United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
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.
STANDARD OF REVIEW
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)).
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).
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.
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.
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.
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.
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.
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. 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.
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.
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 ...