                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 2 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    QUAY V. ZEVELY, JR.,

                Plaintiff-Appellant,

    v.                                                   No. 03-7058
                                                    (D.C. No. 02-CV-72-P)
    JO ANNE B. BARNHART,                                 (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRISCOE and McKAY , Circuit Judges, and         BRORBY , Senior Circuit
Judge.



         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      This order and judgment is not binding precedent, except under the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.
      Plaintiff-appellant Quay V. Zevely, Jr. appeals the district court’s order

affirming the Social Security Commissioner’s denial of his application for

disability insurance benefits under the Social Security Act. We exercise

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse and

remand for further proceedings.

      Plaintiff claims that he has been unable to work since 1991 due to

limitations caused by post traumatic stress disorder (PTSD),   1
                                                                   depression, arthritis,

hypertension, gout, and headaches. After his application for disability benefits

was denied initially and on reconsideration, a de novo hearing was held before an

administrative law judge (ALJ). In a decision dated December 8, 1999, the ALJ

denied plaintiff’s application for disability benefits, concluding: (1) that

plaintiff’s insured status expired on September 30, 1997; and (2) that plaintiff had

failed to demonstrate that he was under a disability on or before that date. In

December 2001, the Appeals Council denied plaintiff’s request for review of the

ALJ’s decision. Plaintiff then filed a complaint in the district court. After the

magistrate judge recommended that the ALJ’s decision denying benefits be

affirmed, the district court entered an order affirming the denial of benefits. This

appeal followed.



1
      It appears to be undisputed that plaintiff’s PTSD is related to his military
service during the Vietnam war.

                                           -2-
       On February 12, 2004, we entered an order directing the Commissioner to

submit certified copies of the medical evidence from the Oklahoma City Veterans

Administration Medical Center covering the period December 7, 1999 through

July 21, 2000 to this court within thirty days. We directed the Commissioner to

submit these records because, although they were considered by the Appeals

Council, they were not contained in the administrative record that the

Commissioner submitted to the district court. As a result, we were unable to

conduct the required de novo review and determine whether the Appeals Council

erred in concluding that the records were “not material to the issue of whether

[plaintiff was] disabled at a time when [he] met the insured status requirements.”

Aplt. App., Vol. II at 4;   see also Threet v. Barnhart , 353 F.3d 1185, 1191

(10th Cir. 2003) (noting that question of whether evidence submitted to Appeals

Council qualifies as “new, material, and chronologically pertinent is a question of

law subject to [this court’s]   de novo review,” and that “[e]vidence is material to

the determination of disability if there is a reasonable possibility that [it] would

have changed the outcome”) (quotation omitted).

       The Commissioner submitted the requested records to this court on March

10, 2004, and they consist primarily of progress notes relating to therapy sessions

that plaintiff attended for treatment of his PTSD from December 1999 through

July 2000. Because the records do not contain any background information or any


                                            -3-
sort of medical history regarding plaintiff’s PTSD, we agree with the Appeals

Council that the records are not material to the issue of whether plaintiff

was disabled during the time when he met the insured status requirements.

Consequently, the records do not provide any basis for this court to reverse the

decision of the ALJ denying benefits.

      In addition to claiming reversible error based upon the records that were

omitted from the administrative record, a claim that is now moot, plaintiff has

asserted three other alleged errors: (1) that the ALJ breached his duty to develop

the administrative record because he failed to obtain and consider evidence

associated with the disability rating that plaintiff has received from the Veterans

Administration; (2) that the ALJ’s finding that plaintiff did not suffer from a

severe mental impairment prior to the expiration of his insured status is not

supported by substantial evidence in the record; and (3) that the ALJ’s finding

that plaintiff retained the residual functional capacity to perform medium work

despite his documented knee impairment is not supported by substantial evidence

in the record.

      Based on the record currently before this court, it appears that plaintiff has

failed to establish reversible error based on his second and third claims. We

decline to address the merits of those claims, however, because we agree with

plaintiff that the ALJ breached his duty to develop the administrative record by


                                         -4-
failing to obtain and consider evidence associated with any disability ratings that

plaintiff has received from the Veterans Administration.          See Baca v. Dep’t of

Health & Human Servs. , 5 F.3d 476, 480 (10th Cir. 1993) (addressing Veterans

Administration disability rating and holding that “[a]lthough findings by [the

Veterans Administration] are not binding on the [Commissioner], they are entitled

to weight and must be considered,” and remanding with directions “to obtain the

records from the VA”) (quotation omitted).         2
                                                       As a result, we reverse the ALJ’s

denial of benefits and remand this case to the Commissioner. On remand, the

Commissioner shall obtain and address the findings of the Veterans

Administration with respect to any disability ratings received by plaintiff and

determine the effect, if any, that the findings have on plaintiff’s application for


2
       We note that plaintiff’s prior counsel made no effort during the hearing
before the ALJ to develop a record regarding any Veterans Administration
disability ratings. Nonetheless, the administrative record before the ALJ
contained sufficient information to trigger the ALJ’s independent duty to develop
a record regarding any such disability ratings.     See Baca , 5 F.3d at 479-80
(holding that “the ALJ has a basic duty of inquiry to fully and fairly develop the
record as to material issues,” and that “[t]his duty exists even when the claimant
is represented by counsel”). As plaintiff has pointed out in his opening brief,
handwritten notes on plaintiff’s “Disability Interview” form stated that he “[g]ets
VA - 100% disability - around $2,000 mo!!,” Aplt. App., Vol. II at 106, and
plaintiff testified at the hearing before the ALJ that his source of income was
“VA disability,” id. at 33. We also note that: (1) in the request for
reconsideration that plaintiff submitted regarding the initial denial of his claim for
disability benefits, plaintiff stated that he had “been declared 100% disabled since
May 1998 by the Veterans Admin,”        id. at 78; and (2) in a vocational report signed
by plaintiff on January 21, 1999, plaintiff stated that “[t]he Veterans
Administration has already certified that I am 100% disabled,”       id. at 155.

                                             -5-
social security disability benefits. We stress, however, that we are expressing no

opinion concerning whether any disability ratings from the Veterans

Administration should change the result in this case.    3
                                                             Id.

       The order of the district court is REVERSED, and this case is REMANDED

to the district court with instructions to remand the case to the Commissioner for

further proceedings consistent with this order and judgment.


                                                        Entered for the Court


                                                        Wade Brorby
                                                        Senior Circuit Judge




3
       The Commissioner does not appear to dispute that plaintiff received a total
disability rating from the Veterans Administration effective November 25, 1997,
but she claims that the rating is not relevant to plaintiff’s social security
application since it did not become effective until after plaintiff’s insured status
expired. See Aplee. Br. at 18, 26-27. This is not a valid argument, however, as
the current administrative record does not contain sufficient information to
determine the relevance of the total disability rating. Moreover, if the effective
date of the rating was in fact November 25, 1997, the rating may be relevant to
the issue of whether plaintiff was disabled for social security purposes only two
months earlier in September 1997, although we express no opinion concerning
that issue. We also note that plaintiff had apparently received a partial disability
rating from the Veterans Administration before his insured status expired, and the
partial rating could be potentially relevant to his social security application even
if the subsequent total rating is not.

                                            -6-
