                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 2 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JIMMIE C. MARTIN,

                Plaintiff-Appellant,

    v.                                                    No. 03-7113
                                                    (D.C. No. 02-CV-522-P)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HARTZ , McKAY , and PORFILIO , 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

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      This order and judgment is not binding precedent, except under the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.
       Jimmie C. Martin seeks review of the denial of his application for Social

Security disability benefits. We exercise jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g), and we reverse.

                                      Background

       Mr. Martin alleges disability as of February 8, 1998, based on osteoarthritis

(causing pains in his knees, hands, elbows, and back), hypertension, depression,

and congestive heart failure (with chest pains and shortness of breath). The

medical evidence reflects that Mr. Martin has also been treated for allergies,

alcohol abuse, sleeplessness, and fatigue.

       In November of 1998, the Commissioner ordered psychological and

physical consultive examinations. At the physical examination, conducted by

Dr. Jonathan Scott Clark, Mr. Martin reported stiffness and pain in his hands and

especially his knees. Mr. Martin stated that, at times, he would “get down” and

be “unable to get up due to [knee] pain.” Aplt. App., Vol. II at 228. Mr. Martin

also had occasional chest pain associated with being tired or fatigued. Dr. Clark

noted stiffness and “minimal decreased range of motion with flexion of the

lumbar spine, as well as hip flexion with the knees extended.”        Id. at 229. He

assessed Mr. Martin as having congestive heart failure, hypertension, chest pain,

and “osteoarthritis affecting the knees as well as hands.”       Id. Dr. Clark did not




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fill out a Residual Functional Capacity (RFC) assessment form, or provide an

opinion on Mr. Martin’s ability to work.

       Based on the treating and examining physicians’ records, an agency

physician completed an RFC assessment form, determining that Mr. Martin had

some exertional limitations and a postural limitation allowing occasional, but not

frequent, stooping.   1
                          An ALJ held a hearing at which Mr. Martin and a vocational

expert (VE) testified. Mr. Martin testified that he was fifty-eight years old and

that his past relevant jobs were hog farmer and industrial radiographer X-ray

technician. The VE testified that Mr. Martin’s former positions were heavy,

skilled work, and that they did not provide any transferable skills to sedentary or

light occupations. In response to the ALJ’s questions, the VE generally described

existing unskilled medium-level jobs and further noted that, in performing

unskilled medium-level work, an individual would spend “one-third to more than

two-thirds of the day [doing] repetitive lifting, and bending, and stooping.”   Id. at

58. Also, the VE stated that with a history of back stiffness, there was

“vocational concern” about an individual’s ability to lift, bend, and stoop

throughout an eight-hour work day.         Id.




1
       “‘Occasionally’ means occurring from very little up to one-third of the
time.” S.S.R. 83-10, 1983 WL 31251, *5. “‘Frequent’ means occurring from
one-third to two-thirds of the time.” Id. at *6.

                                                 -3-
       Ultimately, the ALJ determined that Mr. Martin could no longer perform

his past relevant work, but could perform the full range of medium work. As a

consequence, the ALJ concluded that Mr. Martin was not under a disability as

defined in the Social Security Act and not entitled to benefits.   See Williams v.

Bowen , 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the sequential process

for evaluating eligibility for disability benefits). The ALJ’s determination, which

became the final decision of the Commissioner, was upheld upon judicial review

by the district court. This appeal followed.

                                        Discussion

       On appeal, Mr. Martin argues that substantial evidence does not support the

ALJ’s determination of an RFC for a full range of medium work. Our standard of

review is well established.

       We review the agency’s decision to determine whether the factual
       findings are supported by substantial evidence in the record and
       whether the correct legal standards were applied. Substantial
       evidence is such relevant evidence as a reasonable mind might accept
       as adequate to support a conclusion. However, [a] decision is not
       based on substantial evidence if it is overwhelmed by other evidence
       in the record or if there is a mere scintilla of evidence supporting
       it. . . . [B]ecause our review is based on the record taken as a whole,
       we will meticulously examine the record in order to determine if the
       evidence supporting the agency’s decision is substantial, taking into
       account whatever in the record fairly detracts from its weight.
       However, [w]e may neither reweigh the evidence nor substitute our
       discretion for that of the [Commissioner].

Hamlin v. Barnhart , 365 F.3d 1208, 1214 (10th Cir. 2004) (quotations omitted).


                                             -4-
       In finding that a “State Agency medical consultant concluded that, in spite

of his impairments, [Mr. Martin] can still carry out a full range of medium work

activity,” Aplt. App., Vol. II at 23, the ALJ misinterpreted the record.        Under

social security rules, an individual capable of the full range of medium work must

be able to perform “frequent bending-stooping.” S.S.R. 83-10, 1983 WL 31251,

at *6. This movement requires “[f]lexibility of the knees as well as the torso.”

Id. Here, the only RFC assessment in the record was prepared by a state medical

consultant. That assessment, however, indicates that Mr. Martin is unable to

engage in frequent stooping. Additionally, Mr. Martin’s treating and consulting

physicians have observed his knee difficulties and minimally decreased range of

motion in his spine due to stiffness.

       “[T]he ALJ [is] responsible in every case ‘to ensure that an adequate

record is developed during the disability hearing consistent with the issues

raised.’” Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997) (quoting

Henrie v. United States Dep’t of Health & Human Servs         ., 13 F.3d 359, 260-61

(10th Cir. 1993)). An ALJ need not “exhaust every possible line of inquiry,” but

he must fully and fairly develop the record as to material issues.         Id. at 1168. In

this case, the question of whether Mr. Martin could perform the frequent stooping

necessary for performance of the full range of medium work was a material issue.

Mr. Martin’s testimony, his osteoarthritis diagnosis, and the reviewing physician’s


                                             -5-
RFC determination that claimant could stoop only occasionally makes the need

for further development of the issue “clearly established in the record.”       Id. At

present, the record lacks substantial evidence that Mr. Martin is capable of

performing the stooping necessary for a full range of medium work.

       We note that another aspect of the ALJ’s discussion of the evidence is also

at odds with the record. The ALJ’s statement that “[t]he undersigned agrees with

the testimony of the vocational expert and finds the claimant has transferable

skills,” Aplt. App., Vol. II at 24, is inconsistent with the transcription of the VE’s

testimony. The VE testified that Mr. Martin’s prior jobs were “rather unique

occupations” which “would not afford him any specific transferable skills to

sedentary or light occupations.”     Id. at 56. There is no VE testimony on skills

transferable to medium work.       Id. at 56-58.

       Additionally, the ALJ’s decision incorrectly states that the VE’s examples

of occupations that Mr. Martin could perform given his “age, education, past

work experience, and residual functional capacity” included “grocery sacker,

factory worker, hand packer and farm laborer–      each of which , the expert testified,

represents 422,000 jobs regionally and 4.2 million nationwide.”         Id. at 24

(emphasis added). In fact, the VE provided the listed jobs as examples of

unskilled positions that could be performed by an individual of advanced age with

an RFC for medium work.        Id. at 57. The VE then testified that, in general,


                                             -6-
“unskilled medium level jobs account for approximately 422,000 positions in the

region, and over 4.2 million in the national economy.”       Id. He did not state that

the examples, even taken together, accounted for those job numbers. Thus, the

VE’s testimony does not support the inflated numbers of existing medium-work

positions cited in the ALJ’s decision. And the VE’s testimony cannot be used as

a basis for appellee’s argument that we should affirm because, under the

Dictionary of Occupational Titles    descriptions, Mr. Martin could perform the

positions of hand packager and one type of factory laborer even with stooping

restrictions. Aplee Br. at 11-12. This contention ignores the absence of evidence

that such jobs exist in significant numbers in the regional and national economy.

      The judgment of the district court is REVERSED, and the case is

REMANDED with directions to REMAND to the agency for further development

and findings consistent with the law and evidence.



                                                         Entered for the Court



                                                         Monroe G. McKay
                                                         Circuit Judge




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