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Norris v. Saul

United States District Court, N.D. Ohio, Eastern Division

December 27, 2019

SHERAY NORRIS, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          Jonathan D. Greenberg, United States Magistrate Judge.

         Plaintiff, Sheray Norris (“Plaintiff” or “Norris”), challenges the final decision of Defendant, Andrew Saul, [1] Commissioner of Social Security (“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

         I. PROCEDURAL HISTORY

         In January 18, 2013, Norris filed an application for SSI alleging a disability onset date of November 29, 2012 and claiming she was disabled due to unspecified arthropathies and affective/mood disorders. (Transcript (“Tr.”) at 227.) The application was denied initially and upon reconsideration, and Norris requested a hearing before an administrative law judge (“ALJ”). (Id. at 297, 307.)

         On April 1, 2015, an ALJ held a hearing, during which Norris, represented by counsel, and an impartial vocational expert (“VE”) testified. (Id. at 171-95.) On June 16, 2015, the ALJ issued a written decision finding Norris was not disabled. (Id. at 241-60.) Norris requested review, and on June 9, 2016, the Appeals Council remanded her claim for a new hearing, to address her need for a wheeled walker and evaluate the opinions of the treating physicians regarding her physical and mental limitations. (Id. at 263-65.)

         On February 14, 2017, the ALJ held a second hearing, during which Norris, represented by counsel, and a VE testified. (Id. at 143-70.) A medical expert had also been called to testify, but was unable to attend. (Id. at 145.) On March 14, 2017, the ALJ issued a written decision finding Norris was not disabled. (Id. at 267-86.) Norris again requested review of the ALJ's decision, and the Appeals Council again remanded her claim for a new hearing to address her need for ambulatory aid, the opinions from her medical sources, and her symptoms. (Id. at 42-44, 287-91.)

         On May 1, 2018, a new ALJ held a third hearing, during which Norris, represented by counsel, and a VE testified. (Id. at 92-136.) On July 25, 2018, the ALJ issued a written decision finding that Norris was disabled for the period beginning May 9, 2017. (Id.) This partially-favorable decision was based on the fact that Norris' age category changed when she turned 50. (Id.) The ALJ's decision became final on December 11, 2018, when the Appeals Council declined further review. (Id. at 1-5.)

         On January 8, 2019, Norris filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 16.) Norris asserts the following assignments of error:

(1) Whether the ALJ committed reversible error when she failed to recognize Ms. Norris' intellectual deficits and illiteracy as a severe impairment.
(2) Whether the ALJ properly evaluated and weighed the opinion of Ms. Norris' treating psychiatrist.
(3) Whether the ALJ committed reversible error in her assessment of Ms. Norris' need for a cane when standing and its' impact on her residual functional capacity.

(Doc. No. 12.)

         II.EVIDENCE

         A. Personal and Vocational Evidence

         Norris was born in May 1967, and was 45 years old at the time of her application, and 50 years old at the time of the ALJ's finding of disability. (Tr. at 80, 196, 473.) Prior to the established disability onset date, Norris was a younger individual age 45-49. (Id.) On May 9, 2017, her age category changed to an individual closely approaching advanced age under social security regulations. (Id.) See 20 C.F.R. §§ 404.1563 & 416.963. She attended school through the twelfth grade, but did not earn a high school diploma, and is able to communicate in English. (Id. at 80, 174, 153.) She has no past relevant work. (Id.)

         B. Relevant Medical Evidence[2]

         1. Mental Impairments

         On June 13, 2012, Norris began care with a new counselor, Dr. Clark Herniman, at the Free Clinic of Greater Cleveland (“Free Clinic”), where she had being treated for a substance-induced mood disorder versus a mood disorder with psychotic features since 2009. (Id. at 839.) Her substance abuse was noted to be in remission, and she regularly attended AA meetings and participated in the intensive outpatient program at the Free Clinic. (Id.) She reported hearing voices, seeing things, being paranoid, experiencing mood swings when she was high, and feeling depressed and bored when sober. (Id.)

         On August 23, 2012, Norris completed the intensive outpatient program at the Free Clinic. (Id. at 713.)

         On September 12, 2012, Vocational Guidance Services provided a situational assessment of Norris' ability to work in food service, based on a three-week evaluation. (Id. at 1944-53.) The assessors noted that:

Sheray learns new tasks with ease, yet need some improvement in the areas of retaining instructions and following verbal and written instructions. . . . Sheray requires much improvement in the area of accepting supervision. . . . Sheray's attendance was unacceptable. Sheray left early 1 day her first week because she did not want to do the class assignment.

(Id. at 1946.) The assessor could not recommend competitive employment due to Norris' attendance and behavioral issues. (Id.)

         On October 26, 2012, Norris was referred for psychiatry services. (Id. at 713.) She had been taking Celexa, Vistaril, Hydrodiuril and Seroquel, but reported being out of all her medications except Seroquel. (Id.) She reported sleep disturbances, lack of energy, trouble concentrating, and feelings of guilt, irritability, and restlessness. (Id.) The referring therapist noted that since Norris reported being out of her medications, she had been “noticeable more irritable.” (Id.)

         On November 14, 2012, Norris had her initial psychiatric evaluation with Dr. Park. (Id. at 709.) She reported delusions and hallucinations, as well as anxiety, restlessness and irritability. (Id.) The assessing psychiatrist noted that in 2009 Norris had experienced auditory hallucinations telling her to kill her husband, but opined that she was not currently a danger to herself or others. (Id.) He diagnosed a possible mood disorder with psychotic features. (Id. at 711.)

         On February 20, 2013, a psychiatric progress note recorded a primary diagnosis of schizoaffective disorder, and increased Norris' dosage of Seroquel. (Id.)

         On May 1, 2013, Dr. Park competed a medical source statement regarding Norris' mental capacity. (Id. at 816-17.) He opined that she could:

• rarely deal with work stress and manage funds;
• occasionally follow work rules, interact with supervisors, function independently, work in proximity to others without being distracted or distracting, complete a normal work day or work week without interruption from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length or rest periods, behave in an emotionally stable manner, and relate predictably in social situations; and
• frequently use judgment, maintain attention for two hour segments, respond appropriately to changes in routine, maintain regular attendance and be punctual, deal with the public, relate to co-workers, understand, remember, and carry out complex or detailed job instructions, and socialize.

(Id.)

         On July 10, 2013, Norris returned to the Free Clinic and reported feelings of paranoia and irritability. (Id. at 1588.) The treating psychiatrist increased her doses of Seroquel and Celexa, and referred her to therapy for anger management. (Id. at 1589.)

         On January 17, 2014, Norris returned to the Free Clinic and reported feelings of irritability, and trouble concentrating and focusing. (Id. at 1624.) She also reported auditory and visual hallucinations. (Id.) The treating psychiatrist, Dr. Elizabeth Baker, planned to transition Norris from Seroquel to Latuda, due to Seroquel's metabolic effects. (Id. at 1625.)

         On February 14, 2014, Norris returned to the Free Clinic and reported that she was “doing well, ” although she “still gets irritated easily.” (Id. at 1626.) Her mood, appetite and sleep were good, but she continued to experience hallucinations. (Id.)

         On March 8, 2014, her psychotherapist noted that Norris reported modifying her medications “because she does not like taking the full dose because it makes her feel ‘funny, '” and had resumed drinking alcohol in small amounts. (Id. at 1628.) She noted that the homework she assigned was completed but that Norris was unable to write legibly or clearly. (Id.) She opined that Norris did not suffer “real” hallucinations that were the product of mental illness, but rather had a “very vivid and active imagination. (Id.) Her diagnosis had shifted to Depressed Bipolar 1 Disorder with rapid cycling. (Id. at 1629.)

         On March 28, 2014, Norris saw Dr. Baker, who still described her primary diagnosis as schizoaffective disorder. (Id. at 1739.) Norris reported “acting up” by cutting up her husband's bedspread, jacket and shirt. (Id.) She reported that her mood and appetite were good, but she became “[f]rustrated when I don't get my way. When I get my way, I am calm, cool and collected.” (Id.)

         On April 25, 2014, Norris reported to Dr. Baker that her mood was more stable on Latuda, however she was not sleeping as well as she had while on Seroquel, and felt chronically tired as a result. (Id. at 1741.)

         On June 13, 2014, Dr. Baker noted that “generally [Norris] is doing well from a mental health perspective, ” and she was now sleeping well. (Id. at 1743.) Norris had been waiting for 3 months for an appointment with the Center for Families and Children, and Dr. Baker called with her at this appointment and was able to get her registered in intake, because she needed a “higher level of services.”[3] (Id. at 1743-44.)

         On August 7, 2015, MetroHealth Nurse Practitioner Karen Collins completed a medical source statement for Norris. (Id. at 1918-19.) She opined that Norris could:

• rarely respond appropriately to changes in routine, deal with the public, interact with supervisors, work in proximity to others without being distracted, deal with work stress, socialize and relate predictably in social situations;
• occasionally use judgment, maintain attention for two hour segments, maintain regular attendance and be punctual, relate to co-workers, function independently, complete a normal work day or work week without interruption from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length or rest periods, understand, remember and carry out complex or detailed job instructions, behave in an emotionally stable manner, and manage funds or schedules;
• frequently work in proximity to others without being distracting, understand, remember and carry out simple job instructions, maintain her appearance, and leave home on her own; and
• constantly follow work rules.

(Id.)

         On November 17 and December 15, 2015, Norris reported auditory and visual hallucinations, and uncertainty over whether she was taking her medication correctly. (Id. at 1997, 2011.)

         In February 2016, Norris participated in a 10-day work adjustment program through Goodwill. (Id. at 1922.) She only attended 5 of 9 days of programming in full, but arrived on time every day that she was present. (Id. at 1929.) Her assessor noted that she interacted appropriately with all customers, co-workers, and supervisors 100% of the time; displayed a pleasant demeanor; was observed interacting at length with customers on two occasions, but returned to her tasks without prompting; took her breaks and returned as scheduled; and completed tasks in full and as they were assigned, although she was sometimes confused and required repeated instructions. (Id.) Her assessor judged her not ready for competitive work due to “attendance, quality of work, and retention of tasks.” (Id.)

         On April 21, 2016, MetroHealth Nurse Practitioner Karen Collins completed an updated medical source statement for Norris. (Id. at 1933-34.) She opined that Norris could:

• rarely deal with work stress, and complete a normal work day or work week without interruption from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length or rest periods;
• occasionally maintain regular attendance and be punctual, deal with the public, function independently, interact with supervisors, work in proximity to others without being distracted or distracting, understand, remember and carry out complex or detailed job instructions, socialize, behave in an emotionally stable manner, and relate predictably in social situations; and
• frequently follow work rules, use judgment, maintain attention for 2 hour segments, respond appropriately to changes in routine, relate to co-workers, understand, function independently, understand, remember and carry out simple job instructions, and maintain her appearance; and
• constantly manage funds and schedules, and maintain her appearance.

(Id.)

         On July 12, 2016, Norris told her therapist she was having paranoid thoughts about aliens. (Id. at 2103.) Her therapist noted delusional thinking. (Id. at 2104.)

         On October 5, 2016, Norris told her therapist “everything was going alright” and she was keeping to herself “like I always do.” (Id. at 2175.) She still had delusional thoughts regarding aliens, but reported that these only occurred when she didn't take her medicine. (Id. at 2175-76.)

         On January 4, 2017, Norris reported to her therapist that she was “still seeing things, but knows they are not there.” (Id. at 2206.)

         On May 30, 2017, Dr. Richard Litwin performed a psychological evaluation of Norris. (Id. at 2213-16.) He administered nationally-normed intelligence tests and assessed her verbal IQ at 61, performance IQ at 69, and full scale IQ at 66, which are all in the mild intellectual disability range. (Id. at 2214.) She was unable to complete assessments of executive functioning due to “poor learning and perseveration on the wrong strategies.” (Id.) He also administered aptitude tests, and assessed her word reading at the second grade level, and spelling and math at the third grade level. (Id.) He noted that her aptitude levels were “below basic literacy, ” and she would not be able to complete job applications, read work forms for comprehension, or work on tasks involving strong numerical reasoning skills. (Id. at 2216.) He described Norris as “emotionally brittle, ” and noted she was ‘extremely nervous” and “copes by avoiding others.” (Id. at 2216.) He reported that she had used crack cocaine as recently as 3 months prior, and worried that the stress of returning to work might cause her to relapse. (Id. at 2213, 2216.) He recommended that she participate in volunteer work for a period of several months before considering competitive employment. (Id. at 2215.)

         On March 29, 2018, Norris reported to Nurse Collins that she was “doing fine” and conflict with her husband was reduced since they now had separate apartments, although her husband stayed with her every night. (Id. at 2622.) She had not taken her medications since April 2017, and her moods were “going up and down.” (Id.) Nurse Collins restarted her Latuda and Celexa prescriptions. (Id. at 2264.)

         2. Physical Impairments

         Norris received medical care at the Free Clinic from at least April 2012. (Tr. 716.) On April 24, 2012, clinical notes indicated Norris had a diagnosis of chest wall pain, back pain, cervical neck strain, radiculopathy along her right arm, and obesity. (Id.)

         On June 7, 2012, Norris told her care provider she had begun participating in a vocational program, but her legs were “giving out, ” and her feet were swelling. (Id. at 719.)

         On June 12, 2012, she reported to her care provider that she had experienced leg pain when she stood since 2009, her knees gave out, she “constantly” needed to change positions but sometimes got numbness in her arms and legs when she did, and got tired going up and down stairs. (Id. at 720.)

         On January 13, 2014, Norris reported chest wall pain that co-occurred with paresthesis in her right arm, pain in her left arm when she reached over her head, dizziness when she changed positions, fatigue, and trouble sleeping. (Id. at 732.)

         On March 20, 2013, Norris was seen at MetroHealth's Heart and Vascular Center. (Id. at 885.) She reported having a few years' history of sharp, shooting chest pain, extending from her right upper chest to under her right breast, lasting “constantly for an hour, sometimes and hour and a half.” (Id. at 885-86) This pain was sometimes so severe that it caused her to bend over and grab her chest, and was sometimes accompanied by nausea. (Id. at 885.) The Nurse Practitioner's impression was atypical chest pain, and synocope suggesting a vasovagal response, perhaps related to her antidepressant medications. (Id. at 888.)

         On April 11, 2013, a sleep study was performed at MetroHealth because Norris reported excessive daytime sleepiness, not feeling refreshed after sleep, gagging or choking at night, and waking up with a headache. (Id. at 1003.) It demonstrated Severe Obstructive Sleep Apnea Syndrome. (Id. at 1005.) As a result, Norris was proscribed a CPAP. (Id. at 898.)

         On April 11, 2013, a polysomnogram performed at MetroHealth again demonstrated Severe Obstructive Sleep Apnea Syndrome. (Id. at 1067.) Again, treatment with a CPAP was discussed. (Id. at 1070.)

         On May 7, 2013, Norris was seen by Dr. Raju at MetroHealth for a disability evaluation. (Id. at 1048.) She reported lower back pain, that had troubled her “on and off” since 1998, but gotten worse since 2009. (Id. at 1045.) Her back exam revealed a decreased lumbar lordotic curve, mildly decreased range of motion in all planes, with increased pain on her flexion, tenderness at the left lumbarsacral junction, left gluteus, and sacroiliac joint on the left, and low normal bilateral patellar and achilles reflexes. (Id. at 1047-48.) The examining physician recommended physical therapy, and noted that Norris needed to engage in treatment options before he could evaluate her disability. (Id. at 1048.)

         On May 14, 2013, Norris began physical therapy to address chronic pain, increase the range of motion in her lumbar spine, and increase her strength and ability to function. (Id. at 1059.) The 12-week goal for her physical therapy was that she would be able to stand, sit, or walk for 30 minutes without significant difficulty. (Id.)

         On July 2, 2013, Norris returned to Dr. Raju for a follow-up to her May disability evaluation. (Id. at 1575.) She described herself as “50% better” following three sessions of physical therapy, regular home exercise, flexeril and use of a TENS unit to treat her pain. (Id.) The examining doctor noted that Norris “didn't say anything about disability today and looks forward to getting 10% pain relief.” (Id.)

         On August 26, 2013, Norris was seen at MetroHealth for a follow-up sleep medicine visit. (Id. at 1592.) She reported “I'm using my cpap and I love it.” (Id.)

         On October 22, 2013, Norris returned to Dr. Raju for a second follow-up visit. (Id. at 1599.) She reported that her lower back pain was “waxing and waning” and her knee pain was getting worse with winter, but she continued her home exercise program daily and was enthusiastic about the pain relief from her TENS unit. (Id.) Dr. Raju performed a disability evaluation at Norris' request. (Id.) He opined that Norris could lift 30 pounds occasionally and 20 frequently; stand a total of 8 hours, but stand only 2-3 without interruption; had no sitting impairment; could climb occasionally and balance frequently; could rarely stoop, crouch or crawl; had no restrictions in reaching, pushing, pulling or gross manipulation; and no environmental restrictions. (Id. at 1602.)

         On January 21, 2014, Norris saw Dr. Raju complaining that her right toe had been hurting ever since she banged it into a table four months previously. (Id. at 1637.) Her lower back pain continued to wax and wane, and she had no plans to go back to work, but was “doing overall well” and continued to do home exercises every other day. (Id.)

         On February 17, 2014, Norris was seen at the MetroHealth medical clinic for a follow up for her hypertension. (Id. at 1646.) She reported that she did not like taking her blood pressure medication, and therefore was not doing so. (Id.) She also reported intermittent right arm tingling and numbness, that “lasts for a few minutes [then] goes away [and] does not affect her ability to grasp or pick up objects.” (Id.)

         On April 1, 2014, Norris saw Dr. Raju, and reported her toe pain was 50% improved and her back was “not bothersome.” (Id. at 1655.) He noted that while she had “minimal restrictions from a musculoskeletal standpoint, ” the pain relief she had achieved had not led to any functional gains. (Id. at 1658.)

         On August 1, 2014, Norris went to MetroHealth's Acute Care Clinic for shortness of breath and chest pain. (Id. at 1666.) The examining physician assessed her symptoms as “likely secondary to chronic nicotine abuse and obesity.” (Id. at 1668.) A ...


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