Opinion
No. C-00-02470 BZ
June 5, 2001
ORDER DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR REMAND
Plaintiff John Uhl appeals from a final decision by the Commissioner of Social Security (Commissioner) under 42 U.S.C. § 405 (g) affirming the decision of an Administrative Law Judge (ALJ). The ALJ found that since Uhl was capable of performing light work with certain restrictions, he was not disabled and therefore not eligible for social security income under 42 U.S.C. § 1602 and 1614(a)(3). Tr. at 17-18.
The Social Security Administration Appeals Council declined to review the ALJ's decision. Tr. at 5-6. Uhl timely requested judicial review pursuant to 42 U.S.C. § 405 (g), requesting that the ALJ's decision be reversed, or, in the alternative, that the case be remanded to the Commissioner for further proceedings. The parties consented to the jurisdiction of a United States Magistrate Judge in accordance with the provisions of 28 U.S.C. § 636 and have filed cross-motions for summary judgment. This matter is deemed submitted on the briefing of the parties and the transcript of the administrative record below.
The Commissioner's decision to deny benefits will be disturbed only if it is not supported by substantial evidence or is based on legal error. 42 U.S.C. § 405 (g); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence means more than a mere scintilla but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. As a result of the limited scope of the review, the ALJ's decision will be upheld where the evidence is conflicting or inconclusive. Allen v. Secretary of Health Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984)
Following the standard five step process for evaluating Uhl's claim, the ALJ found at step one that Uhl had not performed substantial gainful activity since October 1, 1988. Tr. at 12, 17. At step two, the ALJ found that Uhl suffered from the severe impairments of juvenile myoclonic epilepsy; bipolar disorder, hypomanic type; and ETOH dependence in remission. Tr. at 12, 17. At step three, the ALJ found that Uhl's impairments did not meet or equal any impairment set out in the Listing of Impairments. Tr. at 15, 17. At step four, the ALJ found that Uhl was unable to perform his past relevant work as a stock handler. Tr. at 16, 17. At the fifth and final step, the ALJ found that Uhl was not disabled because he could perform certain types of light work, encompassing a variety of jobs that exist in significant numbers in the national economy. Tr. at 16-17, 17-18. Apart from the five-step analysis, the ALJ also found that Uhl's statements concerning his impairments and their impact on his ability to work were not entirely credible. Tr. at 15, 16. The ALJ noted Uhl's disability could be established without reference to his alcoholism. Tr. at 17, 18.
See 20 C.F.R. § 416.920.
The Commissioner has acknowledged certain impairments to be so severe as to preclude substantial gainful activity. These impairments are set out in the Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1. A claimant whose impairment or combination of impairments meets or equals the "Listings" is presumptively disabled.
The ALJ recognized that Uhl was not capable of performing work at unprotected heights, near heavy machinery or machinery with exposed moving parts, or involving driving. Tr. at 17. Additionally, the ALJ limited Uhl to work with limited contact with others. Id.
Uhl raises four objections to these findings, alleging that the ALJ: (1) failed to evaluate the combined effect of Uhl's impairments; (2) improperly discounted the opinion of Uhl's treating physician Dr. DeBoskey; (3) failed to make sufficient findings as to the credibility of Uhl and his father; and (4) improperly applied the medical-vocational grids in determining that Uhl could work.
At the time of the hearing, Dr. DeBoskey had prepared a supplemental report which had not yet been received by either the ALJ or Uhl's paralegal. Tr. at 61-62, 297. The report was subsequently received but given very limited weight. Tr. at 14-15. In his supplemental report, Dr. DeBoskey concluded that:
[e]ven though [Uhl] has actively been involved in his treatment, he has made little progress in his psychiatric condition. His prognosis appears to be guarded. He was, marginally, able to work periods of time over the years but has not been able to maintain a job for the last couple of years, despite his attempts to do so, due to his inability to handle any type of stress or pressure, follow instructions in a timely fashion and respond to authority or coworkers. [He] has a history of violent outbursts . . . These episodes have improved somewhat, . . . but [he] can become easily agitated. He complains of lack of energy, insomnia, memory problems and some suicidal ideations. . . . At present, I find him unable to manage any employment due to his psychiatric problems. This report supersedes my report of May 20, 1998 as his condition has not improved as I expected it.
In the "Mental Disorder Questionnaire Form", completed ten months earlier, Dr. DeBoskey had diagnosed Uhl with bipolar disorder, hypomanic type, but concluded that he was responding well to treatment, noting that "the patient is making progress and would not be restricted from working on the basis of his psychiatric diagnosis." Tr. at 282-286.
In his decision, the ALJ discounted Dr. DeBoskey's supplemental report on several grounds. He found that "Dr. DeBoskey offered no explanation as to why he felt that the claimant could not work. He offered no specific residual functional capacity assessment, nor did he explain why there is a change of opinion in the specific assessment of May 20, 1998." Tr. at 14. The ALJ also discounted Dr. DeBoskey's opinion based on the lack of any objective findings underlying his conclusion. Tr. at 15. The ALJ relied instead on the May 6, 1998 findings of a non-examining non-treating State Agency Consultant's review of the record as to the severity of Uhl's condition, considering but giving little weight to Dr. DeBoskey's supplemental opinion dated March 12, 1999. Id. The ALJ therefore based his decision on two May 1998 reports finding Uhl's mental health condition to be less severe, while discounting the most current evaluation of Uhl's condition, which clearly indicated that in the intermittent ten months Uhl's condition had not improved and that, in the opinion of his treating physician, Uhl was now unable to work.
In general, opinions of the claimant's treating physician are given the greatest weight because that position has had more opportunity to know and to closely observe the patient. Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993).
Both of Dr. DeBoskey's reports were submitted after the Consultant's review and therefore was not considered in that analysis.
The ALJ has an independent duty to fully develop the record. 42 U.S.C. § 423 (d)(5)(b); 20 C.F.R. § 404.1512 (d)(e) This duty persists even where claimant is represented by counsel and is more pronounced where claimant is represented by a lay person or may be mentally ill. Smolen v. Chatter, 80 F.3d at, 1288; Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). This duty is triggered by ambiguous evidence, or by the ALJ's finding that the record is inadequate. Id. "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Id., see also Smolen v. Chatter, 80 F.3d at 1288. Alternatively, the ALJ could have requested that Uhl undergo a consultative examination with Dr. DeBoskey or another doctor in order to more fully develop the record in light of Dr. DeBoskey, Uhl's treating physician's, supplemental report. 20 C.F.R. § 404.1512 (e). Failure to sufficiently develop the record constitutes grounds for remand. Tonapetyan v. Halter, 242 F.3d at 1151.
The government cites Tidwell v. Apfel, 161 F.3d 599 (9th Cir. 1999) in support of its argument that the ALJ fulfilled his duty to fully develop the record merely by keeping it open. However, in contrast to Uhl's situation, at the hearing in Tidwell the ALJ had voiced his concerns that there was insufficient basis to support a particular doctor's opinion to appellant and to her counsel, specifically requested an additional inquiry into the basis of that doctor's opinion, and kept the record open to allow supplementation with the response from that doctor. Id. at 602. The ALJ in Tidwell also "specifically requested a post-hearing psychological evaluation to supplement the record." Id. at 601. There is no evidence in the record that the ALJ in Uhl's case did anything other than keep the record open.
Courts have repeatedly recognized the difficulty of producing objective evidence of mental health conditions.
[c]ourts have recognized that a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as is a medical impairment and that consequently, the diagnostic techniques employed in the field of psychiatry may be somewhat less tangible than those in the fields of medicine. In general, mental disorders cannot be ascertained and verified as are most physical illnesses, for the mind cannot be approached by mechanical devices in order to obtain objective clinical manifestations of mental elements. A strict reading of the statutory requirement that an impairment be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423 (d) (3), 1382c(a)(3)(C), is inappropriate in the context of mental illness. Rather, when mental illness is the basis of the disability claim, clinical and laboratory data may consist of the diagnoses and observations of professionals trained in the field of psychology. The report of the psychiatrist should not be rejected simply because of the relative imprecision of the psychiatric methodology or the absence of substantial documentation, unless there are other reasons to question to diagnostic technique.
Christensen v. Bowen, 633 F. Supp. 1214, 1220-1221 (N.D.Cal. 1986) quoting Lebus v. Harris, 526 F. Supp. 56, 60 (N.D.Cal. 1981) (citations omitted); see also Sanchez v. Apfel, 85 F. Supp.2d 986 C.D.Cal. 2000), Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989)
find that the ALJ failed to meet his independent duty to fully develop the record in light of the supplemental report of Dr. DeBoskey, Uhl's treating physician. The ALJ's duty to inquire into the basis of Dr. DeBoskey's opinion was heightened in this case because Uhl was represented by a lay person and had provided evidence of at least a moderate grade bipolar disorder, which the ALJ himself found demonstrated a severe impairment, albeit one which did not rise to listing level. I also find that the ALJ's statement that "Dr. DeBoskey offered no explanation as to why he felt that the claimant could not work" is incorrect. Tr. at 14. While the supplemental report in not comprehensive, Dr. DeBoskey stated that the supplemental report, in which he concluded Uhl was now unable to work, superseded his earlier report based on Uhl's lack of progress, and described various manifestations of Uhl's mental health impairments. Tr. at 297.
In this situation, the ALJ should have inquired into the basis of Dr. DeBoskey's opinion if the ALJ was unsatisfied with the supplemental report, given that Dr. DeBoskey was Uhl's treating doctor, and had most recently examined Uhl. While the ALJ did agree at the hearing to leave the record open to allow submission of Dr. DeBoskey's supplemental opinion as to the evidence before him, in contrast to the ALJ in Tidwell, he gave no indication that there was any problem with the evidence. The ALJ requested that Uhl's paralegal also submit Dr. DeBoskey's "chart notes", but stated that he would consider the supplemental opinion absent treatment notes if none existed. There is no indication in the record as to whether the treatment notes exist; it appears that they were never submitted. As the 9th Circuit has noted, "having failed to fully develop the record regarding the basis for [a treating doctor's] opinions, the ALJ could not then reject those opinions . . ." Smolen v. Chater, 80 F.3d at 1288 (opinions uncontroverted and corroborated; given in response to leading, hypothetical questions).
Plaintiff also contends that the ALJ failed to make sufficient findings regarding his credibility. In his decision, the ALJ's only findings as to Uhl's credibility were that "claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible". Tr. at 15, 17. In rejecting a claimant's testimony as not credible, however, an ALJ must provide specific findings as to what testimony is not credible and to what other evidence undermines a claimant's testimony. Lester v. Chater, 81 F.3d 821, 833-834 (9th Cir. 1996). Where an ALJ fails to make such specific findings, there are no outstanding issues to be resolved, and the claimant would be disabled if their testimony were credited, remand is unnecessary. Id. at 834; see also Smolen v. Chater, 80 F.3d at 1292; Dawn v. Apfel, 2000 WL 1838951 (D.Or. 2000)
The ALJ in this case identified in very general terms the category of statements which were not credible, but failed to make any findings as to what evidence undermined Uhl's credibility. Tr. at 15, 17. However, even if I were to credit Uhl's testimony as described in Lester, Chatter, and Dawn, his testimony does not conclusively establish that his impairments meet those described in the Listing of Impairments. Therefore, on remand the ALJ is directed to reconsider Uhl's testimony in light of the supplemental information to be gathered from Dr. DeBoskey, and to make specific findings as to Uhl's credibility. Dependent on the supplemental information and on what portions of Uhl's testimony the ALJ finds credible on remand, his impairments may reach listing level.
It is also unclear from the ALJ's decision whether he considered the testimony of Uhl's father, other than Uhl's father's statement that Uhl played basketball on occasion. Tr. at 15. The ALJ is reminded that descriptions and by friends and family members who observe a claimant's daily symptoms and activities should be treated as competent evidence. Smith v. Bowen, 849 F.2d 1222, 1226 (9th Cir. 1988). The Secretary is required to consider observations by nonmedical sources as to how an impairment affects a claimant's ability to work. Id.; 20 C.F.R. § 1513(e)(2). Given the difficulty of substantively documenting mental health conditions, discussed supra, consideration of lay witness testimony regarding day to day manifestations of a claimant's mental health condition become even more significant.
Since I find that the ALJ failed to sufficiently develop the record or to make sufficient findings regarding Uhl's credibility, I do not reach Uhl's other arguments. However, the ALJ is reminded that application of the grids is inappropriate where a claimant's non-exertional limitations significantly limit the range of his work. Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 577-578 (9th Cir. 1987). Non-exertional limitations which may preclude a mechanical application of the grids include mental health conditions. 20 C.F.R. § 404.1569a(c). Depending on the severity of the non-exertional limitations, failure to call a vocational expert to testify may be error. Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999).
The ALJ is also reminded that, should the further evidence acquired from Dr. DeBoskey and a reconsideration of Uhl's testimony not establish that Uhl's mental condition is sufficiently severe to meet or equal the listing requirements at step three of the sequential evaluation, he is still required to consider the combined effects of Uhl's impairments. See 20 C.F.R. § 404.1520 (a), 404.1523; Lester v. Chater, 81 F.3d at 829-830; Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988).
Accordingly, plaintiff's motion for REMAND is granted, so that the Commissioner can fully develop the record and make a more thorough determination of plaintiff's disability. Defendant's cross-motion for summary judgment is DENIED.
JUDGMENT
The court granted plaintiff's motion and ordered remand of this case to the defendant Commissioner under sentence four of 42 U.S.C. § 405 (g) on June 5, 2001 (copy attached);
JUDGMENT IS THEREFORE ENTERED REMANDING THE ACTION,
pursuant to Rule 58, Federal Rules of Civil Procedure, and Forney v. Apfel, 524 U.S. 266 (1998).ORDER DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR REMAND
Plaintiff John Uhl appeals from a final decision by the Commissioner of Social Security (Commissioner) under 42 U.S.C. § 405 (g) affirming the decision of an Administrative Law Judge (ALJ). The ALJ found that since Uhl was capable of performing light work with certain restrictions, he was not disabled and therefore not eligible for social security income under 42 U.S.C. § 1602 and 1614(a)(3). Tr. at 17-18.
The Social Security Administration Appeals Council declined to review the ALJ's decision. Tr. at 5-6. Uhl timely requested judicial review pursuant to 42 U.S.C. § 405 (g), requesting that the ALJ's decision be reversed, or, in the alternative, that the case be remanded to the Commissioner for further proceedings. The parties consented to the jurisdiction of a United States Magistrate Judge in accordance with the provisions of 28 U.S.C. § 636 and have filed cross-motions for summary judgment. This matter is deemed submitted on the briefing of the parties and the transcript of the administrative record below.
The Commissioner's decision to deny benefits will be disturbed only if it is not supported by substantial evidence or is based on legal error. 42 U.S.C. § 405 (g); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence means more than a mere scintilla but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. As a result of the limited scope of the review; the ALJ's decision will be upheld where the evidence is conflicting or inconclusive. Allen v. Secretary of Health Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984)
Following the standard five step process for evaluating Uhl's claim, the ALJ found at step one that Uhl had not performed substantial gainful activity since October 1, 1988. Tr. at 12, 17. At step two, the ALJ found that Uhl suffered from the severe impairments of juvenile myoclonic epilepsy; bipolar disorder, hypomanic type; and ETOH dependence in remission. Tr. at 12, 17. At step three, the ALJ found that Uhl's impairments did not meet or equal any impairment set out in the Listing of Impairments. Tr. at 15, 17. At step four, the ALJ found that Uhl was unable to perform his past relevant work as a stock handler. Tr. at 16, 17. At the fifth and final step, the ALJ found that Uhl was not disabled because he could perform certain types of light work, encompassing a variety of jobs that exist in significant numbers in the national economy. Tr. at 16-17, 17-18. Apart from the five-step analysis, the ALJ also found that Uhl's statements concerning his impairments and their impact on his ability to work were not entirely credible. Tr. at 15, 16. The ALJ noted Uhl's disability could be established without reference to his alcoholism. Tr. at 17, 18.
See 20 C.F.R. § 416.920.
The Commissioner has acknowledged certain impairments to be so severe as to preclude substantial gainful activity. These impairments are set out in the Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1. A claimant whose impairment or combination of impairments meets or equals the "Listings" is presumptively disabled.
The ALJ recognized that Uhl was not capable of performing work at unprotected heights, near heavy machinery or machinery with exposed moving parts, or involving driving. Tr. at 17. Additionally, the ALJ limited Uhl to work with limited contact with others. Id.
Uhl raises four objections to these findings, alleging that the ALJ: (1) failed to evaluate the combined effect of Uhl's impairments; (2) improperly discounted the opinion of Uhl's treating physician Dr. DeBoskey; (3) failed to make sufficient findings as to the credibility of Uhl and his father; and (4) improperly applied the medical-vocational grids in determining that Uhl could work.
At the time of the hearing, Dr. DeBoskey had prepared a supplemental report which had not yet been received by either the ALJ or Uhl's paralegal. Tr. at 61-62, 297. The report was subsequently received but given very limited weight. Tr. at 14-15. In his supplemental report, Dr. DeBoskey concluded that:
[e]ven though [Uhl] has actively been involved in his treatment, he has made little progress in his psychiatric condition. His prognosis appears to be guarded. He was, marginally, able to work periods of time over the years but has not been able to maintain a job for the last couple of years, despite his attempts to do so, due to his inability to handle any type of stress or pressure, follow instructions in a timely fashion and respond to authority or coworkers. [He] has a history of violent outbursts . . . These episodes have improved somewhat, . . . but [he] can become easily agitated. He complains of lack of energy, insomnia, memory problems and some suicidal ideations. . . . At present, I find him unable to manage any employment due to his psychiatric problems. This report supersedes my report of May 20, 1998 as his condition has not improved as I 16 expected it.
In the "Mental Disorder Questionnaire Form", completed ten months earlier, Dr. DeBoskey had diagnosed Uhl with bipolar disorder, hypomanic type, but concluded that he was responding well to treatment, noting that "the patient is making progress and would not be restricted from working on the basis of his psychiatric diagnosis." Tr. at 282-286.
In his decision, the ALJ discounted Dr. DeBoskey's supplemental report on several grounds. He found that "Dr. DeBoskey offered no explanation as to why he felt that the claimant could not work. He offered no specific residual functional capacity assessment, nor did he explain why there is a change of opinion in the specific assessment of May 20, 1998." Tr. at 14. The ALJ also discounted Dr. DeBoskey's opinion based on the lack of any objective findings underlying his conclusion. Tr. at 15. The ALJ relied instead on the May 6, 1998 findings of a non-examining non-treating State Agency Consultant's review of the record as to the severity of Uhl's condition, considering but giving little weight to Dr. DeBoskey's supplemental opinion dated March 12, 1999. Id. The ALJ therefore based his decision on two May 1998 reports finding Uhl's mental health condition to be less severe, while discounting the most current evaluation of Uhl's condition, which clearly indicated that in the intermittent ten months Uhl's condition had not improved and that, in the opinion of his treating physician, Uhl was now unable to work.
In general, opinions of the claimant's treating physician are given the greatest weight because that position has had more opportunity to know and to closely observe the patient. Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993).
Both of Dr. DeBoskey's reports were submitted after the Consultant's review and therefore was not considered in that analysis.
The ALJ has an independent duty to fully develop the record. 42 U.S.C. § 423 (d)(5)(b); 20 C.F.R. § 404.1512 (d)(e) This duty persists even where claimant is represented by counsel and is more pronounced where claimant is represented by a lay person or may be mentally ill. Smolen v. Chatter, 80 F.3d at, 1288; Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). This duty is triggered by ambiguous evidence, or by the ALJ's finding that the record is inadequate. Id. "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Id., see also Smolen v. Chatter, 80 F.3d at 1288. Alternatively, the ALJ could have requested that Uhl undergo a consultative examination with Dr. DeBoskey or another doctor in order to more fully develop the record in light of Dr. DeBoskey, Uhl's treating physician's, supplemental report. 20 C.F.R. § 404.1512 (e). Failure to sufficiently develop the record constitutes grounds for remand. Tonapetyan v. Halter, 242 F.3d at 1151.
The government cites Tidwell v. Apfel, 161 F.3d 599 (9th Cir. 1999) in support of its argument that the ALJ fulfilled his duty to fully develop the record merely by keeping it open. However, in contrast to Uhl's situation, at the hearing in Tidwell the ALJ had voiced his concerns that there was insufficient basis to support a particular doctor's opinion to appellant and to her counsel, specifically requested an additional inquiry into the basis of that doctor's opinion, and kept the record open to allow supplementation with the response from that doctor. Id. at 602. The ALJ in Tidwell also "specifically requested a post-hearing psychological evaluation to supplement the record." Id. at 601. There is no evidence in the record that the ALJ in Uhl's case did anything other than keep the record open.
Courts have repeatedly recognized the difficulty of producing objective evidence of mental health conditions.
[c]ourts have recognized that a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as is a medical impairment and that consequently, the diagnostic techniques employed in the field of psychiatry may be somewhat less tangible than those in the fields of medicine. In general, mental disorders cannot be ascertained and verified as are most physical illnesses, for the mind cannot be approached by mechanical devices in order to obtain objective clinical manifestations of mental elements. A strict reading of the statutory requirement that an impairment be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423 (d) (3), 1382c(a)(3)(C), is inappropriate in the context of mental illness. Rather, when mental illness is the basis of the disability claim, clinical and laboratory data may consist of the diagnoses and observations of professionals trained in the field of psychology. The report of the psychiatrist should not be rejected simply because of the relative imprecision of the psychiatric methodology or the absence of substantial documentation, unless there are other reasons to question to diagnostic technique.
Christensen v. Bowen, 633 F. Supp. 1214, 1220-1221 (N.D.Cal. 1986) quoting Lebus v. Harris, 526 F. Supp. 56, 60 (N.D.Cal. 1981) (citations omitted); see also Sanchez v. Apfel, 85 F. Supp.2d 986 (C.D.Cal. 2000), Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989).
I find that the ALJ failed to meet his independent duty to fully develop the record in light of the supplemental report of Dr. DeBoskey, Uhl's treating physician. The ALJ's duty to inquire into the basis of Dr. DeBoskey's opinion was heightened in this case because Uhl was represented by a lay person and had provided evidence of at least a moderate grade bipolar disorder, which the ALJ himself found demonstrated a severe impairment, albeit one which did not rise to listing level. I also find that the ALJ's statement that "Dr. DeBoskey offered no explanation as to why he felt that the claimant could not work" is incorrect. Tr. at 14. While the supplemental report in not comprehensive, Dr. DeBoskey stated that the supplemental report, in which he concluded Uhl was now unable to work, superseded his earlier report based on Uhl's lack of progress, and described various manifestations of Uhl's mental health impairments. Tr. at 297.
In this situation, the ALJ should have inquired into the basis of Dr. DeBoskey's opinion if the ALJ was unsatisfied with the supplemental report, given that Dr. DeBoskey was Uhl's treating doctor, and had most recently examined Uhl. While the ALJ did agree at the hearing to leave the record open to allow submission of Dr. DeBoskey's supplemental opinion as to the evidence before him, in contrast to the ALJ in Tidwell, he gave no indication that there was any problem with the evidence. The ALJ requested that Uhl's paralegal also submit Dr. DeBoskey's "chart notes", but stated that he would consider the supplemental opinion absent treatment notes if none existed. There is no indication in the record as to whether the treatment notes exist; it appears that they were never submitted. As the 9th Circuit has noted, "having failed to fully develop the record regarding the basis for [a treating doctor's] opinions, the ALJ could not then reject those opinions . . ." Smolen v. Chater, 80 F.3d at 1288 (opinions uncontroverted and corroborated; given in response to leading, hypothetical questions).
Plaintiff also contends that the ALJ failed to make sufficient findings regarding his credibility. In his decision, the ALJ's only findings as to Uhl's credibility were that "claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible". Tr. at 15, 17. In rejecting a claimant's testimony as not credible, however, an ALJ must provide specific findings as to what testimony is not credible and to what other evidence undermines a claimant's testimony. Lester v. Chater, 81 F.3d 821, 833-834 (9th Cir. 1996). Where an ALJ fails to make such specific findings, there are no outstanding issues to be resolved, and the claimant would be disabled if their testimony were credited, remand is unnecessary. Id. at 834; see also Smolen v. Chater, 80 F.3d at 1292; Dawn v. Apfel, 2000 WL 1838951 (D.Or. 2000)
The ALJ in this case identified in very general terms the category of statements which were not credible, but failed to make any findings as to what evidence undermined Uhl's credibility. Tr. at 15, 17. However, even if I were to credit Uhl's testimony as described in Lester, Chatter, and Dawn, his testimony does not conclusively establish that his impairments meet those described in the Listing of Impairments. Therefore, on remand the ALJ is directed to reconsider Uhl's testimony in light of the supplemental information to be gathered from Dr. DeBoskey, and to make specific findings as to Uhl's credibility. Dependent on the supplemental information and on what portions of Uhl's testimony the ALJ finds credible on remand, his impairments may reach listing level.
It is also unclear from the ALJ's decision whether he considered the testimony of Uhl's father, other than Uhl's father's statement that Uhl played basketball on occasion. Tr. at 15. The ALJ is reminded that descriptions and by friends and family members who observe a claimant's daily symptoms and activities should be treated as competent evidence. Smith v. Bowen, 849 F.2d 1222, 1226 (9th Cir. 1988). The Secretary is required to consider observations by nonmedical sources as to how an impairment affects a claimant's ability to work. Id.; 20 C.F.R. § 1513(e)(2). Given the difficulty of substantively documenting mental health conditions, discussed supra, consideration of lay witness testimony regarding day to day manifestations of a claimant's mental health condition become even more significant.
Since I find that the ALJ failed to sufficiently develop the record or to make sufficient findings regarding Uhl's credibility, I do not reach Uhl's other arguments. However, the ALJ is reminded that application of the grids is inappropriate where a claimant's non-exertional limitations significantly limit the range of his work. Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 577-578 (9th Cir. 1987). Non-exertional limitations which may preclude a mechanical application of the grids include mental health conditions. 20 C.F.R. § 404.1569a(c). Depending on the severity of the non-exertional limitations, failure to call a vocational expert to testify may be error. Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999).
The ALJ is also reminded that, should the further evidence acquired from Dr. DeBoskey and a reconsideration of Uhl's testimony not establish that Uhl's mental condition is sufficiently severe to meet or equal the listing requirements at step three of the sequential evaluation, he is still required to consider the combined effects of Uhl's impairments. See 20 C.F.R. § 404.1520 (a), 404.1523; Lester v. Chater, 81 F.3d at 829-830; Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988).
Accordingly, plaintiff's motion for REMAND is granted, so that the Commissioner can fully develop the record and make a more thorough determination of plaintiff's disability. Defendant's cross-motion for summary judgment is DENIED.