                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 19 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ALTA L. HASTING,

                Plaintiff-Appellant,

    v.                                                   No. 98-5094
                                                   (D.C. No. 96-CV-1192-M)
    KENNETH S. APFEL, Commissioner,                       (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and BRISCOE , Circuit Judges.



         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.




*
      This order and judgment is not binding precedent, except under the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.
       Claimant Alta L. Hasting appeals the           district court’s order 1 affirming the

Commissioner’s decision to deny her application for supplemental security

income benefits. She alleges disability since January of 1995 due to breathing

problems and back pain. Following a hearing, the administrative law judge

determined at step five of the five-step analysis,         see Williams v. Bowen , 844 F.2d

748, 750-52 (10th Cir. 1988) (discussing five steps), that claimant could perform

a restricted range of light work existing in significant numbers in the local and

national economies. Therefore, the Commissioner determined that claimant was

not disabled within the meaning of the Social Security Act. On appeal, claimant

contends that the ALJ failed to develop the record because he did not obtain

necessary medical evidence. We agree. Therefore, we reverse and remand for

further proceedings.

       We review the Commissioner’s decision to determine whether it is

supported by substantial evidence and whether correct legal standards were

applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).

       Claimant argues that the Commissioner failed to meet his duty to develop

the record when he declined to order further testing of her respiratory disorder.

To require further investigation, a claimant must raise the issue to be developed,

showing that it is, on its face, substantial.         See Hawkins , 113 F.3d at 1167.


1
       The parties proceeded before a magistrate judge.            See 28 U.S.C. § 636.

                                                -2-
“Specifically, the claimant has the burden to make sure there is, in the record,

evidence sufficient to suggest a reasonable possibility that a severe impairment

exists.” Id. If the claimant does so, the ALJ must exercise “reasonable good

judgment” to “fully and fairly develop[] the record as to material issues.”   Id.

at 1168 (quotation omitted). “This duty is especially strong in the case of an

unrepresented claimant.”     Carter v. Chater , 73 F.3d 1019, 1021 (10th Cir. 1996).

       In this case, claimant was not represented at the administrative hearing.

She requested that a breathing test be performed.      The medical evidence included

an evaluation by the consulting physician, Dr. Jennings, who found “[d]yspnea on

exertion, probable chronic obstructive pulmonary disease secondary to smoking.”

Appellant’s App. at 71. The ALJ quoted Dr. Jennings’ assessment but did not

explain why he rejected it.

       The Commissioner argues on appeal that Dr. Jennings’ assessment may be

disregarded because it was based solely on claimant’s own statements, not on

clinical or laboratory findings, as required by 20 C.F.R. pt. 404, subpt. P, app. 1,

§ 3.00(A). Section 3.00(A), however, recognizes that one of the “most common

symptoms attributable to [chronic disorders of the respiratory system is] dyspnea

on exertion.” If that symptom is present, § 3.00(A) directs that “a thorough

medical history, physical examination, and chest x-ray or other appropriate

imaging technique” is required to establish chronic pulmonary disease.


                                            -3-
“Pulmonary function testing is required [when] a disease process is established by

appropriate clinical and laboratory findings.”    Id.

       Claimant was diagnosed as having dyspnea on exertion, but no diagnostic

tests were performed. The consulting physician found sufficient grounds to state

that claimant probably had chronic obstructive pulmonary disease. Claimant

testified that she became short of breath after minimal exertion. There is nothing

in the record to contradict Dr. Jennings’ assessment and we find no reason to

reject it. The record contains sufficient evidence to suggest a reasonable

possibility that a severe impairment exists and claimant raised the issue to the

ALJ. Consequently, the case is remanded for development of the record on

claimant’s respiratory condition. To the extent the Commissioner argues that

claimant must demonstrate that she cannot afford medical treatment before she

is entitled to medical testing at government expense, we do not impose such

a requirement.




                                            -4-
      The judgment of the United States District Court for the Northern District

of Oklahoma is REVERSED, and this case is REMANDED for further

proceedings in accordance with this order and judgment.



                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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