Moore v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bruce Scott Moore II
v. 	Case No. 19-cv-561-PB
Andrew Saul, Commissioner
Social Security Administration
REPORT AND RECOMMENDATION
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
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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).
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II. 	BACKGROUND1
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
1 The court provides a brief summary of the relevant facts. 	A
more detailed recitation appears in the parties’ statements of
material facts (Doc. Nos. 8-2 & 10), which the court
incorporates by reference. 	See L.R. 9.1(b)-(c).
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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
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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
2 Hyperesthesia is abnormal acuteness of sensitivity to touch,
pain, or other sensory stimuli. 	Dysesthesia is abnormal or
unpleasant sensation in response to, or in the absence of, such
stimuli. 	Stedman’s Medical Dictionary 920, 596 (28th ed. 2006).
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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 and carrying no more than 20 pounds,
occasional kneeling, climbing, and walking, frequent standing
and driving, and no squatting. 	Tr. 447-48.
In December 2017, consultative examiner Dr. Robert Phelps
examined Moore and reviewed 21 pages of medical records. 	He
noted that the records documented treatment for back pain with
minimal disc space narrowing, a pulmonary embolus, right
shoulder pain with calcific tendinosis, right peroneal tendon
repair with sural nerve injury and reflex sympathetic dystrophy,
right foot and calf pain, and chronic insomnia. 	According to
Dr. Phelps, Moore could lift and carry up to 10 pounds
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occasionally, stand or walk for 5 minutes without interruption
and up to 1 hour daily, occasionally reach, handle, finger,
feel, push, and pull with his upper extremities bilaterally,
occasionally operate foot controls with his lower extremities
bilaterally, occasionally stoop and climb ramps or stairs,
occasionally drive, and could not balance, kneel, crouch, or
crawl. 	Tr. 1123-29.
That same month, state agency physician Dr. Nisha Singh
reviewed the available evidence, including Dr. Phelps’ report.
Dr. Singh stated that the evidence was insufficient to evaluate
Moore’s alleged disability during the period from November 28,
2009, his original alleged disability onset date, through his
date last insured of December 31, 2014. 	Tr. 93. 	In the
“Current Evaluation” portion of her opinion, Dr. Singh opined
that Moore could lift and carry 10 pounds occasionally and less
than 10 pounds frequently, stand or walk for “[s]ignificantly
less” than 2 hours, sit for “[a]bout” 6 hours, occasionally
balance, stoop, and climb ramps or stairs, never kneel, crouch,
crawl, or climb ladders, ropes, or scaffolds, and must avoid
even moderate exposure to hazards. 	Tr. 95-98.
In September 2018, orthopedic surgeon Dr. Frank Graf
completed a medical source statement on Moore’s behalf after
examining him and reviewing the medical records. 	Dr. Graf
opined that Moore’s pain symptoms would constantly interfere
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with his attention and concentration, and that he was likely to
be absent from work more than four days per month as a result of
his impairments or treatment. 	According to Dr. Graf, Moore
could sit for 1 hour and 10 minutes at a time for a total of
about 2 hours, stand for 1 hour and 5-10 minutes at a time for
about 2 hours total, lift up to 20 pounds occasionally, perform
only occasional postural maneuvers, and should use a cane for
standing or walking. 	In addition, he would require a job that
permits shifting positions at will and frequent unscheduled
breaks. 	Tr. 1240-47.
C. 	The ALJ’s Decision
The ALJ assessed Moore’s claim under the five-step,
sequential analysis required by 20 C.F.R. § 404.1520. 	At step
one, she found that Moore had not engaged in substantial gainful
activity as of December 31, 2014, his amended alleged disability
onset date. 	Tr. 16. 	At step two, the ALJ found that Moore’s
“status post peroneal tendon tear; status post surgery; and
obesity” qualified as severe impairments through his date last
insured. 	Tr. 16. 	His degenerative disc disease of the lumbar
spine, right shoulder pain, and chest pain were not severe prior
to his date last insured. 	Tr. 16-17. 	At step three, the ALJ
determined that, through the date last insured, none of Moore’s
impairments, considered individually or in combination,
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qualified for any impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. 	Tr. 19.
The ALJ then found that Moore had the residual functional
capacity (“RFC”) to perform sedentary work as defined in 20
C.F.R. § 404.1567(a) through his date last insured, except that
he could lift and carry 10 pounds occasionally and less than 10
pounds frequently, stand for a total of 1 hour in 15-minute
increments, walk for a total of 1 hour in 30-minute increments,
and sit up to 8 hours. 	In addition, he could never crawl,
crouch, or climb ladders, ropes, or scaffolds, could rarely
climb stairs, and could occasionally stoop, kneel, and balance.
The RFC finding also included limitations to avoid exposure to
vibrations, such as handheld industrial power tools, and to
avoid working around hazards, such as unprotected heights and
dangerous moving machinery. 	Lastly, the ALJ noted that Moore
could perform uncomplicated tasks that are typically learned in
less than 30 days and could concentrate, persist, and stay on
tasks for 2-hour blocks of time throughout the workday. 	Tr. 19.
The ALJ found the 2010 opinions of treating orthopedist Dr.
Geppert and independent medical examiner Dr. Boucher “persuasive
because they examined the claimant and their opinions are
consistent with the medical evidence of record and congruent
with their assessment findings.” 	Tr. 20-21. 	Dr. Boucher’s
subsequent June 2011 examining opinion was “very persuasive” to
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the ALJ and she gave it “great weight.” 	The ALJ reasoned that
he was an expert in internal medicine who examined Moore on two
different occasions and the record, which “shows only mild to
moderate deficits on examination,” supported his conclusions.
Tr. 21.
The ALJ concluded that the opinion of Dr. Singh, the state
agency physician who reviewed the available record in December
2017, was “very persuasive” and gave it “great weight.” 	The ALJ
explained that her findings were consistent with the medical
evidence, including diagnostic imaging showing that Moore’s
condition was not significantly limiting, his conservative
treatment, and lack of indication that his condition had
worsened prior to the date last insured. 	Tr. 22.
According to the ALJ, the August 2011 opinion of treating
physician Dr. Bennett was “somewhat persuasive” and she gave it
“partial weight.” 	The ALJ reasoned that Dr. Bennett’s statement
that Moore could work only part time was inconsistent with Dr.
Boucher’s opinion that he could work full time with some
restrictions. 	In addition, treatment notes between Dr.
Boucher’s and Dr. Bennett’s examinations did not show any
significant deterioration to warrant a part-time accommodation.
Finally, the ALJ noted that her RFC finding accounted for any
residual deficits from Dr. Bennett’s opinion. 	Tr. 22-23.
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The ALJ found “somewhat persuasive” the 2017 opinion of
consultative examiner Dr. Phelps. 	Although Dr. Phelps did not
relate his opinion to a period prior to the date last insured
and only examined 21 pages of medical records, the ALJ noted
that his opinion was generally consistent with the medical
evidence prior to the date last insured. 	The ALJ added that any
residual deficits from Dr. Phelps’ opinion were reflected in the
RFC finding. 	Tr. 23.
Finally, the ALJ found that the September 2018 opinion of
examining orthopedic surgeon Dr. Graf was “less persuasive” and
gave it “little weight.” 	The ALJ reasoned that Dr. Graf did not
cite to the record in support of the limitations he identified,
and his opinion was based on a one-time examination performed
well after the date last insured. 	According to the ALJ, the
medical evidence prior to the date last insured showed that
Moore had full joint mobility of the extremities and no
documented spinal impairment. 	Although Dr. Graf noted that
Moore had an MRI of his lumbar spine in 2009, which was reported
to Moore as demonstrating disc bulges at L4-5 and L5-S1, the ALJ
stated that there was no objective evidence documenting this
finding. 	Lastly, the ALJ noted that Dr. Graf examined Moore
“not in an attempt to seek treatment for symptoms, but rather
through attorney referral in an effort to generate evidence for
the hearing.” 	Tr. 23-24.
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Relying on the testimony of a vocational expert, the ALJ
then found at step four that Moore could not perform his past
relevant work as a delivery driver, cook helper, or cook. 	Tr.
24. 	At step five, however, the ALJ found that, through the date
last insured, jobs existed in significant numbers in the
national economy that Moore could perform, such as document
preparer, addresser, and stuffer. 	Tr. 25. 	Accordingly, the ALJ
concluded that Moore had not been disabled as December 31, 2014,
his date last insured, or during the period between December 31,
2014 and June 30, 2017. 	Tr. 26.
III. 	ANALYSIS
Moore challenges the ALJ’s decision on the ground that the
ALJ improperly weighed certain medical opinions in the record.
Because substantial evidence supports the ALJ’s evaluation of
those opinions, remand is not necessary.
An ALJ is not required to “defer or give any specific
evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including
those from [a claimant’s] medical sources.” 	20 C.F.R.
§ 404.1520c(a) (effective for claims filed on or after March 27,
2017). 	Rather, an ALJ must evaluate all medical opinions for
persuasiveness according to the following factors: (1)
supportability; (2) consistency with other record evidence; (3)
relationship with the claimant; (4) specialization of the
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medical source; and (5) other factors that “tend to support or
contradict a medical opinion,” such as the source’s familiarity
with other evidence in the record, or understanding of SSA
policies and evidentiary requirements. 	Id. § 404.1520c(c).
Sustainability and consistency are “the most important factors,”
and an ALJ must articulate how she considered them in evaluating
a medical opinion. 	Id. § 404.1520c(b); see Purdy, 887 F.3d at
13 n.8 (discussing the equivalent regulation for SSI claims).
An ALJ generally is not required to explain how she evaluated
the remaining factors. 	See 20 C.F.R. § 404.1520c(b).
Moore alleges that the ALJ erred in evaluating the opinions
of Drs. Singh, Geppert, Boucher, and Phelps. 	The ALJ gave
“great weight” to Dr. Singh’s reviewing opinion, found the 2010
opinions of treating orthopedist Dr. Geppert and independent
medical examiner Dr. Boucher “persuasive,” and deemed the
opinion of consultative examiner Dr. Phelps “somewhat
persuasive.” 	The court addresses each in turn.3
1. 	Dr. Singh’s Opinion
Moore argues that the ALJ erroneously gave “great weight”
to the reviewing opinion of Dr. Singh because Dr. Singh
3 Moore does not allege any error in the ALJ’s decision to give
“great weight” to Dr. Boucher’s June 2011 opinion, “partial
weight” to the opinion of treating physician Dr. Bennett, or
“little weight” to Dr. Graf’s examining opinion. 	Accordingly,
the court does not address the ALJ’s evaluation of those
opinions.
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stated there was insufficient evidence to evaluate Moore’s RFC
prior to his date last insured and provided only a current
evaluation as of December 2017. 	The Commissioner responds that
the ALJ properly gave great weight to Dr. Singh’s opinion that
Moore could do a limited range of sedentary work and did not
accept her opinion about the sufficiency of the evidence.
The issue before the ALJ was whether Moore was disabled
prior to his date last insured, which was December 31, 2014.
See SSR 18-01p, 2018 WL 4945639, at *5 (Oct. 2, 2018) (“[A]
claimant who has applied for disability insurance benefits under
title II of the Act must show that: 	He or she met the statutory
definition of disability before his or her insured status
expired . . . .”). 	Dr. Singh did not render an opinion
regarding Moore’s disability prior to his date last insured
because she concluded that there was insufficient evidence to
assess his condition. 	See Tr. 93. 	Her opinion that Moore could
perform limited sedentary work as of December 2017, three years
after his date last insured, was thus irrelevant to the ALJ’s
inquiry. 	Because there was no opinion for the relevant time
period for the ALJ to credit, the ALJ’s reliance on Dr. Singh’s
opinion concerning Moore’s current functioning was an error.
The ALJ’s error, however, is harmless because it does not
change the outcome of her decision. 	See, e.g., Zayas v. Comm’r
of Soc. Sec., No. 8:16-CV-2722-T-JSS, 2018 WL 564551, at *4
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(M.D. Fla. Jan. 26, 2018) (finding ALJ’s reliance on medical
opinion harmless where its source concluded there was
insufficient evidence to render an opinion since “the ALJ’s
ultimate conclusions would not change because there was no
opinion to credit”); Fulton v. Colvin, No. CIV-13-1108-HE, 2014
WL 7899420, at *11–12 (W.D. Okla. Nov. 24, 2014), R. & R.
adopted, No. CIV-13-1108-HE, 2015 WL 737044 (W.D. Okla. Feb. 19,
2015), aff’d, 631 F. App’x 498 (10th Cir. 2015) (concluding that
ALJ’s decision to give “great weight” to medical opinions
finding insufficient evidence to assess claimant’s impairment
was “irrelevant, harmless, and does not warrant a remand”).
Even if the ALJ had agreed with Dr. Singh that the evidence was
insufficient to evaluate Moore’s disability prior to his date
last insured, the ALJ nonetheless would have denied his claim.
This is because a claimant bears the responsibility to show that
his condition was disabling prior to the date last insured.
See SSR 18-01, 2018 WL 4945639, at *4 (“In general, an
individual has a statutory obligation to provide us with the
evidence to prove to us that he or she is disabled. 	This
obligation includes providing us with evidence to prove to us
when he or she first met the statutory definition of
disability.”); see also 20 C.F.R. § 1512(a) (“In general, you
have to prove to us that you are . . . disabled.”). 	Although
the agency must make reasonable efforts to obtain evidence on a
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claimant’s behalf, when there is insufficient evidence to
evaluate a claim despite such efforts, an ALJ must make a
determination based on the available evidence. 	See 20 C.F.R.
§ 404.1520b(b). 	Here, other medical opinions in the record,
including those discussed below, supported the ALJ’s RFC
finding. 	Accordingly, any error in the ALJ’s assessment of Dr.
Singh’s opinion does not necessitate remand.
2. 	Opinions of Drs. Geppert and Boucher
The ALJ found the 2010 opinions of treating provider Dr.
Geppert and independent examiner Dr. Boucher “persuasive”
because both doctors examined Moore and their opinions were
supported by their assessment findings and consistent with other
record evidence. 	Dr. Geppert opined that Moore could do
sedentary work with a maximum lifting capacity of 5 pounds,
whereas Dr. Boucher stated that he could do light work with a
maximum lifting capacity of 30 pounds. 	Moore alleges two errors
in the ALJ’s weighing of their opinions. 	Neither is persuasive.
First, Moore maintains that the ALJ erroneously failed to
address the difference in the opinions as to how much weight
Moore could lift. 	As the Commissioner points out, the ALJ was
not required to detail how she evaluated individually every
single limitation assessed by each medical source. 	See 20
C.F.R. § 404.1520c(b)(1) (“We are not required to articulate how
we considered each medical opinion or prior administrative
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medical finding from one medical source individually.”). 	The
ALJ’s analysis supportably focused on the doctors’ overall
opinions that Moore could work full time with some restrictions
and thus that his physical condition was not significantly
limiting.
In any event, Dr. Geppert’s opinion that Moore could lift
no more than 5 pounds was contradicted by Moore’s own statement
to Dr. Boucher that he could lift up to 30 pounds, see Tr. 439,
as well as by other doctors’ assessments. 	The ALJ ultimately
crafted Moore’s RFC with a 10-pound lifting limitation based on
all the evidence in the record. 	It is within the province of
the ALJ to “piece together the relevant medical facts from the
findings and opinions of multiple physicians,” as well as other
relevant evidence. 	Evangelista v. Sec’y of Health & Human
Servs., 826 F.2d 136, 144 (1st Cir. 1987).
Second, Moore argues that the ALJ failed to consider the
doctors’ relationships with him in evaluating their opinions.
But the ALJ did note that Dr. Geppert was a treating provider,
whereas Dr. Boucher was an independent examiner. 	See Tr. 20.
To the extent Moore contends that Dr. Geppert’s opinion was
entitled to more weight because of the treating relationship, an
ALJ is no longer required to defer or give controlling weight to
a treating source’s opinion. 	See 20 C.F.R. § 404.1520c.
Instead, a source’s relationship with the claimant is one of the
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factors an ALJ must consider when evaluating a medical opinion
but generally need not articulate how she considered it. 	See
id. 	Here, the ALJ considered the relevant factors and
sufficiently articulated why she found both Dr. Geppert’s and
Dr. Boucher’s opinions persuasive. 	No more was needed.
3. 	Dr. Phelps’ Opinion
Moore finally contends that the ALJ’s evaluation of Dr.
Phelps’ opinion as only “somewhat persuasive” warrants remand
because the ALJ did not adequately evaluate the doctor’s opinion
that Moore could only occasionally use his hands and arms. 	This
limitation would preclude his ability to perform the jobs that
the vocational expert identified. 	Moore’s challenge has no
merit.
Dr. Phelps based his opinion in part on his assessment of
“mildly limited shoulder abduction and forward flexion
bilaterally” and treatment records documenting right shoulder
pain. 	See Tr. 1125. 	The ALJ, however, was not persuaded that
Moore’s shoulder condition caused any functional limitations.
She reasoned that a February 2013 X-ray of his right shoulder
showed no significant abnormality, and a November 2013
examination reflected that he could perform the full range of
motion with both arms. 	See Tr. 16, 21. 	These inconsistencies
support the ALJ’s decision to discount Dr. Phelps’ assessment to
the extent it was based on a shoulder impairment.
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Dr. Phelps further supported his assessment by pointing to
evidence of “treatment for back pain with minimal disc space
narrowing by x-ray.” 	Tr. 1123; see Tr. 1125. 	Here, too, the
ALJ pointed to substantial evidence showing that Moore’s lumbar
spine impairment was not severe. 	At bottom, Moore quibbles with
the ALJ’s interpretation of that evidence. 	The ALJ correctly
noted that Moore denied back pain to his providers in November
2012 and May 2013. 	See Tr. 16. 	Moore argues that those
treatment notes may have incorrectly recorded his complaints
because they apparently contain inconsistencies unrelated to his
back pain. 	Even if such inconsistencies existed, it is the
ALJ’s job, not the court’s, to resolve conflicts in the
evidence. 	See Irlanda Ortiz, 955 F.2d at 769.
The ALJ also appropriately described the June 2018
treatment notes as showing an “essentially unremarkable” review
of Moore’s spine. 	See Tr. 16. 	The treatment notes reflected
intact range of movements, normal strength, and normal straight
leg raise ability. 	See Tr. 1225. 	Although, as Moore points
out, the notes also show abnormal posture and gait, discomfort
or tenderness, and muscle spasms, those findings do not
undermine the ALJ’s assessment of the notes. 	Cf. Floyd v.
Berryhill, No. 15-cv-456-PB, 2017 WL 2670732, at *6 (D.N.H. June
21, 2017) (finding that treatment notes showing generally normal
gait, reflexes, strength, spinal mobility, and negative
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straight-leg raising were “supportably normal” even though they
also showed back tenderness, occasional antalgic gait, and
occasional limited range of motion in the back). 	Similarly,
Moore’s rejoinder that the ALJ discounted his complaints of back
pain in April 2014 because he did not allege any injury or
trauma falls flat. 	The treatment notes the ALJ cited show that
Moore still had a steady gait and normal motor strength,
sensation, and reflexes despite his alleged pain. 	See Tr. 577.
“That the ALJ drew different (but reasonable) inferences than
claimant draws from the same evidence does not provide an
adequate basis for reversal or remand.” 	Kalman v. Barnhart, No.
Civ.03–022–M, 2004 WL 848224, at *4 (D.N.H. Apr. 20, 2004)
(citing Irlanda Ortiz, 955 F.2d at 769). 	Accordingly, the ALJ’s
evaluation of Dr. Phelps’ opinion is entitled to deference.
IV. 	CONCLUSION
For the aforementioned reasons, Moore’s motion for an order
reversing the Commissioner’s decision (Doc. No. 8) should be
denied, the Commissioner’s motion for an order affirming his
decision (Doc. No. 9) should be granted, and the clerk of the
court should be directed to enter judgment in favor of the
Commissioner and close the case.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
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motion. 	Failure to file a specific written objection to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
_____________________________
Andrea K. Johnstone
United States Magistrate Judge
December 13, 2019
cc: 	D. Lance Tillinghast, Esq.
Kevin M. Parrington, Esq.
Case 1:19-cv-00561-PB Document 11 Filed 12/13/19 Page 21 of 21