Davis

MEMORANDUM **

Barbara Davis appeals the district court’s affirmance of the Social Security Commissioner’s denial of her application for benefits. Davis contends that the denial was error because her bipolar disorder has rendered her unable to perform either her past relevant work as a plywood mill laborer or a significant number of other jobs in the national economy. The facts and prior proceedings are known to the parties, and are restated herein only as necessary.

I

Davis first contends that the administrative law judge (“ALJ”) erred in *666 failing to request medical source reports from two examining psychologists and therefore the ALJ failed to properly develop the record. “Medical source statements are medical opinions submitted by acceptable medical sources ... about what an individual can still do despite a severe impairment(s), in particular about an individual’s physical or mental abilities to perform work-related activities on a sustained basis.” SSR 96-5p. While the ALJ is “generally required to request that acceptable medical sources provide these statements with their medical reports,” id. (emphasis added), the governing regulation states that “the lack of the…

concurring.

I fully concur in Parts II, III, IV and V of the memorandum disposition. Respectfully, however, I write separately with regard to the majority’s conclusion in Part I that the ALJ’s failure to request medical source statements does not necessitate remand. It is an open question in this circuit whether the ALJ’s failure necessarily requires remand or, as the majority holds, requires remand only when the decision of the ALJ is not supported by other substantial evidence in the existing record. The majority resolves this issue by relying on an out-of-circuit precedent and a district court opinion, neither of which is binding upon us.

Nor does an examination of the relevant regulations and Social Security rulings firmly answer the question. Social Security Ruling 96-5p speaks in terms of the mandatory nature of the ALJ’s duty to request medical source statements. It states that the ALJ “must consider” such opinions and that the ALJ is “generally required to request” the statements, not that he generally should request them. SSR 96-5p (emphasis added). Similarly, the governing regulation states that the ALJ “will request a medical source statement about what you can still…