United States District Court, M.D. Pennsylvania
For Bobbi Jo Cramer, Plaintiff: Nicholas S. Mattise, LEAD ATTORNEY, Mattise & Kelly, PC, Scranton, PA.
For Carolyn W. Colvin, Defendant: Mark
E. Morrison, U.S. Attorney's office - Social Security, Harrisburg, PA.
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE. (JUDGE KANE).
REPORT AND RECOMMENDATION TO VACATE THE DECISIONS OF THE COMMISIONER AND REMAND THE CASE TO THE COMISSIONER FOR FURTHER PROCEEDINGS Docs. 1, 8, 11, 12, 13
GERALD B. COHN, UNITED
STATES MAGISTRATE JUDGE.
REPORT AND RECOMMENDATION
I. Procedural Background
On March 08, 2010, Bobbi Jo Cramer (" Plaintiff") filed an application as a claimant for SSI under Title XVI of the Social Security Act. (Tr. 137-141). On July 27, 2010, Plaintiff's claim was denied at the initial level of administrative review (Tr. 80, 104-108), and Plaintiff filed a request for a hearing on August 17, 2010. (Tr. 109). On August 29, 2011, an administrative law judge (" ALJ") held a hearing at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified. (Tr. 35-67). On September 22, 2011, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 82-103). On November 22, 2011, Plaintiff filed a request for review with the Appeals Council (Tr. 15-16), which the Appeals Council denied on August 26, 2013, thereby affirming the decision of the ALJ as the " final decision" of the Commissioner. (Tr. 1-5).
On December 21, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. (Doc. 1). On February 6, 2014, the Commissioner (" Defendant") filed an answer and administrative transcript of proceedings. (Docs. 8, 9). On March 25, 2014, Plaintiff filed a brief in support of her appeal (" Pl. Brief") (Doc. 11). On April 24, 2014, Defendant filed a brief in response (" Def. Brief") (Doc. 12). On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. Plaintiff filed a brief in reply on May 8, 2014 (" Pl. Reply")(Doc. 13).
II. Relevant Facts in the Record
Plaintiff was born December 9, 1972, and thus was 37 years old on her protective application date (Tr. 137). She completed the twelfth grade and last worked as a waitress in 1998, stopping due to " personal" reasons (Tr. 155-56), separately stating without further elaboration that she 'smashed' her arm until she 'broke it' because she did not want to return to work. (Tr. 471). Plaintiff alleges disability due to a combination of impairments including degenerative disc disease of the cervical and lumbar spine, fibromyalgia, major depressive disorder, and panic disorder with agoraphobia. (Tr. 73).
A. Relevant Treatment History and Medical Opinions
1. Mark Cruciani, M.D. -- Treatment Records, June 8, 2009 to July 17, 2011, including Physical and Psychological RFC Assessments, July 12, 2011
Mark Cruciani has served as Plaintiff's pain management specialist since 2006. Pl. Brief at 2, 5. The record reveals a handful of visits from June 2009 and July 2011, resulting in twelve pages of medical records. (Tr. 206-207, 461-468, 476-477). In a treatment record dated June 8, 2009, Dr. Cruciani noted that Plaintiff was having difficulty sleeping, and had a history which included depression and a panic disorder. (Tr. 207). In the June 2009 treatment record, Dr. Cruciani opined that he did not believe Plaintiff was capable of gainful employment, however, did not provide an explanation or rationale for the opinion. (Tr. 207). In a treatment record dated December 7, 2009, Dr. Cruciani noted that Plaintiff was able to carry out activities in daily living and that she was alert and oriented as to time, place, and person. (Tr. 206). In a treatment record dated June 14, 2010, Dr. Cruciani noted that Plaintiff was able to carry out activities in daily living and that she was alert and oriented as to time, place, and person. (Tr. 466). In a treatment record dated October 26, 2010, Dr. Cruciani noted that Plaintiff was able to carry out activities in daily living and that she was alert and oriented as to time, place, and person. (Tr. 467). In a treatment record dated December 13, 2010, Dr. Cruciani noted that Plaintiff continued having problems with her medications, particularly; Lexapro (used to treat major depressive disorder) was causing heart racing and anxiety. (Tr. 468). In the December 2010 treatment record, Dr. Cruciani also noted that Plaintiff was able to carry out activities in daily living and that she was alert and oriented as to time, place, and person. (Tr. 468).
Dr. Cruciani completed a Mental Residual Functional Capacity Assessment of Plaintiff, dated July 12, 2011, in which he found, inter alia, that Plaintiff had: severe impairment in her ability to: 1) maintain attention and concentration for at least two straight hours; and 2) complete a normal workday and workweek without interruptions from psychologically based symptoms. (Tr. 464-465). Although not treating Plaintiff directly for psychological impairments, Dr. Cruciani noted that the Plaintiff's pain symptoms related to psychological conditions, notably that the Plaintiff's depression, anxiety and panic attacks affect her pain and detailing that the Plaintiff's pain can be so incapacitating that it forces her to lose focus and was constantly severe enough to interfere with her attention and concentration. (Tr. 463). Dr. Cruciani also found Plaintiff's impairment would be increased by attendance requirements, the need to make accurate decisions quickly, and that a routine, entry level job would actually serve as a stressor. (Tr. 464-65). Dr. Cruciani stated that Plaintiff had experienced the above described level of impairment since December 2009. (Tr. 464-65). An EMG/Nerve conduction study dated March 12, 2009, was submitted to Dr. Cruciani. (Tr. 476-477). The nerve conduction study addressed a prior MRI record, addressed the arms and spine, and involved a physical examination. (Tr. 487-477). Overall, the EMG/Nerve conduction study reported normal findings and concluded that " [c]onservative therapy is normal[ly] attempted for minor radicular symptoms" and recommended Plaintiff to follow-up with Dr. Cruciani and Dr. Mirza. (Tr. 476-477).
2. Wasique Mirza, M.D. -- Primary Care Treatment Records January 13, 2009 to July 08, 2011 and Physical RFC, July 19, 2011
Dr. Wasique Mirza has been Plaintiff's primary care physician for several years through the Scranton Primary Care Center. (Tr. 276-301, 448-460). Plaintiff's records from Dr. Mirza indicate treating Plaintiff for psychological symptoms of anxiety by prescribing and making adjustments to psychotropic medication. (Tr. 276-96, 453-58). For example, Dr. Mirza adjusted Restoril which is used to aid in sleeping and Ativan which is used in the management of anxiety disorders or anxiety associated with depressive symptoms. (Tr. 293). Also, when treating Plaintiff for chest pain, Dr. Mirza concluded that the pain was due to Plaintiff's anxiety. (Tr. 295). Dr. Mirza also completed a Functional Capacity Evaluation of Plaintiff on July 19, 2011. (Tr. 449-451). Dr. Mirza opined that Plaintiff could rarely lift one to five pounds, stand and walk less than one hour and sit for one hour in an eight-hour workday, never squat or crawl, occasionally bend and climb stairs, and frequently reach, and would have environmental limitations and psychological conditions affecting her pain that were significant enough to frequently interfere with attention and concentration. (Tr. 449-51). He indicated his belief that she had this level of impairment for more than one year. (Tr. 449-451).
3. Elizabeth Ciaravino, Ph.D. -- Consultative Examination Report, June 23, 2010
In June 2010, Plaintiff underwent a consultative examination with Dr. Elizabeth Ciaravino. (Tr. 356). After the examination, Dr. Ciaravino determined that Plaintiff had a history of panic disorder with agoraphobia and a history of bipolar disorder, and assessed a global assessment of functioning (GAF) score of 50. (Tr. 356). According to Dr. Ciaravino, Plaintiff " was experiencing an extreme amount of difficulties with anxiety as well as anger. . . . [and her] appearance was noteworthy from an extreme amount of sweating." (Tr. 355). Dr. Ciaravino further opined that Plaintiff had moderate limitations in her ability to understand, remember, and carry out short, simple instructions, but marked limitations in all other work-related mental activities. (Tr. 359-60). As support for her conclusions, Dr. Ciaravino cited Plaintiff's elevated anxiety, anger around others, reports of numerous instances of social difficulties and demonstrated anger when asked to concentrate. (Tr. 359). Dr. Ciaravino completed an evaluation of Plaintiff's ability to perform work related activities (Tr. 358-360) and found marked impairments in her ability to: 1) understand, remember and carry out detailed instructions; 2) make judgments and simple work-related decisions; 3) interact appropriately with the public, supervisors or co-workers; 4) respond appropriately to work pressures in a usual work setting; and 5) respond appropriately to changes in a work setting. Dr. Ciaravino further found moderate impairments with regard to her ability to understand and carry out short simple instructions. (Tr. 359).
4. Thomas P. Smith, Psy.D. -- Psychological report, August 4, 2011
In August 2011, Plaintiff was referred for a psychological evaluation with Dr. Thomas Smith, who observed that Plaintiff was alert and oriented, clean and neatly attired, had good eye contact, had behavior and psychomotor activity within the normal range. (Tr. 469). Dr. Smith noted that, throughout the interview, Plaintiff's affect was anxious with a labile style, often exhibiting tearful, worried and depressed states. (Tr. 469-475). Plaintiff gave a history of self-abusive behavior and cutting since her adolescence, until two years prior to the psychiatric evaluation with Dr. Smith. (Tr. 471). Regarding employment history, Plaintiff recalled that she last worked as a waitress and due to not wanting to return to work; she " smashed [her] arm until [she] broke it." (Tr. 471). Dr. Smith diagnosed Plaintiff with bipolar disorder, most recent episode mixed; post-traumatic stress disorder (PTSD); and panic disorder with agoraphobia. (Tr. 472-74). Dr. Smith concluded that Plaintiff had moderately severe limitations in most areas of work-related functioning, with severe limitations in several areas with regard to social interaction. (Tr. 472-74).
5. Leo Potera, M.D., State Agency Physician -- Physical RFC Assessment, July 26, 2010
Reviewing state agency physician Dr. Potera found that Plaintiff's treatment for her physical impairments were routine and conservative in nature. (Tr. 386). Dr. Potera indicated that his review did not include treating or examining source statements regarding Plaintiff's physical capacities (treating source statements were not made until 2011). (Tr. 385). Dr. Potera opined that Plaintiff was capable of performing light work, but was limited from repetitive use of her lower extremities due to pain and that she could occasionally balance, stoop, kneel, crouch, crawl, use ramps, and climb stairs ...