                   UNITED STATES COURT OF APPEALS
Filed 11/8/95
                            TENTH CIRCUIT



RUTH N. COPKNEY,                     )
                                     )
     Plaintiff-Appellant,            )
                                     )       No. 95-7056
v.                                   ) (D.C. No. CV-94-105-S)
                                     )      (E.D. Okla.)
SHIRLEY S. CHATER,                   )
Commissioner of Social Security,     )
                                     )
     Defendant-Appellee.             )



                        ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.



     After examining the briefs and appellate record, this panel

has determined unanimously to honor the parties’ request for a

decision on the briefs without oral argument.    See Fed. R. App.

P. 34(f); 10th Cir. R. 34.1.9.     The case is therefore ordered

submitted without oral argument.

     Ms. Ruth N. Copkney appeals the district court’s affirmance




     *
      This order and judgment is not binding precedent, except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 the court’s General
Order filed November 29, 1993. 151 F.R.D. 470.
of the determination of the Secretary1 that she is not disabled

for social security purposes.   Ms. Copkney asserts, inter alia,

that (1) the ALJ’s assessment of her Residual Functional Capacity

(RFC) was not supported by substantial evidence because the ALJ

did not receive a statement from an examining physician

describing what Ms. Copkney could do despite her impairments; and

(2) the ALJ violated 42 U.S.C. § 423(d)(5)(B) when he failed to

obtain medical records from her treating physician.   We reverse.2

     We are bound by the substantial evidence test, which

requires the ALJ’s findings to be supported by “more than a

scintilla” of evidence.   Richardson v. Perales, 402 U.S. 389, 401

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)).   That “means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”     Id.   In

addition, the ALJ must apply the correct legal standards.     Hill

v. Sullivan, 924 F.2d 972, 973 (10th Cir. 1991).

     Ms. Copkney cites 20 C.F.R. § 404.1513(b)(6) for the


     1
      Effective March 31, 1995, the functions of the Secretary of
Health and Human Services in social security cases were
transferred to the Commissioner of Social Security. P.L. No.
103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S. Chater,
Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary of Health and Human Services, as the defendant
in this action. Although we have substituted the Commissioner
for the Secretary in the caption, in the text we continue to
refer to the Secretary because she was the appropriate party at
the time of the underlying decision.
     2
      Because we reverse and remand, we need not reach the other
issues raised by Ms. Copkney.

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proposition that the ALJ’s assessment of her RFC was not

supported by substantial evidence because the ALJ failed to

receive a statement from Dr. Winters or Dr. Dean describing the

work she could perform despite her impairments.    The proposition

is unsupportable.     While the regulation states that a medical

source statement will be requested, it further states that “the

lack of the medical source statement will not make the report

incomplete.”    20 C.F.R. § 404.1513(b)(6).

     Ms. Copkney also argues that the ALJ violated 42 U.S.C.

§ 423(d)(5)(B) because he breached his duty to fully develop the

record when he failed to obtain medical reports from her treating

physician.     Specifically, Ms. Copkney asserts the ALJ failed to

obtain medical reports that could have confirmed whether she met

the Commissioner’s Listing of Impairment for obesity.     20 C.F.R.

404, Subpt. P, App. 1 § 9.09.    The record shows that she met the

initial height and weight criteria for the obesity Listing.

Rec., vol. II at 281-283, 286.    During the ALJ hearing, Ms.

Copkney testified that her treating physician, on two or three

occasions, informed her that her blood pressure was “running

high.”   Id. at 47.    She also testified that she had arthritis.

Id. at 47-48.     The ALJ informed Ms. Copkney that he would “write

to Dr. Winters and get any updated medical reports that he might

have.”   Id. at 62.

     “[T]he ALJ has a basic duty of inquiry to fully and fairly


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develop the record as to material issues.”      Baca v. Department of

Health & Human Services, 5 F.3d 476, 479-80 (10th Cir. 1993), cf.

Hill v. Sullivan, 924 F.2d at 975 (“[T]he Secretary [] should

make every reasonable effort to obtain the records from

claimant’s treating physician.”).       Because Ms. Copkney was

unrepresented at the ALJ hearing, “[t]he ALJ’s duty to develop

the record is heightened.”    Musgrave v. Sullivan, 966 F.2d 1371,

1374 (10th Cir. 1992) (citing Dixon v. Heckler, 811 F.2d 506, 510

(10th Cir. 1987)).   The record contains no medical reports or

references to medical reports from the twelve months prior to the

ALJ’s decision, the period from which the ALJ stated he would

obtain updated medical reports.     We hold that the ALJ failed to

make every reasonable effort to obtain the medical reports from

Ms. Copkney’s treating physician.

     For the foregoing reasons, we remand the case to the

district court so that it may remand to the Secretary to obtain

the relevant medical records and to redetermine whether

Ms. Copkney met one of the Secretary’s Listing of Impairments or

was otherwise disabled.

     REVERSED AND REMANDED.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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