Opinion
Case No. 00-4093-DES
January 4, 2001
MEMORANDUM AND ORDER
This matter is before the court on plaintiff's request seeking reversal of the Social Security Commissioner's denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. and supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381, et seq. The court has reviewed the administrative record and the briefs of both parties. For the following reasons, the plaintiff's request is granted.
I. PROCEDURAL BACKGROUND
Plaintiff previously filed an application for disability benefits and was found disabled beginning January 1, 1991. On February 29, 1996, her disability ceased due to medical improvement and her entitlement to disability benefits ended. On October 18, 1996, an administrative law judge ("ALJ") rendered a decision affirming the cessation of benefits.
On May 12, 1997, plaintiff filed her current application for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and on May 24, 1997, plaintiff filed her application for supplemental security income based on disability under Title XVI of the Act, 42 U.S.C. § 1381, et seq. The alleged disability onset date was October 20, 1996. Her application was denied initially and denied again on reconsideration. Plaintiff requested an administrative hearing. On July 13, 1998, an ALJ rendered a decision in which he found that plaintiff was not disabled. Plaintiff requested a review of that decision by the Appeals Council. On April 14, 2000, the Appeals Council denied the plaintiff's request for review. Therefore, the ALJ's decision stands as the final decision of the Commissioner.
II. FACTUAL BACKGROUND
Plaintiff was born on August 5, 1959, and was thirty-eight years old at the time of the administrative hearing. She is five foot four inches tall and weighs 270 pounds. Plaintiff testified that this is not her normal weight, and that she gained approximately forty pounds due to her taking insulin. Plaintiff is married and has no children. Plaintiff completed the tenth grade and has no vocational training. Her last job was at a restaurant, cooking and washing dishes. She performed this job off and on for nine years. Plaintiff alleges disability due to diabetes, arthritis, asthma, and the beginning of emphysema. Plaintiff has a long medical history, which is briefly summarized below.
On January 5, 1996, plaintiff saw Dr. Joe Robert Hutchinson for complaints of a sore throat and cough. Plaintiff weighed 257 pounds and suffered from shortness of breath with exertion. Dr. Hutchinson assessed bronchitis and diabetes mellitus. On January 31, 1996, plaintiff again saw Dr. Hutchinson for the same complaints. Plaintiff weighed 251 pounds and had shortness of breath with exertion.
On July 11, 1996, plaintiff saw Dr. Hutchinson with complaints of persistent numbness of the lower extremities. Plaintiff complained of pain in her right knee and that her right knee gives way at times and causes difficulty with ambulation. Dr. Hutchinson's evaluation revealed tenderness of the right knee with palpation medially over the joint spaces. There was no definite evidence of instability, but her examination was difficult secondary to obesity. Dr. Hutchinson opined arthritis in the right knee and diabetes mellitus, poorly controlled. He prescribed anti-inflammatory medications and encouraged dietary compliance. On July 23, 1996, plaintiff saw Dr. Hutchinson for a follow-up visit and reported neck pain and right shoulder pain and numbness in her lower extremities. Plaintiff weighed 264 pounds. Plaintiff's range of motion was limited due to pain. Dr. Hutchinson ordered right shoulder and right knee x-rays. The knee x-ray revealed mild narrowing of the medial joint compartment and minimal marginal lipping laterally. The conclusion of the reviewing physician was an "unremarkable" x-ray which revealed very mild degenerative changes. Plaintiff was found to have mild arthritis and the doctor noted that plaintiff would need to see an orthopedic surgeon if the problems persisted.
On September 27, 1996, plaintiff called to report right upper abdominal pain just below her rib cage through her back, and she received a prescription for pain medication. On February 24, 1997, plaintiff weighed 268 and again complained of back pain. Dr. Hutchinson saw plaintiff on March 6, 1997 for a swollen right upper cheek. Dr. Hutchinson again noted poorly controlled diabetes mellitus which was beginning to result in end-organ damage, and recommended plaintiff consult with a diabetic teaching nurse. On March 27, 1997, plaintiff sought nutritional counseling and weighed 260 pounds. On May 23, 1997, plaintiff was treated for back and right side pain. She weighed 256 pounds, and complained of double vision.
On May 3, 1997, plaintiff saw Dr. Daniel Thompson, who performed a consultative physical examination. Dr. Thompson noted that plaintiff had diabetes since 1979 and she suffered symptoms of weakness, dizziness, and weight fluctuation (from 230 pounds to a maximum weight of 400 pounds). Plaintiff reported a thirteen year history of pain in her back, hips, right shoulder, and right knee, a history of nephropathy and numbness in both feet, and a history of shortness of breath related to chronic obstructive pulmonary disease. Plaintiff reported smoking two packs of cigarettes per day for twenty-nine years. Plaintiff's family history revealed her mother died at sixty-one years of age due to diabetes. Plaintiff estimated she could sit for twenty minutes, stand for five minutes, walk 100 yards, and occasionally lift ten pounds.
Upon physical examination, Dr. Thompson opined that plaintiff was overweight at 257 pounds. He found eye acuity of 20/100 in the right eye and scattered exudates. Plaintiff had scattered wheezes in her chest with mildly diminished breath sounds. Plaintiff had pain in her back, hips, right shoulder and right knee. Plaintiff suffered from neurological defects such as motor weakness in the right and left lower extremities at 2/5. Dr. Thompson observed plaintiff had moderate to severe difficulties with orthopedic maneuvers, including moderate difficulty getting on and off the examining table, moderate difficulty with heel to toe walking, moderate difficulty squatting and arising from the sitting position and severe difficulty hopping.
Dr. Thompson concluded that plaintiff had diabetes which caused exudates in her right eye. He concluded that plaintiff had a history of shortness of breath and that pulmonary function studies show moderate lung disease, but was unable to complete the study due to allergy history. He also concluded that plaintiff had arthralgias and that arthralgias produces multiple joint pains including pain in the right hip, right knee, lower back, and right shoulder. Dr. Thompson concluded that plaintiff had weakness in her lower extremities and moderate difficulty with orthopedic maneuvers. Dr. Thompson recommended weight loss and blood sugar follow-up.
On June 26, 1997, plaintiff saw Dr. Hutchinson, complaining of back pain, right side pain, and double vision. Plaintiff weighed 256 pounds. On July 18, 1997, plaintiff saw Dr. Hutchinson for abdominal pain. On March 25, 1998, plaintiff reported low back pain, which had persisted for the past several months, and abdominal pain. Plaintiff was assessed with lower back pain and given Motrin 800 mg for pain.
At the administrative hearing, plaintiff testified that she has arthritis in her hands, back, shoulders and knees. She takes prescription pain pills, as well as Ibuprofen and Advil, for pain relief. Plaintiff stated she receives only minimal relief from her pain pills. She lies down most of the time to try and decrease the pain, approximately four to five times a day for about fifteen minutes or more. Plaintiff is unable to predict when the need to lay down will arise. Plaintiff testified she has increased pain when sitting, as her back and legs hurt. She estimated that she could sit for fifteen minutes before needing to get up and move around. She also has difficulty standing. Plaintiff estimated she could stand for ten minutes or less before she needs to sit down. Plaintiff said walking is also difficult. Plaintiff estimated she could lift five pounds or less with both hands. Plaintiff testified that she would not be able to pick up a coffee mug because it would hurt. Air conditioning in the room makes her arms hurt and makes it painful to lift and move them around.
Plaintiff also testified that she has breathing difficulty and her voice rattles. Her breathing causes a sharp pain which can occur both when plaintiff is at rest and when she exerts herself. Plaintiff's doctors have told her that her breathing difficulty is the beginning of emphysema. Poor weather such as rain causes plaintiff to have more difficulty breathing. Plaintiff testified that she is fatigued and has poor sleep. Plaintiff's sleep is interrupted by the combination of leg pain and difficulty breathing.
Plaintiff testified that attempting to do housework increases her pain. She cannot stand in front of a sink and do a full load of dishes. She is not able to vacuum the whole house at a time, rather she works in five minute intervals. Plaintiff cooks things such as hamburger and fixes sandwiches. She has dropped skillets and cooking apparatus. Plaintiff does the laundry, but does not fold clothing and can not carry the laundry basket. Plaintiff's husband goes with her on short trips to the grocery store. The trips last ten to thirty minutes, and plaintiff is in pain most of the time. When they get home, she helps put the groceries away and lies down. Plaintiff testified it is difficult to lift a gallon of milk with both hands and she cannot lift it with one hand. Plaintiff has no hobbies and can no longer crochet or paint. Although plaintiff can drive, she seeks assistance on long trips and she must stop and stretch.
Plaintiff testified that she suffers from diabetes. She takes her insulin as directed, but does not regularly test her blood sugar level because she "can't afford to buy the tape." Although she has been told to watch her diet, she has trouble following her diet because she cannot afford the proper foods. Her diabetes makes her dizzy and light-headed. Diabetes also causes the plaintiff to experience blurriness that lasts all day approximately two to three times a week. When plaintiff is dizzy and has blurred vision, she cannot do her daily activities and must sit or lay down. Plaintiff testified that she tries to do her best with her condition, and she has entered a program to help her regulate her blood sugar levels. Plaintiff testified she is unable to exercise because it causes pain in her back. Plaintiff experiences numbness in her left leg which affects her all the time. She loses her balance when she shuts her eyes. Her eyesight is poor. Although she has glasses, she testified that glasses make it even more difficult to see.
Vocational expert, Lesa Keen, testified at the hearing. The ALJ posed the following hypothetical: A thirty-seven to thirty-nine year old woman with limited education, who was obese with low back pain, a diabetic, insulin dependent, with functional limitations of sitting six of eight hours at one to two hour intervals and standing six of eight hours at one to two hour intervals (with one hour up one hour down), walking several blocks at a time while avoiding uneven terrain and unprotected heights, lifting ten pounds frequently and twenty pounds occasionally, and no need to lie down for any reason during the day. Ms. Keen testified that such a person would be qualified for over 2,000 jobs in the state of Kansas at the light, unskilled work level. The ALJ posed a second hypothetical which included the need to lie down as many as four times a day for fifteen minutes at a time. Ms. Keen testified that such a person is unemployable. Plaintiff's counsel then posed a hypothetical which included a condition that the person would experience dizziness or lightheadedness due to diabetes which would discontinue their daily routine twenty-five percent of the time. Ms. Keen testified that such a person is unemployable.
III. STANDARD OF REVIEW
Title 42, § 405(g) of the United States Code provides for judicial review of a final decision of the Commissioner of the Social Security Administration (SSA). The reviewing court must determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. 42 U.S.C. § 405(g); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Substantial evidence is adequate, relevant evidence that a reasonable mind might accept to support a conclusion. Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir. 1991). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994) (citation omitted). "A finding of no substantial evidence will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence." Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citation omitted). The reviewing court must also determine whether the Commissioner applied the correct legal standards. Washington, 37 F.3d at 1439. Reversal is appropriate not only for lack of substantial evidence, but also for cases where the Commissioner uses the wrong legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). In applying these standards, the court must keep in mind the purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled. Dvorak v. Celebrezze, 345 F.2d 894, 897 (10th Cir. 1965).
IV. COMMISSIONER'S DECISION
In the ALJ's July 13, 1998, decision, the ALJ made the following findings:
1. Claimant met the disability insured status requirements of the Act on October 20, 1996, her amended onset date of disability, but continued to meet them only through December 31, 1996.
2. Claimant has not engaged in substantial activity since October 20, 1996.
3. The medical evidence establishes that, since October 20, 1996, claimant has severe obesity and joint pain, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. Claimant's subjective complaints are not fully credible and her symptoms are not as limiting as alleged.
5. Claimant has the residual functional capacity to sit for one hour at a time for a total of six hours in an eight-hour day, and can stand for one hour at a time for a total of six hours in an eight-hour day, and can stand for one hour at a time for a total of six hours in an eight-hour day, and must alternate sitting and standing. She can walk several blocks at a time for a total of six hours in an eight-hour day, lift 20 pounds occasionally and 10 pounds frequently, and has no further limitation on her ability to push and/or pull. She must avoid uneven terrain and unprotected heights ( 20 C.F.R. § 404.1545 and 416.945).
6. Claimant has been unable to perform her past relevant work as a cook since October 20, 1996.
7. Claimant's residual functional capacity for a full range of light work is reduced by her need to alternate between sitting and standing, and to avoid uneven terrain and unprotected heights.
8. Claimant is 37 years old, which is defined as a "younger" individual ( 20 C.F.R. § 404.1563 and 416.963).
9. Claimant has a "limited" education ( 20 C.F.R. § 404.1564 and 416.964).
10. Claimant does not have any acquired work skills, which are transferable to the skilled or semiskilled work functions of other work ( 20 C.F.R. § 404.1568 and 416.968).
11. Based on an exertional capacity for light work and claimant's age, education, and work experience, Section 404.1569 of Regulations No. 4, Section 416.969 of Regulations No. 16 and Rule 202.18, Table No. 2, of Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."
12. Although claimant's additional nonexertional limitations do not allow her to perform a full range of light work, using the above-cited rule as a framework for decision making, there are a significant number of jobs in the national economy which she could perform.
13. Claimant was not under a "disability" as defined in the Social Security Act, during the time period October 20, 1996, and December 31, 1996, or after March 24, 1997 ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
V. DISCUSSION
To be eligible for disability insurance benefits, a claimant must establish that she meets the insured status requirements, is under sixty-five years of age, and is under a "disability." Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). To qualify for supplemental security income, the claimant must establish that she is under a disability while the application is pending. 20 C.F.R. § 416.330 and 416.335. As defined in the Act, "disability" is the inability to engage in any substantial gainful activity for at least twelve months due to a medically determinable impairment. 42 U.S.C. § 423(d)(1)(A) (1995). The Act provides:
An individual shall be determined to be under a disability only if his physical impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A). See 20 C.F.R. § 404.1505(a).
The Commissioner has established a five-step evaluation process for determining whether a claimant is disabled within the meaning of the Social Security Act. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988). Those five steps are as follows:
(1) A person who is working is not disabled.
(2) A person who does not have an impairment or combination of impairments severe enough to limit the ability to do basic work activities is not disabled.
(3) A person whose impairment meets or equals one of the impairments listed in the regulations is conclusively presumed to be disabled.
(4) A person who is able to perform work [he] has done in the past is not disabled.
(5) A person whose impairment precludes performance of past work is disabled unless the [Commissioner] demonstrates that the person can perform other work. Factors to be considered are age, education, past work experience, and residual functional capacity.20 C.F.R. § 416.920. The claimant has the burden of establishing disability at the first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden shifts to the Commissioner to show the claimant retains the ability to perform other work which exists in the national economy. Id. Plaintiff argues that the ALJ erred at step three in that he found she did not meet Listing 9.09 for obesity, and that the ALJ erred at step five in that he did not properly evaluate plaintiff's impairments and subjective complaints of pain. Because the court finds plaintiff disabled under Listing 9.09, the court need not consider plaintiff's other arguments.
A. Applicability of Listing 9.09
The Commissioner argues even if the court finds the plaintiff disabled under Listing 9.09, the court may not grant benefits and the case must be remanded because Listing 9.09 was deleted. Listing 9.09 was deleted effective October 25, 1999, after the ALJ's decision, and replaced with a more restrictive guideline. See Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46122 (August 24, 1999). The Revised Medical Criteria state the deletion is to have only a prospective effect, without effecting individuals previously found disabled under the listing. Id. at 46126. The Commissioner argues that pending claims, such as plaintiff's, should be evaluated under the new regulations.
The Commissioner's position was rejected by the Tenth Circuit in the unpublished opinion Nash v. Apfel, No. 99-7109, 2000 WL 71049 (10th Cir. June 1, 2000). In Nash, the plaintiff claimed disability under Listing 9.09. The Commissioner argued that pending claims must be evaluated in accordance with the revised listing regulations. The Tenth Circuit found:
Retroactivity is not favored in the law. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). A rule changing the law is retroactively applied only if Congress expressly authorized retroactive rulemaking and the agency clearly intended the rule to have retroactive effect. See id. The Commissioner has not satisfied this standard. In particular, he has not shown an intention to apply the 1999 deletion retroactively to a claimant who was erroneously denied benefits under the earlier listing, even though a claimant who was granted benefits may continue to receive them. Without a more specific statement of intent, we will not conclude that the agency intended this perverse result.
Id. at *2. But see Wooten v. Apfel, 108 F. Supp.2d 921, 924 (E.D.Tenn. 2000) ("The new rules have prospective effect and, therefore, apply to cases pending at the time the rules took effect in October, 1999"); Fulbright v. Apfel, 114 F. Supp.2d 465, 476 (W.D.N.C. 2000) ("This removal of former Listing 9.09 and subsequent revision to the other listing sections is the law in effect for this case."). Although this opinion is not binding precedent, the court finds the analysis persuasive and applicable to this case. After considering the Commissioner's arguments, the court finds the Commissioner has failed to demonstrate that the agency had a specific intent to apply the 1999 deletion retroactively. Therefore, plaintiff's claim will be evaluated under Listing 9.09 as it existed at the time of the administrative hearing.
B. Requirements of Listing 9.09
Plaintiff argues that the ALJ erred in his determination that plaintiff did not meet the two prong test of Listing 9.09. The first prong requires plaintiff to be considered "obese" as established by height and weight tables. The second prong requires plaintiff to establish one of five medical conditions, including the following:
(A) History of pain and limitation of motion in any weight-bearing joint or the lumbosacral spine (on physical examination) associated with findings on medically acceptable imaging techniques of arthritis in the affected joint or lumbosacral spine; or . . .
(E) Respiratory disease with total forced vital capacity equal to or less than 2.0L: or a level of hypoxemia at rest equal to or less than the values specified Table III-A or III-B or III-C.
Plaintiff argues she meets Listing 9.09 as she is obese and she suffers from conditions under either subpart A or E. The Commissioner argues that plaintiff does not meet any of the requirements of Listing 9.09.
First, the court finds plaintiff has established she is obese, as defined in Listing 9.09. Under Listing 9.09, the plaintiff must establish that she is 100 percent above the desired weight for a female her height. The ALJ found plaintiff was five foot four inches tall. At this height, the plaintiff must weigh 258 pounds to be considered "obese." See 20 C.F.R. Part 404, Subpart P. Appendix 1, § 9.09, Table II (1999). Plaintiff's weight has fluctuated slightly over the years: 257 pounds on January 5, 1996, 251 on January 31, 1996, 264 on July 23, 1996, 268 pounds on February 24, 1997, 260 on March 27, 1997, 257 pounds in May 3, 1997, 256 pounds on May 23, 1997, and 256 pounds on June 26, 1997, and 256 pounds on July 18, 1997. At the time of the hearing in July 1998, plaintiff testified her weight was 270 pounds. The government argues these weights are insufficient to establish that plaintiff continually weighed more than 258 pounds for a year. The court disagrees. Plaintiff's weight was around 258 pounds, slightly fluctuating both below and above the required weight. Plaintiff's weight classifies her as obese under the guidelines, within an acceptable margin of error. Therefore, the court finds plaintiff meets Listing 9.09's requirement of obesity.
The ALJ failed to specifically find plaintiff was obese under Listing 9.09, although he used the phrase "obese" to describe the plaintiff in his opinion. Instead, he analyzed the second prong of Listing 9.09 to find plaintiff was not disabled. The logical conclusion is that the ALJ correctly found plaintiff met or at least equaled Listing 9.09's requirement of obesity.
Second, the court must determine whether plaintiff has established that she suffers from one of the five medical conditions listed under the second prong of Listing 9.09. Under subpart A, "[l]isting 9.09's plain language requires only the existence of (1) a history of pain, (2) limitation of motion and (3) objective medical evidence of arthritis in the affected joint — it does not impose any minimum threshold of severity for any of those conditions." Brider v. Apfel, 18 F. Supp.2d 900, 905 (N.D.Ill. 1998) (citing Ingram v. Chater, 107 F.3d 598, 602-03 (8th Cir. 1997) ("A claimant must demonstrate only a minimal amount of pain, limitation of motion and x-ray evidence of arthritis for purposes of § 9.09A")).
Plaintiff has established the existence of the three requirements under subpart A. First, plaintiff demonstrated a history of pain in her right knee. Plaintiff complained of pain in her right knee on July 11, 1996, to Dr. Hutchinson. Dr. Hutchinson noted that plaintiff's right knee gives way and causes difficulty with ambulation. In May 1997, Dr. Thompson reported a thirteen year period of pain caused by plaintiff's right knee. Second, plaintiff presented evidence of limitation of motion of the right knee. Upon physical exam, Dr. Hutchinson found tenderness with palpitation medially over the joint spaces in plaintiff's right knee. Dr. Hutchinson opined that plaintiff had arthritis in her right knee and recommended that she take anti-inflammatory medication for her right knee. Dr. Thompson opined that plaintiff's range of motion was normal, but observed that plaintiff had moderate to severe difficulties with orthopedic maneuvers, including moderate difficulty getting on and off the examining table, moderate difficulty with heel to toe walking, moderate difficulty squatting and arising from the sitting position and severe difficulty hopping. Third, plaintiff presented objective medical evidence of arthritis in her right knee. An x-ray taken of plaintiff's right knee in July 1996 revealed "mild arthritis" and "very mild degenerative changes," to which Dr. Hutchinson suggested plaintiff see an orthopedic surgeon if her knee continued to cause trouble. Listing 9.09A does not require significant showing of limitation of motion or objective medical evidence, only the mere existence of those items. Plaintiff has presented substantial evidence of the existence of all the requirements of Listing 9.09A.
The Commissioner appears to concede that plaintiff has demonstrated a history of pain. His only argument under subpart A involves insufficient evidence of limitation of motion and insufficient objective medical evidence of arthritis in plaintiff's right knee.
The court finds plaintiff meets Listing 9.09A and is conclusively presumed to be disabled. The ALJ's determination that plaintiff did not meet Listing 9.09A is not supported by substantial evidence and additional fact-finding is not necessary in this case. Therefore, this case is reversed and remanded for an immediate award of benefits. See O'Connor v. Shalala, 873 F. Supp. 1482, 1492 (D.Kan. 1995).
Plaintiff also argues she meets the requirements of Listing 9.09E as she has a respiratory disease with total forced vital capacity equal to or less than 2.0L. The Commissioner argues plaintiff did not present any evidence of her forced vital capacity ("FVC"). The only respiratory testing in the record is that of plaintiff's vital capacity ("VC") conducted by the State Agency Consultative examiner, Dr. Thompson, which revealed a VC of 1.5L. The Commissioner correctly points out that there is no evidence that plaintiff's FVC was equal or less than 2.0L, as Dr. Thompson failed to test plaintiff's FVC.
It is unfortunate that the necessary medical test was not performed by the State Agency Consultative doctor, who should be aware of the social security regulations and requirements. As the wrong test was administered, this court is unable to make a determination as to whether plaintiff meets Listing 9.09E. A consultative exam is necessary when there is a reasonable possibility of a disability and a consultative exam would be of material assistance. See Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (holding an ALJ has the duty to develop the record under these circumstances). It follows that a necessary consultative exam must be properly conducted and the necessary tests performed. In this case, the proper test was not conducted and plaintiff relied on the improper testing results to claim disability under Listing 9.09E. Under these circumstances, remand is appropriate. However, because the court finds plaintiff meets Listing 9.09A, a remand under Listing 9.09E is not necessary.
Although the Commissioner does not explain the difference between the VC and FVC or why the consultative physician would perform one test over the other, the court must follow the plain language of Listing 9.09 and require evidence of FVC.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff's request is granted. The ALJ's decision is reversed and remanded to the Commissioner for an immediate award of benefits consistent with this order.
Dated this ___ day of January, 2001, at Topeka, Kansas.