* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 26 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CHRISTY DUNCAN,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-5002 (D.C. No. 96-CV-782-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Christy Duncan filed a claim for suppleme ntal security income benefits on January 28, 1994, alleging a disabilitybeginning on July 1, 1992, due to fibromyalgia; chronic pain in her back, hands, f ingers, arms and legs; depression; muscle spasms; dizziness; and headaches . After a hearing, an administrative law judge (ALJ) denied her claim at step five of the evaluation sequence. See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He decided at step four that plaintiff has no past relevant work. At step five, he found that she retains the residual functi onal capacity (RFC) to perform the full range of light work without any significan t nonexertional limitations. Relying conclusively on Rule 202.17 of the medical- vocational guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2, the ALJ decided that plaintiff is not disabled. The Appeals Council denied review, makin g the ALJ’s decision the final agency decision. Plaintiff then brought this suit. The district court adopted the magistrate judge’s recommendation that the agen cy’s decision be affirmed. Plaintiff appeals. We have jurisdiction under 42 U .S.C. § 405(g) and 28 U.S.C. § 1291. On appeal, plaintiff asserts that the ALJ: (1) imp roperly disregarded the treating physicians’ and consultative examiner’s op inions; and (2) erred in relying conclusively on the grids to find that she is not d isabled. We review the agency’s decision on the whole record to determine only whet her the factual findings are-3-

supported by substantial evidence and the correct l egal standards were applied.
See Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the evidence or substitute our judgment for that of the agency. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). At step five, “the burden shifts to the [agency] to show that the claimant retains the residual functional capacity (RFC) to d o other work that exists in the national economy.” Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993) (citing Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991) and 42 U.S.C

. § 423(d)(2)(A)). “[A]n ALJ may not rely conclusive ly on the grids unless he finds (1) that the claimant has no significant none xertional impairment, (2) that the claimant can do the full range of work at some RFC level on a daily basis, and (3) that the claimant can perform most of the jobs in that RFC level.” Id. at 1488. In this case, the ALJ made a legal error that impro perly shifted the burden back to plaintiff at step five. In addition, the ALJ’s fin ding that plaintiff has no significant nonexertional impairments is not supported by substantial evidence. All three doctors whose reports appear in the recor d agree that plaintiff has fibromyalgia. See Appellant’s App., Certified District Court Record (Record) at 115 (Dr. Cox), 121 (Dr. Cosby), 126 (Dr. Berger) . Fibromyalgia is defined as a syndrome of pain in the fibrous tissues, muscles, t endons, ligaments, etc. See The Merck Manual of Diagnosis & Therapy, at 1369 (Robert Berkow & Andrew J.-4-

Fletcher eds., 16th ed. 1992). The ALJ discussed p laintiff’s pain at step four, where plaintiff bore the burden to show that she co uld not return to her past relevant work. See Record at 16-18. By addressing plaintiff’s pain at step four, however, the ALJ improperly left the burden with pl aintiff to prove she had a significant nonexertional impairment, instead of ac cepting the burden to show by substantial evidence that she did nothave a significant nonexertional impairment.
See Thompson , 987 F.2d at 1488. This was error. In addition, the ALJ stated that plaintiff’s pain w as limiting without defining the limitation and supporting that finding with substantial evidence. See Record at 18. The ALJ also appears to have conside red primarily whether plaintiff’s pain was totally disabling and to have given short shrift to the possibility that it was significant even if not dis abling. See id. We note the inconsistency of finding that a pain syndrome is se vere at step two and insignificant at step five. Next, the ALJ stated that plaintiff’s claim that sh e must lie down several times during the day because of pain is unsupported . However, “[t]he pain [of fibromyalgia] is aggravated by strain or overuse,” The Merck Manual of Diagnosis & Therapy, at 1370, and is accompanied bysymptoms such as poor sleep and fatigue, see id. Plaintiff’s problems with sleep disturbances and fatigue-5-

are documented. See Record at 126. Therefore, it is not apparent whatevidence supports the ALJ’s finding that she need not lie do wn periodically during the day. Next, the ALJ stated that plaintiff takes medicatio n and has never mentioned side effects to her doctors. He said that plaintiff never complained to them of numbness or dizziness. The record shows th at dizziness was one of her initial complaints--Dr. Cox underlined it in his no tes. See id. at 116. It is not clear whether this symptom was resolved. More impo rtantly, both plaintiff and her representative at the administrative hearing to ld the ALJ that her main treating physician, Dr. Berger, refused to give her copies o f all of her medical records.
See id. at 32, 48. The ALJ appears to have made no attemp t to obtain the rest of Dr. Berger’s notes, even though that evidence is ob viously material to plaintiff’s claim. “An ALJ has the duty to develop the record by obtaining pertinent, available medical records which come to his attenti on during the course of the hearing.” Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996); see also Baker
v. Bowen , 886 F.2d 289, 291-92 (10th Cir. 1989); 20 C.F.R. § 416.1444. The ALJ also has the power to subpoena such records if necessary. See Baker , 886 F.2d at 292; 20 C.F.R. § 416.1450(d)(1). Therefore , the ALJ should obtain the rest of Dr. Berger’s records on remand. See Carter , 73 F.3d at 1022. Without them, he has no substantial evidence to support anyfinding that plaintiff failed to report a complaint to her doctors and it therefore does not exist. Moreover, the-6-

medical records before us show only that plaintiff obtains “some relief” from the medications prescribed by Dr. Berger. See Record at 118-19. At one point, Dr. Berger commented that plaintiff was “doing great!” Id. at 127. She released so few pages of records, however, that there is no context for us to interpret her remark. See generallyid. at 126-36. Next, the ALJ found that plaintiff’s report of dail y activities caring for her two school-age daughters was inconsistent with “hercomplaints of totally disabling pain.” Id. at 18. The record shows, however, that plaintiff works sporadically on household tasks, lying down intermi ttently; that she gets help accomplishing things that need to be done; and thather daughters do some things for her as well as for themselves. See id. at 39-40, 100, 104, 108, 112, 119, 146, 156. “[T]he ALJ may not rely on minimal daily acti vities as substantial evidence that a claimant does not suffer disabling pain. Th e ‘sporadic performance [of household tasks or work] does not establish that a person is capable of engaging in substantial gainful activity.’” Thompson , 987 F.2d at 1490 (quoting Frey v.
Bowen , 816 F.2d 508, 516-17 (10th Cir. 1987)). Finally, the ALJ stated that plaintiff’s doctors ha d placed no restrictions on her. However, plaintiff reported to Dr. Cosby, the agency’s examining physician, that she “ha[d] been advised not to do any bending, stooping or pulling on heavy objects.” Record at 110. Because the ALJ found th at plaintiff can do light work,-7-

and light work includes jobs requiring “pushing andpulling of arm or leg controls,” 20 C.F.R. § 416.967(b), her restrictions matter greatly. If plaintiff cannot perform all the functions of light work as i t is defined by the regulations, then she cannot perform the full range of light wor k, a vocational expert should have been called, and the grids should not have bee n applied conclusively. See Thompson , 987 F.2d at 1487, 1491; Trimiar v. Sullivan , 966 F.2d 1326, 1332-33 (10th Cir. 1992). The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and the case is REMANDED w ith directions for the district court to remand to the agency for further proceedings in accordance with this order and judgment.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge