Byrd v. Kijakazi

Full title: CRAIG M. BYRD, Plaintiff, v. KILOLO KIJAKAZI, [1] Acting Commissioner of…

Court: United States District Court, S.D. New York

Date published: Nov 12, 2021

Civil Action 20 Civ. 4464 (JPO) (SLC) (S.D.N.Y. Nov. 12, 2021)

Opinion

Civil Action 20 Civ. 4464 (JPO) (SLC)

11-12-2021

CRAIG M. BYRD, Plaintiff, v. KILOLO KIJAKAZI, [1] Acting Commissioner of Social Security, Defendant.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

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 “PICC” stands for “peripherally inserted central catheter, ” which “is a thin, soft, flexible tube” used for intravenous medications. Peripherally Inserted Central Catheter (PICC), CLEVELAND CLINIC, https://my.clevelandclinic.org/health/treatments/14983-peripherally-inserted-central-catheter-picc (last visited Oct. 29, 2021).

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

3 “L5S1” refers to the lumbosacral joint, which “is the transition region between the lumbar spine and sacral spine in the lower back.” David DeWitt, M.D., All About L5-S1 (Lumbosacral Joint), VERITAS HEALTH (Oct. 11, 2019), https://www.spine-health.com/conditions/spine-anatomy/all-about-l5-s1-lumbosacral-joint.

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, cellulitis⁴ 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).

4 “Cellulitis is a common infection of the skin and the soft tissues underneath.” Hansa D. Bhargava, M.D., Cellulitis, WEBMD (July 28, 2020), https://www.webmd.com/skin-problems-andtreatments/guide/cellulitis.

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 Mr. Byrd had “reached maximal medical improvement, ” and had “a 42.5% schedule loss of use in his right foot.” (R. 413). Mr. Byrd continued to see Dr. Itingen throughout 2014 and 2015, during which he received renewals of his foot and ankle devices, and participated in physical therapy. (R. 467-69; 355-57; 371-73; 396-98; 439-41; 445-57).

5 Erythema “is a type of skin inflammation that is located in a part of the fatty layer of skin” and “results in reddish, painful, tender lumps most commonly located in the front of the legs below the knees.” Debra Jaliman, M.D., Erythema Nodosum, WEBMD (Nov. 5, 2019), https://www.webmd.com/skin-problems-and-treatments/erythema-nodosum.

On February 3, 2016, Dr. Itingen examined Mr. Byrd, who reported that, after working a twelve-hour shift four nights prior, he felt sharp pain in his left leg and foot, developed mild chills two days prior, and experienced significant pain and an ulceration with “significant discharge” on his foot one day prior. (R. 314, 319). Dr. Itingen observed that Mr. Byrd's left foot had an open ulcer “with foul smell and drainage, ” and erythema “tracking on the bottom of the foot from the ulcer[, ]” with “mild to moderate swelling, ” “mild tenderness, ” and a “moderately limited” range of motion. (R. 321). Dr. Itingen diagnosed him with cellulitis, and ordered that he be admitted to St. Luke's Cornwall Hospital to receive intravenous doses of Vancomycin⁶ every twelve hours and Invanz⁷ every 24 hours. (R. 314, 317, 321).

6 Vancomycin “is an antibiotic used to treat infections.” Vancomycin 50 Mg/Ml Oral Solution Pseudomembranous Colitis Agents - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-8858-7154/vancomycin-oral/vancomycin-solution-oral/details (last visited Oct. 29, 2021).

7 Invanz, also known by the generic name of “Ertapenem, ” is “a carbapenem-type antibiotic” that “is used to prevent and treat a wide variety of bacterial infections.” Invanz Vial - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug-22540/invanz-injection/details (last visited Oct. 29, 2021).

The next day, February 4, 2016, Barry Hyman, M.D., at St. Luke's, confirmed the diagnosis of cellulitis in Mr. Byrd's left foot and the course of intravenous antibiotics. (R. 322-35). Philip Smith, M.D., also examined Mr. Byrd that day and observed “some erythema” in his left foot with ulceration but “no drainage and no foul odor.” (R. 326). Dr. Smith agreed with the diagnosis of a left foot infection and course of antibiotics, noting that Mr. Byrd “appear[ed] stable.” (R. 327). An x-ray performed that day showed “diffuse soft tissue swelling . . . without evidence of subcutaneous gas or plain radiographic evidence of osteomyelitis.” (R. 328). On February 5, 2016, a PICC line was inserted in Mr. Byrd. (R. 330).

On June 22, 2016, Mr. Byrd reported to Dr. Itingen that his right ankle pain was improved. (R. 402). Dr. Itingen observed a foot ulcer (cellulitis) on his right foot, which “opened up when he was without his orthotics and brace while [they were] being repaired.” (R. 403). Dr. Itingen applied a clean bandage and prescribed Bactrim and a right CAM walker. (R. 403).

ii. Harvey Seigel, M.D., Post-Trauma Medical Services, P.C. - Workers' Compensation Examiner

On September 27, 2011, Harvey Seigel, M.D., performed an orthopedic evaluation of Mr. Byrd in connection with his application for Workers' Compensation benefits. (R. 484-90). Mr. Byrd reported that he had “a little discomfort in his right foot sometimes and [an] occasional twinge of pain.” (R. 487). Dr. Siegel reviewed the September 3, 2011 x-rays, which revealed the right foot fracture, and noted that “there appears to be a significant pre-existing condition of right-sided sciatica, with probable associated right lower extremity weakness, which may affect his recuperation from this injury.” (R. 489).

On December 13, 2012, Dr. Siegel re-evaluated Mr. Byrd. (R. 491-97). Mr. Byrd described “mild discomfort in his right foot and sometimes an occasional twinge of pain.” (R. 494). Dr. Siegel opined that he had “not reached Maximum Medical Improvement[, ]” and recommended continued treatment with Dr. Itingen “until the ulcer has healed completely.” (R. 496).

At a second re-evaluation on May 5, 2014, Dr. Siegel observed that Mr. Byrd had “reached Maximum Medical Improvement, ” with a 42.5% loss of use of his right foot. (R. 482-83).

iii. Diabetes

On November 10, 2012, Mr. Byrd presented to Dr. Castro for management of his Type 2 diabetes, which was newly-diagnosed. (R. 798). At that time, his body mass index (“BMI”) was 38.38, and he was not taking any medications. (R. 798). Dr. Castro prescribed Janumet XR, ⁸Glucotrol, ⁹ and a low-starch diet. (R. 798).

8 Janumet is a “combination medication” used “to control high blood sugar” in “patients with type 2 diabetes.” Janumet - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug 148074/janumet-oral/details (last visited Oct. 29, 2021).

9 Glucotrol, also known as Glipizide, is used “to control high blood sugar in people with type 2 diabetes.” Glucotrol - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-11773/glucotrol-oral/details (last visited Oct. 29, 2021).

On December 18, 2012, Dr. Castro observed that Mr. Byrd's adherence to his medications had been “good” and that his BMI had declined slightly to 37.56, although testing showed “poor glycemic control.” (R. 796). Dr. Castro directed that he continue Janumet and Glucotrol, and follow a low-starch diet. (R. 796).

On January 29, 2013, Dr. Castro again observed that Mr. Byrd was following his medications, but his glycemic control was “poor.” (R. 792). Dr. Castro noted that Mr. Byrd also now had hyperlipidemia¹⁰ and was wearing a boot. (R. 792). Dr. Castro directed that he continue Janumet and Glucotrol, start Simvastatin¹¹ for his hyperlipidemia and Lisinopril¹² for microalbuminuria, ¹³ and observe a low-starch diet. (R. 793).

10 Hyperlipidemia is “high cholesterol.” James Beckerman, M.D., What is Hyperlipidemia?, WEBMD (July 16, 2020), https://www.webmd.com/cholesterol-management/hyperlipidemia-overview.

11 Simvastatin is a medication “to help lower ‘bad' cholesterol and fats . . . and raise ‘good cholesterol (HDL) in the blood.” Simvastatin - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug-6105/simvastatin-oral/details (last visited Oct. 29, 2021).

12 Lisinopril is a medication “used to treat high blood pressure.” Lisinopril - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-6873-9371/lisinopril-oral/lisinopril-oral/details (last visited Oct. 29, 2021).

13 Microalbuminuria is the “persistent elevation of albumin in the urine of >30 to <300 mg/d” that is “an established risk marker for the presence of cardiovascular disease ....” Atul Chugh, M.D. & George L. Bakris, M.D., Microalbuminuria: What Is It? Why Is It Important? What should Be Done About It? An Update, 9 J. CLINICAL HYPERTENSION 196, 196 (2007).

On April 16, 2013, Dr. Castro noted Mr. Byrd's “poor” adherence to his medications, “poor glycemic control, ” unchanged weight, and continued hyperlipidemia and microalbuminuria. (R. 788-89). Dr. Castro stopped the prescription for Janumet, continued the prescription for Glucotrol, and started a prescription for Metformin.¹⁴ (R. 789). He also continued the prescriptions for Simvastatin and Lisinopril, and again encouraged Mr. Byrd to follow a low-starch diet. (R. 789).

14 Metformin is a “medication[] to control high blood sugar” that is “used in patients with type 2 diabetes.” Metformin HCL - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-11285-7061/metformin-oral/metformin-oral/details (last visited Oct. 29, 2021).

On July 9, 2013, Mr. Byrd presented to Dr. Castro, who again noted his “poor” adherence to his medications, “poor glycemic control, ” hyperlipidemia, and microalbuminuria. (R. 783-84). For Mr. Byrd's diabetes, Dr. Castro directed that he stop taking Glucotrol, continue taking Metformin, and start taking Glimepride.¹⁵ (R. 784). For hyperlipidemia, Dr. Castro directed that he continue taking Simvastatin. (R. 784). For microalbuminuria, Dr. Castro directed that he continue taking Lisinopril. (R. 784). For obesity, Dr. Castro continued to encourage a low-starch diet. (R. 784-85).

15 Glimepride is a medication used “to control high blood sugar in people with type 2 diabetes.” Glimepride - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-12271/glimepiride-oral/details (last visited Oct. 29, 2021).

On September 29, 2015, Dr. Castro again noted Mr. Byrd's “poor” history of adherence to his medications and his hyperlipidemia, and found that his BMI had increased to 38.11. (R. 780). Dr. Castro continued Mr. Byrd's prescription for Metformin. (R. 780). Dr. Castro made similar findings and recommendations at visit on December 10, 2015. (R. 775).

b. Medical Evidence On and After the Onset Date

i. Foot and ankle conditions

On July 6, 2016, Mr. Byrd reported to Dr. Itingen that he was taking Bactrim and using the CAM walker, which were helping, and his pain had improved to a level two out of ten. (R. 405). Dr. Itingen observed that Mr. Byrd's left-foot “ulcer was almost healed, ” and instructed Mr. Byrd to “wean out of the CAM walker” and “into his brace.” (R. 406).

On July 26, 2016, Clifford Toback, D.P.M., saw Mr. Byrd for ulcer care on his left foot. (R. 339). Dr. Toback noted that Mr. Byrd was being treated by an orthopedic surgeon for his right foot, but that his left foot showed “[n]o sign of infection or cellulitis.” (R. 339). Dr. Toback noted that Mr. Byrd was “not taking care of himself.” (R. 339). After providing wound care to Mr. Byrd's foot, Dr. Toback directed that he undergo dietary counseling and surveillance, and apply silver sulfadiazine to the affected area on his foot twice a day. (R. 340).

On July 27, 2016, Mr. Byrd reported to Dr. Itingen that he had been wearing his brace and felt no pain. (R. 417). Dr. Itingen observed that his “shoes/brace/orthotics [were] worn out” and, as a result, he was getting ulcers on his feet. (R. 418). Dr. Itingen explained that it was “crucial for him to get a new pair of shoes, orthotics and a calf lacer AFO brace to protect him from ulcers, and to maintain balance and alignment . . . so he can stay in the workforce.” (R. 418). Dr. Itingen assessed Mr. Byrd as 50% temporarily impaired. (R. 419).

On August 3, 2016, Dr. Itingen observed that Mr. Byrd had an ulcer (cellulitis) on his left lower limb for which he prescribed wound care and Bactrim DS. (R. 429).

On August 31, 2016, Dr. Itingen observed that Mr. Byrd's “feet [were] not improving. His left brace [was] working, but his right foot [was] getting worse now, as he just keeps transfering [sic] the [p]ressure and weigth [sic] from one side to other leg and this keeps causing new sores.” (R. 449). Dr. Itingen prescribed Bactrim and a brace, and opined that he did not “think that he will be able to work on his feet ever again. His feet are unable to handle it.” (R. 449).

In a narrative report to the New York State Worker's Compensation Board dated September 8, 2016, Dr. Itingen stated that Mr. Byrd's injury was cellulitis in his lower left and right legs. (R. 682-83). On September 14, 2016, Dr. Itingen observed that Mr. Byrd's ulcer on his lower left leg was “worsening” and prescribed antibiotics (Bactrim) and wound care. (R. 67980). In a narrative report to the New York State Workers' Compensation Board dated September 28, 2016, Dr. Itingen diagnosed Mr. Byrd's injury as cellulitis of the lower left leg. (R. 677-78).

On December 28, 2016, Mr. Byrd reported during a follow-up visit to Dr. Itingen that he had experienced a “sharp shooting pain into his right foot which made it difficult to sleep” but which had subsided by the time of his visit to a pain level of zero. (R. 342). Dr. Itingen observed that “[h]is ulcers are healed, ” but prescribed replacement orthopedic shoes, orthotics, a rocker sole modification, and molded calf lacer “to protect and offload his foot and allow him to ambulate safely.” (R. 344). Dr. Itingen concluded that Mr. Byrd's complaints were “consistent with the history of the injury” and that he had a “100% temporary impairment.” (R. 344).

In a narrative report to the New York State Workers' Compensation Board dated January 3, 2017, Dr. Itingen stated that Mr. Byrd's injuries were chronic ulcers on his feet, cellulitis on his right lower leg, and acquired deformities on his left leg resulting from his July 2011 injury. (R. 672-73).

On May 15, 2017, Mr. Byrd visited the emergency room at St. Luke's Cornwall Hospital, where he was diagnosed with cellulitis on his lower left leg. (R. 553-54). He stated that he had “accidentally dropped a box on his foot approximately 2 weeks prior . . . and then noticed the foot became painful, red in color and swollen.” (R. 556). He also stated that he had not taken his diabetic medications for the previous three months. (R. 563). He was admitted for treatment, and, on May 16, 2017, Dr. Smith ordered that he continue on Zosyn, ¹⁶ restart on Vancomycin, and have wound cultures performed. (R. 562, 566). After he was admitted, the ulceration on his left foot was cleaned and dressed. (R. 571, 600-01). On May 22, 2017, he was discharged “in stable medical condition, ” with “long-term IV antibiotics, ” as well as Lantus, ¹⁷ Metformin, and Glimepride. (R. 578).

16 Zosyn, also known as Piperacillin/tazobactam, “is used to treat a wide variety of bacterial infections.” Zosyn Vial - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug-16577/zosyn intravenous/details (last visited Oct. 29, 2021).

17 Lantus is known by its generic name, Insulin Glargine, and is used “to control high blood sugar in people with diabetes.” Lantus Vial - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug-20815/lantus-u-100-insulin-subeutaneous/details (last visited Oct. 29, 2021).

On August 2, 2017 and August 23, 2017, Dr. Itingen saw Mr. Byrd and opined that “[h]is foot deformity is caused by his back injury that had created a foot drop, ” resulting in a “cavovarus foot” and multiple surgeries for related complications. (R. 667, 670). Dr. Itingen directed Mr. Byrd to continue using the brace and noted that he was “permanently disabled.” (R. 667, 671).

On August 9, 2017, October 3, 2017, December 6, 2017, January 3, 2018, January 31, 2018, February 9, 2018, February 15, 2018, April 20, 2018, September 4, 2018, and February 7, 2019, Timothy Fishman, D.P.M., saw Mr. Byrd for routine wound care on his feet. (R. 689, 693710, 741-42, 762-63). On September 19, 2017, Magdalena De La Cruz, D.P.M., also performed routine wound care on Mr. Byrd's feet. (R. 691-92).

In a Medical Source Statement dated April 20, 2018, Dr. Fishman stated that Mr. Byrd could: occasionally lift up to 20 pounds; occasionally carry up to 20 pounds; sit for eight hours without interruption and in total during a work day; continuously use his hands; never use his feet; never climb stairs or ladders; never balance, stoop, kneel, crouch or crawl; never tolerate unprotected heights; occasionally tolerate moving mechanical parts, operating a motor vehicle, humidity, dust and odors, extreme cold or heat, and vibrations; tolerate “very loud” noise; perform activities like shopping; travel without assistance; ambulate without a wheelchair or crutches; use public transportation; prepare meals; care for his personal hygiene; and sort, handle, and use paper. (R. 712-17 (the “Medical Source Statement”)). Dr. Fishman stated that Mr. Byrd could not walk a block at a reasonable pace or climb a few steps, and that, because of his chronic and recurrent foot ulcers, he could not perform weight-bearing work. (R. 717).

ii. Diabetes

On July 18, 2017, Mr. Byrd presented to Manita Sawhney, D.O., to begin a course of primary care. (R. 614). Dr. Sawhney observed that Mr. Byrd had Type 2 diabetes mellitus, hyperlipidemia, and benign essential hypertension. (R. 615-16). She prescribed Victoza¹⁸ and Lisinopril. (R. 616).

18 Victoza is used “to control high blood sugar” in “people with type 2 diabetes.” Victoza 2-Pak Pen Injector - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-163054/victoza-2-pak-subcutaneous/details (last visited Oct. 29, 2021).

On August 21, 2017, Rehan Ahmad, D.O., examined Mr. Byrd following the hospitalization for his foot infection. (R. 637). Dr. Ahmad observed that Mr. Byrd had Type 2 diabetes mellitus with hyperglycemia. (R. 637). Dr. Ahmad ordered that he continue Metformin Hydrochloride, decrease the Glimepride tablet to once per day, continue the Victoza solution once per day, and start Farxiga¹⁹ once per day. (R. 637). Also on August 21, 2017, Dr. Sawhney reassessed Mr. Byrd's benign essential hypertension and Type 2 diabetes mellitus. (R. 652-53). Dr. Sawhney increased his blood pressure medication (Lisinopril) and the Victoza. (R. 653).

19 Farxiga, also known generically as Dapagliflozin, is used “to control high blood sugar in people with type 2 diabetes.” Farxiga 5 Mg Tablet Antihyperglycemic-Sod/Gluc Cotransport-2 (SGLT2) Inhibitors - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-165641/farxiga-oral/details (last visited Oct. 29, 2021).

On October 30, 2017, Mr. Byrd reported to Dr. Sawhney that he had lost 15 pounds and the wound on his left foot had closed. (R. 723). Dr. Sawhney noted that his hypertension was “not as well[-]controlled, ” and continued his Victoza, adjusted his Metformin, and refilled his Lisinopril prescriptions. (R. 724-25).

On December 6, 2017, Mr. Byrd reported that he had not been eating well, had not been checking his fasting sugars, and had not taken his blood pressure medication. (R. 728). Dr. Sawhney continued his prescriptions for Lisinopril, Metformin, Victoza, and his diabetes monitoring equipment. (R. 730).

On January 8, 2018, Dr. Ahmad saw Mr. Byrd for a follow up visit concerning his diabetes. (R. 731). Dr. Ahmad continued the prescriptions for Metformin, Victoza, and Farxiga, and started a prescription for Glimepride. (R. 731).

On January 30, 2018, Dr. Sawhney continued Mr. Byrd's prescriptions for Metformin and Victoza, and adjusted his prescription for Lisinopril. (R. 739-40). On July 30, 2018, Dr. Sawhney prescribed Mr. Byrd Vascepa, ²⁰ and continued his prescriptions for Lisinopril, Metformin, and Victoza. (R. 748).

20 Vascepa, known generically as Icosapent Ethyl, “is used along with certain other cholesterol medications . . . to reduce the risk of heart attack, stroke, and certain types of heart problems that require treatment in a hospital.” Vascepa - Uses, Side Effects, and More, WEBMD, https://www.webmd.eom/drugs/2/drug 162888/vascepa-oral/details (last visited Oct. 29, 2021).

Mr. Byrd next saw Dr. Castro on January 9, 2019. (R. 773). Dr. Castro observed that Mr. Byrd continued to have Type 2 diabetes mellitus without complications, and mixed hyperlipidemia. (R. 773). His BMI was 38.78. (R. 773). Dr. Castro restarted Mr. Byrd on Farxiga and continued Metformin. (R. 774). On February 20, 2019, Mr. Byrd returned to Dr. Castro for management of his diabetes. (R. 770-71). Dr. Castro observed that Mr. Byrd continued to have Type 2 diabetes mellitus without complications, mixed hyperlipidemia, and mild microalbuminuria. (R. 770). His BMI had decreased slightly to 37.52. (R. 770). Dr. Castro directed that Mr. Byrd continue his prescriptions of Metformin and Farxiga, and adjusted his prescription for Glimepride. (R. 771).

c. Consultative Examinations

i. David Schaich, Psy.D. - Consultative Psychiatric Examiner

On July 31, 2017, David Schaich, Psy.D., conducted a psychiatric examination of Mr. Byrd. (R. 622-25). Dr. Schaich found Mr. Byrd “cooperative” and characterized his “[m]anner of relating, social skills, and overall presentation” as “fair.” (R. 623). Dr. Schaich noted that Mr. Byrd could “dress, bathe, and groom himself; cook and prepare food; clean . . . shop, manage money, drive, and take public transportation, ” although he had “trouble doing laundry due to medical reasons.” (R. 624). Mr. Byrd described spending his days “staying in the house [a]nd watching TV.” (R. 624). Dr. Schaich concluded that Mr. Byrd had a learning disorder and adjustment disorder with anxiety, but that his psychiatric and cognitive problems did “not appear to be significant enough to interfere with [his] ability to function on a daily basis.” (R. 625). Dr. Schaich recommended that “[i]ndividual psychological therapy” and “vocational training and rehabilitation” might help Mr. Byrd. (R. 625).

ii. M. Marks, Ph.D. - Consultative Psychiatric Examiner

On July 31, 2017, M. Marks, Ph.D., conducted a psychological examination of Mr. Byrd for purposes of his SSI and DIB applications. (R. 53-54, 64-65). Dr. Marks, whose opinion is contained within the Commissioner's initial-level Disability Determination Explanations dated August 17, 2017, observed that Mr. Byrd had not been hospitalized or received outpatient treatment for any mental difficulty, “did not have any difficulty understanding, concentrating or answering, ” “was cooperative and his manner of relating was adequate, ” “demonstrated full affect, ” and that his “[a]ttention and concentration [were] intact.” (R. 54, 65). Dr. Marks noted that Mr. Byrd denied any cognitive deficits. (R. 54, 65). Although he noted that Mr. Byrd's “[c]ognitive functioning [was] estimated to be below average, ” Dr. Marks opined that, “[b]ased on the totality of the evidence, [his] psychiatric impairment [was] non-severe.” (R. 54, 65).

iii. Gilbert Jenouri, M.D. - Consultative Medical Examiner

On July 31, 2017, Gilbert Jenouri, M.D., conducted a medical assessment of Mr. Byrd. (R. 630-33). Dr. Jenouri observed Mr. Byrd's history of foot trauma, right foot pain, diabetes and diabetic foot ulcers, hypertension, and asthma, and opined that Mr. Byrd had “a mild restriction walking, standing long periods, bending, stair climbing, lifting, and carrying.” (R. 633).

iv. S. Padmaraju, M.D. - Consultative Medical Examiner

Contained in the Commissioner's August 17, 2017 initial-level Disability Determination Explanations is a consultative assessment of Mr. Byrd's residual functional capacity (“RFC”) performed by S. Padmaraju, M.D., for purposes of his SSI and DIB applications. (R. 55-59, 6670). Dr. Padmaraju concluded that Mr. Byrd could: occasionally lift or carry 20 pounds; frequently lift or carry ten pounds; stand or walk six hours in an eight-hour work day; occasionally climb ramps, stairs, ropes, or scaffolds; and occasionally stoop, kneel, crouch, or crawl. (R. 56, 67). Dr. Padmaraju noted that a January 20, 2012 EMG revealed polyneuropathy in Mr. Byrd's left leg, bilateral peroneal neuropathies, and acute right L5S1 radiculopathy. (R. 57, 68). Dr. Padmaraju observed that Mr. Byrd's “gait was antalgic” and it was difficult for him to walk on his heels and toes. (R. 57, 68).

C. Administrative Proceedings

1. The Hearing

On March 26, 2019, ALJ Werner conducted the Hearing, at which Mr. Byrd was represented by counsel, Richard LaRose. (R. 29-48). Vocational Expert (“VE”) Cindy Younger also participated in the Hearing. (R. 29, 42-47). Mr. LaRose had no objections to any of the exhibits before the ALJ, and confirmed that there was not “any outstanding evidence.” (R. 30-31).

a. Mr. Byrd's testimony

Mr. Byrd testified that he had worked in supermarkets since he was fourteen years old. (R. 36). Since he stopped working at Stop & Shop in June 2016, he worked “an hour or so at a time” daily at his father's warehouse sweeping, writing invoices, and loading and unloading trucks. (R. 37-38). At the time of the Hearing, he received wound care every Monday from Dr. Fishman. (R. 39). He took “Metformin twice a day, glimepride twice a day, FARXIGA once a day in the morning, and Victoza once a day in the morning, ” along with Lisinopril for blood pressure once per day and fish oil for cholesterol. (R. 41).

Mr. Byrd related that on March 9, 2019, he awoke to an infection in the ulceration on his right foot, for which he was admitted to St. Luke's Cornwall Hospital for a surgical debridement to remove the infection. (R. 32-33). In addition, a PICC line was inserted to administer antibiotics. (R. 33). At the Hearing, Mr. Byrd wore a CAM walker on his right foot, and a metal brace on his left foot. (R. 35). He indicated that for “[a]nything more than just a minute on [his] feet, [he has] the braces on.” (R. 36).

b. VE testimony

VE Younger prepared a Work History Evaluation report, in which she classified Mr. Byrd's past work as “FOOD CLERK, deli, ” Dictionary of Occupational Titles (“DOT”)²¹ code 290.477-018, a light²² category, semi-skilled position. (R. 295). At the Hearing, the report was admitted into evidence, and VE Younger confirmed that no additions or corrections were necessary. (R. 42).

21 The DOT is “an accepted basis for vocational opinion according to the Commissioner's rules.” Henry v. Colvin, 12 Civ. 6822 (KBF), 2015 WL 9238959, at *7 n.7 (S.D.N.Y. Dec. 17, 2015) (citing Brault v. Comm'r Soc. Sec. Admin., 683 F.3d 443, 446 (2d Cir. 2012)).

22 The regulations provide that “[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b).

ALJ Werner then posed two hypothetical to VE Younger. (R. 43-46). In the first hypothetical (the “First Hypothetical”), ALJ Werner asked VE Younger to:

assume an individual with the residual functional capacity to lift and/or car[ry] push and/or pull 20 pounds occasionally, 10 pounds frequently, he can sit with normal breaks for a total of six hours per eight-hour workday, stand and/or walk with normal breaks for a total of two hours per eight-hour workday . . . he could occasionally climb ramps and stairs, he could never climb ladders, ropes or scaffolds, he could occasionally balance, stoop, kneel, crouch and crawl.... he could tolerate exposure to extreme cold, extreme heat, humidity and wetness. He must avoid hazards such as unprotected heights. And moving mechanical parts.

(R. 43). When asked whether this hypothetical individual could perform Mr. Byrd's past work, VE Younger testified all light-category positions, including Mr. Byrd's past work, were “precluded” due to the “two-hour stand/walk” limitation. (R. 43-44). ALJ Werner then asked whether there was any other work the hypothetical individual could perform, and VE Younger stated that the hypothetical individual could perform the following positions:

● Bonder electronic components, DOT code 726.685-066, a sedentary, ²³ unskilled position of which there were approximately 110, 000 in the national economy;

● Printed circuit board assembler, DOT code 726.684-110, a sedentary, unskilled position of which there were approximately 267, 010 in the national economy; and

● Patcher or wire wrapper, DOT code 723.687-010, a sedentary, unskilled position of which there were approximately 280, 160 in the national economy.

(R. 44). VE Younger confirmed that her testimony was consistent with the DOT. (R. 44).

23 The regulations provide that “[s]edentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).

ALJ Werner then posed a second hypothetical individual (the “Second Hypothetical”):

with the residual functional capacity to lift, push and pull 20 pounds occasionally, he could sit with normal breaks for a total of eight hours per eight-hour workday and he could stand and/or walk with normal breaks for a total of zero hours per eight-hour work day . . . he could never climb ramps and stairs, he could never climb ladders, ropes, or scaffolds, he could never balance, stoop, kneel, crouch or crawl . . . he could tolerate occasional exposure to moving technical parts, humidity, wetness, extreme cold and extreme heat, as well as vibrations [and] he must avoid unprotected heights.

(R. 44-45). VE Younger responded that such an individual could not perform Mr. Byrd's past work, nor the jobs she identified in response to the First Hypothetical, and that her testimony was consistent with the DOT. (R. 45 (“Standing and walking zero, I wouldn't have any occupations.”). ALJ Werner then asked VE Younger to return to the First Hypothetical, with the additional assumption that the individual “would be absent two or more times on a continuing basis each month.” (R. 45). VE Younger responded that “[a]ll work would be precluded” for such an individual. (R. 45). VE Younger added that 30 minutes to an hour of standing and walking was “necessary for work on a sedentary basis of employment.” (R. 46). ALJ Werner then asked whether, “if Mr. Byrd were required to be off task for 90 minutes to 120 minutes per day, ” any jobs would be available to him, and VE Younger responded, based on her “30-plus years [of] rehab experience, ” that “90 to 120 minutes per day would preclude all work.” (R. 46-47).

2. The ALJ Decision and Appeals Council Review

On April 24, 2019, ALJ Werner issued his Decision holding that Mr. Byrd had not been under a disability from the Onset Date and denying Mr. Byrd SSI and DIB benefits. (R. 19-20).

ALJ Werner followed the five-step disability determination process. At step one, ALJ Werner found that Mr. Byrd had not engaged in substantial gainful activity since the alleged Onset Date. (R. 12). At step two, ALJ Werner found that Mr. Byrd had five severe impairments: obesity; diabetes mellitus; hypertension; recurrent bilateral foot ulcers; and right foot dysfunction status post fracture. (R. 13-14).

At step three, ALJ Werner found that Mr. Byrd did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in the Act. (R. 14). (The impairments listed in 20 CFR Appendix 1, Subpart P, Part 404 are known as the “Listings.”). With respect to Listing 1.02 for major dysfunction of a joint, the ALJ found that Mr. Byrd's right foot dysfunction was not “an ‘extreme' limitation in the ability to ambulate ....” (R. 14).²⁴ As to Listing 8.04 for chronic infection of skin or mucous membranes, the ALJ noted that Mr. Byrd has used “offloading footwear to address recurrent ulcers on the bottom of his feet, ” but found that “the record fail[ed] to demonstrate that the ulcers have persisted for at least 3 months despite continuing treatments as prescribed.” (R. 14).²⁵ The ALJ also noted that Mr. Byrd had “been at least somewhat noncompliant with instructions while his ulcers heal.” (R. 14 (citing R. 706)).

24 Listing 1.02 “define[d] major dysfunction of a joint as a dysfunction characterized ‘by gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s).'” Schildwachter v. Berryhill, No. 17 Civ. 7177 (VEC) (SN), 2019 WL 1116256, at *3 (S.D.N.Y. Feb. 8, 2019) (quoting 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.02)). Claimants alleging that ailments fell under Listing 1.02 must also show either (1) “[i]involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;” or (2) “[i]nvolvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.” Lopez v. Berryhill, 448 F.Supp.3d 328, 347 (S.D.N.Y. 2020). The Court notes that Listing 1.02 was eliminated as of April 2, 2021. See 20 C.F.R. Part 404, Subpart P, Appendix 1. Because it was in effect at the time of the ALJ's Decision, however, it still controls for purposes of the Court's analysis. See Lowry v. Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir. 2012) (applying Listing “in effect when the ALJ adjudicated [the challenged] disability claim”); Kiser v. Saul, 821 Fed.Appx. 211, 213 n.1 (4th Cir. 2020) (“the version of the listings in effect as of the date of the Commissioner's final decision controls.”); Distefano v. Berryhill, 363 F.Supp.3d 453, 466 n.5 (S.D.N.Y. 2019) (“Although the listings have since been revised, [courts] apply the listings that were in effect at the time the ALJ rendered his decision.”).

25 Listing 8.04 encompasses “[c]hronic infections of the skin or mucous membranes, with extensive fungating or extensive ulcerating skin lesions that persist for at least 3 months despite continuing treatment as prescribed.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 8.04.

ALJ Werner then assessed Mr. Byrd's RFC as being able to:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) in that [he] is able to lift and/or carry/push and/or pull 20 pounds occasionally, 10 pounds frequently. He can sit, with normal breaks, for a total of 6 hours per 8-hour workday, and stand and/or walk, with normal breaks, for a total of 2 hours per 8-hour workday. He can occasionally climb ramps and stairs, and never climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He can tolerate occasional exposure to extreme cold, extreme heat, humidity, and wetness. He must avoid hazards such as unprotected heights and moving mechanical parts.

(R. 15). ALJ Werner concluded that, while Mr. Byrd's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Mr. Byrd's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ....” (R. 16). Although noting that Mr. Byrd is obese and has Type 2 diabetes, ALJ Werner noted that he takes “Victoza and Metformin to control his blood glucose levels, ” and that there was “no evidence of any end organ damage or complications that would result in significant functional limitations.” (R. 16). Similarly, as to Mr.

Byrd's hypertension, the ALJ noted that he takes Lisinopril and has no “end organ damage or complications.” (R. 16). Despite Mr. Byrd's “significant history of left foot ulcers and wound debridement, ” ALJ Werner noted that Mr. Byrd wears orthotics and braces, custom boots, and “continue[d] to work on his feet against medical advice.” (R. 16). In addition, the ALJ referred to treatment notes reflecting that Mr. Byrd had more recently been able to “exercise more, ” was “‘doing much better, '” had a “normal gait and station, ” and had “no muscle atrophy.” (R. 16-17 (citing R. 746, 770)). While acknowledging that these conditions “may cause his pain or other difficulties, ” ALJ Werner concluded that Mr. Byrd's “symptoms are not entirely consistent with the level of severity” Mr. Byrd portrayed at the Hearing, and thus, “despite his impairments, [Mr. Byrd] retain[ed] the capacity to perform work that is consistent with the [RFC] assessment.” (R. 17).

As to the medical opinions in the Record, ALJ Werner declined to “defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding(s) or medical opinion(s).” (R. 17). ALJ Werner found persuasive the opinions of Dr. Marks and Dr. Schaich that Mr. Byrd's mental impairments were non-severe. (R. 17). ALJ Werner found not persuasive the opinion of Dr. Padmaraju that Mr. Byrd could perform a range of light exertional work given the evidence that Mr. Byrd “requires the use of protective boots.” (R. 17). ALJ Werner also found not persuasive the opinion of Dr. Jenouri because it was “vague and not stated in vocational terms.” (R. 18). The ALJ found Dr. Fishman's opinion to be “partially persuasive.” (R. 18). Specifically, ALJ Werner rejected Dr. Fishman's opinion that Mr. Byrd cannot stand and walk at all, given the evidence that he ambulates independently and his own reports of his daily activities, but found persuasive Dr. Fishman's opinion that Mr. Byrd should be limited to less than six hours standing and walking, because Mr. Byrd's continuing foot ulcers “would require a reduction in the amount of time he can stand and walk during the workday.” (R. 18). ALJ Werner also found not persuasive Dr. Itingen's opinion that Mr. Byrd was disabled, on the grounds that the issue of disability was reserved to the Commissioner. (R. 18). The ALJ also found that Dr. Itingen's opinion that Mr. Byrd “cannot work on his feet is not consistent with the medical evidence of record, and not consistent with [Mr. Byrd]'s testimony.” (R. 18). Accordingly, ALJ Werner found that Mr. Byrd was “capable of performing work consistent with the” RFC set forth above. (R. 18).

At step four, ALJ Werner concluded that Mr. Byrd was unable to perform his past relevant work as a “food clerk, deli.” (R. 18). At step five, ALJ Werner concluded, based on the testimony of VE Younger, “that, considering [Mr. Byrd's] age, education, work experience, and [RFC], [he] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy[, ]” and, therefore, Mr. Byrd was not disabled. (R. 19).

On April 28, 2020, the Appeals Council denied Mr. Byrd's request for review of ALJ Werner's decision. (R. 1-5).

III. DISCUSSION

A. Legal Standards

1. Standard of Review

Under Rule 12(c), a party is entitled to judgment on the pleadings if he establishes that no material facts are in dispute and that he 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), 416.912(b). Ultimately, “[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine the claimant's residual functional capacity.” 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, 416.920b.

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, 168 F.3d at 82-83 (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)).

2. Eligibility for benefits

For purposes of SSI and 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) and 20 C.F.R. § 416.920(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 residual functional capacity 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).

3. Evaluation of medical opinion evidence

For benefits applications filed before March 27, 2017, the SSA's regulations required an ALJ to give more weight to those physicians with the most significant relationship with the claimant. See 20 C.F.R. §§ 404.1527, 416.927; see also Taylor v. Barnhart, 117 Fed.Appx. 139, 140 (2d Cir. 2004). Under this “Treating Physician Rule, ” an ALJ was required to “give good reasons” (20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)) if he or she determined that a treating physician's opinion was not entitled to “controlling weight, ” or, “at least greater weight” than the opinions of non-treating and non-examining sources. Gonzalez v. Apfel, 113 F.Supp.2d 580, 588-89 (S.D.N.Y. 2000); see Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019). In addition, under the Treating Physician Rule, a consultative physician's opinion was generally entitled to “little weight.” Giddings v. Astrue, 333 Fed.Appx. 649, 652 (2d Cir. 2009).

On January 18, 2017, the SSA published comprehensive revisions to the regulations regarding the evaluation of medical evidence, revisions that were effective on March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017) (available at 2017 WL 168819). These new regulations reflect a move away from a perceived hierarchy of medical sources. See id. The regulations now provide that an ALJ need “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.”²⁶ 20 C.F.R. §§ 404.1520c(a), 416.920c(a); see Young v. Kijakazi, No. 20 Civ. 3604 (SDA), 2021 WL 4148733, at *9 (S.D.N.Y. Sept. 13, 2021). Instead, an ALJ must consider all medical opinions in the record and “evaluate the[ir] persuasiveness” based on five “factors[:]” (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) any “other” factor that “tend[s] to support or contradict a medical opinion.” 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).

26 The new regulations define “prior administrative medical finding” as:

A finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 404.900) in your current claim based on their review of the evidence in your case record, such as: (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 303, Subpart P, Appendix 1; (iv) Your residual functional capacity; (v) Whether your impairment(s) meets the duration requirement; and (vi) How failure to follow prescribed treatment (see § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim.

20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5).

The ALJ's duty to articulate a rationale for each factor varies. 20 C.F.R. §§ 404.1520c (b), 416.920c (b). Under the new regulations, the ALJ must “explain, ” in all cases, “how [he or she] considered” both the supportability and consistency factors, as they are “the most important factors.” Id. §§ 404.1520c(b)(2), 416.920c(b)(2); see Young, 2021 WL 4148733, at *9 (describing supportability and consistency as “the most important” of the five factors). As to supportability, “the strength of a medical opinion increases as the relevance of the objective medical evidence and explanations presented by the medical source increase.” Vellone v. Saul, No. 20 Civ. 261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (citing 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)). Consistency “is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Id.; see 42 U.S.C. § 423(f) (requiring ALJ to base decision on “all the evidence available in the” record).

As to the three remaining factors-relationship with the claimant, specialization, and “other”-the ALJ is required to consider, but need not explicitly discuss, them in determining the persuasiveness of the opinion of a medical source. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). If the ALJ finds two or more medical opinions to be equally supported and consistent with the record, but not identical, the ALJ must articulate how he or she considered those three remaining factors. Id. §§ 404.1520c(b)(3), 416.920c(b)(3).

Thus, “[a]lthough the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning ‘weight' to a medical opinion, the ALJ must still ‘articulate how [he or she] considered the medical opinions' and ‘how persuasive [he or she] find[s] all of the medical opinions.'” Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quoting 20 C.F.R. §§ 404.1520c(a), (b)(1); 416.920c(a), (b)(1)). “The ALJ need not discuss all of the factors described in the regulations, but must, as to each opinion or prior administrative medical finding, ‘explain how [he or she] considered the supportability and consistency factors.” Rivera v. Comm'r of Soc. Sec., No. 19 Civ. 4630 (LJL) (BCM), 2020 WL 8167136, at *14 (quoting 20 C.F.R. § 416.920c(b)(2)). “If the ALJ fails adequately to ‘explain the supportability or consistency factors,' or bases [his] explanation upon a misreading of the record, remand is required.” Id. (quoting Andrew G., 2020 WL 5848776, at *9)).

Several opinions among the district courts within the Second Circuit applying the new regulations have concluded that “the factors to be considered in weighing the various medical opinions in a given claimant's medical history are substantially similar” to the former Treating Physician Rule. Acosto Cuevas v. Comm'r of Soc. Sec., No. 20 Civ. 502 (AJN) (KHP), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021) (surveying district court cases in the Second Circuit considering the new regulations); see Prieto v. Comm'r of Soc. Sec., No. 20 Civ. 3941 (RWL), 2021 WL 3475625. At *9 (S.D.N.Y. Aug. 6, 2021) (noting that under both the Treating Physician Rule and the new regulations, “an ALJ's failure to properly consider and apply the requisite factors is grounds for remand”); Dany Z. v. Saul, No. 2:19-CV-217, 2021 WL 1232641, at *11 (D. Vt. Mar. 31, 2021) (surveying Second Circuit district courts that “have concluded that the factors are very similar to the analysis under the old [Treating Physician] [R]ule”); Andrew G., 2020 WL 5848776, at *5 (noting that “consistency and supportability” were “the foundation of the treating source rule”); see also Brianne S. v. Comm'r of Soc. Sec., No. 19-CV-1718-FPG, 2021 WL 856909, at *5 (W.D.N.Y. Mar. 8, 2021) (remanding to ALJ with instructions to provide explicit discussion of supportability and consistency of two medical opinions, because ALJ's “mere[] state[ment]” that examining physician's opinion was not consistent with overall medical evidence was insufficient).

4. 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-i.e., an impairments that can be shown by “medically acceptable clinical and laboratory diagnostic techniques”-that “could reasonably be expected to produce [the claimant's] symptoms.” 20 C.F.R. §§ 404.1529(c), 416.929(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 [those] symptoms, such as affect, affect [the claimant's] capacity to perform basic work activities.” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).

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 (2d Cir. 2010). “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 v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (declining to review ALJ's credibility finding where the ALJ “set forth specific reasons why she found [the plaintiff'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 v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). 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., 2020 WL 8167136, at *20.

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), 416.929(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. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3) (i)-(vii). If the ALJ does not follow these steps, remand is appropriate. Sanchez, 2010 WL 101501, at *15.

B. Application

1. The ALJ's RFC Assessment

a. The Parties' Arguments

i. Mr. Byrd's Arguments

Mr. Byrd argues that the ALJ failed to cite “medical evidence in support of his RFC determination, ” and failed to “explain, as required by law, what he means by Mr. Byrd's symptoms not being consistent with his testimony, or what the other ‘mitigating factors' are that he says may have a negative impact on his ability to work.” (ECF No. 16 at 13). Mr. Byrd also contends that it was error for the ALJ to “fail[] to point to any medical opinion to contradict Dr. Fishman's opinion regarding Mr. Byrd's inability to stand and/or walk during an 8 hour workday[, ]” particularly given that Dr. Fishman was “Mr. Byrd's longtime Principal Medical Source.” (Id. at 14). Mr. Byrd asserts that ALJ Werner erred by improperly “substituting] his own judgment for competent medical opinion.” (Id.)

ii. The Commissioner's Arguments

The Commissioner responds by summarizing the Record evidence that supports the ALJ's assessment of Mr. Byrd's RFC. (ECF No. 19 at 20-22). The Commissioner then points out that it was Mr. Byrd's burden to introduce evidence showing that his RFC was more restrictive than the ALJ's finding, and at this stage, it remains Mr. Byrd's burden to “show that no reasonable factfinder could have reached the ALJ's conclusion based on the evidence in the record.” (ECF No. 19 at 22-23 (citing Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) and Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)). The Commissioner also points out that, under the new regulations, the ALJ “‘will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . including those from [the claimant's own] medical sources.'” (ECF No. 19 at 23 (quoting 20 C.F.R. §§ 404.1520c(a), 416.920c(a))).

b. Analysis

The RFC determination represents “the most [a claimant] can still do despite [his] limitations, ” based on all the relevant evidence in the record. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The Court finds that the ALJ did consider the totality of the Record evidence in determining Mr. Byrd's RFC, and that the Record supports the ALJ's determination.

First, in reaching his RFC determination, ALJ Werner analyzed the records of Mr. Byrd's treating physicians. For example, citing the records of Drs. Castro and Sawnhey, the ALJ acknowledged Mr. Byrd's obesity, diabetes, and hypertension, but noted that there was no evidence in the Record indicating that the impairments caused any “complications that would result in significant functional limitations.” (R. 16 (citing R. 747, 770)). Mr. Byrd does not dispute this finding, much less identify evidence to undermine it. The ALJ also summarized the treatment records relating to Mr. Byrd's foot impairments in determining his RFC. (R. 16-17). While recognizing the “significant history of left foot ulcers and wound debridement” and history of “bilateral peripheral neuropathy, ” the ALJ noted that Mr. Byrd has been “prescribed an ankle and foot orthoses (AFO) brace for his right foot[, ] . . . wears a brace on his left foot, ” along with “boots” for both feet. (R. 16 (citing R. 645, 720, 773)). The ALJ observed that later treatment notes showed that Mr. Byrd had been able to exercise more and was “‘doing much better, '” such that he had “normal gait and station.” (R. 16-17 (citing R. 746, 770)). The ALJ also noted that, despite his conditions, Mr. Byrd continued to work on his feet, contrary to his physicians' instructions. (R. 16 (citing R. 706)).

Second, the ALJ relied on the findings of consultative sources who examined Mr. Byrd. (R. 17-18). For example, ALJ Werner pointed to Dr. Jenouri's July 31, 2017 consultative physical examination of Mr. Byrd, which showed “full strength in his upper and lower extremities” and “no muscle atrophy.” (R. 17 (citing R. 632)). Although Dr. Jenouri observed an antalgic gate and a reduced range of motion in his right foot due to the healed fracture (R. 17 (citing R. 631)), the ALJ noted that more recent (2019) records showed “normal gait and station.” (R. 17 (citing R. 770)).

Third, the ALJ relied on Mr. Byrd's own statements about his daily activities, which included independent ambulation, doing laundry, caring for his girlfriend's young daughter, going for walks, preparing his own breakfast and lunch, and shopping. (R. 18 (citing R. 208-19)). ALJ Werner also referenced Dr. Fishman's notes from a February 15, 2018 appointment, at which Mr. Byrd reported spending several hours a day on his feet at work on a regular basis. (R. 16 (citing R. 706)). Similarly, the ALJ noted Mr. Byrd's Hearing “testimony that he still tries to help his dad in his vending business for short period on a daily basis doing such tasks as sweeping his warehouse and loading boxes.” (R. 18; see R. 37-38).

In addition, the ALJ properly evaluated Dr. Fishman's Medical Source Statement under the new regulations. With respect to consistency, 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2), the ALJ noted that Dr. Fishman's opinion that Mr. Byrd “cannot stand and walk at all is not consistent with records showing that, even during periods in which he is experiencing an ulcer on one or both feet, he has been able to ambulate independently[, ]” and Mr. Byrd's own reports of his daily activities. (R. 18 (citing R. 208-19); see R. 37-38). The ALJ went on to find Dr. Fishman's opinion persuasive as to limiting Mr. Byrd's standing and walking to less than six hours. (R. 18). The ALJ did what the regulations require-“assess [Dr. Fishman's] medical opinion's consistency with other evidence in the [R]ecord.” Young, 2021 WL 4148733, at *10. The Court finds that the ALJ sufficiently “discharged his regulatory obligation to ‘explain how [h]e considered the supportability and consistency factors'” with respect to Dr. Fishman's opinion in the Medical Source Statement. Id. at *11 (quoting 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2)).

Finally, contrary to Mr. Byrd's assertion (ECF No. 16 at 13), the ALJ was not required to introduce evidence to support the RFC determination, given that it was Mr. Byrd's burden to introduce evidence to show that his RFC was more limited than the ALJ determined. See Poupore, 566 F.3d at 306 (explaining that “the Commissioner need only show that there is work in the national economy that the claimant can do; [s]he need not provide additional evidence of the claimant's residual functional capacity”); Villalobo v. Saul, No. 19 Civ. 11560 (CS) (JCM), 2021 WL 830034, at *16 (S.D.N.Y. Feb. 9, 2021) (“It is ultimately the claimant's burden to prove that Plaintiff should have a more restrictive RFC than the one assessed by the ALJ.”) (citing Smith v. Berryhill, 740 Fed.Appx. 721, 726 (2d Cir. 2018)). Mr. Byrd did not carry his burden, and, accordingly, the Court declines to disturb the ALJ's RFC determination that Mr. Byrd was capable of performing the sedentary work in the RFC.

This Record, taken as a totality, contains substantial evidence supporting the ALJ's determination that Mr. Byrd was able to perform the sedentary work described in the RFC. (R. 15). See Ponzini v. Comm'r of Soc. Sec., No. 20 Civ. 2522 (LJL), 2021 WL 4441512, at *8-10 (S.D.N.Y. Sept. 28, 2021) (holding that substantial evidence supported ALJ's determination that claimant had RFC to perform a limited range of sedentary work). Mr. Byrd's disagreement with that determination or his belief that ALJ Werner failed to discuss other Record evidence is unavailing. (ECF No. 16 at 12-14). “[I]t is well-settled that an ALJ need not discuss their analysis of each piece of evidence in the administrative record.” Cruz ex rel. Aet v. Saul, No. 20 Civ. 1045 (CS) (JCM), 2021 WL 3375614, at *11 (S.D.N.Y. June 30, 2021) (citing Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012)).

2. The ALJ's Step Five Finding of Disability

a. The Parties' Arguments

i. Mr. Byrd's Arguments

Mr. Byrd argues that “the ALJ's step five finding of disability is not based upon substantial evidence” because the First Hypothetical-which tracked ALJ Werner's ultimate RFC determination-did not accurately reflect Mr. Byrd's limitations. (ECF No. 16 at 14-17 (capitalization omitted)). More specifically, Mr. Byrd takes issue with ALJ Werner's rejection of Dr. Fishman's “opinion regarding Mr. Byrd's standing and walking capability” in determining his RFC. (Id. at 16). Mr. Byrd notes that, in response to the ALJ's Second Hypothetical, which “mirrored Dr. Fishman's opinion, ” VE Younger stated that no occupations would exist. (Id. at 1617 (citing R. 45)). Mr. Byrd asserts that the ALJ should have accepted Dr. Fishman's opinion as the “Principal Medical Source, ” and, had he done so, would have concluded that Mr. Byrd was unable to work. (Id. at 17) Accordingly, Mr. Byrd contends that ALJ Werner's conclusion at step five that he was not disabled “is not supported by substantial evidence.” (Id.)

ii. The Commissioner's Arguments

The Commissioner maintains that the ALJ's Second Hypothetical did mirror the RFC determination, and thus, Mr. Byrd is simply repeating his disagreement with the ALJ's RFC. (ECF No. 19 at 28-29). The Commissioner contends that “the ALJ properly evaluated Dr. Fishman's opinion in accordance with the regulations, and his RFC finding was supported by substantial evidence in the [R]ecord.” (Id. at 29)

b. Analysis

“Under the law of this Circuit and the SSA Guidelines, the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden.” Lacava v. Astrue, No. 11 Civ. 7727 (WHP) (SN), 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012), adopted by, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012)). Courts in this Circuit have noted that the DOT is outdated, but “continue to consider the DOT a permissible source for disability adjudications.” Vicari v. Colvin, No. 13 Civ. 7148 (PGG) (RLE), 2016 WL 11482254, at *22 (S.D.N.Y. June 22, 2016) (internal quotation omitted), adopted by, 2016 WL 5660391 (S.D.N.Y. Sept. 30, 2016); Dennison v. Berryhill, No. 17-CV-1059F, 2019 WL 2088506, at *9 (W.D.N.Y. May 13, 2019) (“[T]he VE's reliance on the DOT, despite not having been updated in more than 25 years, remains an accepted basis for vocational opinion according to the Commissioner's rules.”) (internal quotation and citation omitted). “An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as there is substantial record evidence to support the assumption[s] upon which the vocation expert based his opinion, and [the hypothetical] accurately reflect[s] the limitations and capabilities of the claimant involved.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (internal quotations and citations omitted); see Gray v. Astrue, No. 1:006-CV-456(NAM), 2009 WL 790942, at * 14 (N.D.N.Y. Mar. 20, 2009) (“A hypothetical question that does not present the full extent of a claimant's impairments cannot provide a sound basis for vocational expert testimony.”) (citing Bosmond v. Apfel, No. 97 Civ. 4109 (RPP), 1998 WL 851508, at *8 (S.D.N.Y. Dec. 8, 1998)). “Where [] an ALJ relies on the experience of the vocational expert and the DOT, the ALJ has met his or her burden at step five of the sequential analysis.” Johnson v. Saul, No. 3:19CV01222(SALM), 2020 WL 6562402, at *13 (D. Conn. Nov. 9, 2020).

Contrary to the Commissioner's argument, the ALJ's Second Hypothetical did not mirror the RFC determination; rather, it mirrored Dr. Fishman's Medical Source Statement insofar as it contemplated that Mr. Byrd could not stand or walk for any duration during the workday. (Compare R. 44 (ALJ stating that Second Hypothetical individual “could stand and/or walk with normal breaks for a total of zero hours per eight-hour workday”) with R. 713 (Dr. Fishman opining that Mr. Byrd could stand or walk for zero hours per day)). As noted above, however, the ALJ correctly analyzed that portion of Dr. Fishman's opinion as inconsistent with other evidence in the Record of Mr. Byrd's ability “to ambulate independently.” (R. 18 (citing R. 208-19); see also R. 16-17 (noting subsequent treatment records showing that Mr. Byrd was “doing much better” and “exhibited normal gait and station”) (citing R. 746, 770)). Thus, although the VE testified that no jobs were available for the individual in Second Hypothetical, that scenario was not the RFC that the ALJ had assessed for Mr. Byrd -i.e., that Mr. Byrd could ambulate for a total of two hours per workday (R. 15)-and therefore, did not provide a basis to find Mr. Byrd disabled. Furthermore, the RFC did not include an attendance limitation, and therefore, VE Younger's testimony that the individual in the First Hypothetical who was also absent twice or more per month would have no available positions (R. 45) was not determinative, particularly given the absence in the Record of evidence that Mr. Byrd would have such attendance issues. See Cruz-Piris v. Saul, No. 19 Civ. 2366 (PED), 2020 WL 2570824, at *11 (S.D.N.Y. May 21, 2020) (affirming RFC assessment that did not include an attendance limitation where the “plaintiff point[ed] to no evidence in the record which would support her claim that she would be absent at least one and a half days per month”). In short, Mr. Byrd's challenge to the ALJ's “step five finding” is simply a recast of his challenge to the RFC determination and does not undermine the ALJ's conclusion that he was not disabled.

3. The ALJ's Assessment of Mr. Byrd's Credibility

a. The Parties' Arguments

i. Mr. Byrd's Arguments

Mr. Byrd argues that, although ALJ Werner cited the correct standard-20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii)-in evaluating Mr. Byrd's symptoms, he “fail[ed] to fully explain how the factors are applied to the evidence, ” such that the ALJ's analysis is “largely conclusory and not supported by substantial evidence.” (ECF No. 16 at 18). Mr. Byrd contends that the ALJ “substitute[ed] his opinion for that of competent medical opinion, ” and engaged in improper “picking and choosing from reports and imaging that suit[ed] his narrative of not disabled.” (Id. at 19). Mr. Byrd takes issue with the ALJ's rejection of Mr. Byrd's testimony about his pain, arguing that the ALJ failed to provide sufficient specificity “to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his determination is supported by substantial evidence.” (Id. at 20 (citation omitted)). As to the ALJ's finding that Dr. Itingen's opinion that Mr. Byrd was not disabled was not persuasive, Mr. Byrd argues that the ALJ failed to give “good reasons” for not affording weight to a treating physician's opinion and therefore, remand is appropriate. (Id.)

ii. The Commissioner's Arguments

The Commissioner responds by pointing to evidence showing that Mr. Byrd's “claims of disabling symptoms and limitations were inconsistent with treatment notes from [his] treating providers.” (ECF No. 19 at 26 (citing R. 15-16)). The Commissioner also notes that the “ALJ ultimately ha[d] the discretion to evaluate the consistency of [Mr. Byrd's] statements with the [R]ecord and arrive at an independent judgment, in light of the medical and other evidence, regarding the true extent of the pain or symptoms alleged.” (Id. at 27 (citing Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)). Because the ALJ “articulated good reasons” for concluding that Mr. Byrd's assertions were inconsistent with the Record, the Commissioner argues that the ALJ's finding should not be disturbed. (Id.) As to Dr. Itingen's opinion, the Commissioner points out that the new regulations deem statements on issues such as whether a claimant is disabled to be “‘inherently neither valuable nor persuasive'” to the issue of whether a claimant is disabled, and do not require the ALJ to set forth his analysis of how he considered that evidence. (Id. at 25 (quoting 20 C.F.R. §§ 404.1520b(c), 416.920b(c))).

b. Analysis

The ALJ acknowledged that the medical evidence “does not dispute that [Mr. Byrd] has conditions, which singly or in combination, may cause his pain or other difficulties, ” but found that Mr. Byrd's “statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not entirely consistent with the medical evidence and other evidence in the [R]ecord[.]” (R. 16-17). The ALJ went on to note that Mr. Byrd had reported a sharp pain in his left leg and foot, accompanied by discharge, for which he underwent wound debridement. (R. 16 (citing R. 322, 340)). The ALJ also noted Mr. Byrd's “significant history” of ulcers on his left foot, for which he underwent debridement, as well as the fracture in his right foot and bilateral neuropathy in his lower extremities, and that, as of 2019, Mr. Byrd continued to see a podiatrist for his foot ulcers. (R. 16-17 (citing 310-38, 353, 365, 421, 680, 685)). The ALJ found, however, that Mr. Byrd wore braces and boots on both feet, with which he admittedly “continue[d] to work on his feet against medical advice, ” and that with these treatments, Mr. Byrd had “been able to exercise more” and was “doing much better” with a “normal gait and station.” (R. 16-17 (citing R. 645, 706, 720, 746, 770, 773)). Accordingly, the ALJ ultimately found that Mr. Byrd's “symptoms [were] not entirely consistent with the level of severity assumed by [his] testimony at the [H]earing and may have other mitigating factors against their negative impact on [his] ability to engage in work activity.” (R. 17).

Mr. Byrd's complaint about the ALJ's findings in this respect represent a challenge to the ALJ's assessment of his credibility in his description of his pain and symptoms. The function of this Court's review, however, is not “‘to resolve evidentiary conflicts and to apprise the credibility of witnesses, including the claimant'”; that function is reserved to the Commissioner. Martes v. Comm'r of Soc. Sec., 344 F.Supp.3d 750, 759 (S.D.N.Y. 2018) (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (internal citation omitted)). It is the province of the ALJ, “after weighing objective medical evidence, the claimant's demeanor, and other indicia of credibility . . . [to] decide [whether] to discredit the claimant's subject estimation of the degree of impairment.” Tejada v. Apfel, 167 F.3d 770, 775-76 (2d Cir. 1999). “In performing this function, the Commissioner's regulations state that [she] ‘will consider all of the available evidence, including [a claimant's] medical history, the medical signs and laboratory findings, and statements about how [the claimant's] symptoms affect [him or her], '” in determining “the credibility of a claimant's allegations about ‘the intensity and persistence of [his or her] symptoms.'” Martes, 344 F.Supp.3d at 762 (emphasis omitted) (quoting 20 C.F.R. §§ 404.1529(a), 416.929(a)). The regulations also provide that the Commissioner “will not reject [a claimant's] statements about the intensity and persistence of [their] pain or other symptoms or about the effect [the claimant's] symptoms have on [their] ability to work solely because the available objective medical evidence does not substantiate [the claimant's] statements.” 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).

The ALJ did not run afoul of this regulation. In addition to the objective medical evidence, the ALJ considered Mr. Byrd's course of treatment over nearly eight years, the opinions of the providers and the consultative examiners, and Mr. Byrd's testimony, and, in his discretion, determined that, even though Mr. Byrd suffered from ongoing “pain or other difficulties, ” that, despite Mr. Byrd's testimony, did not prevent him from performing the sedentary work described in the RFC. (R. 17). This was a permissible credibility determination by the ALJ that this Court declines to disturb. Martes, 344 F.Supp.3d at 763 (rejecting claimant's challenge to ALJ's credibility determination where “the ALJ considered the evidence and determined that, although [the claimant] suffered ongoing pain, that pain did not prevent him from performing sedentary work”). The ALJ identified several “specific [R]ecord-based reasons” for not fully crediting Mr. Byrd's subjective statements, Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010), including Mr. Byrd's ability “to ambulate independently, ” his reported daily activities, and his daily work “for short periods on a daily basis” at his father's warehouse. (R. 17-18). Thus, the ALJ Decision reflects a “detailed review of the [R]ecord” that was not “‘conclusory' in any way.” Pappas v. Saul, 414 F.Supp.3d 657, 681 (S.D.N.Y. 2019); see Morales v. Berryhill, 484 F.Supp.3d 130, 150 (S.D.N.Y. 2020) (upholding ALJ's decision that included “several pages of analysis” supporting ALJ's determination not to fully credit claimant's statements regarding her conditions). The ALJ also accounted for the continuing limitations resulting from Mr. Byrd's foot ulcers by incorporating into the RFC a “reduction” in the number of hours Mr. Byrd can sit or stand during the workday. (R. 18). Accordingly, the Court finds that “there is no basis upon which to second guess the ALJ's credibility determination.” Harrison v. Berryhill, No. 16 Civ. 7220 (KMK), 2019 WL 580748, at *6 (S.D.N.Y. Feb. 13, 2009); see Wright v. Berryhill, 687 Fed.Appx. 45, 49 (2d Cir. 2017) (upholding ALJ's finding that claimant had “diminished credibility” given his “range of activities, ” “conservative course of . . . treatment, ” performance of “physical labor in close temporal proximity to the dates of claimed disability, ” and “readiness and ability to work in connection with his receipt of unemployment benefits”).

In addition, the Court finds that substantial evidence supports the Commissioner's credibility determination. Pappas, 414 F.Supp.3d at 681. Mr. Byrd testified that with wearing his leg braces and boots, his discomfort and ambulation had “gotten a little bit better.” (R. 35). He also stated that he was able to work for brief periods on daily basis, and longer when the ulcerations were not flaring, at his father's warehouse doing manual tasks such as sweeping and loading boxes. (R. 37-38). Aside from the temporary PICC line for antibiotics due to the infection from which he was recovering at the time of the Hearing, Mr. Byrd did not describe taking any regular medications for his feet and ankle. (R. 31-42). In addition, Mr. Byrd's statements in his function report reinforced his ability to perform daily activities, including laundry, shopping, and preparing meals, daily exercise, including walks to the park with his girlfriend's daughter (R. 21317), and indicated that his pain was minimal and not constant. (R. 217 (stating that pain “comes and goes depending on various factors but for the most part I manage without pain reducers”)). Similarly, more recent treatment notes showed that Mr. Byrd had “normal gait and station, ” (R. 770), and Dr. Jenouri, the consulting examiner, noted that Mr. Byrd showed “full strength in his upper and lower extremities” and “no muscle atrophy.” (R. 632). Taken together, “there is no sound reason for faulting the ALJ's credibility determination.” Harrison, 2019 WL 580748, at *6. Because the Court cannot conclude that “no reasonable factfinder could have weighed the evidence as the ALJ did, ” remand is not appropriate. Id. (citing McIntyre, 758 F.3d at 149).

Finally, the Court agrees with the Commissioner that ALJ Werner appropriately addressed Dr. Itingen's opinion that Mr. Byrd is “disabled.” (R. 18 (citing R. 666-88)). Under the new regulations, “[s]tatements that [a claimant] [is] or [is] not disabled, blind, able to work, or able to perform regular or continuing work” are considered to be “[e]vidence that is inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c)(3)(i), 416.920b(c)(3)(i). Accordingly, contrary to Mr. Byrd's argument, ALJ Werner had no obligation to “provide any analysis about how [he] considered such evidence in [his] determination or decision.” Id. §§ 404.1520b(c), 416.920b(c).

4. The ALJ's Development of the Record

a. The Parties' Arguments

i. Mr. Byrd's Arguments

Mr. Byrd argues that “the ALJ erred in not contacting the treatment providers in order to ascertain an opinion from the providers that would be instructive in determining” whether he was disabled. (ECF No. 16 at 22). Although he does not specify which providers he believes the ALJ should have contacted or which impairment required further exploration, he contends that “[t]here was nothing stopping the ALJ from further developing the [R]ecord regarding Mr. Byrd's condition.” (Id.) He maintains that “[a] simple medical source statement of ability to do work related activities would be instructive in determining” whether Mr. Byrd was disabled. (Id.)

ii. The Commissioner's Arguments

The Commissioner responds that “the fact that the ALJ did not find the medical opinions in the [R]ecord to be fully persuasive does not render the [R]ecord incomplete.” (ECF No. 19 at 27). In addition, because Mr. Byrd bore “the burden of demonstrating functional limitations that preclude performance of any substantial gainful activity, ” the Commissioner notes that Mr. Byrd “has not shown that the ALJ had any obligation to further develop the medical [R]ecord.” (Id. at 28). Rather, the Commissioner contends that “the [R]ecord contained sufficient evidence for the ALJ to assess [Mr. Byrd's] claim, including treatment notes from his treating providers, a report from a consultative examiner, and [Mr. Byrd's] statements regarding his symptoms, limitations, and daily activities.” (Id.) Given that Mr. Byrd “has not identified any specific gaps in the [R]ecord, ” the Commissioner characterizes Mr. Byrd's request for remand to develop the Record as “a fishing expedition.” (Id.)

b. Analysis

“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). “This duty exists even when the claimant is represented by counsel, ” as was the case here. Id. The ALJ's obligation is set forth in the SSA regulations: “[b]efore we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical evidence from your own medical sources . . . when you give us permission to request the reports.” 20 C.F.R. §§ 404.1512(b)(1), 416.912(b)(1). Where an ALJ “fail[s] to develop the record sufficiently to make any appropriate determination” about the claimant's disability, remand is appropriate. Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999) (remanding where ALJ “failed to obtain adequate information” from claimant's treating physician, “failed to seek potentially relevant information from a number of other doctors and treatment facilities, ” and “jumped to conclusions that were not adequately supported by” the record).

The Court finds that ALJ Werner fulfilled his duty to develop the Record. Mr. Byrd's medical Record contains over 700 pages of records and notes from at least a dozen medical professionals from multiple facilities for the period 2011 through 2019. (ECF No. 14 at 2-4). These records cover the period before, during, and after Mr. Byrd's alleged disability Onset Date. (Id.) In addition, at the Hearing, Mr. Byrd's counsel, Mr. LaRose, did not object to the admission of any of the exhibits and confirmed that the Record was complete. (R. 30-31). See Assenheimer v. Comm'r of Soc. Sec., No. 13 Civ. 8825 (ER) (SN), 2015 WL 5707164, at *4 (S.D.N.Y. Sept. 29, 2015) (rejecting argument that ALJ failed to develop the record where counsel raised no objections to the evidence). Finally, in his Motion, Mr. Byrd does not point to any provider whom the ALJ failed to contact or treatment record that the ALJ failed to obtain. (ECF No. 16 at 21-22). See Collier v. Berryhill, No. 19 Civ. 368 (SN), 2020 WL 3638515, at *7 (S.D.N.Y. July 6, 2020) (rejecting argument that ALJ failed to develop the record where claimant had “not identified any gaps or ambiguities in the record that would suggest her medical history was incomplete”); Freund v. Berryhill, No. 17 Civ. 9967 (JPO), 2019 WL 1323992, at *9-10 (S.D.N.Y. Mar. 25, 2019) (rejecting argument that ALJ failed to adequately develop the record where claimant “identifie[d] no inconsistencies in the administrative record that would have required reconciliation”).

In any event, the Record does, in fact, include a Medical Source Statement from Dr. Fishman, the podiatrist who treated Mr. Byrd for more than one year. (R. 712-17). In the Medical Source Statement, Dr. Fishman described Mr. Byrd's limitations, but did not opine that he could not work at all, only that he could not perform work that was “weight bearing, ” (R. 717), which the ALJ took into account in specifying in the RFC that Mr. Byrd had the “capacity to perform sedentary work.” (R. 15). The Medical Source Statement, combined with Mr. Byrd's treatment records dating back to 2011, his testimony and that of VE Younger at the Hhearing, and the consultative examinations were sufficient for the ALJ to assess Mr. Byrd's limitations since the alleged Onset Date, and “the ALJ did not err in failing to develop the [R]ecord further.” Freund, 2019 WL 1323992, at *10.

IV. CONCLUSION

For the reasons set forth above, I respectfully recommend that Mr. Byrd's Motion be DENIED and the Commissioner's Motion be GRANTED.

* * *

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 Oetken.

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).