* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### JUN 1 1998 

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

HAROLD DEAN BURNS,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-2323 (D.C. No. CIV-96-891-JC) (D. N.M.)

ORDER AND JUDGMENT **

Before PORFILIO , 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-2-

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Harold Dean Burns filed a claim for socia l security disability and supplemental security income benefits on October 26 , 1993, alleging a disability beginning on October 23, 1992, due to obesity, shortness of breath, hypertension, loss of movement, and pain. After a hearing, an ad ministrative law judge (ALJ) denied plaintiff’s claim at step five of the evaluation sequence. See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). The ALJ d ecided that plaintiff could not return to any of his past work, but nevertheless retained the residual functional capacity (RFC) to perform sedentary work without any significant nonexertional limitations. Relying on the medical-vocational guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2, the ALJ concluded that plaintiff was not disabled. The Appeals Counc il denied review, making the ALJ’s decision the final agency decision. Plaintif f then brought this suit. The district court adopted the magistrate judge’s recom mendation that the agency’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: (1) the ALJ err ed in finding that his multiple impairments do not meet or equal in severi ty the listing for obesity set forth in 20 C.F.R. pt. 404, subpt. P, app. 1, § 9.0 9; (2) the district court erred in-3-

concluding that he waived, by not raising it in his request for review to the Appeals Council, his claim that his obesity, shortn ess of breath, hypertension, and loss of movement constitute nonexertional impairments that should have precluded the ALJ from relying on the grids to findthat he is not disabled; and (3) the ALJ improperly disregarded the opinions of plaintiff’s treating physician, Dr. Hoffman, and tests performed at the direction o f Dr. Hoffman. We review the agency’s decision on the whole record to determine only whether the factual findings are supported by substantial evidence and the correct legal 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 reweighthe evidence or substitute our judgment for that of the agency. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). Plaintiff’s second issue has merit--our rule that i ssues not raised to the Appeals Council are waived on judicial review is no t retroactive. See James v. Chater , 96 F.3d 1341, 1343-44 (10th Cir. 1996). Plaintif f made his request for review to the Appeals Council on November 8, 1995, before James was decided.
See II Appellant’s App. at 6. The district court ther efore erred in adopting the magistrate judge’s recommendation that plaintiff ha d waived any issues under
James . Defendant’s argument that plaintiff’s issue is w aived under other established law is misplaced because the cases it c ited deal with exhaustion of-4-

administrative remedies by waiting (or not waiting) for a final agency decision. Plaintiff’s claim proceeded to a final decision by the Social Security Administration. In the alternative to waiver, the magistrate judge recommended that plaintiff’s issue lacked merit because the ALJ did not rely on the grids conclusively, but used them only as a framework fordecision-making. See I Appellant’s App. at 46. This alternative holding is faulty for two reasons. First, the ALJ in fact applied the grids mechanically afte r finding that plaintiff’s nonexertional limitations were insignificant. See II Appellant’s App. at 12, 14. (The ALJ did not specify what nonexertional limitat ions he meant.) Second, to use the grids as a framework for decision-making me ans that the claimant was found to be unable to perform the full range of wor k in a given RFC category, and that the ALJ called a vocational expert (VE) to tes tify to the erosion of the claimant’s occupational base. See, e.g. , Thompson v. Sullivan , 987 F.2d 1482, 1487, 1491 (10th Cir. 1993); Trimiar v. Sullivan , 966 F.2d 1326, 1332-33 (10th Cir. 1992). The ALJ in this case did not find thatplaintiff was unable to perform the full range of sedentary work, and did not call a VE. Therefore, we must review the merits of plaintiff’s second issue. We first note that 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-5-

national economy.” Thompson , 987 F.2d at 1487 (citing Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991) and 42 U.S.C. § 42 3(d)(2)(A)). The ALJ’s conclusive reliance on the grids implies a finding that plaintiff can perform the full range of sedentary work. See Thompson , 987 F.2d at 1488. This implied finding presents additional problems. Sedentary wo rk primarily involves sitting, but also includes some standing and walking, and li fting up to ten pounds at a time. See id. (citing 20 C.F.R. § 404.1567(a)). “[P]eriods of s tanding or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday.” Soc. Sec. Rul. 83-10, 1983 WL 31251, at *5. Plaintiff’s treating physician, Dr. Hoffman, wrote that plaintiff is indefinitely disabled, but the ALJ rejected his opi nion as conclusory and unsupported. The ALJ stated that another treating physician, Dr. Vemula, believed that plaintiff can perform sedentary work. See II Appellant’s App. at 13. In fact, Dr. Vemula wrote that plaintiff “is able t o engage in sedentary type of work and if he looses [sic] weight, he could be abl e to do regular work.” Id. at 170. This statement is ambiguous, as Dr. Vemuladid not explain what he meant by “regular” work as opposed to sedentary work. More importantly, there is nothing in Dr. Vemula’s office notes that relate s his conclusion that plaintiff can perform sedentary work to the regulatory defini tion of sedentary work.-6-

Dr. Vemula’s opinion therefore is conclusory and un supported, and does not constitute substantial evidence to support the ALJ’ s finding that plaintiff can perform sedentary work. The ALJ also relied on the supposed opinion of Dr. Clark, a consultative examiner, that plaintiff is not limited in his abil ity to sit. The ALJ’s statement both contradicts and mischaracterizes Dr. Clark’s o pinion, however. Dr. Clark filled out a two-page form specifically related to RFC. See II Appellant’s App. at 134-35. He indicated by checkmarks that plainti ff’s impairment affects his capacity for lifting/carrying, standing/walking, an d sitting, but did not further explain how much weight plaintiff can lift or carry , how far and how long he can stand or walk, or how long he can sit. See id. Dr. Clark made a note that his assessment was based on “no objective findings; [patient] spends all time sitting or lying down.” Id. at 134. He did not conclude that plaintiff can pe rform sedentary work--or any work at all--and his opinionsuggests that plaintiff may not be able to perform sedentary jobs that require some lifting/carrying or standing/walking. That is, Dr. Clark’s opinion ind icates that plaintiff cannot perform the full range of sedentary work, and that the ALJ should have called a vocational expert. See Trimiar , 966 F.2d at 1333. It appears that there is an absence of substantial evidence from which the ALJ could draw a conclusion. However, “[t]he absen ce of evidence is not-7-

evidence.” See Thompson , 987 F.2d at 1491. The ALJ has a duty to fully develop the record even when the claimant is repres ented by an attorney, as in this
case. See Id. at 1492. The ALJ also has considerable discretionto obtain additional evidence that may already exist or to pr ocure additional consultative examinations to resolve conflicts in existing recor d evidence. See Hawkins v. Chater , 113 F.3d 1162, 1166-67 & n.5 (10th Cir. 1997). N evertheless, the ALJ appears to have made no attempt to acquire more evi dence from any physician in order to clarify the existing opinions about plaint iff’s limitations and ability (or inability) to work. Rather, it appears that the AL J simply chose the treating physician’s opinion that he favored, even though Dr . Vemula’s opinion is just as conclusory and unsupported as Dr. Hoffman’s. Cf. Switzer v. Heckler , 742 F.2d 382, 385-86 (7th Cir. 1984) (“[T]he [ALJ]’s attemptto use only the portions [of a doctor’s report] favorable to [his] position, while ignoring other parts, is improper.”); see also Smith v. Bowen , 687 F. Supp. 902, 904 (S.D.N.Y. 1988) (stating ALJ may not pick and choose evidence to support his conclusion). In addition, the ALJ found that plaintiff’s multipl e impairments were severe at step two, but insignificant at step five. He di d not explain how he arrived at that conclusion in any more detail than that he did not believe plaintiff. The only nonexertional limitation the ALJ mentioned specific ally was pain. Plaintiff’s morbid obesity and hypertension are documented, how ever. “Obesity is . . . a1 An additional problem is that the court reporter co uld not hear some of the

testimony. The result is that a significant portio n of the hearing transcript is marked “inaudible.” -8- nonexertional impairment which might significantly restrict a claimant’s ability to perform the full range of sedentary work.” Lucy v. Chater , 113 F.3d 905, 909 (8th Cir. 1997). Plaintiff testified that he becom es short of breath and has difficulty walking due to his weight. See II Appellant’s App. at 202. Hypertension is also a significant nonexertional impairment. See Evans v. Chater , 84 F.3d 1054, 1056 (8th Cir. 1996). Diastolic read ings persistently above 100 mm. Hg. satisfy the listing for obesity. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 9.09. Although plaintiff clearly does not meet t he listing in this case (his step three issue is discussed in more detail below), he has several readings equal to 100 mm. Hg. in addition to his higher readings. Se e I Appellant’s App. at 43-44. In spite of plaintiff’s documented nonexertional impairments, the ALJ’s questions to plaintiff at the hearing were extremel y cursory with respect to the physical requirements of working, plaintiff’s abili ty to work, and the effect of plaintiff’s nonexertional impairments on his activi ties. 1 In any case, plaintiff did not concede his ability to do the full range of sed entary work, and the ALJ’s conclusion that he can is not supported by substant ial evidence. If plaintiff cannot perform all the functions of sedentary work as it is defined by the regulations, then he cannot perform the full range of sedentary work, a vocational-9-

expert should have been called, and the grids shoul d not have been applied conclusively. See Thompson , 987 F.2d at 1487, 1491; Trimiar , 966 F.2d at 1332. Plaintiff’s assertion that the ALJ did not follow the treating physician rule ties in with the ALJ’s analysis of plaintiff’s none xertional impairments. “An ALJ is required to give controlling weight to a treatin g physician’s opinion about the nature and severity of a claimant’s impairments . . . if ‘it is well supported by clinical and laboratory diagnostic techniques and i f it is not inconsistent with other substantial evidence in the record.’” Bean v . Chater , 77 F.3d 1210, 1214 (10th Cir. 1995) (quoting Castellano v. Secretary o f Health & Human Servs. , 26 F.3d 1027, 1029 (10th Cir. 1994)). “To reject atreating physician’s opinion requires ‘specific, legitimate reasons.’” Miller v . Chater , 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v. Bowen , 816 F.2d 508, 513 (10th Cir. 1987)). When the claimant has more than one treating physician, the ALJ should assess each treating physician’s opinion using the same criteri a. There is no merit to plaintiff’s contention that hi s impairments meet or equal the listing for obesity. He testified at his hearing that he was five feet, three inches tall and weighed 302 pounds at that ti me. See II Appellant’s App. at 182-83. It is not disputed that the combination of plaintiff’s height and weight satisfies the threshold requirement of the obesity listing, 20 C.F.R. pt. 404, subpt. P, app. 1, § 9.09. The question is whether plaintiff meets any of the other,-10-

alternative requirements of the listing. He argues that his high blood pressure meets the requirement of § 9.09B, that is: “[h]ype rtension with diastolic blood pressure in excess of 100 mm. Hg.” He misreads the regulation, however, when he argues that readings where his diastolic pressur e equaled100 mm. Hg. should be considered. The diastolic pressure must exceed100 mm. Hg. before a given reading falls within the listing. A review of the magistrate judge‘s summary of plaintiff’s blood pressure readings, which plaintif f concedes is generally accurate, shows that his qualifying readings are simply too f ew to satisfy § 9.09B. See I Appellant’s App. at 43-44. This is true even if the list is pared to a time frame as short as a year to match the basic time requirem ent for disability, as plaintiff argues. See Id. We therefore need not decide, as plaintiff urges us to do, how many qualifying readings it takes to demonstrate “p ersistently” high blood pressure under § 9.09B. Plaintiff’s other, cursoryarguments that his impairments meet or equal § 9.09 do not merit discussion. The ALJ did not err in concluding that plaintiff is not disabled under § 9.09. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED in part and REVERSED in part, an d the case is-11-

REMANDED with directions for the district court to remand to the agency for further proceedings in accordance with this order and judgment.

Entered for the Court

James E. Barrett Senior Circuit Judge