F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 1 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MAURICIO MEDINA,
Plaintiff-Appellant,
v. No. 98-2170
(D.C. No. CIV-97-69-M)
KENNETH S. APFEL, Commissioner (D. N.M.)
of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and LUCERO , Circuit Judges.
Plaintiff 1 appeals from an order of the district court affirming the
Commissioner’s decision denying his applications for social security disability
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
benefits and for Supplemental Security Income (SSI). 2
We review the
Commissioner’s decision to determine whether the factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied. See Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998). Exercising
jurisdiction under 42 U.S.C. § 405(g), we remand for further proceedings, holding
that substantial evidence does not support the Commissioner’s decision.
Plaintiff alleges disability since May 11, 1990, due to back and leg pain.
He has had three back surgeries in less than four years, has a ninth grade
education, speaks Spanish, and has past relevant work experience as a farm and
oil field laborer. Applying the Commissioner’s five-step evaluation process, see
Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), the Administrative
Law Judge (ALJ) found that plaintiff has lumbar disc disease and cannot perform
his past work. The ALJ further found that plaintiff retains the residual functional
capacity to perform the sedentary job of stone setter, which permits alternating
standing and sitting. See Appellant’s App., Administrative R. at 17-18.
Accordingly, the ALJ concluded that plaintiff was not disabled and denied
disability benefits and SSI.
2
Plaintiff had filed a previous SSI application in late 1993, which was
denied on initial consideration. The Administrative Law Judge determined that it
was unnecessary to determine whether the denial of the prior claim should be
reopened and revised.
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It is settled that a claimant bears the burden of proving disability. 3
See
Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 360
(10th Cir. 1993). See generally 20 C.F.R. §§ 404.1512(a), (c); 416.912(a), (c)
(requiring claimant to furnish evidence regarding impairments and their effect on
his ability to work). Although the plaintiff has the burden of providing medical
evidence proving disability, the ALJ has the duty to fully and fairly develop the
record as to material issues. See Carter v. Chater , 73 F.3d 1019, 1021 (10th Cir.
1996). This duty applies even when, like here, the plaintiff is represented by
counsel. See Baca v. Department of Health & Human Servs. , 5 F.3d 476, 479-80
(10th Cir. 1993). The ALJ’s duty “is one of inquiry, ensuring that the ALJ is
informed about facts relevant to his decision and learns the claimant’s own
version of those facts.” Henrie , 13 F.3d at 361 (quotations and brackets omitted).
Thus, the ALJ bears responsibility for ensuring “an adequate record is developed
during the disability hearing consistent with the issues raised.” Id. at 360-61.
If evidence from the plaintiff’s treating doctor is inadequate to determine if
the plaintiff is disabled, the Commissioner must first recontact the treating doctor
to determine if additional needed information is available. See 20 C.F.R.
§§ 404.1512(e); 416.912(e). Also, where the medical evidence in the record is in
conflict or is inconclusive, “a consultative examination is often required for
3
Plaintiff’s insured status for disability benefits ended June 30, 1992.
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proper resolution of a disability claim.” Hawkins v. Chater , 113 F.3d 1162, 1166
(10th Cir. 1997) (step two); see also 20 C.F.R. §§ 404.1512(f); 416.912(f) (“If the
information we need is not readily available from the records of your medical
treatment source, or we are unable to seek clarification from your medical source,
we will ask you to attend one or more consultative examinations at our
expense.”); Hawkins , 113 F.3d at 1169 (suggesting ALJ should order consultative
examination when record establishes reasonable possibility of disability and result
of examination could be expected to assist in resolving disability issue);
Thompson v. Sullivan , 987 F.2d 1482, 1492 (10th Cir. 1993) (“It matters that the
ALJ did not order a consultative examination . . . because the medical evidence in
the record is inconclusive and does not provide substantial support for findings of
[plaintiff’s] RFC level or how many jobs she can perform despite her
impairments.”); Dozier v. Heckler , 754 F.2d 274, 276 (8th Cir. 1985) (reversible
error for ALJ not to order consulting examination when examination is necessary
for informed decision).
In this case, the ALJ did not meet his burden of fully and fairly developing
the record. The medical records presented are insufficient to determine whether
plaintiff was disabled for any twelve-month period of time. The medical evidence
consists primarily of treatment notes of plaintiff’s treating doctor, who performed
his second and third surgeries. The notes alone are confusing and are insufficient
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to draw reliable conclusions about plaintiff’s alleged disability. They do,
however, establish that plaintiff presented sufficient medical evidence to warrant
further investigation of his physical condition. See Hawkins , 113 F.3d at 1169.
Because the ALJ did not have sufficient facts before him to make an
informed decision, his decision is not supported by substantial evidence. Under
the circumstances, we remand 4
under 42 U.S.C. § 405(g) for the ALJ to further
develop the record. The ALJ is urged to obtain a summary and evaluation from
plaintiff’s treating doctor of plaintiff’s disability during the relevant time period
with a clear indication of the permanency of plaintiff’s condition and/or a
detailed evaluation from a consulting doctor who personally examines plaintiff.
Cf. Bishop v. Sullivan , 900 F.2d 1259, 1263 (8th Cir. 1990) (remanding for ALJ
to develop record by directing interrogatories to plaintiff’s doctor or by ordering
consulting examination). After the evidence of plaintiff’s impairments is further
developed, the Commissioner should reevaluate plaintiff’s impairments and
reconsider his applications for disability benefits and SSI. Also, the ALJ should
expressly rule on reopening of the prior SSI denial.
4
In remanding, we do not reach the specific arguments plaintiff makes on
appeal: (1) his impairments meet or equal one of the listings; (2) evidence
supports his claim of disabling pain; (3) the ALJ’s hypothetical question to the
vocational expert was not based on the medical records; and (4) the ALJ failed to
discuss, give great weight to, or make separate findings regarding his treating
physician’s numerous statements that he is disabled or temporarily disabled.
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The judgment of the district court is VACATED, and the case is
REMANDED with directions to remand to the Commissioner for further
development of the record.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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