Cooper v. Saul

444 F.Supp.3d 565

Latataura Lannette COOPER, Plaintiff,

v.Andrew SAUL, Commissioner of Social Security, Defendant.¹

18 Civ. 9949 (GWG)

United States District Court, S.D. New York.

Signed March 12, 2020

Mackenzie Lew, Ann Pegg Biddle, Urban Justice Center, New York, NY, for Plaintiff.

OPINION & ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Latataura Lannette Cooper brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act (the "Act"). Cooper and the Commissioner both move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, Cooper's motion is granted and the Commissioner's motion is denied.

I. BACKGROUND

A. Procedural History

Cooper filed an application for DIB and SSI benefits on March 12, 2015, alleging a disability onset date of December 1, 2013. See Certified Administrative Record, filed March 20, 2019 (Docket # 11) ("R."), at 259. The Social Security Administration ("SSA") denied Cooper's application on May 20, 2015. R. 163. Cooper requested a hearing before an administrative law judge ("ALJ"). R. 171. Cooper initially appeared before the ALJ on February 2, 2017, but was granted a postponement to seek legal counsel. R. 60-83, 254-56. The full hearing before the ALJ occurred on May 4, 2017. R. 84-129. In a written decision dated June 7, 2017, the ALJ found that Cooper was not disabled within the meaning of the Act. R. 21-44. The Appeals Council denied Cooper's request for review, making the ALJ's decision the final decision of the Commissioner. R. 1-8. Cooper timely filed this action on October 29, 2018. See Complaint, filed Oct. 29, 2018 (Docket # 1). The instant motions followed.²

B. The Hearing Before the ALJ

Cooper's hearing before the ALJ occurred on May 4, 2017, in Brooklyn, New York. R. 86. At the hearing, Cooper gave testimony and was represented by her attorney, Ann Bryant. R. 86. Also present and testifying was Tonya Shellow, a vocational expert ("VE"). R. 84. Before testimony was taken, the ALJ declined to admit into evidence records from Cooper's new psychotherapist because submission of those records did not comply with the "five-day rule" requiring evidence to be provided to the ALJ five business days before the hearing, see 20 CFR 404.935(a), and because the records were cumulative and did not show any new or significantly worse conditions. R. 89-90. The ALJ did, however, accept submission of updated records from Cooper's pulmonologist, Dr. Filopei. R. 90. These records indicated Cooper could stand for only 45 minutes at a time, as opposed to the original records' indication that she could stand for over two hours at a time. R. 91. The updated records also indicated that Cooper could "sit for about four hours and can stand and/or walk for a total of less than two hours," R. 91, and that "she can lift and carry less than 10 pounds rarely," R. 92.

Cooper testified that she was 34 years old and lived by herself in the Bronx. R. 96. She is five-feet two-inches tall and weighs 130 pounds. R. 96. She has a driver's license but does not own a car. R. 97. She is able to take public transportation on her own, but only does so when she has to. R. 97, 107. She has a high school diploma, but only attended a year and a half of college and did not graduate. R. 97. She obtained an insurance license, but has not worked since 2012. R. 98. She got sick prior to September 11, 2001, but the terrorist attack made her medical conditions worse because she was still trying to find work at that time and not focusing on her health. R. 99.

Cooper testified as to her medical conditions and treatment. She has been diagnosed with asthma, bronchitis, anxiety, PTSD, OCD, and fibroids. R. 99. Cooper is seeing Dr. Filopei, a pulmonary specialist. R. 99. She is also going to the Sidney Hillman Family Institute of Health for mental health treatment. R. 100. Cooper's asthma prevents her from walking for long periods of time, and she can only carry one bag of groceries at a time. R. 100-01. Extremely hot and cold weather exacerbates the symptoms. R. 100-01. Cooper was recently placed on Symbicort for her asthma but also uses her nebulizer to administer albuterol nearly every day. R. 101. She uses Ventolin for emergency asthma treatment. R. 104. She takes Singulair, Mucinex, and Flonase for her allergies. R. 101. She takes Drysol for her anxiety. R. 104.

Cooper also has a fibroid uterus, and her doctors have not yet determined the best method for treating it. R. 109. The fibroid uterus does not cause her pain every day, but it does cause pain when she has her period. R. 109. Her doctors are still trying to determine whether it also causes her to suffer from urinary tract infections. R. 109.

Cooper was admitted to Lincoln Hospital around Christmas-time 2016 because of a kidney infection. R. 101. While in the hospital, Cooper suffered from a pulmonary edema, which her treating physician noted also likely caused fluid to build up in Cooper's lungs. R. 102. Her treating physician noted that the pulmonary edema may have been caused by the frequent injection of intravenous fluids Cooper received during her hospital stay. R. 103. Since being released from the hospital, Cooper has had to visit the emergency room because of kidney issues. R. 103.

Cooper testified that she is not currently on any psychiatric medicine, and that she had two mental health appointments at "Barrier Free" in 2016. R. 105. Cooper believes she is unable to work because of "post-traumatic stress, the depression, and the anxiety." R. 105. Cooper is not sure if she suffers anxiety attacks, but sometimes gets off trains when there are too many people on them. R. 105-06. Occasionally, when Cooper would go to work she "just couldn't deal with it," and would go back home. R. 106.

Cooper describes her typical day as attending doctors' appointments, visiting with her lawyer, and going to the "Coalition for the Homeless advocate." R. 106. Cooper is able to do her own cooking, but laundry is very difficult because Cooper struggles to push shopping carts filled with laundry, as it is very hilly near her home. R. 107. Grocery shopping is also difficult for Cooper because of the need to carry bags and push shopping carts. R. 107. Cooper considers herself "socially withdrawn" and cannot identify any friends. R. 107. Cooper does not "even know how long" it has been since she went to the movies. R. 108. She does not go to sporting events. R. 108. Cooper manages her own finances, which consist of public assistance and food stamps. R. 108.

In response to questions from her attorney, Cooper testified that she can walk up about two flights of stairs before she has to use her inhaler. R. 118. She can walk about five blocks before she needs to use her inhaler, though the weather sometimes makes a difference. R. 119. Cooper walks slowly and typically sits on the subway. R. 119-20. When Cooper feels like she will have to stand for the entire ride because of a crowded subway, she sometimes will just get off the train. R. 120. Cooper cleans her own small studio apartment. R. 121. After cleaning her apartment, Cooper feels tired and sometimes has to use her nebulizer, even after wearing a mask while cleaning. R. 122. Cooper stated she would need to have her nebulizer with her at her place of employment if she worked at a full-time job. R. 122-23. As to her fibroid uterus, Cooper gets intense pain during her period every month. R. 123. Sometimes the pain is so great she cannot get out of bed or has to crawl to her kitchen. R. 123. Occasionally when it is humid out, Cooper feels like she is suffocating. R. 124. Cooper testified that indoor air conditioners and heaters also impact her asthma, and that she had to be taken away from her old insurance job by ambulance several times. R. 124. When she worked previously, Cooper would sometimes be distracted about thoughts of whether a terrorist attack similar to the 9/11 attacks would happen again. R. 125. Cooper has nightmares when sleeping, which sometimes cause her to either over-sleep or under-sleep. R. 126. Cooper states she loves to read but no longer reads because she cannot concentrate. R. 126.

The VE also testified. The VE stated that Cooper's previous insurance work would be classified as an "insurance clerk," which is a semi-skilled position with a sedentary exertional level. R. 111-12. The ALJ then posed a number of hypothetical scenarios to the VE. First, the ALJ asked the VE to

consider an individual with the claimant's age — she's been a younger individual at all times relevant to this decision — her education — she has more than a high school education — and past work as an insurance clerk. Please consider such an individual who is limited to the following residual functional capacity: Specifically, she can lift and/or carry 10 pounds occasionally, less than 10 pounds frequently; she can sit with normal breaks for a total of six hours per eight-hour work day but can stand and/or walk, even with normal breaks for a total of just two hours per eight-hour work day. In terms of postural limitations, she should never climb ladders, ropes, or scaffolds but can occasionally climb ramps and stairs and can occasionally balance, stoop, kneel, crouch, and crawl. There are no manipulative, visual, or communicative limitations for the purpose of this hypothetical. However, in terms of environmental limitations, must avoid more than occasional exposure to respiratory irritants, fumes, odors, dust, gases, industrial chemicals, poorly ventilated work environments .... No exposure to freezers. No exposure to work that is done exclusively out of doors.... Lastly, in terms of mental limitations, she is restricted to simple and repetitive tasks in a

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