* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of the cour t’s General Order filed November 29, 1993. 151 F.R.D. 470. 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, th is panel has determined unanimously to honor the parties’ re quest 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 therefo re ordered submitted without oral argument. Ms. Ruth N. Copkney appeals the district court’s af firmance1 Effective March 31, 1995, the functions of the Secr etary 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), Shirle y S. Chater, Commissioner of Social Security, is substituted forDonna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the C ommissioner for the Secretary in the caption, in the text we co ntinue to refer to the Secretary because she was the appropri ate party at the time of the underlying decision.

2 Because we reverse and remand, we need not reach th e other issues raised by Ms. Copkney. -2- of the determination of the Secretary 1that she is not disabled for social security purposes. Ms. Copkney asserts, inter alia , that (1) the ALJ’s assessment of her Residual Funct ional Capacity (RFC) was not supported by substantial evidence bec ause the ALJ did not receive a statement from an examining physi cian 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, whic h requires the ALJ’s findings to be supported by “mor e 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 conclusi on.” Id. In addition, the ALJ must apply the correct legal stan dards. Hill v. Sullivan , 924 F.2d 972, 973 (10th Cir. 1991). Ms. Copkney cites 20 C.F.R. § 404.1513(b)(6) for th e-3-

proposition that the ALJ’s assessment of her RFC wa s not supported by substantial evidence because the ALJ f ailed to receive a statement from Dr. Winters or Dr. Dean de scribing the work she could perform despite her impairments. Th e proposition is unsupportable. While the regulation states that a medical source statement will be requested, it further stat es 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 full y develop the record when he failed to obtain medical reports fro m her treating physician. Specifically, Ms. Copkney asserts the ALJ failed to obtain medical reports that could have confirmed wh ether she met the Commissioner’s Listing of Impairment for obesit y. 20 C.F.R. 404, Subpt. P, App. 1 § 9.09. The record shows tha t she met the initial height and weight criteria for the obesity Listing. Rec., vol. II at 281-283, 286. During the ALJ hear ing, Ms. Copkney testified that her treating physician, on t wo 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 wo uld “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 andfairly-4-

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. Copk ney was unrepresented at the ALJ hearing, “[t]he ALJ’s dutyto 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 month s prior to the ALJ’s decision, the period from which the ALJ state d 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 th e district court so that it may remand to the Secreta ry to obtain the relevant medical records and to redetermine whe ther Ms. Copkney met one of the Secretary’s Listing of I mpairments or was otherwise disabled.
REVERSED AND REMANDED.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge