                                                                                 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      This order and judgment is not binding precedent, except under the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.

                                           -2-
       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.

                                             -3-
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


                                            -4-
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.

                                             -5-
      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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