* This order and judgment is not binding precedent, e xcept under the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

1 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(G). The case is therefore ordered submitted without oral argument. 

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

### APR 1 1999 

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

MAURICIO MEDINA,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-2170 (D.C. No. CIV-97-69-M) (D. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

Plaintiff 1 appeals from an order of the district court affirm ing the Commissioner’s decision denying his applications fo r social security disability2 Plaintiff had filed a previous SSI application in l ate 1993, which was

denied on initial consideration. The Administrativ e Law Judge determined that it was unnecessary to determine whether the denial of the prior claim should be reopened and revised. -2- benefits and for Supplemental Security Income (SSI). 2We review the Commissioner’s decision to determine whether the fa ctual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. See Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998). Exercising jurisdiction under 42 U.S.C. § 405(g), we remand fo r further proceedings, holding that substantial evidence does not support the Comm issioner’s decision. Plaintiff alleges disability since May 11, 1990, du e to back and leg pain. He has had three back surgeries in less than four y ears, has a ninth grade education, speaks Spanish, and has past relevant wo rk experience as a farm and oil field laborer. Applying the Commissioner’s five-step evaluation process, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), the Admini strative Law Judge (ALJ) found that plaintiff has lumbar dis c disease and cannot perform his past work. The ALJ further found that plaintif f retains the residual functional capacity to perform the sedentary job of stone sett er, which permits alternating standing and sitting. See Appellant’s App., Administrative R. at 17-18. Accordingly, the ALJ concluded that plaintiff was n ot disabled and denied disability benefits and SSI.3 Plaintiff’s insured status for disability benefits ended June 30, 1992. -3- It is settled that a claimant bears the burden of proving disability. 3 See Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993). See generally 20 C.F.R. §§ 404.1512(a), (c); 416.912(a), (c) (requiring claimant to furnish evidence regarding i mpairments and their effect on his ability to work). Although the plaintiff has the burden of providing medical evidence proving disability, the ALJ has the duty t o fully and fairly develop the record as to material issues. See Carter v. Chater , 73 F.3d 1019, 1021 (10th Cir. 1996). This duty applies even when, like here, the plaintiff is represented by counsel. See Baca v. Department of Health & Human Servs. , 5 F.3d 476, 479-80 (10th Cir. 1993). The ALJ’s duty “is one of inquiry, ensuring that the ALJ is informed about facts relevant to his decision and l earns the claimant’s own version of those facts.” Henrie , 13 F.3d at 361 (quotations and brackets omitted). Thus, the ALJ bears responsibility for ensuring “anadequate record is developed during the disability hearing consistent with the issues raised.” Id. at 360-61. If evidence from the plaintiff’s treating doctor is inadequate to determine if the plaintiff is disabled, the Commissioner must fi rst recontact the treating doctor to determine if additional needed information is available. See 20 C.F.R. §§ 404.1512(e); 416.912(e). Also, where the medica l evidence in the record is in conflict or is inconclusive, “a consultative examin ation is often required for-4-

proper resolution of a disability claim.” Hawkins v. Chater , 113 F.3d 1162, 1166 (10th Cir. 1997) (step two); see also 20 C.F.R. §§ 404.1512(f); 416.912(f) (“If the information we need is not readily available from t he records of your medical treatment source, or we are unable to seek clarific ation from your medical source, we will ask you to attend one or more consultative examinations at our expense.”); Hawkins , 113 F.3d at 1169 (suggesting ALJ should order con sultative examination when record establishes reasonable poss ibility of disability and result of examination could be expected to assist in resol ving disability issue); Thompson v. Sullivan , 987 F.2d 1482, 1492 (10th Cir. 1993) (“It matters that the ALJ did not order a consultative examination . . . because the medical evidence in the record is inconclusive and does not provide sub stantial support for findings of [plaintiff’s] RFC level or how many jobs she can pe rform despite her impairments.”); Dozier v. Heckler , 754 F.2d 274, 276 (8th Cir. 1985) (reversible error for ALJ not to order consulting examination w hen examination is necessary for informed decision). In this case, the ALJ did not meet his burden of fu lly and fairly developing the record. The medical records presented are insu fficient to determine whether plaintiff was disabled for any twelve-month period of time. The medical evidence consists primarily of treatment notes of plaintiff’ s treating doctor, who performed his second and third surgeries. The notes alone ar e confusing and are insufficient4 In remanding, we do not reach the specific argument s plaintiff makes on

appeal: (1) his impairments meet or equal one of the listings; (2) evidence supports his claim of disabling pain; (3) the ALJ’s hypothetical question to the vocational expert was not based on the medical reco rds; and (4) the ALJ failed to discuss, give great weight to, or make separate fin dings regarding his treating physician’s numerous statements that he is disabledor temporarily disabled. -5- to draw reliable conclusions about plaintiff’s alle ged disability. They do, however, establish that plaintiff presented suffici ent medical evidence to warrant further investigation of his physical condition. See Hawkins , 113 F.3d at 1169. Because the ALJ did not have sufficient facts befor e him to make an informed decision, his decision is not supported bysubstantial evidence. Under the circumstances, we remand 4under 42 U.S.C. § 405(g) for the ALJ to further develop the record. The ALJ is urged to obtain a s ummary and evaluation from plaintiff’s treating doctor of plaintiff’s disabili ty during the relevant time period with a clear indication of the permanency of plaint iff’s condition and/or a detailed evaluation from a consulting doctor who pe rsonally examines plaintiff. Cf. Bishop v. Sullivan , 900 F.2d 1259, 1263 (8th Cir. 1990) (remanding fo r ALJ to develop record by directing interrogatories to p laintiff’s doctor or by ordering consulting examination). After the evidence of pla intiff’s impairments is further developed, the Commissioner should reevaluate plaintiff’s impairments and reconsider his applications for disability benefits and SSI. Also, the ALJ should expressly rule on reopening of the prior SSI denial

.-6-

The judgment of the district court is VACATED, and the case is REMANDED with directions to remand to the Commissio ner for further development of the record. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge