Swan v. Bisignano

Opinion

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

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