                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 1 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    HAROLD DEAN BURNS,

                Plaintiff-Appellant,

    v.                                                    No. 97-2323
                                                   (D.C. No. CIV-96-891-JC)
    KENNETH S. APFEL, Commissioner,                        (D. N.M.)
    Social Security Administration, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before PORFILIO, BARRETT, and HENRY, 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




*
      Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff Harold Dean Burns filed a claim for social security disability and

supplemental security income benefits on October 26, 1993, alleging a disability

beginning on October 23, 1992, due to obesity, shortness of breath, hypertension,

loss of movement, and pain. After a hearing, an administrative law judge (ALJ)

denied plaintiff’s claim at step five of the evaluation sequence. See generally

Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). The ALJ decided that

plaintiff could not return to any of his past work, but nevertheless retained the

residual functional capacity (RFC) to perform sedentary work without any

significant nonexertional limitations. Relying on the medical-vocational

guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2, the ALJ concluded

that plaintiff was not disabled. The Appeals Council denied review, making the

ALJ’s decision the final agency decision. Plaintiff then brought this suit. The

district court adopted the magistrate judge’s recommendation that the agency’s

decision be affirmed. Plaintiff appeals. We have jurisdiction under 42 U.S.C.

§ 405(g) and 28 U.S.C. § 1291.

      On appeal, plaintiff asserts that: (1) the ALJ erred in finding that his

multiple impairments do not meet or equal in severity the listing for obesity set

forth in 20 C.F.R. pt. 404, subpt. P, app. 1, § 9.09; (2) the district court erred in


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concluding that he waived, by not raising it in his request for review to the

Appeals Council, his claim that his obesity, shortness of breath, hypertension, and

loss of movement constitute nonexertional impairments that should have

precluded the ALJ from relying on the grids to find that he is not disabled; and

(3) the ALJ improperly disregarded the opinions of plaintiff’s treating physician,

Dr. Hoffman, and tests performed at the direction of Dr. Hoffman. We review the

agency’s decision on the whole record to determine only whether the factual

findings are supported by substantial evidence and the correct legal standards

were applied. See Goatcher v. United States Dep’t of Health & Human Servs., 52

F.3d 288, 289 (10th Cir. 1995). We may not reweigh the evidence or substitute

our judgment for that of the agency. See Kelley v. Chater, 62 F.3d 335, 337 (10th

Cir. 1995).

      Plaintiff’s second issue has merit--our rule that issues not raised to the

Appeals Council are waived on judicial review is not retroactive. See James v.

Chater, 96 F.3d 1341, 1343-44 (10th Cir. 1996). Plaintiff made his request for

review to the Appeals Council on November 8, 1995, before James was decided.

See II Appellant’s App. at 6. The district court therefore erred in adopting the

magistrate judge’s recommendation that plaintiff had waived any issues under

James. Defendant’s argument that plaintiff’s issue is waived under other

established law is misplaced because the cases it cited deal with exhaustion of


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administrative remedies by waiting (or not waiting) for a final agency decision.

Plaintiff’s claim proceeded to a final decision by the Social Security

Administration.

      In the alternative to waiver, the magistrate judge recommended that

plaintiff’s issue lacked merit because the ALJ did not rely on the grids

conclusively, but used them only as a framework for decision-making. See

I Appellant’s App. at 46. This alternative holding is faulty for two reasons. First,

the ALJ in fact applied the grids mechanically after finding that plaintiff’s

nonexertional limitations were insignificant. See II Appellant’s App. at 12, 14.

(The ALJ did not specify what nonexertional limitations he meant.) Second, to

use the grids as a framework for decision-making means that the claimant was

found to be unable to perform the full range of work in a given RFC category, and

that the ALJ called a vocational expert (VE) to testify to the erosion of the

claimant’s occupational base. See, e.g., Thompson v. Sullivan, 987 F.2d 1482,

1487, 1491 (10th Cir. 1993); Trimiar v. Sullivan, 966 F.2d 1326, 1332-33 (10th

Cir. 1992). The ALJ in this case did not find that plaintiff was unable to perform

the full range of sedentary work, and did not call a VE.

      Therefore, we must review the merits of plaintiff’s second issue. We first

note that at step five, “the burden shifts to the [agency] to show that the claimant

retains the residual functional capacity (RFC) to do other work that exists in the


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national economy.” Thompson, 987 F.2d at 1487 (citing Hargis v. Sullivan, 945

F.2d 1482, 1489 (10th Cir. 1991) and 42 U.S.C. § 423(d)(2)(A)). The ALJ’s

conclusive reliance on the grids implies a finding that plaintiff can perform the

full range of sedentary work. See Thompson, 987 F.2d at 1488. This implied

finding presents additional problems. Sedentary work primarily involves sitting,

but also includes some standing and walking, and lifting up to ten pounds at

a time. See id. (citing 20 C.F.R. § 404.1567(a)). “[P]eriods of standing or

walking should generally total no more than about 2 hours of an 8-hour workday,

and sitting should generally total approximately 6 hours of an 8-hour workday.”

Soc. Sec. Rul. 83-10, 1983 WL 31251, at *5.

      Plaintiff’s treating physician, Dr. Hoffman, wrote that plaintiff is

indefinitely disabled, but the ALJ rejected his opinion as conclusory and

unsupported. The ALJ stated that another treating physician, Dr. Vemula,

believed that plaintiff can perform sedentary work. See II Appellant’s App. at 13.

In fact, Dr. Vemula wrote that plaintiff “is able to engage in sedentary type of

work and if he looses [sic] weight, he could be able to do regular work.” Id.

at 170. This statement is ambiguous, as Dr. Vemula did not explain what he

meant by “regular” work as opposed to sedentary work. More importantly, there

is nothing in Dr. Vemula’s office notes that relates his conclusion that plaintiff

can perform sedentary work to the regulatory definition of sedentary work.


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Dr. Vemula’s opinion therefore is conclusory and unsupported, and does not

constitute substantial evidence to support the ALJ’s finding that plaintiff can

perform sedentary work.

      The ALJ also relied on the supposed opinion of Dr. Clark, a consultative

examiner, that plaintiff is not limited in his ability to sit. The ALJ’s statement

both contradicts and mischaracterizes Dr. Clark’s opinion, however. Dr. Clark

filled out a two-page form specifically related to RFC. See II Appellant’s App.

at 134-35. He indicated by checkmarks that plaintiff’s impairment affects his

capacity for lifting/carrying, standing/walking, and sitting, but did not further

explain how much weight plaintiff can lift or carry, how far and how long he can

stand or walk, or how long he can sit. See id. Dr. Clark made a note that his

assessment was based on “no objective findings; [patient] spends all time sitting

or lying down.” Id. at 134. He did not conclude that plaintiff can perform

sedentary work--or any work at all--and his opinion suggests that plaintiff may

not be able to perform sedentary jobs that require some lifting/carrying or

standing/walking. That is, Dr. Clark’s opinion indicates that plaintiff cannot

perform the full range of sedentary work, and that the ALJ should have called a

vocational expert. See Trimiar, 966 F.2d at 1333.

      It appears that there is an absence of substantial evidence from which the

ALJ could draw a conclusion. However, “[t]he absence of evidence is not


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evidence.” See Thompson, 987 F.2d at 1491. The ALJ has a duty to fully

develop the record even when the claimant is represented by an attorney, as in this

case. See Id. at 1492. The ALJ also has considerable discretion to obtain

additional evidence that may already exist or to procure additional consultative

examinations to resolve conflicts in existing record evidence. See Hawkins v.

Chater, 113 F.3d 1162, 1166-67 & n.5 (10th Cir. 1997). Nevertheless, the ALJ

appears to have made no attempt to acquire more evidence from any physician in

order to clarify the existing opinions about plaintiff’s limitations and ability (or

inability) to work. Rather, it appears that the ALJ simply chose the treating

physician’s opinion that he favored, even though Dr. Vemula’s opinion is just as

conclusory and unsupported as Dr. Hoffman’s. Cf. Switzer v. Heckler, 742 F.2d

382, 385-86 (7th Cir. 1984) (“[T]he [ALJ]’s attempt to use only the portions [of a

doctor’s report] favorable to [his] position, while ignoring other parts, is

improper.”); see also Smith v. Bowen, 687 F. Supp. 902, 904 (S.D.N.Y. 1988)

(stating ALJ may not pick and choose evidence to support his conclusion).

      In addition, the ALJ found that plaintiff’s multiple impairments were severe

at step two, but insignificant at step five. He did not explain how he arrived at

that conclusion in any more detail than that he did not believe plaintiff. The only

nonexertional limitation the ALJ mentioned specifically was pain. Plaintiff’s

morbid obesity and hypertension are documented, however. “Obesity is . . . a


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nonexertional impairment which might significantly restrict a claimant’s ability to

perform the full range of sedentary work.” Lucy v. Chater, 113 F.3d 905, 909

(8th Cir. 1997). Plaintiff testified that he becomes short of breath and has

difficulty walking due to his weight. See II Appellant’s App. at 202.

Hypertension is also a significant nonexertional impairment. See Evans v. Chater,

84 F.3d 1054, 1056 (8th Cir. 1996). Diastolic readings persistently above 100

mm. Hg. satisfy the listing for obesity. See 20 C.F.R. pt. 404, subpt. P, app. 1,

§ 9.09. Although plaintiff clearly does not meet the listing in this case (his step

three issue is discussed in more detail below), he has several readings equal to

100 mm. Hg. in addition to his higher readings. See I Appellant’s App. at 43-44.

      In spite of plaintiff’s documented nonexertional impairments, the ALJ’s

questions to plaintiff at the hearing were extremely cursory with respect to the

physical requirements of working, plaintiff’s ability to work, and the effect of

plaintiff’s nonexertional impairments on his activities. 1 In any case, plaintiff did

not concede his ability to do the full range of sedentary work, and the ALJ’s

conclusion that he can is not supported by substantial evidence. If plaintiff

cannot perform all the functions of sedentary work as it is defined by the

regulations, then he cannot perform the full range of sedentary work, a vocational


1
      An additional problem is that the court reporter could not hear some of the
testimony. The result is that a significant portion of the hearing transcript is
marked “inaudible.”

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expert should have been called, and the grids should not have been applied

conclusively. See Thompson, 987 F.2d at 1487, 1491; Trimiar, 966 F.2d at 1332.

      Plaintiff’s assertion that the ALJ did not follow the treating physician rule

ties in with the ALJ’s analysis of plaintiff’s nonexertional impairments. “An ALJ

is required to give controlling weight to a treating physician’s opinion about the

nature and severity of a claimant’s impairments . . . if ‘it is well supported by

clinical and laboratory diagnostic techniques and if it is not inconsistent with

other substantial evidence in the record.’” Bean v. Chater, 77 F.3d 1210, 1214

(10th Cir. 1995) (quoting Castellano v. Secretary of Health & Human Servs.,

26 F.3d 1027, 1029 (10th Cir. 1994)). “To reject a treating physician’s opinion

requires ‘specific, legitimate reasons.’” Miller v. Chater, 99 F.3d 972, 976 (10th

Cir. 1996) (quoting Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)). When

the claimant has more than one treating physician, the ALJ should assess each

treating physician’s opinion using the same criteria.

      There is no merit to plaintiff’s contention that his impairments meet or

equal the listing for obesity. He testified at his hearing that he was five feet,

three inches tall and weighed 302 pounds at that time. See II Appellant’s App.

at 182-83. It is not disputed that the combination of plaintiff’s height and weight

satisfies the threshold requirement of the obesity listing, 20 C.F.R. pt. 404,

subpt. P, app. 1, § 9.09. The question is whether plaintiff meets any of the other,


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alternative requirements of the listing. He argues that his high blood pressure

meets the requirement of § 9.09B, that is: “[h]ypertension with diastolic blood

pressure in excess of 100 mm. Hg.” He misreads the regulation, however, when

he argues that readings where his diastolic pressure equaled 100 mm. Hg. should

be considered. The diastolic pressure must exceed 100 mm. Hg. before a given

reading falls within the listing. A review of the magistrate judge‘s summary of

plaintiff’s blood pressure readings, which plaintiff concedes is generally accurate,

shows that his qualifying readings are simply too few to satisfy § 9.09B. See

I Appellant’s App. at 43-44. This is true even if the list is pared to a time frame

as short as a year to match the basic time requirement for disability, as plaintiff

argues. See Id. We therefore need not decide, as plaintiff urges us to do, how

many qualifying readings it takes to demonstrate “persistently” high blood

pressure under § 9.09B. Plaintiff’s other, cursory arguments that his impairments

meet or equal § 9.09 do not merit discussion. The ALJ did not err in concluding

that plaintiff is not disabled under § 9.09.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED in part and REVERSED in part, and the case is




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REMANDED with directions for the district court to remand to the agency for

further proceedings in accordance with this order and judgment.



                                                  Entered for the Court



                                                  James E. Barrett
                                                  Senior Circuit Judge




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