Byrd v. Kijakazi

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE:

I. INTRODUCTION

Plaintiff Craig M. Byrd (“Mr. Byrd”) commenced this action pursuant to Section 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g). Mr. Byrd seeks review of the decision by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”), denying his applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”) under the Act. Mr. Byrd contends that the decision of the Administrative Law Judge dated April 24, 2019 (the “ALJ Decision”) was erroneous, not supported by substantial evidence, and contrary to law, and asks the Court to (a) reverse the Commissioner's finding that he was not disabled and remand to the Commissioner for an award of SSI and DIB benefits, or (b) remand for a new hearing.

The parties have cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On February 16, 2021, Mr. Byrd filed a motion for judgment on the pleadings (ECF No. 15 (“Mr. Byrd's Motion”)), and on April 9, 2021, the Commissioner crossmoved (ECF No. 18 (the “Commissioner's Motion”)). On April 29, 2021, Mr. Byrd filed a reply memorandum of law in further support of his Motion and in opposition to the Commissioner's Motion. (ECF No. 20). For the reasons set forth below, I respectfully recommend that Mr. Byrd's Motion be DENIED and the Commissioner's Motion be GRANTED.

II. BACKGROUND

A. Procedural Background

On May 15, 2017, Mr. Byrd filed applications for SSI and DIB, alleging disability due to diabetes, asthma, hypertension, right leg injury, foot limitations, and learning disability, with an onset date of July 1, 2016 (the “Onset Date”). (Administrative Record (“R.”) (ECF No. 14) 49-50, 71-72, 155-70). On August 24, 2017, the SSA denied Mr. Byrd's applications. (R. 73-78). Mr. Byrd requested a hearing before an ALJ. (R. 81-82). On March 26, 2019, ALJ Michael Werner conducted a hearing by video and teleconference from Wichita, Kansas (the “Hearing”). (R. 2748). Mr. Byrd, who participated from Goshen, New York, was represented at the Hearing by an attorney. (R. 29). On April 24, 2019, ALJ Werner issued the Decision finding that Mr. Byrd was not disabled under the Act. (R. 7-25). The ALJ Decision became the final decision of the Commissioner when the Appeals Council denied Mr. Byrd's request for review. (R. 1-6, 149-53).

B. Factual Background

1. Non-medical evidence

Mr. Byrd was born in 1982 and was 33 years old on the alleged Onset Date. (R. 49, 60). He received his high school diploma in 2000, but was classified as having a learning disability. (R. 180-86, 201). A 1998 educational evaluation stated that he “functioned] within the high average range of intellectual ability” and was “a motivated worker . . . [with] good visual processing speed.” (R. 185). His prior work experience includes positions in grocery stores and as an electrician apprentice. (R. 172-77, 187). On July 8, 2011, he injured his right foot and ankle while working at Stop & Shop Supermarket. (R. 284). He stopped working altogether on August 3, 2016. (R. 54, 65, 286).

In a function report dated July 2, 2017, Mr. Byrd described caring for his girlfriend's three-year-old daughter, sleeping two to five hours per day as a result of his medications, being unable to shower due to his wound and PICC line, ^[2] being able to prepare his own food, doing his own laundry, shopping multiple times per week, and going for daily walks. (R. 211-14). He stated that he could only stand or walk for a limited amount of time, could not kneel or squat, and had difficulty lifting because he could not “put weight into [his] feet to get a hold and power to do so.” (R. 215). He described occasional use of crutches, regular use of leg braces, and experiencing “throbbing or shooting” pain or a “pulsating sensation.” (R. 216, 218-19).

2. Medical evidence

Mr. Byrd alleges that, as of the Onset Date, he was disabled based on his obesity, diabetes, right foot and ankle injury, hypertension, and hyperlipidemia. (ECF No. 16 at 5-6). The Court summarizes the medical information in the Record concerning these conditions, pre- and post-Onset Date.

a. Medical Evidence Before the Onset Date

i. Foot and ankle conditions

Approximately five years before the Onset Date, in July 2011, Mr. Byrd injured his right ankle while working in the supermarket. (R. 423). At St. Luke's Cornwall Hospital, he was diagnosed with a sprained right ankle and given a splint, crutches, and Vicodin. (R. 423). A few days later, Teresa Orton, FNP, at Orthopedics & Sports Medicine, PC, took x-rays, which revealed a nondisplaced fracture at the base of his fifth metatarsal bone in his right foot. (R. 426, 50910). Orton encouraged him to ice his right ankle and foot, and outfitted him with a controlled ankle motion (“CAM”) walker. (R. 426). On August 31, 2011, Orton found that Mr. Byrd's fracture was “improving, ” his right ankle sprain was “resolved, ” and recommended that he continue using the CAM walker. (R. 353-54).

An MRI of Mr. Byrd's right foot performed by Steve Sharon, M.D., on September 3, 2011 showed “[f]indings consistent with comminuted fracture involving the base and shaft of the fifth metatarsal as well as probable nondisplaced fractures involving distal cuboid and base and shaft of the fourth metatarsal with surrounding muscle strains and soft tissue swelling without gross malalignment.” (R. 532). On September 8, 2011, his right foot appeared to be “worsening, ” and so Orton, in consultation with John M. Uhorchak, M.D., placed the foot in a cast and directed Mr.

Byrd to use crutches. (R. 521-23, 528). On November 1, 2011, Mr. Byrd was still in a cast but in stable condition without pain. (R. 470-71). When he returned on November 8, 2011, Mikhail Itingen, D.O., removed his cast and took x-rays, which showed that the fracture in his right foot had healed. (R. 474-75). Dr. Itingen prescribed a brace and custom orthotics, and a regimen of physical therapy. (R. 475). An X-ray on December 6, 2011 confirmed that the fracture in his right foot had healed, although he needed a brace “to get him to stop from inverting his foot due to his footdrop.” (R. 379). On January 20, 2012, Donna Flynn, D.O., observed that Mr. Byrd had “[s]evere sensory motor, axonal and demyelinating polyneuropathy in the lower extremities, ” “[b]ilateral peroneal neuropathies, ” and “[a]cute right L5S1 radiculopathies.” (R. 365).^[3]

On October 23, 2012, Mr. Byrd reported to Dr. Itingen that he felt pain in his right ankle at a level seven out of ten. (R. 380). Dr. Itingen's notes from the visit indicate that, since Mr. Byrd's last visit, “[t]he decision ha[d] been made to go ahead with surgery.” (R. 380). At the October 23, 2012 visit, Dr. Itingen observed a deep ulcer on the bottom of his right foot that appeared to be infected, requiring wound care and postponement of the surgery. (R. 382). Dr. Itingen directed Mr. Byrd to return in four weeks, and prescribed Bactrim DS, an antibiotic. (R. 382). On October 24, 2012, Mr. Byrd presented to Robert Bibi, M.D., at the Center for Wound Healing, for treatment of ulcers on both feet. (R. 536). Dr. Bibi noted that he had “a prior history of morbid obesity in excess of 500 lbs., [and] he [had] lost approximately 200 lbs., ” currently weighing 280 pounds. (R. 536). Dr. Bibi assessed “[u]nrecognized diabetes, ” and referred Mr.

Byrd to an endocrinologist, Jonathan Castro, M.D. (R. 538). Dr. Bibi noted ulcerations on both feet, cellulitis^[4] on the right foot, but no infection on the left foot. (R. 537). On November 2, 2012, Mr. Byrd, returned to Dr. Bibi, who noted that “the cellulitis that was previously there is markedly improved and [Mr. Byrd] feels symptomatically better.” (R. 535).

On April 25, 2013, Dr. Itingen performed an irrigation and debridement of the ulcer on Mr. Byrd's right foot. (R. 393). On May 2, 2013, Dr. Itingen found the ulcer to be “healing and closing.” (R. 375). On May 13, 2013, Dr. Itingen found the ulcer to be infected again, and, on May 14, 2013, performed another debridement and prescribed a six-week course of antibiotics. (R. 383-85, 388). On May 30, 2013, Dr. Itingen observed that the ulcer on Mr. Byrd's right foot was “healing, ” had “mild drainage, ” but “no foul smell” and “[n]o erythema.”^[5] (R. 391). Noting that there was no “active infection, ” Dr. Itingen changed Mr. Byrd's bandage, applied a new splint, and recommended crutches for ambulation. (R. 391). On June 20, 2013, Mr. Byrd reported no pain in his right ankle, finding that the immobilization in the cast had been helpful. (R. 408). Dr. Itingen observed that his right ankle condition was “nearly resolved” and instructed him in use of the CAM walker. (R. 409). On July 10, 2013, Dr. Itingen observed that the ulcer had healed, and prescribed him a molded calf lacer, bilateral custom orthotics, and a pair of orthopedic boots with rocker sole modification and extended steel shanks. (R. 414-15). On August 7, 2013, Mr. Byrd reported to Dr. Itingen “significant improvement since his last visit.” (R. 436). Dr. Itingen

observed that his right-foot ulcer was “nearly resolved, ” that he could go “[b]ack to work after a calf lacer AFO is done next week, ” and that he could return to “full duty without restrictions.” (R. 437). On June 25, 2014, Mr. Byrd reported to Dr. Itingen that he had no pain and the brace had been helpful. (R. 411). Dr. Itingen instructed him to continue the brace and return in three months. (R. 412-13). Dr. Itingen stated that...