United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani, United States District Judge.
the court is Defendant's Motion for
Reconsideration [#29]. For the following reasons,
Defendant's motion is DENIED.
Tommy Cook (“Cook” or Plaintiff) filed this
action seeking review of the final decision of the Acting
Commissioner of Social Security (“Commissioner”
or Defendant) denying Cook's application for Disability
Insurance Benefits (“DIB”). The court denied the
Commissioner's Motion for Order Affirming
Decision [#17] and allowed Plaintiff's Motion
for Summary Judgment [#13] to the extent it sought
remand for a new hearing and remanded the matter to the
Social Security Administration for further proceedings
consistent with this opinion. Order [#27]. The
Commissioner has filed a Motion for Reconsideration
[#29] pursuant to Fed.R.Civ.P. 59(e).
district court may grant motions under Fed.R.Civ.P. 56(e): 1)
to correct a manifest error in law; 2) to account for newly
discovered evidence; or 3) where the court has
“patently misunderstood a party…or has made an
error not of reasoning but apprehension.” Ruiz
Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81-82 (1st
Commissioner contends that the court made an error of
apprehension when determining that the Residual Functional
Capacity (RFC) assessment issued by the Administrative Law
Judge (ALJ) was inconsistent with the findings of Dr. Henry
Toczylowski, Plaintiff's treating orthopedic surgeon.
court found that the reviewing ALJ erred when summarizing Dr.
Toczylowski's findings as to how much weight Plaintiff
can lift up to and above his shoulder with his right
extremity. Order 2-4 [#27]. Specifically, the ALJ stated that
Dr. Toczylowski found that Plaintiff “could lift only
5-10 pounds, and only 5 pounds up to and above his
shoulder” with his right extremity. Tr.
However, Dr. Toczylowski actually reported that, while
Plaintiff can lift 5-10 pounds with his right extremity,
“up to and above the shoulder he is unable to lift 5
pounds with an extended arm in front of him.” Tr. 515;
see also Mem. in Supp. of Def.'s Mot. To Affirm
Commissioner's Dec. 13 [#18] (acknowledging discrepancy).
In addition, Dr. Toczylowski wrote that Plaintiff “has
minimal lifting capacity at shoulder level and virtually no
significant lifting capacity above shoulder level” for
both arms. Tr. 516.
light of this error by the ALJ, the court found that the
ALJ's RFC was inconsistent with Dr. Toczylowski's
opinion. The ALJ stated that Plaintiff “had the
residual functional capacity to perform light work as defined
in 20 CFR. 404.1567(b) except that lifting and/or carrying is
limited to his left upper extremity although his right
dominant arm can be used for support but not above shoulder
level.” Tr. 31 (emphasis added). Noting the
discrepancy between Dr. Toczylowski's reported
limitations on Plaintiff's ability to use his right arm
and the ALJ's finding on Plaintiff's ability to use
his right arm “for support, ” the court turned to
determining whether this error was harmless, as the
Commissioner argued or if it was sufficient to merit summary
judgment and remand. Order 4 [#27].
contends that the court erred in finding an inconsistency
between Dr. Toczylowski's opinion and the ALJ's RFC.
Def.'s Mem. in Supp. of Def.'s Mot. for Recons. 2-3
[#30]. The Commissioner focuses on Dr. Toczylowski's
caveat that Plaintiff's minimal lifting capacity up to
and above the shoulder is “with an extended arm in
front of him.” Id. 2 [#2]. Defendant argues
that based on Dr. Toczylowski's caveat that Plaintiff
could not lift weight up to and above his shoulder
“with his right arm extended, ” the ALJ was
justified in finding that Plaintiff can use his right arm as
support when his left arm is lifting. Id. 2-3. As
illustration, the Commissioner states that “the right
arm must bend to be able to hold the left arm, ”
meaning that the right arm will never be extended in front of
Plaintiff and therefore will be able to support more weight.
Commissioner's argument ignores the likelihood that the
“support” in lifting would involve
“support” in lifting an object, rather than
support in lifting the left arm. For example, if a worker
needs to lift a 20 pound package from the floor to a table,
the hand of the supporting right arm is likely to be placed
on or under the package (and thus, extended in front of the
worker), not on the left arm. For this reason, the
limitations on lifting with an extended arm are directly at
issue. In light of Dr. Toczylowski's opinion about the
severe limitations of Plaintiff's ability to use an
extended right arm and the ALJ's mistaken assessment that
Plaintiff could lift 5 pounds with his extended right arm,
the ALJ failed to properly explain his conclusion that
Plaintiff was able to use his right arm as support. Order 5-6
[#27]. See also Rose v. Shalala, 34 F.3d 13, 19 (1st
Cir. 1994) (reinforcing reviewing court's duty to
determine whether an ALJ's finding is supported by
Defendant's Motion for ...