Swan v. Bisignano

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ TRACY S., Plaintiff, v. Civil Action No. 3:24-CV-542 (DEP) FRANK BISIGNANO, Commissioner of Social Security,1 Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89, 1500 East Main Street Endicott, NY 13760-0089 FOR DEFENDANT SOCIAL SECURITY ADMIN. FERGUS KAISER, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, MD 21235 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE 1 Plaintiff’s complaint named Leland Dudek, in his official capacity as the Acting Commissioner of Social Security, as the defendant. On May 18, 2025, Frank Bisignano took office as the Commissioner of Social Security. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. § 405(g). The clerk is respectfully directed to amend the court’s records to reflect this change. ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of a partially unfavorable administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on May 29, 2025, during a telephone conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner=s determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal. After due deliberation, and based upon the court=s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby 2 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order, once issue has been joined, an action such as this is considered procedurally as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ORDERED, as follows: 1) | Defendant’s motion for judgment on the pleadings is GRANTED. 2) |The Commissioner’s determination that the plaintiff was not disabled at certain relevant times, and thus is not entitled to benefits under the Social Security Act for that period, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff's complaint in its entirety. U.S. Magistrate Judge Dated: June 20, 2025 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK *************************************************** TRACY SWAN, Plaintiff, -v- 24-cv542 LELAND DUDEK, Defendant. *************************************************** TRANSCRIPT OF TELECONFERENCE BEFORE THE HONORABLE DAVID E. PEEBLES May 29, 2025 FOR THE PLAINTIFF: LACHMAN, GORTON LAW FIRM BY: Peter A. Gordon, Esq. 1500 East Main Street Endicott, New York 13760 FOR THE DEFENDANT: SOCIAL SECURITY ADMINISTRATION BY: Fergus J. Kaiser, Esq. 6401 Security Boulevard Baltimore, Maryland 21235 SWAN v DUDEK - 24-cv-542 1 THE COURT: Thank you. Let me begin by 2 thanking both of you for excellent presentations. Once 3 again you presented an interesting case involving an 4 interesting question of medical improvement and the 5 burden to be applied in deciding a case of medical 6 improvement in a single decision. 7 I have before me -- before I address the 8 merits, let me make sure that I broach the subject of 9 consent. When this case was filed, it was originally 10 assigned to Magistrate Judge Christian F. Hummel. The 11 consent form that was signed by Attorney Gordon on 12 behalf of the plaintiff consented to Judge Hummel's 13 jurisdiction. 14 I will ask now whether the plaintiff consents 15 to having me, to whom the case has been transferred, 16 hear and decide the case with direct appeal to the 17 Second Circuit Court of Appeals? 18 MR. GORTON: We consent. 19 THE COURT: Thank you. 20 THE COURT: Thank you. 21 Plaintiff has commenced this proceeding 22 pursuant to 42 United States Code, Section 405(g) to 23 challenge a partially unfavorable determination 24 concluding that the plaintiff was disabled from 25 November 2, 2003, the alleged onset date included in her Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 application for benefits, to August 13th, 2009, but 2 experienced medical improvement and therefore was no 3 longer disabled effective August 14th, 2009. 4 The background is as follows, and I will not 5 go into extensive detail that I think is unnecessary for 6 my determination. 7 Plaintiff was born in September of 1969, is 8 currently 55 years of age. She lives in Conklin, 9 New York, and is a high school graduate. Plaintiff 10 stopped working on November 2, 2003. 11 Plaintiff suffers from asthma as well as 12 porphyria, which I understand is a rare disorder 13 resulting from a buildup of natural chemicals called 14 porphyrins in the body. Porphyrins are necessary to 15 make heme, part of the hemoglobin and hemoglobin is a 16 protein in red blood cells carrying oxygen to the body's 17 organs and issues. 18 Prophyria involves high-level buildups of 19 porphyrins. They can cause major problems including 20 mainly in the nervous system and skin. 21 There are generally two types of prophyrias. 22 Acute prophyria, mainly affecting the nervous system, 23 and cutaneous prophyria, mainly affecting the skin, 24 although some types of prophyrias affect both nervous 25 system and the skin. Some of the symptoms of porphyria Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 include abdominal pain, skin rash, and nausea. 2 Procedurally, the plaintiff applied for 3 Title II benefits protectively on June 24th, 2001, 4 alleging onset date of November 2, 2003, and at 309 of 5 the administrative transcript alleging that she suffers 6 from porphyria, hemochromatosis, and asthma. 7 A hearing was conducted on March 17th, 2023, 8 by Administrative Law Judge Jeremy Eldred to address 9 plaintiff's applications for benefits. 10 Judge Eldred issued an unfavorable -- 11 partially unfavorable decision on May 1, 2023, as I 12 indicated previously, finding disability for a closed 13 period ending August 13th, 2009. 14 On March 15th, 2024, the Social Security 15 Administrative Council denied plaintiff's application 16 for review. There was new evidence submitted in 17 conjunction with the application for review but it was 18 deemed not to be relevant to plaintiff's claim; that's 19 at page 2 of the administrative transcript. 20 On April 19, 2024, this action was commenced 21 and is timely. 22 In his decision, ALJ Eldred applied the 23 five-step initial sequential test that we are all 24 familiar with for determining disability, concluding 25 disability that ended on August 13th, 2009. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 He then turned to the eight-step medical 2 improvement test and concluded that plaintiff was no 3 longer disabled effective August 14th, 2009, based upon 4 improvement of symptoms with serial phlebotomies, or 5 drawing of blood. 6 This case is subject to the Court's limited 7 review of determining whether correct legal principles 8 were applied and whether substantial evidence, defined 9 as such relevant evidence as a reasonable person would 10 conclude sufficient to support a fact is -- was -- 11 supports the determination, it was a standard that was 12 articulated and explained by the Second Circuit Court of 13 Appeals in Brault v Social Security Administration 14 Commissioner, 683 F.3d 443 from 2012, and later 15 reiterated in several cases, including Schillo v 16 Kijakazi, 31 F.4th 64 from the Second Circuit Court of 17 Appeals 2022. 18 Plaintiff's contentions in this case are 19 threefold: She cites an error in finding medical 20 improvement and no severe impairment after August 14th, 21 2009. She claims that there was error in evaluation of 22 the medical opinions including of Dr. Khalil; and 23 thirdly, an error in failing to proceed through the full 24 eight-step test for medical improvement by not 25 conducting an RFC assessment and going through Steps 7 Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 and 8 which essentially mirror Steps 4 and 5 of the 2 sequential evaluation. 3 The regulations in this case provide that 4 after a commissioner makes a finding of disability, the 5 finding will be evaluated from time to time to determine 6 if the individual is still eligible for benefits, 42 USC 7 Section 423(f) and 20 CFR Section 404.1589. 8 Obviously the normal context in which medical 9 improvement appears is after a decision has been made 10 finding disability and a subsequent review yields a 11 finding of medical improvement. Intellectually, I think 12 there's an argument to be made that this case could be 13 addressed fully using the step -- five-step sequential 14 determination. It's a different situation, however, and 15 there's no Second Circuit guidance speaking to whether 16 the same analysis applies in a single decision such as 17 we're now presented with. 18 But absent Second Circuit guidance, I will 19 look to cases from this Court that show that in a 20 situation like we find ourselves in, the medical 21 improvement test should apply; Hicks v Social Security 22 Commissioner, 2015 Westlaw 58385 from the Northern 23 District of New York, January 5, 2015, Footnote 4 in 24 particular; also, Dunford v Commissioner of Social 25 Security, 2023 Westlaw 2242083 from the Northern Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 District of New York, February 27, 2023. 2 The test for finding medical improvement is in 3 part governed by 20 CFR Section 404.1594. Under that 4 test, medical improvement is defined as follows: 5 Medical improvement is any decrease in the medical 6 severity of your impairments which was present at the 7 time of the most recent favorable medical decision that 8 you were disabled or continued to be disabled. 9 A determination that there has been a decrease 10 in medical severity must be based on improvement in the 11 symptoms, signs, and/or laboratory findings associated 12 with your impairments. 13 The eight-prong test for determining whether 14 there is continuing disability or instead medical 15 improvement is as follows: 16 One, determine whether the individual is 17 engaging in substantial painful activity. Two, if 18 they're not, whether the claimant has an impairment or 19 combination of impairments which meets or equals the 20 list of impairments set forth in the commissioner's 21 regulations. 22 Three, if he or she does not, determine 23 whether there has been medical improvement shown by 24 decrease in medical severity. Four, if there has been 25 medical improvement, determine whether the medical Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 improvement is related to the individual's ability to do 2 work in that it results in an increase in the claimant's 3 capacity to perform basic work activities. 4 Five is not relevant to this case. It 5 addresses certain exceptions. 6 Six, if the medical improvement is related to 7 the ability to do work, determine whether the 8 individual's current impairments in combination are 9 severe. 10 Seven, if one or more impairment is severe, 11 the decisionmaker then assess the individual's ability 12 to perform in substantial gainful activity by assessing 13 his or her residual functional capacity, or RFC. 14 And eight, if the individual cannot perform 15 his or her past relevant work -- part of seven is 16 determining whether past relevant work can be performed 17 based on the RFC. But eight, if the past relevant work 18 cannot be performed, there must be an assessment then of 19 whether the claimant can perform other work existing in 20 significant numbers in the national economy, 20 CFR 21 Section 404.1594(f). 22 As can be seen from this discussion, benefits 23 can be terminated if substantial evidence shows that 24 medical improvement restores the claimant's ability to 25 work; Michael M. v Commissioner of Social Security, 2019 Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 Westlaw 530801 from the Northern District of New York, 2 February 11, 2019. That is also established under 3 Deronde v Astrue, 2013 Westlaw 869489 from the Northern 4 District of New York, February 11, 2013. 5 So although the burden clearly is on the 6 commissioner when deciding medical improvement, the case 7 law is clear that a determination of medical improvement 8 and termination of benefits can be upheld if substantial 9 evidence supports the determination. The burden clearly 10 is on the commissioner at the outset in Denise C. v 11 Kijakazi, 2023 Westlaw 6065949, September 18, 2023, and 12 Michael M, as I indicated previously, stands for that 13 proposition. 14 One of the issues addressed in Denise C., 15 which I cited a moment ago, is whether medical 16 improvement can be shown through treatment records and 17 the answer in that case at least was yes, and I think 18 that that is entirely consistent with the regulations 19 defining medical improvement. 20 The basis for the finding of disability from 21 the date of onset until the end of the closed period was 22 that plaintiff's condition meets or equals listing 7.18 23 of the results of the disabling condition set forth in 24 the commissioner's regulations known as the listings. 25 Under 7.18, which is entitled Repeated Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 Complications of Hematological Disorders, it shows that 2 to meet the listing, you must establish certain 3 complications and there are examples given, and those 4 complications must result in marked limitations of 5 either activities of daily living, of maintaining social 6 functioning, or in completing tasks in a timely manner 7 due to the deficiencies in concentration, persistence, 8 or pace. 9 The term marked is defined in 10 Section 7.00(g)(4) of part 404 subpart P, Appendix 1 of 11 the commissioner's regulations. It is defined to mean 12 that the symptoms and signs of your hematological 13 disorder interfered seriously, and that is in italics, 14 with your ability to function. 15 Going through the sequential tests that I have 16 outlined, the commissioner at Step 1 found that 17 plaintiff had not engaged in substantial gainful 18 activity during the period from August 14th, 2009, until 19 the date of decision. At Step 2 he found that 20 plaintiff's condition does not meet or equal listing 21 7.18 and substantial evidence, as I elaborated more 22 fully, probably supports that determination. 23 At Step 3, the administrative law judge found 24 there's been medical improvement and substantial 25 evidence based on my review of the treatment records in Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 particular supports that. 2 Step 4, clearly the improvement relates to 3 plaintiff's ability to work. Step 5 is not applicable. 4 Step 6 requires a determination of whether plaintiff 5 suffers from a severe medically determinable impairment, 6 which is defined kind of backwards in the regulations, 7 specifically, 20 CFR Section 404.1522, which is not a 8 severe impairment and provides as follows: 9 An impairment or a combination of impairments 10 is not severe if it does not significantly limit your 11 physical and mental ability to do basic work activities 12 which are defined in subpart B of that regulation to 13 include physical functions, capacity for seeing, hearing 14 and speaking, understanding, carrying out and 15 remembering simple instructions, use of judgment, 16 responding appropriately to supervision, coworkers and 17 usual or work situations, and dealing with changes in a 18 routine setting. 19 The case law indicates that the Step 6 20 determination of whether the medically determinable 21 impairment is severe essentially tracks Step 2 of the 22 five-step sequential analysis. 23 When my reading of Colvin 2016 Westlaw 447715 24 from the Northern District of New York, February 4, 25 2016, and Michael M. that I previously cited, also Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 indicates that. Again, clearly it is the commissioner's 2 burden at this juncture. 3 Step 3 -- I'm sorry. Step 2, whether 4 sequential evaluation the -- requires a determination of 5 whether the impairment reaches a threshold of severity 6 where it significantly limits the physical and mental 7 ability to perform basic work activities, 20 CFR 8 Section 404.1522. 9 The requirement is de minimis, intended only 10 to screen out the truly weakest of cases; McIntyre v 11 Colvin, 758 F.3d 146, Second Circuit 2014. However, the 12 mere presence of a disease or impairment or establishing 13 the person has been diagnosed or treated for a disease 14 or impairment is not by itself sufficient to render a 15 condition severe; Nedzad O. v the Commissioner of Social 16 Security, 577 F.Supp. 3d 37, the discussion appears at 17 43 to 44 of that decision, and it's from the Northern 18 District of New York 2021 from District Judge Hurd. 19 One of the exhibits in the record is an 20 opinion and also testimony, sworn testimony from 21 Dr. Khalil, plaintiff's oncologist. In the testimony 22 which was taken I believe on March 31, 2023, Dr. Khalil 23 describes porphyria and the symptoms it can cause, 24 including headaches, nausea, vomiting, skin rash, 25 inkiness and abdominal pain. At 277, he notes Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 that the impairment is chronic and cannot be cured. 2 The plaintiff has suffered a -- has challenged 3 the administrative law judge's analysis of Dr. Khalil's 4 decisions. The discussion of the doctor's opinions 5 appears at pages 29 and 30 of the administrative 6 transcript. 7 Under the regulations which took effect 8 for applications for benefits filed after March 27, 9 2017, the administrative law judge must consider whether 10 a medical opinion is persuasive by primarily considering 11 whether the opinion is supported by and is consistent 12 with the record in the case, 20 CFR Section 404.1520(c). 13 The ALJ must articulate if his or her 14 determination as to how persuasive he or she finds all 15 of the medical opinions and explain how he or she 16 considered the supportability and consistency of those 17 opinions. 18 In this case, the opinion of Dr. Khalil was 19 found to be persuasive for the period prior to 20 August 13th, 2009, but not persuasive thereafter, and 21 the ALJ concluded that after August 13th, 2009, the 22 claimant has not had any medically determinable severe 23 impairment or combination of impairments which meets the 24 12-month durational requirement. 25 I agree with the commissioner that it Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 certainly appears that in determining persuasiveness, 2 the administrative law judge did consider the 3 supportability and consistency elements that are 4 required under the regulations. Whether or not they 5 were specifically stated, I nonetheless find that a 6 searching review of the record reveals that the medical 7 opinion regulations were not violated; Camille v Colvin, 8 652 Federal App'x 25 in the Second Circuit, 2016. 9 I also find that the determination medical 10 improvement is -- has been met. We have repeated 11 phlebotomists, which is, as I understand it, a blood 12 draw, but medical records show that plaintiff's 13 treatment has reflected -- has resulted in improvements 14 of symptoms. I've looked at 14F, which is records from 15 Endless Mountain Health Systems; 12F, emergency 16 department visit; 16F, which is -- consists of treatment 17 records from Broome Oncology, April of 17, 2009, until 18 July 21, 2021, and again, 24F Endless Mountain Health 19 Systems. 20 The Broome County -- the Broome Oncology 21 records reveal that without periodic phlebotomies, 22 plaintiff's condition seems to flare. At 744, for 23 example, which is from a treatment of April 16, 2015, 24 plaintiff noted that she had skin rash, hot flashes, and 25 headache but had not had a phlebotomy over the past Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 1 year, and there are multiple, multiple indications of 2 improvement of symptoms with periodic phlebotomies. 3 For example, in January, March and May of 2021 4 at 780 to 782 of the administrative transcript, 5 plaintiff notes significant skin rash redress with 6 phlebotomy every two months. That appears also at 7 page 934 of the administrative transcript. 8 So, in conclusion, I find that 9 the administrative law judge's determination of medical 10 improvement and that plaintiff's condition for medically 11 determinable impairment was no longer severe effective 12 August 14, 2009, is supported by substantial evidence 13 and because that finding was made at Step 6, there was 14 no need to address Steps 7 and 8 of the sequential 15 evaluation including the need to formulate an RFC. 16 So I will grant judgment on the pleadings to 17 the defendant, order dismissal of plaintiff's complaint, 18 and affirm the commissioner's determination in this 19 matter. 20 Thank you, both. I hope you have a wonderful 21 afternoon. 22 MR. KAISER: Thank you, your Honor. 23 MR. GORTON: Thank you, your Honor. 24 (Proceeding concluded.) * * * * * * * * * * * * Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY SWAN v DUDEK - 24-cv-542 C E R T I F I C A T I O N I, Lisa L. Tennyson, RMR, CSR, FCRR, Official Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. /s/ Lisa L. Tennyson Lisa L. Tennyson, RMR, RPR, FCRR Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY