                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT



 TONY MADRID,

              Plaintiff-Appellant,

 v.                                                     No. 05-2176

 JO ANNE B. BARNHART,
 Commissioner of the Social Security
 Administration,

              Defendant-Appellee.


                                     ORDER
                                Filed May 12, 2006


Before HENRY, McKAY, and MURPHY, Circuit Judges.


      Appellant’s motion to publish the order and judgment filed in this matter on

April 14, 2006, is GRANTED. On the court’s own motion, footnote two on page

five of the published opinion and language on page eight of the published opinion

have been modified for clarification. The published opinion is filed nunc pro tunc

to April 14, 2006, and a copy is attached.

                                             Entered for the Court
                                             ELISABETH A. SHUMAKER, Clerk


                                             By:
                                               Deputy Clerk
                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       April 14, 2006
                                    PUBLISH
                                                                    Elisabeth A. Shumaker
                  UNITED STATES COURT OF APPEALS                       Clerk of Court

                               TENTH CIRCUIT



 TONY MADRID,

             Plaintiff-Appellant,

 v.                                                   No. 05-2176

 JO ANNE B. BARNHART,
 Commissioner of the Social Security
 Administration,

             Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                    (D.C. No. CIV-04-753-LCS)


Submitted on the briefs:

Michael D. Armstrong, Albuquerque, New Mexico, for Plaintiff-Appellant.

David C. Iglesias, United States Attorney, Cynthia L. Weisman, Assistant
United States Attorney, Tina M. Waddell, Regional Chief Counsel, Dianne
Mullins Pryor, Assistant Regional Counsel, Special Assistant U.S. Attorney,
Office of the General Counsel, Region VI, Social Security Administration,
Dallas, Texas, for Defendant-Appellee.


Before HENRY, McKAY, and MURPHY, Circuit Judges.


McKAY, Circuit Judge.
      Claimant Tony L. Madrid appeals from a district court order affirming the

Commissioner’s denial of his application for disability insurance benefits under

Title II of the Social Security Act. We have jurisdiction under 42 U.S.C. § 405(g)

and 28 U.S.C. § 1291, and we reverse and remand for further proceedings. 1

I.    Background

      Mr. Madrid filed for benefits in December 2002, alleging an inability to

work since September 2002 due to bilateral carpal tunnel syndrome and pain in

his neck, shoulders, elbows, wrists, back, knees, ankles, and feet. The agency

denied Mr. Madrid’s application for benefits initially and on reconsideration. He

then requested and received a de novo hearing before an administrative law judge

(ALJ). Mr. Madrid, who appeared at the hearing pro se, testified about his

physical ailments and part-time employment. Shortly thereafter, the ALJ issued a

written decision denying Mr. Madrid benefits at step five of the five-step

sequential evaluation process. See Williams v. Bowen, 844 F.2d 748, 750-52

(10th Cir. 1988) (detailing 20 C.F.R. § 404.1520’s five-step process).

      At step one, the ALJ concluded that Mr. Madrid’s part-time work did not

constitute substantial gainful activity. At steps two and three, the ALJ concluded


1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

                                        -2-
that although Mr. Madrid did have severe impairments–mild degenerative joint

disease in both knees and mild carpal tunnel syndrome affecting his left

wrist–neither impairment met or equaled any impairment described in the listing

of impairments. The ALJ further concluded that Mr. Madrid retained the residual

functional capacity (RFC) for a range of light work with the following

restrictions: no more than occasional bending, stooping, gripping, fingering, or

feeling (thereby precluding sedentary jobs that require fine dexterity), and no

exposure to hazards such as exposed heights or open machinery. Accordingly, the

ALJ concluded at step four that Mr. Madrid could not return to his past relevant

work as a school custodian, fence erector, or laborer, because those positions

required exertion beyond his RFC. After considering the vocational expert’s

(VE’s) testimony and Mr. Madrid’s RFC, age (forty-three), education (schooling

through eighth grade), and work experience, the ALJ concluded at step five that

Mr. Madrid was not disabled because he could perform other work that exists

in significant numbers in the regional and national economies; for example,

parking lot attendant, amusement or recreational attendant, cardroom attendant,

and ticket taker.

      The Appeals Council denied Mr. Madrid’s request for review of the ALJ’s

decision. Mr. Madrid then secured the services of an attorney and filed a




                                         -3-
complaint in federal district court. The district court affirmed the ALJ’s denial of

benefits and this appeal followed.

II.   Standard of Review and Discussion

      Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal. Doyal v. Barnhart ,

331 F.3d 758, 759 (10th Cir. 2003)   ; 20 C.F.R. § 404.981. In reviewing the ALJ’s

decision, “we neither reweigh the evidence nor substitute our judgment for that of

the agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800

(10th Cir. 1991). Instead, we review the ALJ’s decision only to determine

whether the correct legal standards were applied and whether the factual findings

are supported by substantial evidence in the record. See Doyal, 331 F.3d at 760.

      Mr. Madrid raises three issues on appeal. He asserts that the ALJ did not

adequately develop the record, substantial evidence does not support the ALJ’s

RFC determination, and substantial evidence does not support the hypothetical

questions the ALJ posed to the VE.

      We turn first to Mr. Madrid’s allegations that the administrative record was

deficient. At the heart of this challenge is whether Mr. Madrid suffers from some

sort of rheumatological disorder. Specifically, Mr. Madrid contends that the ALJ

failed to fulfill his heightened duty to develop the record because he did not

request Mr. Madrid’s rheumatoid factor test results, order a consultative


                                         -4-
rheumatological exam, recontact two physicians who independently diagnosed Mr.

Madrid with “Painful Upper Limbs” and opined that he could not return to work

for three or four months, Aplt. App., Vol. I at 147, 181, and request medical

treatment notes or records generated after May 2003. 2

      “It is beyond dispute that the burden to prove disability in a social security

case is on the claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir.

1997); 20 C.F.R. § 404.1512(a) (“[Y]ou must bring to our attention everything

that shows that you are . . . disabled.”). Nevertheless, because a social security

disability hearing is a nonadversarial proceeding, the ALJ is “responsible in every

case ‘to ensure that an adequate record is developed during the disability hearing

consistent with the issues raised.’” Hawkins, 113 F.3d at 1164 (quoting Henrie v.

United States Dep’t of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir.

1993)); 20 C.F.R. § 404.944 (requiring the ALJ to “look[] fully into the issues”).

Generally, this means that the “ALJ has the duty to . . . obtain[] pertinent,

available medical records which come to his attention during the course of the

hearing.” Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996). Moreover, the

ALJ’s “duty is heightened” when a claimant, like Mr. Madrid, appears before the



2
       The Commissioner asserts that Mr. Madrid did not raise the treatment-note
issue before the district court, Aplee. Br. at 16, but the Commissioner is mistaken.
See Aplt. App., Vol. II at 44 ¶ 2. The issue was raised in the district court, and
we therefore consider it.

                                         -5-
ALJ without counsel. Henrie, 13 F.3d at 361; Musgrave v. Sullivan, 966 F.2d

1371, 1374 (10th Cir. 1992) (same); see also Dixon v. Heckler, 811 F.2d 506, 510

(10th Cir. 1987) (“The [ALJ’s] duty of inquiry takes on special urgency when the

claimant has little education and is unrepresented by counsel.”).

      Mr. Madrid contends that the ALJ could have easily requested his existing

rheumatoid factor test results but “[i]nstead, the ALJ simply concluded that the

claimant had no rheumatological disorder and then penalized [him] for not

producing evidence to the contrary.” Aplt. Opening Br. at 9. We agree with

Mr. Madrid.

      The record demonstrates that Mr. Madrid’s treating orthopaedic physician,

Dr. Hussain, referred Mr. Madrid to the rheumatology department on May 19,

2003, for an evaluation of “bilat[eral] multiple joint pain . . . hands, elbows,

shoulders . . . knees . . . feet.” Aplt. App., Vol. I at 173. Mr. Madrid thereafter

underwent a rheumatoid factor test. 3 A bill for the test is included in the record,

and it identifies the physician who requested the test, Alan M. Firestone, and lists

as the test date June 23, 2003. The record also contains an August 18, 2003 “Lab



3
      A rheumatoid factor test is a blood test that measures the presence and level
of rheumatoid factor, an indicator of rheumatoid arthritis as well as other
autoimmune and infectious diseases. See Dorland’s Illustrated Medical
Dictionary 649 (19th ed. 2000) and Stedman’s Medical Dictionary 645 (27th ed.
2000). We therefore reject the Commissioner’s contention that “the rheumatoid
test would have added nothing meaningful to the record.” Aplee. Br. at 18.

                                          -6-
Request Form” for a rheumatoid factor test “ASAP,” which form is signed by

Mr. Madrid’s primary care physician, Dr. Bath. Id., Vol. I at 117.

      In his written decision denying benefits the ALJ acknowledged that

Mr. Madrid was referred for a rheumatology work-up and that a rheumatoid factor

test was performed, but the ALJ apparently dismissed the possibility of a

rheumatological disorder because “the record . . . [contained] no evidence of

results of a rheumatology work-up.” Id., Vol. I at 15. Under the circumstances,

we hold that the ALJ committed legal error by not requesting Mr. Madrid’s

rheumatoid factor test results from the medical source listed on the bill, from

Dr. Hussain, or from Dr. Bath. See 20 C.F.R. § 404.1512(e) (outlining

circumstances under which ALJ will recontact medical source(s)). This failure is

especially troubling because Mr. Madrid was not represented by counsel at his

December 2003 administrative hearing, the test results were in existence at the

time of the hearing and apparently available, and the ALJ was aware the test was

performed. See Carter, 73 F.3d at 1022; see also Baker v. Bowen, 886 F.2d 289,

291 (10th Cir. 1989) (holding Secretary failed to fulfill his duty to fully and fairly

develop the record by neglecting to obtain, among other things, existing

“laboratory results . . . from [pro se claimant’s] treating physician”); cf. Hawkins,

113 F.3d at 1167 (“[I]n a counseled case, the ALJ may ordinarily require counsel

to identify the issue or issues requiring further development.”). We therefore


                                          -7-
remand for further development of the record concerning Mr. Madrid’s claims of

a rheumatological disorder. If, on remand, Mr. Madrid’s rheumatoid factor test

results are not readily available, or the test results, standing alone, are not

dispositive in determining whether Mr. Madrid has a severe rheumatological

disorder that interferes with his ability to do any substantial gainful activity, the

ALJ may need to order a consultative rheumatological examination. 20 C.F.R.

§ 404.1512(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 1166 (“[W]here the medical

evidence in the record is inconclusive . . . a consultative examination is often

required for proper resolution of a disability claim.”). “[T]he ALJ should order a

consultative exam when evidence in the record establishes a reasonable

possibility of the existence of a disability and the result of the consultative exam

could reasonably be expected to be of material assistance in resolving the issue of

disability.” Hawkins, 113 F.3d at 1169 (emphasis added). In the same vein,

where additional tests are required to explain a diagnosis already in the record, in

this case, “Painful Upper Limbs,” Aplt. App., Vol. I at 147, 181, “resort to a

consultative examination may be necessary.” Hawkins, 113 F.3d at 1166.

Although the current state of the record suggests that a consultative exam may be


                                           -8-
necessary, we leave the decision whether to order a consultative exam up to the

ALJ. Compare Hawkins, 113 F.3d at 1166 (“[T]he Secretary has broad latitude in

ordering consultative examinations.”), with 20 C.F.R. § 404.1519a(b) (situations

requiring a consultative examination).

       We are not, however, persuaded by Mr. Madrid’s allegation that the ALJ

committed legal error by failing to request treatment notes or records generated

after May 2003. Mr. Madrid’s claim is simply too general; we do not know if the

records he thinks the ALJ should have obtained are pertinent or available. Carter,

73 F.3d at 1022.

III.   Conclusion

       The ALJ’s failure to develop the record affected the disability analysis as a

whole and we therefore do not address the other issues Mr. Madrid raises on

appeal. The decision of the district court is REVERSED and this case is

REMANDED to that court with instructions to remand the case to the

Commissioner for further proceedings.




                                         -9-
