Kessler v. Saul

Background

Michael Kessler sought judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security’s final decision denying his application for disability insurance benefits. The parties filed cross-motions for judgment on the pleadings, meaning they asked the court to decide the case based on the existing pleadings and record without a trial.

The court referred the motions to Magistrate Judge Sarah L. Cave. She issued a Report and Recommendation advising that Kessler’s motion be granted to the extent he sought a remand for further administrative proceedings and that the Commissioner’s motion be denied.

Reasons for Remand

Judge Cave concluded that the administrative law judge did not sufficiently develop the record when determining Kessler’s ability to work. In particular, the administrative law judge did not address whether Kessler’s chronic sinusitis qualified as a listed impairment under Listing § 14.07A. The administrative law judge also did not consider whether Kessler’s high level of absenteeism could determine the outcome, even though the vocational expert testified that twelve or more absences per year would prevent employment in any capacity.

The Report and Recommendation also described Kessler’s arguments that the administrative law judge improperly evaluated his residual functional capacity, medical evidence, treating physicians’ opinions, subjective complaints, and the development of the record. The court’s stated basis for remand was the failure to address the sinusitis listing and to develop the record concerning Kessler’s sick days.

Ruling

Neither party objected to the Report and Recommendation despite being warned that failing to object within fourteen days would waive further judicial review. Judge Paul G. Gardephe reviewed the recommendation and found no clear error on the face of the record.

The court adopted the Report and Recommendation in its entirety. It granted Kessler’s motion for judgment on the pleadings to the extent that the case was remanded for further administrative proceedings, denied the Commissioner’s motion for judgment on the pleadings, directed the Clerk of Court to terminate the motions, and remanded the case to the Commissioner of Social Security for further proceedings. The court stated that appellate review of the order was precluded because the parties did not object.