIEW

         The court is authorized to review the pleadings submitted by the parties and the administrative record and enter a judgment affirming, modifying, or reversing the “final decision” of the Commissioner. See 42 U.S.C. § 405(g). That review is limited, however, “to determining whether the [Commissioner] used the proper legal standards and found facts [based] upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court defers to the Commissioner's findings of fact, so long as those findings are supported by substantial evidence. Id. Substantial evidence exists “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).

         If the Commissioner's factual findings are supported by substantial evidence, they are conclusive, even where the record “arguably could support a different conclusion.” Id. at 770. The Commissioner's findings are not conclusive, however, “when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam). “Issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the Commissioner, and the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [him], not for the doctors or for the courts.” Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (internal quotation marks and brackets omitted).

         II. BACKGROUND[1]

         A. Procedural Facts

         Moore is a 40-year-old man with a GED. He worked as a pizza delivery driver until November 2009, when two dogs attacked him during a delivery and bit him multiple times. Moore injured his right ankle while trying to escape. He has not worked since then.

         In July 2017, Moore filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). In both applications, he claimed disability as of November 28, 2009, due to degenerative disc disease of the neck and back, limited range of motion in the neck and back, chronic neck and back pain, multiple herniated discs, and nerve damage in the upper left and lower right extremity. His SSI claim was approved at the initial level of review based on a finding that he was disabled due to severe depressive disorder as of July 21, 2017, his application date. His DIB claim was denied, however, on the ground that there was insufficient evidence to evaluate the claim prior to his date last insured of December 31, 2014.

         Moore appealed the denial of his DIB claim. He testified at a hearing before ALJ Dory Sutker on September 13, 2018. At the hearing, Moore amended his alleged disability onset date to December 31, 2014, his date last insured. The ALJ denied the claim on November 28, 2018, finding that he was not disabled on or before his date last insured. See Administrative Transcript (“Tr.”) 10-32. The Appeals Council denied his request for review in April 2019, rendering the ALJ's decision the final decision of the Commissioner. See Tr. 1-6. Moore now appeals.

         B. Medical Evidence

         In December 2009, Moore was diagnosed with a tear of the peroneus brevis tendon in the right foot, which he sustained when two dogs attacked him while he was delivering pizza. Dr. Mark Geppert, an orthopedic surgeon, performed peroneal tendon repair the following month. When Moore experienced a severe increase in pain after the surgery, Dr. Geppert diagnosed sural nerve injury. A sural nerve block performed in February 2010 led to a temporary improvement in pain. Moore was subsequently treated with pain medication while exploring further surgical intervention. See Tr. 1181.

         Dr. Geppert completed a medical form on Moore's behalf for purposes of a worker's compensation claim in April 2010. He stated that Moore suffered from sural nerve injury, following peroneal tendon abridgment in the right foot, related to his on-the-job accident. According to Dr. Geppert, Moore was limited to “sedentary work only” with a maximum lifting capacity of 5 pounds and he was unable to drive. Tr. 1182.

         Independent medical examiner Dr. William Boucher examined Moore in June 2010 in connection with his worker's compensation claim. The examination revealed severe hyperesthesia over the right ankle scar, with decreased sensation to soft touch and dysesthesia over the dorsal lateral right foot and the fourth and fifth toes.[2] Tr. 436. Dr. Boucher opined that Moore “has at least a light work capacity” and could return to full-time work with certain restrictions. He could lift 30 pounds occasionally, carry “perhaps” 20 pounds for a short distance, sit for “any duration, ” stand for “perhaps” 30 minutes at a time, walk for 5 minutes at a time and 15 minutes per hour, push and pull occasionally with “perhaps” 30-pound effort, bend and twist frequently, squat, kneel, crawl, and climb stairs occasionally, and could never climb ladders. Dr. Boucher noted that Moore had no upper extremity limitations. Tr. 439.

         Dr. Boucher examined Moore again in March 2011. In the interim, Moore had undergone excision and implantation of the nerve at the level of the mid-calf in an attempt to relieve his sural neuropathy. Moore reported some improvement in the level of pain in his foot following the surgery but complained of ongoing pain in the calf, at the site of the implantation. Dr. Boucher again opined that Moore retained “at least a light work capacity, ” with similar exertional and postural restrictions that he identified in his prior report. Tr. 429-30.

         Treating provider Dr. Terry Bennett completed a medical form in August 2011 in connection with Moore's worker's compensation claim. Dr. Bennett diagnosed nerve damage following two surgeries on Moore's right ankle. Regarding treatment plan, he noted that Moore was “[a]t endpoint, ” did not want to be on pain medication, and was looking for other options. Dr. Bennett opined that Moore could work a maximum of 4-6 hours per day with limited walking. In addition, he was limited to lifting ...


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