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Cook v. Berryhill

United States District Court, D. Massachusetts

September 27, 2018

TOMMY COOK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Indira Talwani United States District Judge

         Plaintiff 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 [#24].

         I. Standard of Review

         A 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).

         II. No Objection to the Magistrate Judge's Analysis Through Step Four

         Cook 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.

         III. Weight that the ALJ Gave to Opinion of Cook's Treating Orthopedic Surgeon

         Cook 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. § 404.1527(c)(2).

         Cook relies on a December 1, 2011, letter that Dr. Toczylowski submitted to Cook's attorney. Tr. 512-517.[1] 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. 516.

         In his 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.[2]

         Insofar 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.

         Toczylowski's 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 ...


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