Opinion
Civil Action 20 Civ. 4229 (PGG) (SLC)
11-01-2021
MICHAEL KESSLER, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.
TO THE HONORABLE PAUL G. GARDEPHE, United States District Judge:
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiff Michael Kessler (“Mr. Kessler”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). He seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”) dated December 19, 2018 (the “Decision”), denying his application for Disability Insurance Benefits (“DIB”) under the Act. (ECF No. 1). Mr. Kessler contends that the Decision of the Administrative Law Judge (“ALJ”) was not supported by substantial evidence and failed to apply the correct legal standard to the evidence. (ECF No. 20). Mr. Kessler asks the Court to vacate the Commissioner's Decision and either enter an Order finding him disabled or remand the case for a new hearing. (Id.)
The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On March 19, 2021, Mr. Kessler filed a motion for judgment on the pleadings (ECF No. 19) (“Mr. Kessler's Motion”), on May 18, 2021, the Commissioner filed its cross-motion (ECF No. 21) (the “Commissioner's Motion”), and on June 4, 2021, Mr. Kessler filed his reply (ECF No. 24). For the reasons set forth below, I respectfully recommend that Mr. Kessler's Motion be GRANTED, that the Commissioner's Motion be DENIED, and the case be remanded to the agency for further administrative proceedings.
II. BACKGROUND
A. Procedural History
On June 30, 2016, Mr. Kessler filed an application for DIB benefits, alleging that he had been disabled and unable to work since April 25, 2013. (ECF No. 1 ¶ 6; SSA Administrative Record (“R.”) 13). After holding two hearings, on July 23, 2018 and then November 29, 2018, on December 19, 2018, ALJ McCormack issued the Decision denying Mr. Kessler's claim of disability. (R. 13-22, 73-84, 86-111).
In order to quality for DIB, one must be both disabled and insured for benefits. 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.120, 404.315(a). The last date a person meets the insurance requirement is the date by which the claimant must establish a disability. Mr. Kessler met the insurance requirements through December 31, 2019, and thus his disability must have begun on or before that date to quality for DIB. (R. 15).
The Administrative Record appears at ECF Nos. 16 - 16-2. The Court cites to the pages of the Administrative Record, not the ECF page numbers.
On April 2, 2020, the SSA Appeals Council denied Mr. Kessler's request for review of the Decision. (R. 1-5).
On June 3, 2020, Mr. Kessler filed the Complaint in this Court. (ECF No. 1). He argues that the Decision is not supported by substantial evidence because the Commissioner did not properly evaluate his residual functional capacity (“RFC”), improperly weighed the medical evidence, failed to accord sufficient deference to the opinions of his treating physicians, inadequately considered his subjective complaints and credibility, and failed to develop the record. (Id. ¶ 12).
The Commissioner counters that the Decision is supported by substantial evidence because the ALJ applied the correct legal standards, appropriately evaluated Mr. Kessler's RFC and subjective complaints, and justifiably determined that he was not disabled. (ECF No. 22)
B. Factual Background
1. Non-medical evidence
Mr. Kessler was born in 1971 and was 44 years old when he applied for DIB. (R. 229). He is now 50 years old. (Id.) He is married and resides with his spouse and children. (R. 229, 271). After graduating from high school, Mr. Kessler served full-time as a police officer from February 1994 until April 2001, and as a firefighter with the New York City Fire Department (“FDNY”) from May 2001 until April 2013. (R. 105, 264; see R. 93; ECF No. 20 at 7). While employed by FDNY, he was stationed in Manhattan and in the Bronx. (R. 93). Mr. Kessler served as a first responder following the terrorist attacks on September 11, 2001 (“9/11”). (R. 908). After 9/11, and particularly after 2005, Mr. Kessler began to have sinus infections with increasing frequency, occurring at least three times annually. (R. 95). The FDNY medically discharged him after a medical board found him unable to work as a result of his sinus infections. (Id.)
Mr. Kessler described the state of his health and his limitations in a July 25, 2016 function report (the “Function Report”). (R. 271-79). In the Function Report, Mr. Kessler noted that he can no longer carry out a typical daily routine, work or engage in physical activity without pain or shortness of breath, nor can he sleep for more than an hour or two due to pain and congestion. (R. 272). Mr. Kessler noted that he was “sensitive to dust and grass pollens” and “seldom” ventured outside, although he drives a car, can leave home alone, travels locally, and shops for his health needs. (R. 274).
Among Mr. Kessler's hobbies and interests are playing with his children almost every day, attending church once or twice per month, visiting family twice a month and having lunch with friends once per week. (R. 275). Mr. Kessler described that he is now “less active due to [his] condition” and must stop and rest for several minutes after walking approximately 100 feet. (R. 276-77). He wrote in the Function Report that stress makes his condition worse. (R. 278).
2. Medical evidence
Mr. Kessler and the Commissioner have each provided summaries of the medical evidence in the record, which are largely consistent with one another. (See ECF Nos. 20 at 7-17; 22 at 6-11). Accordingly, the Court adopts both parties' summaries of the medical evidence as accurate and complete and summarizes below the record of Mr. Kessler's medical treatment that is pertinent to the Court's analysis, focusing particularly on the extensive treatment records of Michael Shohet, M.D.
a. Otolaryngologist Michael Shohet, M.D.
The record includes more than six years of medical treatment by Michael Shohet, M.D., an otolaryngologist, including over 15 dates of medical treatment spanning from March 2012 - before the alleged onset date - until July 2018. (R. 405-81, 493-542).
Dr. Shohet's detailed records reflect ongoing treatment of Mr. Kessler for ethmoidal sinusitis, an inflammation of the mucous membrane in the ethmoid bone, and chronic rhinitis, “a protracted sluggish inflammation of the nasal mucous membrane, ” which “in the later stages” may result in the thickening of the mucous membrane and its glands, called hypertrophic rhinitis. (See R. 405-80, 493-542).
Sinusitis, 823530, & Chronic Rhinitis, 782310, Stedman's Medical Dictionary (Nov. 2014 ed.) (“Stedman's”).
At Dr. Shohet's initial consultation on March 1, 2012, Mr. Kessler complained that for the prior five years he had had frequent sinus infections, headaches, fatigue, acid reflux, postnasal drainage, and nasal congestion, for which he required antibiotics four-to-five times per year. (R. 424). A nasal examination revealed that Mr. Kessler's septum was deviated and his right and left turbinate were both moderately hypertrophic. (R. 425-26). After a diagnostic nasal endoscopy, Dr. Shohet diagnosed Mr. Kessler with chronic ethmoidal sinusitis. (R. 426).
The turbinates are nasal bones. See Turbinate, 951300, Stedman's. Hypertrophy is a “[g]eneral increase in [the] bulk of a part or organ, not due to tumor formation.” Hypertrophy, 426900, Hypertrophic, 426890, Stedman's. This district recognizes that hypertrophy of the nasal turbinates can obstruct breathing. Saxon v. United States, No. 12 Crim. 320 (ER), 2020 WL 4548078, at *3 n.8 (S.D.N.Y. Aug. 5, 2020).
A nasal endoscopy is a procedure to examine the nasal and sinus passages using an endoscope, a flexible tube with a camera and a light. Nasal Endoscopy, JOHNS HOPKINS MEDICINE, (last visited Oct. 29, 2021), https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/nasal-endoscopy.
Dr. Shohet treated Mr. Kessler three additional times in 2012, during which he complained of persisting sinus infections and Dr. Shohet diagnosed chronic sinusitis with allergic and nonallergic components, as well as chronic laryngopharyngitis, an inflammation of the larynx and pharynx. (R. 432-47). During this period, Dr. Shohet performed three nasal endoscopies confirming these findings, and prescribed Prednisone and Augmentin. (Id.)
Laryngopharyngitis, 480230, Stedman's.
Dr. Shohet treated Mr. Kessler three times in 2013, diagnosing chronic ethmoidal sinusitis, chronic rhinitis, and chronic laryngitis. (R. 448-63). On February 7, 2013, Mr. Kessler sought treatment for post-nasal drainage, bloody nasal discharge and dry throat. (R. 448). Dr. Shohet observed the nasal turbinates were mildly hypertrophic and recommended that Mr. Kessler use Zyrtec as needed and use sinus rinses daily. (R. 449). On May 15, 2013, Mr. Kessler presented for follow-up after a sinus infection, and reported that despite taking Bactrim for two weeks, “headaches, facial pressure and fatigue persist.” (R. 453). Dr. Shohet examined him, observed that his nasal turbinates were moderately hypertrophic, and diagnosed chronic ethmoidal sinusitis, noting that his sinonasal edema was “boggy and edematous . . . without mucopurulence or polyps.” (R. 454). Dr. Shohet prescribed Allegra-D, Zyrtec, Astepro, and Nasonex. (R. 457).
webster.com/djctionary/edematous#:~text=%3A%20relating%20to%20or%20affected%20with, gently% 20massage%20her%20edematous%20anklesJ%E2%80%94 (last visited Oct. 29, 2021). Edematous means “[a]bnormally swollen with fluid.” Edematous, Merriam-Webster, https://www.merriam
On November 26, 2013, Mr. Kessler presented for follow-up concerning his sinusitis and reported that he had persisting headaches, nasal congestion and facial pressure pain, and felt “unable to stop” taking Allegra-D. (R. 458). Dr. Shohet again examined the nasal turbinates, which were moderately hypertrophic, and administered a steroid injection. (R. 459). Dr. Shohet noted that he “would consider sinonasal surgery if [Mr. Kessler's] nasal obstruction does not improve significantly.” (R. 460).
Dr. Shohet treated Mr. Kessler twice in 2014. On January 8, 2014, Mr. Kessler reported continuing congestion and reliance on Allegra-D, and after a nasal examination, indicating moderately hypertrophic turbinates, and a nasal endoscopy, Dr. Shohet again diagnosed chronic rhinitis and chronic ethmoidal sinusitis. (R. 464-66). On December 11, 2014, Dr. Shohet noted that Mr. Kessler suffered “chronic sinus problems, ” with a last known infection on November 27, 2014. (R. 468). Dr. Shohet documented that Mr. Kessler was treated with Augmentin for two weeks, but still complained of nasal congestion, postnasal drainage, sinus pressure and sinus pain, as well as headache and frequent throat clearing. (R. 468). Dr. Shohet performed a diagnostic nasal endoscopy and assessed Mr. Kessler with chronic rhinosinusitis with recurring exacerbations, writing that sinonasal surgery may be warranted, and directing him to resume daily Nasonex and sinus rinses and to take Allegra D if symptoms progress. (R. 469-70).
Dr. Shohet's treatment of Mr. Kessler continued with three visits in 2015. On April 14, 2015, he presented for “chronic sinus problems” and Dr. Shohet noted that he had an “acute exacerbation of chronic rhinosinusitis with persistent findings despite one week of [A]moxacilin [sic].” (R. 403; see R. 476). Although Mr. Kessler's sinus infection began fourteen days earlier, he still experienced nasal congestion, postnasal drainage, sinus pressure, bloody discharge, cough, and headache. (R. 476). Dr. Shohet examined the mucosa, which were both edematous, and the turbinates were moderately hypertrophic. (R. 477). Following a nasal endoscopy, Dr. Shohet diagnosed Mr. Kessler with chronic ethmoidal sinusitis. (Id.)
Similarly, on August 18, 2015, Dr. Shohet treated Mr. Kessler for chronic sinus problems beginning August 10, 2015, for which he had been prescribed Augmentin (R. 405-08), and on December 1, 2015, Dr. Shohet treated Mr. Kessler for chronic sinus problems persisting since November 24, 2015. (R. 412). Although Mr. Kessler was treated with Azithromycin, an antibiotic, he continued to experience symptoms including headaches, fatigue, post-nasal drainage and sinus pressure. (Id.) Dr. Shohet again examined the turbinates, which were moderately hypertrophic, and diagnosed chronic ethmoidal sinusitis following a nasal endoscopy. (R. 413). Dr. Shohet prescribed Augmentin and a seven-day course of Allegra-D. (R. 414).
The Record refers to “z-pak, ” referring to the brand Zithromax. (R. 412).
Dr. Shohet treated Mr. Kessler twice in 2016. On March 9, 2016, Mr. Kessler showed acute and chronic sinus symptoms from an upper respiratory infection four weeks earlier, for which he had been prescribed antibiotics that had appeared to clear the infection. (R. 419). His symptoms were “slow to resolve” and included coughing yellow mucous, nasal congestion and facial pressure. (Id.) Dr. Shohet diagnosed chronic pansinusitis, an “[i]nflammation of all the accessory sinuses of the nose on one or both sides, ” documented acute exacerbations of chronic rhinositis, and prescribed Augmentin and prednisone. (R. 421-22, 521). On August 8, 2016, Mr. Kessler returned for a nasal obstruction, and reported that “[h]e responded well [to] the [Augmentin] and prednisone in March from [the] acute exacerbation of CRS [chronic rhinosinusitis] which he develop[ed] [three] to [four] times yearly.” (R. 516). Dr. Shohet assessed him with acute recurrent sinusitis and injected the turbinates. (R. 514-19).
Pansinusitis, 647480, Stedman's.
Dr. Shohet next treated Mr. Kessler on September 19, 2017 for chronic sinus problems with nasal congestion, headache, and postnasal drainage. (R. 509). Dr. Shohet noted that there was “substantial improvement in the frequency of exacerbations with diet modification and weight loss, ” as Mr. Kessler lost 30 pounds since his last visit. (R. 507-09). Dr. Shohet injected steroids to both sides of the nasal turbinates. (R. 510).
Finally, Dr. Shohet treated Mr. Kessler twice in 2018. On April 12, 2018, he complained of symptoms that had been persisting for three weeks, including nasal congestion, cough, headache, postnasal drainage and sinus pressure, although the record notes that the symptoms “are improved with antibiotics with good response.” (R. 502). Dr. Shohet assessed chronic rhinosinusitis with recurring acute exacerbations, performed an injection, and noted that the bacterial component had resolved following a course of Azithromycin followed by Augmentin for ten days. (R. 504).
On July 3, 2018, Dr. Shohet noted that Mr. Kessler complained of nasal congestion and obstruction, symptoms which were “worsened by air pollutants, chemical irritants, seasonal allergens and smoke, ” and improved with inhaled steroids and nasal lavage, with a “fair response.” (R. 493). Dr. Shohet diagnosed chronic rhinosinusitis with recurring acute exacerbations “often precitip[itated] by exposure[] to smoke and irritants” and directed that he “continue strict avoidance of smoke and irritants.” (R. 494). A nasal endoscopy revealed moderate sinonasal edema without mucopurulence or polyps. (R. 497).
b. Jenny Lu, M.D.
The record includes a handful of treatment records from Jenny Lu, M.D. from 2015 through 2018. (R. 769-90). On November 7, 2017, Mr. Kessler complained of an upper respiratory infection, for which Dr. Lu assessed sinusitis, and on two separate dates in July 2018, complained of headaches and other symptoms, which Dr. Lu assessed as allergies and sinusitis. (R. 769-70, 772).
The Court notes that Dr. Lu's medical records are handwritten and in places difficult to decipher. This description of her medical records comports with the Commissioner's description of Dr. Lu's records. (See ECF No. 22 at 10).
On July 16, 2018, Dr. Lu submitted a Functional Assessment of Mr. Kessler's ability to work (the “Functional Assessment”). (R. 543-46). In the Functional Assessment, Dr. Lu opined that there were no limits to Mr. Kessler's ability to stand, walk or sit during a workday, and that he could lift and carry more than ten pounds throughout the workday (the maximum weight category listed). (R. 543). Dr. Lu noted that Mr. Kessler required environmental restrictions due to his sinus problems, which manifested in shortness of breath, chest tightness, wheezing, episodic acute bronchitis and coughing. (R. 544). Dr. Lu directed that Mr. Kessler avoid either “all exposure” or “even moderate exposure” to extremes of temperature and environmental irritants, including fumes, smoke, dust and chemicals. (R. 544-45). Dr. Lu opined that Mr. Kessler was “incapable of even ‘low stress' jobs, explaining: “[a]ny exposure to smoke, dust, [or] chemicals will increase shortness of breath; increasing anxiety and [his] ability to concentrate at all [on] tasks at hand or [illegible] on safety or safety of others.” (R. 545)
c. Urgent care records
The record also includes dozens of reports of medical care provided between 2012 and 2018 at Excel Urgent Care of Goshen, Middletown Medical, and Orange Urgent Care, many of which concern treatment for Mr. Kessler's sinus symptoms. (See R. 338, 397-400, 603-04, 60912, 624-30, 634-36, 650-53, 796, 824-87, 919-20).
d. George Wootan, M.D. - Consulting Examiner
On August 19, 2016, George Wootan, M.D. performed a consultative internal medicine examination. (R. 487-90). Dr. Wootan noted Mr. Kessler was obese but capable of walking normally and squatting fully, and documented no limitations in his movement or joint damage. (R. 488-89). Dr. Wootan noted that Mr. Kessler engaged in a range of activities, including cooking, cleaning, laundry, shopping, childcare, and socializing with his friends. (R. 487-88).
Dr. Wooten examined Mr. Kessler's nasal passageways, which were “red and somewhat inflamed . . . [with] a swollen and boggy appearance[.]” (R. 488).
Dr. Wootan diagnosed Mr. Kessler with chronic sinusitis and bronchitis, rendered a “good” prognosis, and in his medical source statement opined that he would not have exertional limitations in a range of activities and movements, but recommended that he “avoid situations where there is a lot of dust, chemicals, perfumes, or other known respiratory irritants.” (R. 489).
C. Administrative Proceedings
1. Hearings before ALJ McCormack
a. July 23, 2018 Hearing
On July 23, 2018, ALJ McCormack held a hearing at which Mr. Kessler was represented by an attorney. (R. 74). ALJ McCormack acknowledged that the “record [was] incomplete, ” and adjourned the hearing without taking testimony so that the SSA could obtain additional medical records. (R. 80). At the request of Mr. Kessler's counsel, the ALJ also issued a subpoena for the missing records, “to cover all the bases.” (R. 82-83).
b. November 28, 2018 Hearing
ALJ McCormack began the November 28, 2018 hearing by noting that the subpoena had been “complied with” and the SSA had received Mr. Kessler's outstanding medical records. (R. 88). Mr. Kessler's counsel confirmed that the record was complete. (R. 91).
ALJ McCormack questioned Mr. Kessler at length about the symptoms and treatment of his sinus infections. Mr. Kessler testified that his symptoms included sinus pressure, mucus, congestion from his head to his lungs, and coughing. (R. 95-96). He described that he could not predict when his sinus infections would occur, or which environmental exposures would trigger them, and he noted that three to four times a year the sinus infections would be exacerbated for periods of “[a]t least a month.” (R. 97). During these “exacerbations, ” Mr. Kessler testified he “usually spend[s] the time in bed” because his sinus pressure is so severe. (Id.) He testified that he treated the sinus infections with a two-week course of antibiotics as well as Allegra-D and Dymista spray. (R. 95-97). Mr. Kessler testified that he cannot “get rid of [the sinus infections] without the antibiotics.” (R. 95). He also took Prevacid for gastric reflux. (R. 103).
Mr. Kessler described side effects from his medications as well as secondary conditions stemming from his sinus infections. He testified that his medications caused “concentrated headache[s]” as well as tinnitus, sore throat, acid reflux, heartburn and a mucus drip. (R. 97-98, 103). Mr. Kessler also described experiencing bronchitis as a result of “sinus infections dripping down to [his] lungs, and then the lungs get infected . . .” (R. 98). He also mentioned another resulting condition, pleurisy, an inflammation of the lungs, that has caused him continuous pain to the left side for over ten years and caused sleep disturbances. (R. 98-99).
Mr. Kessler described a typical day consisting of driving his children to daycare, meeting friends for coffee, walking for 30 minutes - about one mile - on a treadmill and watching television. (R. 101-03). On follow-up examination by his attorney, Mr. Kessler added that when he has a sinus infection, he could not “really go out . . . [and] [could not] do much other than sit on the bed or sit on the couch.” (R. 103-04). Mr. Kessler testified that he did not have any limitations with lifting anything. (R. 105).
Josiah L. Pearson testified as a vocational expert (“VE”). (R. 86, 105). ALJ McCormack posed several hypotheticals to the VE to assess Mr. Kessler's ability to work. In the first hypothetical (“Hypothetical One”), the ALJ described an individual who could perform work at all exertional levels with limitations to exposure to jobs “containing even moderate exposure to extreme cold, extreme heat, humidity or wetness, ” and no exposure to airborne irritants, including fumes, odors, dusts, gases and smoke. (R. 105-06). The VE responded that there would be jobs available for this individual, including as a price marker (DOT 209.587-034) sales attendant (DOT 299.677-010) or ticket seller (DOT 211.467-030) - each ofwhich is an “unskilled” job at a light degree of exertion. (R. 106-07).
In the second hypothetical (“Hypothetical Two”), ALJ McCormack added to Hypothetical One the limitation that the individual could only work at low stress jobs. (R. 108). The VE testified that all of the available jobs in Hypothetical One would remain available for this hypothetical individual. (Id.).
Finally, in the third hypothetical (“Hypothetical Three”) ALJ McCormack added to Hypothetical Two the limitation that the individual “could only work at jobs allowing [him] to be absent three months every year in addition to vacation leave.” (R. 108). The VE testified that there would be no jobs available to this individual because employers would not tolerate this degree of absenteeism. (Id.) On cross-examination, the VE elaborated that one unscheduled absence per month, amounting to twelve unscheduled absences annually, “would be the maximum tolerable by employers.” (R. 109).
c. The Decision
On December 19, 2018, ALJ McCormack issued the Decision denying Mr. Kessler DIB benefits and holding that he had not been disabled since April 25, 2013, the date he alleged his disability began. (R. 13-22).
ALJ McCormack followed the five-step disability determination process. As a preliminary matter, the ALJ found that Mr. Kessler met the insured status requirements for his DIB application through December 31, 2019. (R. 15). At step one, ALJ McCormack found that he had not engaged in substantial gainful activity since his alleged onset date, April 25, 2013. (Id.) At step two, the ALJ determined that Mr. Kessler had two severe impairments, bronchitis and sinusitis. (R. 17). The ALJ elaborated that the medical record included “various diagnoses and characteriz[ations]” of the underlying condition, “including sinusitis, bronchitis, and shortness of breath, chronic ethmoidal sinusitis, and chronic rhinosinusitis with allergic and nonallergic components.” (R. 15). Despite these varying diagnoses, he noted that “[e]ach of these conditions is a respiratory condition that affects [Mr. Kessler's] ability to breath[e]” and emphasized that his finding that Mr. Kessler had severe respiratory impairments encompassed “all symptoms affecting his functioning.” (R. 15-16).
ALJ McCormack discussed a variety of other ailments that had been noted in the medical record, finding that they were “briefly mentioned” without sufficient documentation to show that they were severe or imposed “more than minimal limitations” on Mr. Kessler's ability to work. (R. 16). Notwithstanding this finding, the ALJ maintained that he considered the limiting effects of all of Mr. Kessler's impairments, even those that were not severe, in determining the RFC. (Id.)
ALJ McCormack singled out several impairments for additional analysis. He determined that Mr. Kessler's anxiety was not severe despite several notations in the record because “[t]he record does not contain evidence of substantial treatment for mental health including psychotropic medication, therapy, or hospitalization.” (R. 16). The ALJ noted too that Mr. Kessler did not allege any functional limitations from a mental health diagnosis. (Id.)
ALJ McCormack also addressed Mr. Kessler's obesity and sleep apnea diagnosis, neither of which he alleged caused any functional limitations. (R. 17). Nevertheless, the ALJ was clear that he did account for the sleep apnea and obesity - to the extent they aggravated his sinusitis or bronchitis symptoms - in the RFC evaluation. (Id.)
At step three, the ALJ found that Mr. Kessler did not have an impairment or a combination of impairments that met or medically equaled the severity of one of the listed impairments in the Act. (R. 17). (The impairments listed in 20 C.F.R. Appendix 1, Subpart P, Part 404 are known as the “Listings”). ALJ McCormack specifically considered, and ruled out, Listing § 3.02, chronic pulmonary insufficiency, because:
[T]he medical evidence . . . fails to demonstrate [Mr. Kessler's] bronchitis and sinusitis result in Forced Expiratory Volume in one second (FEV1) equal to or less than the values specified in table I of the listing corresponding to [Mr. Kessler's] height without shoes, table II without shoes, chronic impairment of gas exchange at the levels specified in subsection C, or exacerbations or complications requiring three hospitalizations within a twelve month period lasting 48 hours.(R. 17). The ALJ did not consider any other Listings.
After step three, ALJ McCormack assessed Mr. Kessler's RFC and determined that he had the RFC to perform a full range of work at all exertion levels with the following non-exertional limitations: (i) he could not work at jobs with “even moderate” exposure to extreme cold or heat, humidity or wetness; and (ii) he could not work at jobs with any exposure to airborne irritants such as fumes, odors, dusts, gases and smoke. (R. 17). In reviewing the medical and opinion evidence, as well as Mr. Kessler's testimony, the ALJ concluded that he had persistent sinusitis and bronchitis. (R. 15). The ALJ determined that except for environmental exposure that could aggravate his respiratory condition, he had “an otherwise unlimited physical and mental ability for work, ” and his statements about the intensity, persistence, and limiting effects of his symptoms was “not entirely consistent” with the medical evidence. (R. 18, 20).
Reviewing Mr. Kessler's medical records, ALJ McCormack noted there was treatment by a pulmonologist but not continued treatment, and there was treatment by an ear nose and throat specialist, including medication management, steroids, and turbinate injections which had a “fair response. (R. 18). Summarizing Mr. Kessler's “occasional[]” respiratory treatment at an urgent care facility, the ALJ noted that his utilization of this care, documented symptoms and conservative course of treatment supported the conclusion that he “cannot be exposed to airborne irritants, temperature extremes, humidity, or wetness, ” but did not limit him to the degree alleged. (R. 18-19). In contrast, Mr. Kessler demonstrated a “significant ability to perform the physical and mental demands of work” by engaging in “robust daily activities” such as regularly exercising, caring for his children and spending time with friends. (R. 19). The ALJ highlighted one instance in the medical records, from August 2015, where despite suffering from persistent symptoms of sinusitis he nevertheless denied shortness of breath and “was noted to exercise regularly and was active.” (Id.)
At this step ALJ McCormack evaluated the opinions of treating physicians Drs. Lu and Shohet, and consulting examiner Dr. Wootan. (R. 19-20). ALJ McCormack accorded “great weight overall” to the co-signed opinion of Dr. Lu and PA Donna Ebner, to the extent that they opined that Mr. Kessler had no physical limitations generally, but recommended environmental restrictions to irritating environmental conditions. (R. 19). These conclusions, the ALJ noted, were well supported by objective testing, consistent with the medical record, and founded upon Dr. Lu's extended treatment relationship with Mr. Kessler, and therefore they were the basis for the RFC capacity set by the ALJ. (Id.) Conversely, the ALJ gave little weight to Dr. Lu's opinion that Mr. Kessler was “incapable of even low stress jobs” because this opinion was outside of Dr. Lu's medical specialty, and inconsistent with his lack of mental health care and “few reported symptoms of mental conditions.” (Id.)
The ALJ gave great weight to the recommendation of Dr. Shohet that Mr. Kessler avoid smoke and pulmonary irritants, reasoning that Dr. Shohet was a specialist in this field, “ha[d] access to longitudinal data about the course of [Mr. Kessler's] treatment because he provided that treatment, ” and his conclusion was well supported by treatment notes, observations, and objective testing including nasal endoscopies. (R. 19).
Finally, the ALJ also accorded significant weight to the opinion of Dr. Wootan concerning Mr. Kessler's restrictions to pulmonary irritants, which he also incorporated into the RFC determination. (R. 19).
At step four, ALJ McCormack found that Mr. Kessler was unable to perform past relevant work as a firefighter, a position that “necessarily involves exposure to irritants and conditions that [his] [RFC] does not allow such as extreme heat and smoke.” (R. 20).
Finally, at step five, the ALJ determined that considering Mr. Kessler's age, education, work experience and RFC, he was not disabled. (R. 21-22). Referencing the VE's testimony and the availability of jobs such as hand packager, sales attendant, and marker, the ALJ concluded there were jobs in the national economy that Mr. Kessler was capable of performing. (Id.)
d. The Appeals Council decision
On April 2, 2020, the SSA Appeals Council denied Mr. Kessler's request for review of the Decision. (R. 1-5).
III. LEGAL STANDARDS
A. Standard of Review
Under Rule 12(c), a party is entitled to judgment on the pleadings if she establishes that no material facts are in dispute and that she is entitled to judgment as a matter of law. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart, No. 01 Civ. 743 (RCC) (FM), 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Act provides that the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A court may set aside the Commissioner's decision denying SSI benefits if it is not supported by substantial evidence or was based on legal error. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Judicial review, therefore, involves two levels of inquiry. First, the Court must decide whether the ALJ applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254 (SCR) (MDF), 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). Second, the Court must decide whether the ALJ's decision was supported by substantial evidence. Id. “In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Longbardi v. Astrue, No. 07 Civ. 5952 (LAP), 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). The substantial evidence test applies not only to the factual findings, but also to the inferences and conclusions drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999). In determining whether the administrative record contains evidence to support the denial of claims, the Court must consider the whole record, and weigh all evidence to ensure that the ALJ evaluated the claim fairly. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999). The Commissioner, not the Court, resolves evidentiary conflicts and appraises the credibility of witnesses, including the claimant. See, e.g., Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Disability-benefits proceedings are non-adversarial in nature, and therefore, the ALJ has an affirmative obligation to develop a complete administrative record, even when the claimant is represented by counsel. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). To this end, the ALJ must make “every reasonable effort” to help an applicant get medical reports from her medical sources. 20 C.F.R. § 404.1512(b). Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's [RFC].” Casino-Ortiz v. Astrue, No. 06 Civ. 155 (DAB) (JCF), 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007). When there are inconsistencies, gaps, or ambiguities in the record, the regulations give the ALJ options to collect evidence to resolve these issues, including re-contacting the treating physician, requesting additional records, arranging for a consultative examination, or seeking information from others. 20 C.F.R. § 404.1520b.
The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Butts v. Barnhart, 388 F.3d 377, 382 (2d Cir. 2004). If “‘there are gaps in the administrative record or the ALJ has applied an improper legal standard, '” the Court will remand the case for further development of the evidence or for more specific findings. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39. If, however, the reviewing court concludes that an ALJ's determination to deny benefits was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000)).
B. Standards for Benefit Eligibility
For purposes of DIB benefits, one is “disabled” within the meaning of the Act, and thus entitled to such benefits, when she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(3)(A). The Act also requires that the impairment be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(3)(B). In reviewing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988).
Under the applicable regulations, an alleged disability is evaluated under the sequential five-step process set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v). The Second Circuit has described the process as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the [RFC] to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the Claimant could perform.Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)).
At the first four steps, the claimant bears the burden of proof. At the fifth step, the burden shifts to the Commissioner to demonstrate that there are jobs in the national economy that the claimant can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In meeting the burden of proof at the fifth step, the Commissioner can usually rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, known as “the Grid.” Zorilla v. Chater, 915 F.Supp. 662, 666-67 (S.D.N.Y. 1996).
The Court notes that “[i]n March 2017, the Social Security Administration published regulations that effectively abolished the Treating Physician Rule for claims filed on or after March 27, 2017.” Dorta v. Saul, No. 19 Civ. 2215 (JGK) (RWL), 2020 WL 6269833, at *3 n.8 (S.D.N.Y. Oct. 26, 2020). Under the new regulations, the ALJ “will not 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). Because Mr. Kessler filed his claim in 2016 (see R. 13), the Treating Physician Rule remains applicable.
The regulations require the ALJ to give “controlling weight” to “the opinion of a claimant's treating physician as to the nature and severity of the impairment . . . so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” Burgess, 537 F.3d at 128 (internal citation omitted); accord Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Correale-Englehart v. Astrue, 687 F.Supp.2d 396, 426 (S.D.N.Y. 2010). “This preference is generally justified because treating sources are likely to be ‘the medical professionals most able to provide a detailed, longitudinal picture' of a Mr. Kessler's medical impairments and offer a unique perspective that the medical tests and SSA consultants are unable to obtain or communicate.” Correale-Engelhart, 687 F.Supp.2d at 426 (quoting 20 C.F.R. § 416.927([c])(2)); see 20 C.F.R. § 404.1527.
If the ALJ determines that a treating physician's opinion is not controlling, he is nevertheless required to consider the following factors in determining the weight to be given to that opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence provided to support the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is from a specialist; and (6) other factors brought to the Commissioner's attention that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c). The ALJ must give “good reasons” for not crediting the Mr. Kessler's treating physician. 20 C.F.R. § 404.1527(c)(2); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (explaining that Appeals Council had “an obligation to explain” the weight it gave to the opinions of the non-treating physicians). After considering these factors, the ALJ must fully set forth his reasons for the weight assigned to the treating physician's opinion. Burgess, 537 F.3d at 129.
While the ultimate issue of disability is reserved to the Commissioner, the regulations make clear that opinions from one-time examining sources that conflict with treating source opinions are generally given less weight. 20 C.F.R. § 404.1527(c)(2); see also Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (“ALJs should not rely heavily on the findings of consultative physicians after a single examination.”); Cabreja v. Colvin, No. 14 Civ. 4658 (VSB), 2015 WL 6503824, at *30 (S.D.N.Y. Oct. 27, 2015) (explaining that opinions of one-time consultants should not overrule those provided by the treating medical sources unless there are “serious errors” in treating sources' opinions). Failing to apply proper weight to a treating physician's opinion is reversible error. Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015).
D. Assessing a Claimant's Subjective Allegations
In considering a claimant's symptoms that allegedly limit his or her ability to work, the ALJ must first determine “whether there is an underlying medically determinable physical or mental impairment(s) - i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques - that could reasonably be expected to produce the claimant's pain or other symptoms.” 20 C.F.R. § 404.1529(c). If such an impairment is found, the ALJ must next evaluate the “intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” 20 C.F.R. § 404.1529(c).
To the extent that the claimant's expressed symptoms are not substantiated by the objective medical evidence, the ALJ must evaluate the claimant's credibility. See Meadors v. Astrue, 370 Fed.Appx. 179, 183-84 (2d Cir. 2010); Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir. 2003). “An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court.” Rivera v. Berryhill, No. 17 Civ. 991 (JLC), 2018 WL 4328203, at *10 (S.D.N.Y. Sept. 11, 2018). That deference is due “because the ALJ had the opportunity to observe plaintiff's demeanor while [the plaintiff was] testifying.” Marquez v. Colvin, No. 12 Civ. 6819 (PKC), 2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013). Thus, a district court will not “second-guess” the ALJ's credibility finding “where the ALJ identified specific record-based reasons for his ruling, ” Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010), and where the ALJ's credibility finding is supported by substantial evidence. See Selian, 708 F.3d at 420 (declining to review the ALJ's credibility determination where the ALJ set forth specific reasons why she found claimant's testimony not credible). If the ALJ rejects the claimant's testimony as not credible, the ALJ must set forth the basis for that finding “with sufficient specificity to permit intelligible plenary review of the record.” Williams, 859 F.2d at 260-61. The ALJ may not base his credibility determination “on unsupported interpretations of raw medical evidence or mischaracterizations of the record.” Rivera v. Comm'r of Soc. Sec Admin., No. 19 Civ. 4630 (LJL) (BCM), 2020 WL 8167136, at *20 (S.D.N.Y. Dec. 30, 2020), adopted by 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021).
Courts have recognized that “the second stage of [the] analysis may itself involve two parts.” Sanchez v. Astrue, No. 07 Civ. 931 (DAB), 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). “First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could ‘reasonably be expected' to produce such symptoms).” Id. “Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. § 404.1529(c)(3)].” Id. (citing Gittens v. Astrue, No. 07 Civ. 1397 (GAY), 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). These seven factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication that the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. See Bush, 94 F.3d at 46 n.4; 20 C.F.R. § 404.1529(c)(3). If the ALJ does not follow these steps, remand is appropriate. Sanchez, 2010 WL 101501, at *15.
IV. DISCUSSION
The ALJ evaluated Mr. Kessler's claim pursuant to the five-step sequential evaluation process and concluded that he was not disabled within the meaning of the Act. (R. 13-22). Although the ALJ thoughtfully evaluated Mr. Kessler's medical records, the Court respectfully recommends that remand for further proceedings is warranted as a result of the ALJ's failure at step three (or anywhere in the Decision) to address the Listing concerning sinusitis (Listing § 14.07A) as well as the ALJ's failure to develop the record concerning the number of Mr. Kessler's sick days, and failure to consider the VE's testimony concerning absences in determining that he was not disabled .
A. Mr. Kessler's Sinusitis
1. Listing 14.07A: Chronic Sinusitis
Listing § 14.07A sets forth the framework for evaluating immune disorders including sinusitis. See Listing § 14.07A, 20 C.F.R. Pt. 404, Subpt. P, Appx. 1. Listing § 14.07A is established when a claimant has an “[i]mmune deficiency disorder[], excluding HIV . . . [w]ith:
(A) One or more of the following infections. The infection[] must either be resistant to treatment or require hospitalization or intravenous treatment three or more times in a 12-month period.
[.]
6. Sinusitis documented by appropriate medically acceptable imaging.
Listing § 14.07(A); see Racette v. Berryhill, 734 Fed.Appx. 592, 596 (10th Cir. 2018) (“Listing 14.07A provides that a claimant is presumptively disabled if: (1) the claimant has an immune deficiency disorder (other than HIV) with (2) one or more of six listed infections, including pneumonia and sinusitis, that (3) ‘must either be resistant to treatment or require hospitalization or intravenous treatment three or more times in as 12-month period.”).
Documentation “may be by laboratory evidence or by other generally acceptable methods consistent with the prevailing state of medical knowledge and clinical practice.” Listing § 14.00E(2).
2. Step three standard
In cases where a disability claim is premised upon a listed impairment, the ALJ should set forth a clear rationale in support of the decision to find or not to find a listed impairment. Berry v. Schweiker, 675 F.2d 464, 468-69 (2d Cir. 1982) (per curiam) (affirming denial of benefits where portions of the ALJ's decision indicated his conclusion was supported by substantial evidence). An ALJ's failure to include a specific rationale for rejecting a Listing at step three may require remand if the determination was not supported by substantial evidence, “especially where credibility determinations and inference drawing is required of the ALJ.” Id. at 469; see Salmini v. Comm'r of Soc. Sec., 371 F. App'x. 109, 112 (2d Cir. 2010) (finding that although decision did not detail why plaintiff's cardiac condition failed to meet a Listing, it was supported by substantial evidence including plaintiff's testimony that he engaged in “a broad range of activities on a daily or occasional basis”); cf. Clarke v. Saul, No. 20 Civ. 2377 (LGS) (SLC), 2021 WL 2402317, at *12 (S.D.N.Y. May 26, 2021) (holding that an ALJ's “passing rejection” of a Listing, “unaccompanied by any analysis, was not supported by substantial evidence and requires remand.”), adopted by 2021 WL 2402204 (S.D.N.Y. June 10, 2021).
Thus, an ALJ's reliance on “boilerplate language that provides no meaningful explanation for his conclusion that plaintiff did not meet [a specified Listing]” requires remand where the ALJ's detailed analysis at other steps “does not shed light on his conclusion at step three.” Ryan v. Astrue, 5 F.Supp.3d 493, 508-09 (S.D.N.Y. 2014) (ordering remand where the ALJ failed to address the applicability of a Listing “to what appears to be medical evidence that potentially meets the [L]isting requirements”). An ALJ's failure to explain a finding of ineligibility based on the Listings is “troubling” where “claimant's symptoms as described by medical evidence appear to match those described in the Listings” yet the ALJ rejects the Listing. Booker v. Heckler, No. 83 Civ. 5300 (RLC), 1984 WL 622, at *3 (S.D.N.Y. Jul. 19, 1984) (granting plaintiff's motion for remand); see Knoll v. Berryhill, No. 18-cv-1912 (RAR), 2020 WL 1149994, at *2-5 (D. Conn. Mar. 10, 2020) (holding that ALJ's inadequate analysis at step three required remand, and declining to reach the merits of plaintiff's other arguments).
3. Parties' arguments
Mr. Kessler argues that his chronic sinusitis satisfied Listing § 14.07A, “because it is documented by appropriate imaging (multiple nasal endoscopies), and his infections are resistant to treatment (requiring multiple rounds of antibiotics).” (ECF No. 20 at 24). In the alternative, to the extent the medical evidence falls short, he suggests that the ALJ's complete failure to analyze Listing § 14.07A requires remand, and the Court should not consider after-the-fact explanations of the Decision (ECF No. 24 at 8-9), which the Court construes as an argument that the Commissioner failed to adequately develop the record.
The Commissioner responds that Listing § 14.07A is not established because Mr. Kessler cannot demonstrate that his sinusitis either was “resistant to treatment or require[d] hospitalization or intravenous treatment three or more times in a [twelve]-month period.” (ECF No. 22 at 16) (citing 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing § 14.07A.6). To the contrary, the Commissioner argues that the course of treatment was “relatively conservative” and consisted of “sinus rinsing, nasal sprays, and antihistamines, as well as periodic treatment with antibiotics and steroid injections.” (Id. at 16) (citing R. 407, 414, 421, 457, 463, 467, 474, 479, 518). Further, the Commissioner notes that in 2017, Dr. Shohet noted “substantial improvement in the frequency of exacerbations, ” and in July 2018, Mr. Kessler stated that his symptoms improved with nasal sprays and rinsing. (Id.) (citing R. 493, 511). With respect to “resistance to treatment, ” the Commissioner argues that he "often responded well” to antibiotic treatments, which resolved his sinus infections, and “the fact that [Mr. Kessler's] treating physicians repeatedly prescribed antibiotics to treat [Mr. Kessler's] sinusitis is itself evidence that such treatment worked.” (Id.) (citing R. 414, 419, 454, 457, 502, 504). The Commissioner acknowledges that “the ALJ did not explicitly articulate this reasoning” but argues that the Court should look elsewhere in the Decision to find that it was supported by substantial evidence. (Id. at 16-17) (citing Salmini, 371 Fed.Appx. at 112).
4. Evaluation of the Decision
The Court agrees with Mr. Kessler that the ALJ's failure at step three of his analysis to address Listing § 14.07A requires remand in light of the record evidence of Mr. Kessler's chronic sinusitis, which the ALJ deemed a severe impairment (R. 15-16), and which was repeatedly documented following nasal endoscopies and required frequent medical treatment. (See R. 40314, 426, 460, 466-72, 476-79, 493-94, 496-518).
At step three, the ALJ addressed only Listing § 3.02, for chronic pulmonary insufficiency, which he found was not met because the medical evidence did not demonstrate that Mr. Kessler's bronchitis and sinusitis resulted in a particular volume of gas exchange or include “exacerbations or complications requiring three hospitalizations within a twelve[-]month period lasting 48 hours.” (R. 17). The ALJ did not, however, consider the requirements of Listing § 14.07A, which are different from those in Listing § 3.02, and include an infection that is “either” resistant to treatment, or requires hospitalization or intravenous treatment three or more times in a twelve-month period. Listing § 14.07A (emphasis added). The record here contains evidence that Mr. Kessler may have had such an infection.
Based on the Court's review, the medical evidence shows that Mr. Kessler's chronic sinusitis was at times persistent despite treatment with antibiotics. Dr. Shohet's records document numerous instances in which Mr. Kessler presented for follow-up medical treatment for his sinusitis even after already having received medical treatment. (See R. 453 (reporting on May 15, 2013 that “headaches, facial pressure and fatigue persist[ed]” after taking Bactrim for two weeks); R. 468 (noting on December 11, 2014 that Mr. Kessler was treated for Augmentin for two weeks following a November 27, 2014 infection, and continued to experience nasal congestion, postnasal drainage, sinus pressure and pain, throat clearing and headache); R. 47679 (presenting on April 14, 2015, fourteen days after a sinus infection, and after a ten-day course of Amoxicillin, with persisting symptoms including bloody sinus discharge, nasal congestion, postnasal drainage, headache, and sinus pressure); R. 405-08 (presenting on August 18, 2015, eight days after his sinus infection began, and after being treated at an urgent care facility and being prescribed a ten-day course of Augmentin, with sinus pressure, intermittent headaches and chest tightness); R. 419-22 (following up on March 9, 2016, four weeks after being prescribed antibiotics for a respiratory infection with “slow to resolve” lower respiratory symptoms, nasal congestion, productive cough and facial pressure, for which chronic pansinusitis was diagnosed)).
The urgent care records also document instances of sinusitis symptoms persisting despite treatment with antibiotics. On November 10, 2017, Mr. Kessler sought treatment at Excel Urgent Care of Goshen following seven days of sore throat, cough, and phlegm, which worsened, for which he took Azithromycin. (R. 882). Brandon O'Connor, M.D. diagnosed chronic maxillary sinusitis and prescribed Amoxicillin, and recommended treatment with Flonase, ibuprofen and Mucinex. (R. 883). On April 2, 2018, Mr. Kessler received treatment at Orange Urgent Care for head and chest congestion and sinus pressure, two weeks after being treated at an urgent care and prescribed Amoxicillin. (R. 919). PA Bruno Suditu documented that Mr. Kessler “has chronic sinusitis, ” diagnosed sinusitis with cough and noted that Mr. Kessler “has done much better with Augmentin and prednisone in the [past].” (R. 920).
The ALJ's step three analysis failed both to address this evidence explicitly under Listing § 14.07A or otherwise address its requirements, and was therefore insufficient, as the significant evidentiary record summarized above appeared to satisfy the elements of the Listing. See Berry, 675 F.2d at 469; Racette, 734 Fed.Appx. at 596-97 (remanding where the ALJ failed to make specific findings at step three regarding Listing § 14.07A and rejecting “post hoc rationales” by the Commissioner that the error was harmless). The Commissioner's argument that Mr. Kessler's sinusitis “often” responded well to antibiotic treatment and was therefore not resistant to treatment, (ECF No. 22 at 16), is precisely the sort of “inference drawing” that indicates the ALJ's analysis was inadequate and remand is necessary “for further findings or a clearer explanation for the [D]ecision.” Berry, 675 F.2d at 469. On remand, “the ALJ should assess whether [Mr. Kessler] meets Listing [§ 14.07A]. If the ALJ chooses to reaffirm his prior conclusion, he should provide a ‘clearer explanation' for his decision.” Perozzi v. Berryhill, 287 F.Supp.3d 471, 486 (S.D.N.Y. 2018) (remanding where the ALJ conducted no analysis of the Listing's elements and the record contained evidence that the claimant satisfied the Listing's requirements) (quoting Berry, 675 F.2d at 469); see Ryan, 5 F.Supp.3d at 509 (ordering that if the ALJ adheres to his prior decision on remand, “he should explain his reasoning for his ultimate determination with sufficient specificity to allow a reviewing court to evaluate that determination.”).
B. Analysis of the VE's Testimony
1. The parties' arguments
Mr. Kessler argues that the ALJ's assessment of his RFC was flawed because the ALJ did not consider the number of days his conditions would prevent him from working, or account for the absenteeism resulting from his conditions, which under the VE's testimony, would have prevented him from finding and maintaining employment. (ECF No. 20 at 28-29). This error, he submits, requires remand. (Id.)
Mr. Kessler notes that the VE testified that no more than one absence per month would be tolerated by any employer, and that the ALJ acknowledged he had “eight total visits” in 2015 to urgent care facilities alone, excluding treatment by specialists or treating physicians. (ECF No. 20 at 28) (quoting R. 18). He argues that the ALJ did not consider that “receiving this urgent, unplanned care will cause absences from work[, ]” nor did he consider that “at least some portion of [his] month-long infections, if not the entire time, he would not be able to attend work because of congestion, fatigue, headaches, cough, and other symptoms.” (Id. at 29). Mr. Kessler testified that he suffered three-to-four yearly infections lasting between ten days and one month, which he argues is corroborated by the medical evidence. (ECF No. 24 at 9-10) (citing R. 96-97, 516, 803-04, 919).
In response, the Commissioner argues that Mr. Kessler “did not demonstrate any limitations due to absenteeism” or set forth evidence from a medical source concerning “any need for absenteeism or time off-task.” (ECF No. 22 at 25). The Commissioner continues that substantial evidence supports the RFC determination because “the ALJ is not required to submit to the VE every limitation alleged by the claimant, but must only convey all of a claimant's credibly established limitations, ” and the ALJ properly found him not to be disabled considering his limitations. (Id.)
2. Application
The VE's hearing testimony established that Mr. Kessler's high degree of absenteeism - stemming both from his medical appointments, as well as his underlying illness - could have been outcome-determinative of his ability to work. Under the VE's testimony, more than one absence from work a month, or twelve total annual absences would be preclusive to obtaining any work. (See R. 109). Despite this testimony, the ALJ failed to develop the evidence concerning the number of sick days Mr. Kessler's impairments and resulting medical treatments caused, and also failed to consider his absences in determining his RFC. (See R. 13-22). For this additional reason, the Court respectfully recommends that remand is required. See Lausell v. Comm'r of Soc. Sec., No. 19 Civ. 2016 (SLC), 2021 WL 797074, at *16 (S.D.N.Y. Mar. 1, 2021) (holding that remand to clarify the record was warranted where the ALJ failed to develop the hearing testimony concerning claimant's use of a cane, which was “outcome-determinative” of whether she could work under the VE testimony); Sczepanski v. Saul, 946 F.3d 152, 155-56, 158-59 (2d Cir. 2020) (remanding where the ALJ did not account for absences from work during a probationary period of employment, which the VE testified would not be tolerated, and recognizing that “the ability to keep a job is a necessary prerequisite to the ability to engage in substantial gainful employment.”); La Torre v. Colvin, No. 14 Civ. 3615 (AJP), 2015 WL 321881, at *15-16 n. 16 (S.D.N.Y. Jan. 26, 2015) (collecting cases where VE testimony has found that absences from work due to impairments or medical appointments may “make a claimant unemployable”).
The ALJ has an affirmative duty to develop the factual record. Rosa, 168 F.3d at 79-80. “This responsibility encompasses ‘not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity.'” Podolsky v. Colvin, No. 12 Civ. 6544 (RA) (JLC), 2013 WL 5372536 at *11 (S.D.N.Y. Sept. 26, 2013) (quoting Pena v. Astrue, No. 07 Civ. 11099 (GWG), 2008 WL 5111317 at *8 (S.D.N.Y. Dec. 3, 2008)).
It was clear from Mr. Kessler's hearing testimony that although a typical day when he was well included a range of activities, including exercise, social gatherings and childcare (see R. 10103), during periods where his sinus infections were exacerbated, generally three-to-four times annually, his activities lessened. (See R. 95-97). Mr. Kessler's pertinent testimony was as follows:
ALJ: And approximately how many times a year do these - do the exacerbation[s] occur?
Mr. Kessler: three or four times a year.
ALJ: I mean, is it three to four - like every few months, like that, or -
Mr. Kessler: Yes.
ALJ: All right. And how long do they last?
Mr. Kessler: At least a month.
ALJ: And what-what do you-during the time when the exacerbations, you're - during that month-long period, are you able to do anything, or how are you spending your time?
Mr. Kessler: I usually spend the time in bed, ‘cause the sinus pressure is so bad that I, I really can't do much. I, I want to help out, but I can't. And it's, it's just so debilitating that I really can't do much until the antibiotics start to kick in.(R. 96-97).
Atty: [Mr. Kessler], you described a typical day for you. What is a typical day for you when you're suffering with one of the, with one of the sinus infections that you experience?
Mr. Kessler: Well, when I have the sinus infection, I can't really go out. I, I can't go to the gym. I can't exercise. I can't do much other than sit on the bed or sit on the couch.(R. 103-04).
Following Mr. Kessler's hearing testimony, the VE's testimony concerning absenteeism was as follows:
ALJ: . . . If I were to add this limit onto hypothetical one or two, would there be any jobs? The individual could only work at jobs allowing the individual to be absent three months every year in addition to vacation leave.
[.]
VE: Absent three months per year, I don't believe employers will tolerate that, so there would not be jobs available.
ALJ: Thank you. Now the DOT is silent, as far as I'm aware, about absenteeism.
So, is your opinion that there are no jobs based upon your professional knowledge and experience?
VE: Yes, it is, Your Honor.
[.]
Atty: . . . Mr. Pearson, the hypothetical you, you just answered asked about absenteeism three months a year. What is the maximum amount of times-that is tolerated off due to sickness or illness, that is tolerated?
VE: It's my opinion that one unscheduled absence per month, which correlates to 12 per year, would be the maximum tolerable by employers. Anything
more than that, I just don't believe an individual's going to maintain employment long-term.(R. 108-09).
Despite this testimony, the ALJ failed to develop the record concerning Mr. Kessler's ability to be present for work given his medical appointments, symptoms and side effects-an outcome determinative issue, in light of the VE's testimony. Lausell, 2021 WL 797074, at *16. Notably, in determining in the Decision that the VE's testimony established there were certain jobs Mr. Kessler could do, including as a hand packager, sales attendant and marker, the ALJ did not address at all the VE's testimony that twelve or more annual absences would prevent employment in any capacity. (See R. 21). This is error given that Mr. Kessler's absences due to his sinusitis and related medical appointments may “make [him] unemployable.” La Torre, 2015 WL 321881, at *15-16 n. 16; see also Sczepanski, 946 F.3d at 155, 161-62 (remanding for ALJ's failure to consider plaintiff's absences during a probationary period of employment).
The Commissioner's defenses of the ALJ Decision miss the mark. The Commissioner's argument that Mr. Kessler “did not demonstrate any limitations due to absenteeism” (ECF No. 22 at 25) is undermined by the number of medical appointments, which necessarily required taking time off work-18 appointments in 2015 alone, by the Court's count-separate and apart from his testimony about the length of time he is debilitated during the exacerbations of his sinus conditions. (R. 96-97). It bears mention that the ALJ apparently credited his claim that his activities are limited during the three-to-four annual exacerbations (see id.), enough to pose to the VE, as Hypothetical Three, an individual who required three months of annual medical leave. (See R. 108).
(R. 328-42, 350-56, 366, 370-73, 397-400, 403-18, 528-41, 476-79, 554, 796-812, 824, 831, 840, 848, 856).
Equally unpersuasive is the Commissioner's second argument that the ALJ's analysis was adequate because “the ALJ is not required to submit to the VE every limitation alleged by the claimant, but must only convey all of a claimant's credibly established limitations.” (ECF No. 22 at 25). Mr. Kessler's potential absenteeism is not a collateral issue, but was, as a result of the VE's testimony, potentially dispositive of whether he was capable of working. Further, this argument misses that the ALJ did pose to the VE, in Hypothetical Three, a question to elicit the effect of absenteeism on one's ability to be employed, and the VE's resulting testimony was unequivocal that more than a dozen annual absences would preclude employment. (R. 108-09).
* * *
Accordingly, the Court respectfully recommends that remand is warranted due to the ALJ's failure to develop the evidence concerning Mr. Kessler's absences, and to address in the Decision his absences in light of the VE's testimony.
C. Remaining Arguments
Mr. Kessler also raises several additional arguments in the Motion, including that the ALJ failed to follow the treating physician rule by not according greater weight to the opinion of Dr. Lu that he could only engage in low stress jobs, and that the ALJ did not appropriately evaluate his credibility. (ECF No. 20 at 20-28).
Because the Court respectfully recommends that remand is required because of the ALJ's failure to fully develop the record (see supra § IV.A.4), the Court need not reach these other arguments. See Wilson v. Colvin, 107 F.Supp.3d 387, 407 n.34 (S.D.N.Y. 2015) (finding it unnecessary to address the plaintiff's additional arguments after ruling that remand was required due to the ALJ's failure to adequately develop the record); Duffy v. Comm'r of Soc. Sec., No. 17 Civ. 3560 (GHW) (RWL), 2018 WL 4376414, at *13 (S.D.N.Y. Aug. 24, 2018), adopted by 2018 WL 4373997 (S.D.N.Y. Sept. 13, 2018) (same). Nevertheless, the Court will briefly address Mr. Kessler's contentions to the extent they present additional issues that the ALJ may address on remand. Duffy, 2018 WL 4376414, at *13.
Mr. Kessler argues that the ALJ disregarded the treating physician rule and did not adequately defer to Dr. Lu's opinion that he was “[i]ncapable of even ‘low stress' jobs, ” because exposure to irritants causes shortness of breath, resulting in anxiety and hindering his ability to concentrate. (ECF No. 24 at 5) (citing R. 545). There is scant support in the record for this conclusion, however, as the record does not include any mental health treatment records, there are no abnormal mental status findings in the record, and Mr. Kessler has not cited any medical records supporting this conclusion. Accordingly, the Court agrees with the Commissioner that this conclusion by Dr. Lu was not entitled to controlling weight, as it was not well-supported, and it was “inconsistent with the other substantial evidence in the [] record. 20 C.F.R. § 404.1527(c)(2); see Veino, 312 F.3d at 588 (noting that treating physicians' opinion “need not be given controlling weight when they are contradicted by other substantial evidence in the record, [as] [g]enuine conflicts in the medical evidence are for the Commissioner to resolve.” (internal citations omitted)).
The Court notes, however, that in Mr. Kessler's Function Report, in response to the prompt “How does stress or changes in schedule affect you?” he responded “it makes my condition worse.” (R. 278).
The ALJ's assessment of Mr. Kessler's credibility will necessarily be impacted by the ALJ's obligation to further develop the record and elicit further testimony concerning Mr. Kessler's medical treatment and impairments. The Court notes however, “on remand, the ALJ must engage the required analysis for determining the credibility of [Mr. Kessler's] symptoms and their limiting effects as required by 20 C.F.R. []§ 404.1529(c)(3) . . . .” Lausell, 2021 WL 797074, at *21.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Mr. Kessler's Motion (ECF No. 19) be GRANTED, that the Commissioner's Motion (ECF No. 21) be DENIED, and that the case be remanded to the agency for further administrative proceedings.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).