(SS) Harris v. Commissioner of Social Security ( 2020 )

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 JOY LYNN HARRIS, No. 1:19-cv-01084-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF 7 ANDREW SAUL, Commissioner of Social AND AGAINST THE COMMISSIONER OF Security, SOCIAL SECURITY 8 9 Defendant. 10 11 I. Introduction 12 Plaintiff Joy Lynn Harris (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 14 disability insurance benefits pursuant to Title II of the Social Security Act. The matter is before 15 the Court on the parties’ briefs which were submitted without oral argument to the Honorable Gary 16 S. Austin, United States Magistrate Judge.1 See Docs. 15, 18 and 22. After reviewing the record, 17 the Court finds that substantial evidence and applicable law do not support the ALJ’s conclusion 18 that Plaintiff is not disabled. Accordingly, the Commissioner’s decision is reversed and this case 19 is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further 20 proceedings in accordance with this opinion. 21 II. Procedural Background 22 On April 6, 2018 Plaintiff filed an application for disability insurance benefits claiming 23 disability beginning May 1, 2017. AR 220. Plaintiff claimed severe pulmonary hypertension and 24 congestive heart failure. AR 220. The Commissioner denied the application initially on July 16, 25 2018 and on reconsideration on September 24, 2018. AR 93, 100. 26 Plaintiff requested a hearing on October 13, 2018. AR 106–107. Administrative Law Judge 27 28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 6 and 8. 1 Joyce Frost-Wolf (the “ALJ”) presided over an administrative hearing on January 18, 2019. AR 2 29–64. Claimant was represented by counsel Melissa Proudian at the hearing.2 AR 29. On March 3 8, 2019, the ALJ issued a decision denying Plaintiff’s application. AR 12–28. 4 The Appeals Council denied review on June 5, 2018. AR 1–4. On August 8, 2019, Plaintiff 5 filed a complaint in this Court. Doc. 1. 6 III. Factual Background 7 A. Plaintiff’s Testimony 8 Plaintiff testified as follows at the administrative hearing on January 18, 2019. Plaintiff 9 (born June 8, 1958) lived with her husband and dog in a one-story house. AR 36. Plaintiff’s highest 10 level of education was high school. AR 36. At the onset of her disability she spent most of her 11 time in bed due to fatigue and shortness of breath. AR 44–45. She experienced leg swelling, and 12 at one point lost sixteen pounds of accumulated fluid from her legs and chest while hospitalized in 13 June 2017. AR 45. To determine the cause of her symptoms she was evaluated by a cardiologist, 14 an allergist and specialists at Stanford. AR 45. Treatment improved her functioning somewhat, 15 but she continued to experience shortness of breath when walking, climbing stairs or sitting for 16 extended periods of time. AR 46. She could cook for fifteen minutes and otherwise care for herself, 17 but she could not grocery shop nor could she sit for more than an hour due to swelling in her legs. 18 AR 46–47. She required elevation and diuretics to alleviate the swelling when it occurred. AR 46. 19 The diuretics required bathroom breaks every twenty minutes. 20 She experienced short term memory loss, which she attributed either to her medication or 21 her shortness of breath. AR 46. She could use a computer for fifteen to twenty minutes before 22 requiring elevation of her feet to prevent swelling. AR 47. Medications helped her symptoms but 23 did not alleviate her need to elevate her legs. AR 49. She could stand for fifteen minutes and only 24 walk an eighth of a block before resting. AR 51. Her main symptoms included swelling, fatigue, 25 chest pains and shortness of breath. AR 51–52. Two days a week she was too fatigued to get out 26 of bed. AR 54. She was unable to use the stairs. AR 55. 27 The ALJ submitted a hypothetical to the vocational expert regarding an individual of 28 2 Plaintiff is now represented by Jonathan Pena on appeal. 1 Plaintiff’s age, education and work history who could perform work at the light exertional level. 2 The vocational expert testified that such an individual could perform Plaintiff’s past work as a 3 supervisor, survey worker, loan officer, telephone solicitor, or wedding consultant. AR 60. If a 4 condition was added that the hypothetical individual required two or more additional, unscheduled 5 breaks during the workday of twenty minutes in duration in order to elevate her legs to waist level, 6 there would be no work available. AR 60–61. If a condition was added that the hypothetical 7 individual was limited to non-complex routine tasks, no past work would be available. AR 61. If 8 the individual was off task 15% of the time, no work would be available. AR 61–62. 9 B. Medical Records 10 For the sake of brevity, and in light of this Court’s holding, the below factual summary will 11 focus on records concerning treatment, diagnoses and testing related to Plaintiff’s cardiac condition 12 and pulmonary hypertension. 13 Plaintiff has a history of uncontrolled hypertension. AR 337–39. Plaintiff was treated by 14 Dr. Sam Borno at the Cardiac Institute on March 15–16, 2017 for hypertension and shortness of 15 breath. AR 546–49. She underwent a stress echocardiogram which revealed reduced functional 16 aerobic capacity, but otherwise normal heart rate and blood pressure response to exercise. AR 560. 17 Spirometry testing in May 2017 at the Allergy, Asthma and Immunology center, revealed mild 18 restriction, unimproved upon bronchodilator treatment. AR 327–28. A June 12, 2019 examination 19 by Plaintiff’s primary care physician, Dr. Mary. A. Sadlek, revealed respiratory distress, wheezing, 20 and blood pressure of 150/102, resulting in a diagnosis of uncontrolled hypertension. AR 336–37. 21 On June 16, 2017, Plaintiff was admitted to the emergency room at St. Agnes Medical 22 Center for congestive heart failure, shortness of breath and bilateral lower extremity edema. AR 23 454, 468–69. She was diagnosed with non-ST elevation myocardial infarction and decompensated 24 heart failure. AR 454. She underwent a left heart catheterization which revealed elevated left 25 ventricular end-diastolic pressure at 20 mmHg. AR 489. She was discharged in stable condition 26 on June 17, 2017. AR 435–47. 27 After experiencing continued shortness of breath and bloody cough, Plaintiff reported to 28 Dr. Sadlek on July 13 and August 23, 2017, who diagnosed hypertension, mild viral 1 cardiomyopathy and referred Plaintiff to pulmonology. AR 333–35; 379–81. Plaintiff reported to 2 Dr. Kandsawamy at Community Pulmonary Associates on September 1, 2017, who diagnosed 3 dyspnea, congestive heart failure and pleural effusion. AR 380–81. On November 28, 2017, 4 Plaintiff presented to the emergency room at St. Agnes Medical Center with shortness of breath, 5 bloody urine and anxiety. AR 401. An examination found bilateral edema and moderate 6 respiratory distress. AR 405, 407. She was treated with a nebulizer, prescribed Prednisone and 7 discharged. AR 408–09. 8 An echocardiogram completed on December 8, 2017 found ejection fraction of 30%-35%, 9 mild tricuspid regurgitation and pulmonary artery pressure of 64 mmHg. AR 553–54. Plaintiff 10 reported to Dr. Zhu at Stanford on February 26, 2018, and a transthoracic echocardiogram revealed, 11 among other things, right ventricular systolic pressure of 78 mmHg and elevated right atrial 12 pressure at 15mmHg, consistent with severe pulmonary hypertension. AR 614. She was diagnosed 13 with pulmonary hypertension and class two heart failure. AR 580. She tested positive for 14 amphetamine use and additional testing was ordered. AR 581. Dr. Spiekerkoetter reviewed the 15 records concluding that Plaintiff was likely suffering severe pulmonary hypertension secondary to 16 toxins (diet pills and stimulants), severe right ventricle dilation and markedly reduced function. AR 17 747. Dr. Spiekerkoetter recommended right heart catheterization pending confirmation of a 18 negative drug screen on follow up testing. AR 747–48. Plaintiff’s three subsequent amphetamine 19 tests were negative. AR 569, 576, 582, 587, 600–01. 20 Plaintiff underwent a right heart catheterization on March 22, 2018. AR 570–72. Plaintiff 21 reported to Dr. Spiekerkoetter on April 9, 2018 for test results, who diagnosed severe pulmonary 22 hypertension with increased pulmonary artery pressure of 55mmHg. AR 568–69. 23 Dr. Spiekerkoetter issued a letter on April 30, 2018 reporting a diagnosis of pulmonary 24 arterial hypertension and an elevated mean pulmonary artery pressure of 49 mmHg. AR 685. 25 Plaintiff continued treatment with Stanford clinics from May 2018 through October 2018 for 26 pulmonary hypertension and chronic right heart failure. AR 757–885. On September 10, 2018, a 27 transthoracic echocardiogram revealed elevated right ventricular systolic pressure at 46 mmHg. 28 AR 834. Dr. Chang diagnosed pulmonary hypertension with improvement in functional status. AR 1 841–43. Lab results revealed another positive finding for amphetamines, which Plaintiff denied 2 using. AR 872. Dr. Spiekerkoetter completed an undated medical source statement regarding 3 Plaintiff’s limitations due to pulmonary arterial hypertension, estimating RVSP of 70 mmHg based 4 on echocardiogram, with pulmonary artery pressure of 57 by right heart catheterization, but without 5 identifying the date of the procedures to which either of those figures relate. AR 892. 6 C. Agency Medical Consultants 7 The medical portion of claimant’s disability determination at the initial level reflects a 8 medical opinion from state agency medical consultant Dr. Roger Fast, dated July 11, 2018. Dr. 9 Fast opined as follows: 10 Claimant has listing level pulmonary hypertension, but her high RVSP (78) and high 11 systolic PAP (>60) were not diagnosed until well after DLI [Date Last Insured]. She had a stress echo in 03/17 and was able to walk on the treadmill 6 minutes on Bruce 12 protocol, indicating better than 5 METS. I don’t think we can infer listing level disease to DLI. She gives a history of meth abuse in her 20s and 30s, and denied 13 recent use. However, in 02/18 her screens were positive and it may by that her recent worsening is related to using again. 14 15 AR 71, 75, 87. IV. Standard of Review, Generally 16 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 17 Commissioner denying a claimant disability benefits. “This court may set aside the 18 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 19 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 20 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 21 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 22 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 23 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 24 When performing this analysis, the court must “consider the entire record as a whole and may not 25 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social Security 26 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks omitted). 27 If the evidence could reasonably support two conclusions, the court “may not substitute its 28 1 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 2 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision 3 for harmless error, which exists when it is clear from the record that the ALJ’s error was 4 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 5 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 6 V. The Disability Standard 7 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 8 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 9 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 10 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 11 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 12 economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for 13 him, or whether he would be hired if he applied for work. 14 42 U.S.C. §1382c(a)(3)(B). 15 To achieve uniformity in the decision-making process, the Commissioner has established a 16 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 17 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 18 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 19 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 20 gainful activity during the period of alleged disability, (2) whether the claimant had medically 21 determinable “severe impairments,” (3) whether these impairments meet or are medically 22 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 23 whether the claimant retained the residual functional capacity (“RFC”) to perform his past relevant 24 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 25 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 26 VI. The ALJ’s Decision 27 The ALJ found that Plaintiff had not engaged in substantial gainful activity from the alleged 28 onset date of May 1, 2017 through her date last insured of September 30, 2017. AR 17. The ALJ 1 found that, through her date last insured of September 30, 2017, Plaintiff’s severe impairments 2 were as follows: left knee mild degenerative changes and pulmonary arterial hypertension. AR 17. 3 The ALJ found that Plaintiff did not have an impairment or combination of impairments that met 4 or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart 5 P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). AR 18. 6 The ALJ concluded that Plaintiff had the residual functional capacity to perform her past 7 relevant work as a telephone solicitor, loan officer, supervisor, survey worker, and wedding 8 consultant. AR 22. The ALJ also concluded that Plaintiff had the residual functional capacity to 9 perform light work as defined in 20 C.F.R. §§ 404.1567(b). AR 22. Accordingly, the ALJ 10 concluded that Plaintiff was not disabled as defined in the Act. AR 23. 11 VII. Issues Presented 12 Plaintiff asserts three claims of error: 1) that the ALJ erred at step three by failing to consider 13 the applicability of Listing 3.09 (chronic pulmonary hypertension); 2) that the ALJ erred by 14 rejecting the opinions of her treating physicians Dr. Sadlek and Dr. Spiekerkoetter; and 3) that the 15 ALJ failed to include work-related limitations consistent with the nature and intensity of Plaintiff’s 16 limitations. Br. at 1, Doc. 15. 17 Defendant responds that Plaintiff waived her argument under Listing 3.09 by not raising it 18 below, and that she would not satisfy the listing’s requirements in any event because she did not 19 undergo the required medical procedure. Because the Court finds that remand is appropriate to 20 consider the applicability of Listing 3.09 at step three, the Court will not address Plaintiff’s second 21 and third claims of error. 22 A. Applicable Law 23 At step three, ALJs must consider whether a claimant’s severe impairments meet or 24 medically equal an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§ 25 416.920(a)-(f). “To meet a listed impairment, a claimant must establish that he or she meets each 26 characteristic of a listed impairment relevant to his or her claim. To equal a listed impairment, a 27 28 claimant must establish symptoms, signs and laboratory findings at least equal in severity and 1 duration to the characteristics of a relevant listed impairment . . .” Tackett v. Apfel, 180 F.3d 1094, 2 1099 (9th Cir. 1999) (emphasis in original) (internal quotations omitted). 3 An affirmative finding at step three results in a determination of disability without 4 proceeding to steps four or five. See 20 C.F.R. § 416.920(d) (“If you have an impairment(s) which 5 meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s), we 6 7 will find you disabled without considering your age, education, and work experience.”); 20 C.F.R. 8 §§ 416.927, 416.929 (noting that the ALJ proceeds through the steps and stops upon reaching a 9 dispositive finding that the claimant is or is not disabled); Lewis v. Apfel, 236 F.3d 503, 512 (9th 10 Cir. 2001) (“If a claimant has an impairment or combination of impairments that meets or equals a 11 condition outlined in the ‘Listing of Impairments,’ then the claimant is presumed disabled at step 12 three, and the ALJ need not make any specific finding as to his or her ability to perform past relevant 13 work or any other jobs.”). 14 15 Claimants generally bear the burden to prove entitlement to disability benefits. Mayes v. 16 Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 20 C.F.R § 404.1512(c). However, Social Security 17 hearings are non-adversarial. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Whether or 18 not the claimant is represented by counsel, the ALJ “must inform himself about the facts relevant 19 to his decision.” Heckler v. Campbell, 461 U.S. 458, 471 n. 1 (1983). ALJs must evaluate the 20 relevant evidence before concluding that a claimant's impairments do not meet or equal a listing. 21 A boilerplate finding on this point is insufficient. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 22 23 B. Analysis 24 As to Plaintiff’s claim that the ALJ erred by failing to consider the applicability of Listing 25 3.09 at step three, two distinct issues are implicated by the party’s briefs: 1) whether Plaintiff 26 waived the Listing 3.09 argument by not raising it below, and 2) whether the proper medical 27 procedure was performed to establish the condition set forth in Listing 3.09. 28 1 1. Waiver 2 Defendant relies on Meanel to support his argument that Plaintiff waived Listing 3.09 by 3 not raising the issue below. See Resp. at 5, Doc. 18 (citing Meanel v. Apfel, 172 F.3d 1111, 1115 4 (9th Cir. 1999)). In Meanel, the Ninth Circuit stated as follows: 5 We now hold that, at least when claimants are represented by counsel, they must 6 raise all issues and evidence at their administrative hearings in order to preserve 7 them on appeal. The ALJ, rather than this Court, was in the optimal position to resolve the conflict between Meanel’s new evidence and the statistical evidence 8 provided by the VE. We will only excuse a failure to comply with this rule when necessary to avoid a manifest injustice, which will not occur here. 9 Meanel, 172 F.3d at 1115. There are several reasons why a finding of waiver is not appropriate 10 11 here. 12 The specific factual circumstances of Meanel involved new evidence raised on appeal, not 13 new issues. That is, the claimant was barred from raising new evidence (statistical job data) before 14 the district court that she did not raise before the ALJ. Id. Here, by contrast, all relevant evidence 15 was part of the administrative record, and Plaintiff is not seeking to raise new evidence on appeal. 16 Additionally, Plaintiff’s omission here was not nearly as grievous as many other examples 17 in the case law applying Meanel’s waiver doctrine. Plaintiff is not, for example, attempting to 18 19 assert the existence of an entirely new medical impairment on appeal, nor did she altogether neglect 20 to address the underlying condition set forth in Listing 3.09. Cf. Robinson v. Apfel, 232 F.3d 896 21 (9th Cir. 2000) (Robinson appeared before the ALJ with an attorney and did not raise the issue of 22 her amputated finger. She thus waived judicial review of this issue) (emphasis added); Shaibi v. 23 Berryhill, 883 F.3d 1102, 1108–10 (9th Cir. 2017) (“when a claimant fails entirely to challenge a 24 vocational expert’s job numbers . . . the claimant forfeits such a challenge on appeal . . . Shaibi did 25 not even obliquely suggest that the VE’s job estimates might be unreliable at any point during 26 27 administrative proceedings.”) (emphasis added). Here, Plaintiff’s counsel addressed the medical 28 history related to the underlying condition of pulmonary hypertension, addressed the associated 1 findings of elevated pulmonary artery pressure and addressed the related cardiac catheterization 2 testing, all of which relate directly to Listing 3.09. See AR 296–301, 308–17. She simply omitted 3 any specific reference to Listing 3.09 or its requirements, opting instead for a catchall statement 4 that “all listings applicable to this case should be considered.” AR 297.3 5 This omission was not prejudicial to the Commissioner who was on notice of the relevance 6 7 of Listing 3.09. See Simpson v. Berryhill, 717 F. App’x 670, 673 (9th Cir. 2017) (“in Meanel, the 8 claimant rest[ed] her arguments on additional evidence presented for the first time on appeal, thus 9 depriving the Commissioner of an opportunity to weigh and evaluate that evidence . . . That is not 10 the situation here, and the Commissioner is not prejudiced by Simpson’s failure to raise the issue 11 below.”). Indeed, the Commissioner here had an opportunity to weigh and evaluate the evidence 12 related to Listing 3.09 and did so in reaching a disability determination. See AR 72, Disability 13 Determination Explanation (reflecting that the “Adult Listings Considered” included 3.09 (Chronic 14 15 Pulmonary Hypertension Due to Any Cause)); see also AR 75 (in which state agency medical 16 consultant Dr. Fast noted in the medical portion of the disability determination that “claimant has 17 listing level pulmonary hypertension” but that the relevant procedure was not conducted “until well 18 after DLI [date last insured].”). 19 Moreover, of the nearly 4,000 cases that have cited Meanel since it was decided twenty 20 years ago, Defendant does not identify any explicitly applying Meanel to the present set of facts. 21 Defendant relies on Steward, an unpublished district court case involving a separate question of 22 23 whether a claimant must preserve a listing argument by raising that argument before the Appeals 24 Council4 (as opposed to raising it before the ALJ, which is the issue addressed by Meanel). Resp. 25 3 While perhaps not a model of thorough advocacy, and which might have been insufficient to preserve the claim for 26 appeal, there were other countervailing circumstances as explained herein. 4 Steward’s holding on that point is questionable in light of Sims, in which a plurality of the Supreme Court determined 27 that a claimant need not preserve issues before the appeals council because social security proceedings are “not adversarial” and “the Council, not the claimant, has the primary responsibility for identifying and developing the 28 issues.” Sims v. Apfel, 530 U.S. 103, 103–04 (2000). Separately, other courts have also observed that Meanel is called 1 at 5, Doc. 18 (citing Steward v. Astrue, 2012 WL 4210624 (D. Or. Sept. 19, 2012) (unpublished)). 2 Thus, Steward is neither controlling nor persuasive authority. 3 Notably, Meanel set forth an exception to the waiver doctrine noting that a claimant’s failure 4 to preserve an issue for appeal will be excused “when necessary to avoid a manifest injustice.” 5 Meanel, 172 F.3d at 1115. This exception has been interpreted as granting reviewing courts 6 7 discretion in applying the waiver doctrine. See, e.g., Rayborn v. Colvin, No. 3:15-CV-01478-HZ, 8 2016 WL 5799348, at *5 (D. Or. Sept. 30, 2016) (“Finally, even if Meanel applies and Plaintiff 9 waived the issue, I exercise my discretion to address it.”). It is worth noting that Plaintiff is 10 represented by a new attorney on appeal, a fact which counsels against a finding of waiver. The 11 Court hesitates to impute her former attorney’s omission to Plaintiff and her new attorney, 12 particularly where her former attorney is not present to justify her advocacy strategy. 13 This factual record warranted discussion of Listing 3.09 by the ALJ. The administrative 14 15 record in this case contains 194 references to Plaintiff’s “pulmonary hypertension.” The ALJ found 16 that one of Plaintiff’s two severe impairments was “pulmonary arterial hypertension” and observed 17 that Plaintiff was diagnosed with “chronic hypertension” in August 2017. AR 17, AR 20. The 18 disability determination at the initial level reflects that the Commissioner considered the 19 applicability of Listing 3.09 (chronic pulmonary hypertension) and the associated opinion of state 20 agency consultant Dr. Fast who specified that “Claimant has listing level pulmonary hypertension,” 21 although he opined that the relevant procedure(s) post-dated Plaintiff’s date last insured. AR 75. 22 23 Defendant’s argument that an ALJ need not address “every potential listing” is not well taken here 24 as the facial relevance of Listing 3.09 (chronic pulmonary hypertension) seems readily apparent. 25 26 into doubt by Sims. See, e.g., Smith v. Berryhill, No. 216CV01284JADGWF, 2018 WL 5075963, at *7 (D. Nev. Mar. 27 29, 2018) (“Meanel, however, has been called into doubt by Sims . . ., in which the Supreme Court held that because Appeals Council has the primary responsibility for identifying and developing the issues, the claimant can raise issues 28 for the first time on judicial review.”). 1 The ALJ concluded that only Listing 1.02 (Major dysfunction of a joint) warranted discussion. 2 That conclusion is not supportable given this factual record. Accordingly, a finding that Plaintiff 3 waived her Listing 3.09 argument is not warranted.5 4 2. The Requirements of Listing 3.09 5 Listing 3.09 reads as follows: “Chronic pulmonary hypertension due to any cause (see 6 7 3.00L) documented by mean pulmonary artery pressure equal to or greater than 40 mm Hg as 8 determined by cardiac catheterization while medically stable (see 3.00E2a).” 20 C.F.R. § Pt. 404, 9 Subpt. P, App. 1. 10 Defendant argues that even if Plaintiff did not waive the argument, the Court should find 11 that the ALJ did not err because Plaintiff does not satisfy the criteria of the listing. Resp. at 6, Doc. 12 18. Specifically, Defendant notes that Listing 3.09 requires that mean artery pressure be established 13 by means of cardiac catheterization while medically stable, and Defendant contends that “[t]he 14 15 present record does not reflect that this specific procedure was conducted, and where spirometry 16 procedure was conducted as defined under 3.00E2a the results were consistently ‘normal.’” Id. 17 Defendant’s point about the spirometry results is unclear. Listing 3.09 cross-references 18 3.00E2a (which discusses spirometry) to borrow its definition of “medically stable” which is the 19 condition the patient must be in during cardiac catheterization in order to yield a valid mean 20 pulmonary artery pressure reading (hereinafter “mPAP”) under listing 3.09. It therefore appears 21 that Plaintiff’s “normal” spirometry results mean Plaintiff was considered “medically stable” under 22 23 3.00E2a for the purpose of undergoing a cardiac catheterization. But Defendant’s position is that 24 Plaintiff did not undergo a cardiac catheterization. It is not clear why Defendant’s discussion of 25 spirometry readings is significant, and Defendant does not offer an explanation. 26 27 5 It bears mentioning that the Court makes no opinion on whether Plaintiff in fact met the requirements of Listing 3.09 through her date last insured. Rather, the lack of consideration of the issue by the ALJ given this record warrants 28 remand. 1 Moreover, Defendant’s contention that “[t]he present record does not reflect that this 2 specific procedure was conducted” (referring to a cardiac catheterization) is not correct. Plaintiff 3 did undergo a cardiac catheterization on June 16, 2017, and again on March 22, 2018. AR 19, 224, 4 225, 405, 406, 410, 440, 489, 567, 570, 571, 575, 579, 721, 745, 850. Whether these procedures 5 (or her echocardiography procedures) established an mPAP reading of 40 mmHg as required by 6 7 Listing 3.09 is a separate question, however, as is the timing of those procedures in relation to 8 Plaintiff’s date last insured. 9 Plaintiff’s June 16, 2017 left heart catheterization at St. Agnes Medical Center revealed left 10 ventricular end-diastolic pressure at 20 mmHg, which does not appear to establish a “mean 11 pulmonary artery pressure equal to or greater than 40 mm Hg” as required by Listing 3.09. Plaintiff 12 also underwent a transthoracic echocardiogram (TTE) on December 8, 2017 which revealed 13 “moderate to severe pulmonary hypertension (64 mmHg)” (AR 85), and she underwent another 14 15 TTE on February 26, 2018 which revealed an RVSP (right ventricular systolic pressure) of 78 16 mmHg, consistent with severe pulmonary hypertension (AR 614, 721). Although both readings 17 exceeded 40 mmHg (as required by Listing 3.09), neither specified that the reading was for mean 18 pulmonary artery pressure (as also required by Listing 3.09). The court in Sellars addressed a 19 similar situation: 20 The December 11, 2013 record documents only a pulmonary artery pressure 21 (“PAP”) of 50 mm Hg with no indication as to whether the pressure indicated was a mean figure. To be sure, the other records cited to by Plaintiff do indeed document 22 a systolic artery pressure of greater than 40 mm Hg, but they fail to establish the requisite mean pulmonary artery pressure of greater than 40 mm Hg. Systolic artery 23 pressure is not the same as mean artery pressure: [Mean pulmonary artery pressure] reflects the steady component of flow and the functional status of the distal 24 (resistive) pulmonary veasculature, while [systolic pulmonary artery pressure] is expected to encompass the pulsatile component of arterial load, which includes the 25 characteristics of right ventricular ejection and the characteristics of the proximal (elastic) pulmonary arteries and wave reflections. Chemla et al., New Formula for 26 Predicting Mean Pulmonary Artery Pressure Using Systolic Pulmonary Artery Pressure, 126 Chest Journal 1313, 1314 (2004) (footnotes omitted). 27 Sellars v. Berryhill, No. 2:17-CV-31, 2018 WL 3872319, at *5 (S.D. Ga. Aug. 15, 2018), report 28 1 and recommendation adopted, No. 2:17-CV-31, 2018 WL 4343408 (S.D. Ga. Sept. 11, 2018) 2 (citations omitted) (emphasis in original). Thus, it does not appear that either echocardiogram 3 (TTE) established a reading for mPAP, as required by Listing 3.09. 4 Moreover, Listing 3.09 requires that the mPAP be established by a cardiac catheterization, 5 not an echocardiogram. Consistent with that requirement, medical literature on the subject suggests 6 7 that echocardiography can facilitate a reasonably accurate estimate of mPAP and is a useful 8 screening tool for pulmonary hypertension, but that a definitive diagnosis of pulmonary 9 hypertension should be reserved for cardiac catheterization.6 This perhaps provides some context 10 to interpret the February 26, 2018 echocardiogram results, which were stated to be “consistent with 11 severe pulmonary hypertension” (but perhaps not conclusive of severe pulmonary hypertension). 12 AR 571, 614 (emphasis added). 13 Finally, Plaintiff underwent a right heart catheterization on March 22, 2018,7 which 14 15 revealed “severe PAPm of 55 . . . at baseline and in response to iNO with PAPm 49” resulting in a 16 diagnosis of severe pulmonary arterial hypertension. AR 568–69. Plaintiff’s cardiologist, Dr. 17 Spiekerkoetter, issued a letter in support of Plaintiff’s disability application on April 30, 2018 18 reporting a diagnosis of pulmonary arterial hypertension and an elevated mean pulmonary artery 19 pressure of 49 mmHg. AR 685. Although Dr. Spiekerkoetter did not specify which procedure she 20 was basing this reading and diagnosis on, this appears to be the first instance in the record 21 specifying a mean pulmonary artery pressure (as required by 3.09) and it does appear that this was 22 23 based on the March 22, 2018 right heart catheterization, which noted “PAPm 49.” Thus, the March 24 25 6 See See Silverton, N, et al., The controversy of right ventricular systolic pressure: is it time to abandon the pulmonary artery catheter? Anaesthesia 2015; 70: 241–244, available at https://wiki.library.ucsf.edu/download/attachments/400852716/Anaesthesia%20- 26 %20Cardiothoracic%20Anaesthesia%20Collection%202015.pdf?api=v2 7 Defendant’s doubt as to whether this procedure was performed might stem from the fact that other records state 27 “given the positive test result [for amphetamines], we cannot immediately proceed with a RHC as planned (originally scheduled for 3/22/2018) but need to repeat a tox screen to assure the test is negative.” AR 581. But it does appear 28 that the procedure was performed. 1 22, 2018 right heart catheterization appears to establish that Plaintiff met Listing 3.09 as of that 2 date. Notably, however, that procedure post-dated Plaintiff’s last date insured of September 30, 3 2017. 4 In sum, Plaintiff underwent a cardiac catheterization (the test required by Listing 3.09) on 5 June 16, 2017, though it appears that no mPAP reading was derived from that test. Plaintiff 6 7 underwent transthoracic echocardiograms (TTE) (not the required test under Listing 3.09) in 8 December 2017 and February 2018 (both of which postdated her last date insured of September 30, 9 2017), the results of which were reportedly consistent with (but perhaps not conclusive of) severe 10 pulmonary hypertension. And, finally, she underwent a cardiac catheterization in March 2018, 11 which did appear to establish the elements of Listing 3.09, but which also post-dated her last date 12 insured of September 30, 2017. 13 With respect to the timing of the relevant procedures vis-à-vis Plaintiff’s date last insured, 14 15 Plaintiff appeared to recognize this as a potential impediment to her claim, and she pre-emptively 16 addressed the issue in her opening brief: 17 Defendant may argue that the cardiac catheterization results are insufficient to establish presumptive disability, because the actual test was performed two months 18 after Plaintiff’s insured status expired. However, this is unavailing. The ALJ must 19 consider all of the evidence of record in determining whether a claimant meets the statutory definition of disability. SSR 18-1. In situations where onset of disability 20 must be inferred, the ALJ should call on the services of a medical expert to determine the date Plaintiff’s impairments became disabling. SSR 18-1. Here, there 21 is no evidence of any intervening worsening of Plaintiff’s condition between her date last insured of September 30, 2017 and the date the first testing for pulmonary 22 artery pressure was performed, and a medical expert could therefore draw 23 reasonable inferences as to the likely date that her pulmonary hypertension would meet the Listing, and whether it was prior to the expiration of Plaintiff’s insured 24 status. Further, as discussed below, Plaintiff’s treating sources asserted that Plaintiff’s impairments and limitations have persisted at the same disabling level of 25 severity since May 2017, further supporting the inference that Plaintiff’s impairment met the listing within the relevant period. 26 27 Br. at 13–14, Doc. 15. 28 Defendant did not respond to this argument. Rather, Defendant noted that Listing 3.09 1 requires a cardiac catheterization, and Defendant simply took the position that “the present record 2 does not reflect that this specific procedure was performed . . .” Resp. at 6, Doc. 18. As explained 3 above, this is not correct. 4 VIII. Remand for Further Proceedings 5 Because the record is not conclusive one way or the other, and the ALJ did not analyze the 6 7 matter, remand is appropriate to consider whether Plaintiff’s post-DLI procedures, in conjunction 8 with her pre-DLI history of hypertension and associated diagnoses, are sufficient to establish that 9 Plaintiff met or medically equaled Listing 3.09 for chronic pulmonary hypertension as of her date 10 last insured (and to further develop the record if necessary to facilitate the analysis of disability 11 onset date). See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Generally when a court 12 . . . reverses an administrative determination, the proper course, except in rare circumstances, is to 13 remand to the agency for additional investigation or explanation.”). 14 15 IX. Conclusion and Order 16 Based on the foregoing, the Court finds that substantial evidence and applicable law do not 17 support the ALJ’s decision that Plaintiff is not disabled. Accordingly, it is ordered that the 18 Commissioner’s decision is reversed, and this matter is remanded to the Commissioner pursuant to 19 sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion. The 20 Clerk of Court is directed to enter judgment in favor of Plaintiff Joy Harris, and against Defendant 21 Andrew Saul, Commissioner of Social Security. 22 23 24 IT IS SO ORDERED. 25 Dated: October 29, 2020 /s/ Gary S. Austin 26 UNITED STATES MAGISTRATE JUDGE 27 28