Andrisani v. Colvin

Filing 16

DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/24/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JONATHAN W. ANDRISANI,
Plaintiff,
-vs-

No. 1:16-CV-00196 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Jonathan W. Andrisani (“plaintiff”)

brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
his applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
II.

Procedural History
The

record

protectively

reveals

filed

that

applications

in

November

for

DIB

and

2013,
SSI,

plaintiff
alleging

disability as of October 24, 2012. After his applications were
denied, plaintiff requested a hearing, which was held before
administrative law judge Grenville Harrop, Jr. (“the ALJ”) on

June

3,

2014.

The

ALJ

issued

an

unfavorable

decision

on

September 19, 2014. The Appeals Council denied review of that
decision and this timely action followed.
III. The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2014. At step one of
the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520,
416.920,

the

ALJ

found

that

plaintiff

had

not

engaged

in

substantial gainful activity since October 24, 2012, the alleged
onset date. At step two, the ALJ found that plaintiff had the
severe impairment of mood disorder. At step three, the ALJ found
that plaintiff

did

not

have

an impairment

or

combination

of

impairments that met or medically equaled a listed impairment.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to perform a wide
range of medium work, with nonexertional limitations including a
“mild impairment . . . in performing complex tasks independently,
making appropriate decisions, and relating adequately with others.”
T. 14. At step four, the ALJ found that plaintiff had no past
relevant work.

At

step

five,

the

ALJ

found

that

considering

plaintiff’s age, education, work experience, and RFC, jobs existed
in the national economy which plaintiff could perform. Accordingly,
the ALJ found that plaintiff was not disabled.

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IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

Failure to Develop the Record

Plaintiff contends that the ALJ failed to fully develop the
record. Specifically, plaintiff argues that the ALJ (1) failed to
obtain treatment records from plaintiff’s treating counselor, LMSW
Leslie Tebo; and (2) failed to obtain clarification of illegible
records provided by plaintiff’s treating nurse practitioner, NP
Gerald Frisicaro. For the reasons discussed below, the Court finds
that the ALJ did not fail to properly develop the record.
The regulations provide that although a claimant is generally
responsible for providing evidence upon which to base an RFC
assessment,

before

determination,

the

the
ALJ

Administration
is

“responsible

makes
for

a

disability

developing

[the

claimant’s] complete medical history, including arranging for a
consultative

examination(s)

if

necessary,

and

making

every

reasonable effort to help [the claimant] get medical reports from

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[the claimant’s] own medical sources.” 20 C.F.R. §§ 404.1545,
416.945 (citing 20 C.F.R. §§ 404.1512(d) through (f); § 416.912(d)
through (e)). “Even though the ALJ has an affirmative obligation to
develop the record, it is the plaintiff’s burden to furnish such
medical and other evidence of disability as the Secretary may
require.” Long v. Bowen, 1989 WL 83379, *4 (E.D.N.Y. July 17, 1989)
(internal citations omitted).
1.

LMSW Tebo’s Notes

In this case, plaintiff testified that he received biweekly
treatment

from

LMSW

Leslie

Tebo

at

Spectrum

Human

Services.

Plaintiff contends that LMSW Tebo’s treatment notes are missing
from the record. However, upon a review of the record, the Court
finds that it is complete with no “obvious gaps.” See Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[W]here there are no
obvious gaps in the administrative record, and where the ALJ
already possesses a complete medical history, the ALJ is under no
obligation to seek additional information in advance of rejecting
a benefits claim.”) (internal quotation marks omitted).
Treatment notes from Spectrum Human Services contained within
the record appear to be complete; moreover, there is no obvious
indication from the records that any portion is missing. The
Spectrum records include notes signed by LMSW Tebo, including an
initial assessment dated March 25, 2013, an “individualized action
plan” dated June 5, 2013, and a discharge plan dated November 6,

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2013. The records from Spectrum, which span approximately 60 pages,
do not contain reference to any additional treatment notes nor an
indication that more notes from Spectrum existed such that the
ALJ’s duty to further develop the record would have been triggered.
Accordingly, the Court concludes that the ALJ did not err in
failing to develop the record with respect to treatment notes from
LMSW Tebo. See Hofner v. Colvin, 2016 WL 777306, *2 (W.D.N.Y.
Feb. 29, 2016) (“The record in this case contains what appears to
be a complete record of plaintiff's medical treatment . . . and
therefore the ALJ did not have a duty to further develop the
record.”); Trimm v. Colvin, 2015 WL 1400516, *4 (N.D.N.Y. Mar. 26,
2015) (“While the ALJ certainly has an obligation to adequately
develop the administrative record, the Court finds that there was
no indication that the record was not fully development . . .
because Plaintiff's medical records did not have any obvious gaps
and appeared complete.”).
2.

NP Frisicaro’s Notes

Plaintiff contends that the ALJ failed to develop the record
by failing to clarify NP Frisicaro’s handwritten treatment notes,
which plaintiff argues are largely illegible. As plaintiff points
out,

he

treated

with

NP

Frisicaro

primarily

for

medication

management, which NP Friscaro modified on at least six occasions
between

May

2013

and

May

2014.

The

Court

has

reviewed

NP

Frisicaro’s treatment notes and finds that they are decipherable,

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contrary to plaintiff’s argument. NP Frisicaro indicated that he
prescribed plaintiff Seroquel (an antipsychotic) and Zoloft (an
antidepressant) in May 2013. In August 2013, he prescribed Saphris,
a different antipsychotic medication, in place of Seroquel. In
September, he prescribed Abilify, an antipsychotic, a prescription
which he continued later that month, at which time he added
Wellbutrin, another antidepressant. In October, he discontinued
Abilify and began a prescription for Risperdal, an antipsychotic.
NP Frisicaro’s notes also make clear that he diagnosed plaintiff
with PTSD and ADHD, with a note to rule out schizoaffective
disorder. He recorded that plaintiff complained of anxiety, “flight
of ideas,” depressive symptoms, and difficulty sleeping. T. 484.
Accordingly, the Court finds that NP Frisicaro’s notes are legible
and no further information was needed in order to clarify them.
Although plaintiff argues that NP Friscaro’s records were
“incomplete” because they did not include objective findings, such
as mental status examinations, the record does not indicate that NP
Frisicaro actually performed such objective tests. Therefore, the
absence of such information was not a “gap” in the record such that
the ALJ’s duty to further develop the record would be triggered.
See Hofner, 2016 WL 777306, at *2; Trimm, 2015 WL 1400516, at *4.
The Court thus finds that the ALJ did not err in failing to clarify
NP Frisicaro’s treatment records.

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B.

Credibility

Plaintiff contends that the ALJ erroneously evaluated his
credibility.
thoroughly
limitations,

A

review

reviewed
and

of the

ALJ’s

plaintiff’s

compared

decision

testimony

plaintiff’s

reveals
and

reports

to

that

reports
the

he
of

medical

evidence of record. See T. 15-17. In coming to his finding that
plaintiff’s reports were not entirely credible, the ALJ cited the
requirements of 20 C.F.R. §§ 404.1529, 416.929, SSR 96-2p, 96-5p,
96-6p, and 06-3p.
The

ALJ’s

discussion,

which

incorporates

his

review

of

plaintiff’s reports and testimony, indicates that he used the
proper standard in assessing credibility, especially in light of
the fact that he cited the relevant authorities in that regard. See
Britt v. Astrue, 486 F. App'x 161, 164 (2d Cir. 2012) (finding
explicit mention of 20 C.F.R. § 404.1529 and SSR 96–7p as evidence
that the ALJ used the proper legal standard in assessing the
claimant's credibility); Judelsohn v. Astrue, 2012 WL 2401587, *6
(W.D.N.Y. June 25, 2012) (“Failure to expressly consider every
factor set forth in the regulations is not grounds for remand where
the

reasons

for

the

ALJ's

determination

of

credibility

are

sufficiently specific to conclude that he considered the entire
evidentiary

record.”).

The

ALJ’s

conclusion

that

plaintiff’s

reports were not credible because they were inconsistent with
substantial record evidence was thus based on a proper application

7

of the law and is supported by substantial record evidence. See
Pietrunti v. Dir., Office of Workers' Comp. Programs, 119 F.3d
1035, 1042 (2d Cir. 1997) (“Credibility findings of an ALJ are
entitled to great deference and therefore can be reversed only if
they are ‘patently unreasonable.’”).
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Doc. 7) is denied and the Commissioner’s motion
(Doc. 13) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record, and
accordingly, the Complaint is dismissed in its entirety with
prejudice.

The Clerk of the Court is directed to close this case.

SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 24, 2017
Rochester, New York.

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