United States District Court, D. Massachusetts
Talwani United States District Judge
Tommy Cook filed this action seeking review of the final
decision of the Acting Commissioner of Social Security
(“Commissioner”) denying Cook's application
for Disability Insurance Benefits (“DIB”). Cook
filed a Motion for Summary Judgment [#13], and the
Commissioner filed a cross Motion to Affirm the
Commissioner's Decision [#17]. The matter was
referred to the Magistrate Judge, who issued a Report and
Recommendation [#24] recommending that this court allow
the Commissioner's motion and deny Cook's motion.
Cook filed timely Objections [#25], to which the
Commissioner has filed a Reply [#26]. For the
reasons that follow, the court sustains Cook's
objections, adopting in part and declining to adopt in part
the Magistrate Judge's Report and Recommendation
Standard of Review
district court “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made, ” and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
see also Fed.R.Civ.P. 72(b)(3).
No Objection to the Magistrate Judge's Analysis
Through Step Four
has not objected to the Magistrate Judge's findings and
recommendations with respect to the Social Security
Administration (“SSA”) Administrative Law
Judge's (“ALJ”) conclusions through Step Four
of the SSA's five-step evaluation process set forth in 20
C.F.R. § 416.920(a)(4), other than the ALJ's finding
as to Cook's residual functional capacity
(“RFC”) and the weight that the ALJ gave to
Cook's treating physician's opinion. The court
accepts and adopts those portions of the Report and
Recommendation to which Cook has not objected.
Weight that the ALJ Gave to Opinion of Cook's
Treating Orthopedic Surgeon
objects that the ALJ failed to give proper weight to the
opinion of Cook's treating orthopedic surgeon, Dr. Henry
Toczylowski. Pl.'s Objections 3 [#25]. Cook contends that
the weight that the ALJ gave to Dr. Toczylowski's opinion
was inconsistent with the “treating physician
rule.” Regulations in effect at the time Cook filed his
claim required the ALJ to give “controlling
weight” to a treating physician's opinion if it was
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques and not inconsistent with
other substantial evidence in the record.” 20 C.F.R.
relies on a December 1, 2011, letter that Dr. Toczylowski
submitted to Cook's attorney. Tr. 512-517. That letter
states, in relevant part, that Cook:
is currently extremely limited and is unable to use his right
upper extremity for repetitive or overhead activities. He has
significant difficulty with any attempt at bringing his
[right] arm into flexion above shoulder level. With his right
upper extremity, he has the ability to lift weights of only
5-10 pounds. Above that, up to and above the shoulder he is
unable to lift 5 pounds with an extended arm in front of him.
He is unable to climb ladders and use a hand truck, skills he
needs in his occupation. Additionally, with regard to driving
a tractor trailer, he is unable to operate the 10 speed gear
shift (with his right hand) being unable to shift repeatedly
to adequately drive a tractor trailer. . . . He is unable to
kneel, climb or crawl to any significant degree.
Tr. 515. Dr. Toczylowski's letter opined that Cook's
“prognosis for the future, with regard to his right
shoulder, is extremely guarded.” Tr. 516. “With
regard to his left shoulder, he has been essentially left
handed as he has been unable to use the right shoulder
effectively and has now developed significant pain and
difficulty with his left shoulder as well. This has not been
significantly evaluated to any significant degree.” Tr.
516. Further, Dr. Toczylowski wrote, Cook “is disabled
from all work which requires overhead lifting or repetitive
use of the right or left upper extremities. He has minimal
lifting capacity at shoulder level and virtually no
significant lifting capacity above shoulder level.” Tr.
order denying Cook's application, the ALJ wrote that he
had “given significant weight to the December 1, 2011,
opinion of Dr. Toczylowski that the claimant was unable to
use his right upper extremity for repetitive or overhead
activities.” Tr. 39. Further summarizing Dr.
Toczylowski's opinion, the ALJ wrote that Cook
“could lift only 5-10 pounds, and only 5 pounds up to
and above his shoulder. He could not use a hand truck,
operate a 10-speed gearshift or use his right arm to steer
while leaning out the window.” Tr. 39.
as the ALJ stated that he gave significant weight to Dr.
Toczylowski's opinion, the ALJ properly applied the
treating physician rule. However, the ALJ inaccurately
summarized Dr. Toczylowski's opinion as stating that Cook
could lift five pounds up to and above his shoulder.
This appears to have been a misstatement, as opposed to a
reasoned rejection, of Dr.
opinion, as the description appears after the statement that
the ALJ was giving “significant weight” to Dr.
Toczylowski's opinion, and before the ALJ expressly
stated that portion of Dr. Toczylowski's opinion with
which the ALJ disagreed. Even if the ALJ disagreed with Dr.
Toczylowski's opinion regarding Cook's inability to
lift five pounds up to and above his shoulder, the ALJ's
failure to provide any reasons for such disagreement makes it
“impossible to determine whether [the ...