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                                      File Name: 11a0188p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                       _____________


                                                           X
                                                            -
 RICHARD COLE,
                                                            -
                                 Plaintiff-Appellant,
                                                            -
                                                            -
                                                                 No. 09-4309
              v.
                                                            ,
                                                             >
                                                            -
                                                            -
 MICHAEL ASTRUE, Commissioner of Social
                                                            -
 Security,
                                                            -
                     Defendant-Appellee.
                                                           N

                      Appeal from the United States District Court
                       for the Southern District of Ohio at Dayton.
                     No. 08-00432—Thomas M. Rose, District Judge;
                           Michael R. Merz, Magistrate Judge.
                                  Argued: December 8, 2010
                              Decided and Filed: July 15, 2011
      Before: MOORE and STRANCH, Circuit Judges; COHN, District Judge.*

                                      _________________

                                            COUNSEL
ARGUED: Clifford M. Farrell, MANRING & FARRELL, Columbus, Ohio, for
Appellant. Brian J. Saame, SOCIAL SECURITY ADMINISTRATION, Chicago,
Illinois, for Appellee. ON BRIEF: Clifford M. Farrell, MANRING & FARRELL,
Columbus, Ohio, for Appellant.       Brian J. Saame, SOCIAL SECURITY
ADMINISTRATION, Chicago, Illinois, for Appellee.




        *
           The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan,
sitting by designation.


                                                  1
No. 09-4309        Cole v. Comm’r of Soc. Sec.                                  Page 2


                                _________________

                                     OPINION
                                _________________

        JANE B. STRANCH, Circuit Judge. Richard L. Cole suffered a work-related
back injury, subsequently developed depression then sought disability.             The
Commissioner of Social Security adjudged him not to be disabled for purposes of social
security disability benefits. Cole appeals from the district court’s judgment affirming
the Commissioner’s decision. We reverse and remand.

I.      Background

        A.     Factual Background

        Cole was involved in a work-related vehicle accident that injured his back in
1994. He continued working off and on until June 2000, when pain prohibited his work
as a truck driver. A November 1999 MRI revealed a mild disc bulge at the L4-5 level
with spinal canal narrowing. By September 15, 2000, a MRI showed Cole’s injury to
have digressed to “a prominent diffuse disc bulge.” Cole had back surgery on July 20,
2001. By August, Cole’s pain and other symptoms had improved markedly, and in
February 2002, Cole informed doctors he had experienced complete relief of pain down
his legs.

        Sometime thereafter, Cole began experiencing increasing pain in his back. His
orthopedic spine surgeon, Dr. Daryl Sybert, diagnosed him as having chronic myofascial
pain related to his surgical fusion. However, tests revealed no abnormalities and Dr.
Sybert released Cole to go back to work with the restriction of no repetitive lifting
greater than 50 lbs. In May 2002, Dr. Sybert opined that there was not much more he
could do for Cole other than to monitor the fusion point.

        Cole began to be absent from his scheduled appointments apparently because his
worker’s compensation provider ceased paying for these visits. He had a MRI in
February 2004 which revealed only post-operative changes to his spine, but he failed to
No. 09-4309           Cole v. Comm’r of Soc. Sec.                                                Page 3


follow up with Dr. Sybert about the results until February 22, 2005. From March 2004
until March 2005, Cole saw Dr. Julie Rindler on several occasions for physical
rehabilitation, but he stopped these visits, despite their benefit, due to insurance
problems. Dr. Rindler also noted there was little more she could do for Cole. In
February 2004, Cole’s family physician, Dr. Richard Potts, opined that Cole was then
unemployable but was improving with physical therapy and counseling.

         Cole first sought mental health counseling in August 2002 due to difficulty
sleeping, poor eating habits, weight loss of nearly 40 pounds in a two month period, and
anxiety. His counselor, Melodee Bass, gave Cole a DSM-IV diagnosis of mood disorder
with depressive features.

         In September 2002, Ms. Bass referred Cole to a psychiatrist, Dr. Kalpana
Vishnupad, to set up a medication regimen. He was initially assessed by social worker
Mary Dailey, who diagnosed Cole as suffering major depression, single event, severe
without psychotic features as per DSM-IV guidelines. Cole saw both regularly for
counseling and therapy. On April 21, 2003, Dr. Vishnupad rated Cole’s residual
functional capacity (“RFC”) due to his mental condition as “marked” impairment in the
five categories of social interaction, “marked” and “moderate” impairment in the six
categories of sustained concentration and persistence, and “marked” impairment in the
six categories of adaptation to work conditions.1 Dr. Vishnupad noted that Cole
“continues with agitation and irritability, loses temper frequently - has had ‘blow ups’
on jobs in the past with other employees/supervisors.” She further opined that Cole’s
condition would likely deteriorate if placed under the stress of a job, and that his
impairments would not likely improve even if only minimal contact or interaction with
others was required.

         Cole saw Ms. Dailey and Dr. Vishnupad regularly until October 2004, when he
failed to appear for a scheduled counseling appointment and his case was terminated.


         1
          “Marked impairments” are defined as those rendering the person “unable to function in this area
from 26% to 50% of the work day or work week.” “Moderate impairments” are defined as those rendering
the person “unable to function in this area from 11% to 25% of the work day or work week.”
No. 09-4309        Cole v. Comm’r of Soc. Sec.                                     Page 4


However, Cole reappeared for counseling in August 2005 and his case was reopened.
Two months later, he again began missing appointments, and Ms. Dailey terminated his
case. However, Cole continued to see Dr. Vishnupad periodically for medication
management. Throughout 2006, Dr. Vishnupad most often noted Cole’s mood as “fair”
or “ok,” adjusting his medications accordingly.

       During the course of therapy, Cole saw two consulting psychologists. He saw
Dr. Michael Farrell, an employer-selected consultant, in June 2003 in conjunction with
his worker’s compensation claims. During the consultation, Dr. Farrell conducted a
Minnesota Multiphasic Personality Inventory-2 (MMPI-2), but declared the results
invalid due to Cole’s perceived over-reporting of symptoms. He concluded that Cole did
not meet the DSM-IV criteria for major depressive disorder, and instead showed signs
of chronic and low grade depression.

       On March 23, 2004, Cole saw Dr. Owen Ward, a psychologist who gave a
consultative opinion of Cole’s mental impairments. Dr. Ward stated Dr. Farrell’s
opinion was flatly incorrect due to Dr. Farrell’s misreading of the DSM-IV criteria. Dr.
Ward agreed with Dr. Vishnupad’s diagnosis of major depressive disorder, single
episode, without psychotic features.

       Cole alleged disability due to his back problems during a closed period from June
2000 to February 2002 and since August 2002 due to his combined physical and mental
impairments.

       B.      Procedural Background

       In September 2001, Mr. Cole filed for social security disability insurance benefits
and was denied. His first full disability hearing was conducted on July 26, 2004. The
ALJ heard testimony from Cole, the Commission’s medical expert (“ME”) Arthur
Lorver, and the Commission’s vocational expert (“VE”) Vanessa Harris.
No. 09-4309            Cole v. Comm’r of Soc. Sec.                                           Page 5


       Lorver testified that, after surgery, Cole did not meet or equal Listing 1.04,2
although he would require a sedentary job in order to be employable. Lorver testified
only as to Cole’s physical impairments, and the Commissioner offered no expert
testimony on his mental impairments. Harris testified that there were approximately
3,200 jobs in the region that Cole could perform given the restrictions imposed by the
ALJ. Taking Dr. Vishnupad’s RFC of his mental impairments as “marked,” Ms. Harris
testified that none of the 3,200 jobs would be available.

       On September 21, 2004, the ALJ issued a decision finding that Cole was not
disabled due to his ability to perform a significant number of jobs in the economy. In
coming to that conclusion, the ALJ declined to give Dr. Vishnupad’s RFC assessment
controlling weight due to its perceived conflict with other evidence on the record,
namely Cole’s own testimony about his daily activities.

       Cole challenged the decision in federal court. The Magistrate Judge opined that
the ALJ’s decision was not supported by substantial evidence, finding the ALJ failed to
articulate any reasons for partially rejecting the testimony of the Commission’s medical
expert. On June 8, 2006, the district court adopted the Magistrate’s Report and
Recommendations and remanded the matter for re-evaluation of the record.

       A second full hearing was held before the ALJ on January 24, 2007, at which
Cole, the Commission’s ME Richard Hutson, and the Commission’s VE Charlotta Ewers
testified. Hutson testified that Cole did not meet or equal Listing 1.04 because of his
physical impairments. The Commissioner did not offer expert testimony as to his mental
impairments. Ewers testified that, given the job restrictions imposed by the ALJ, there
were 4,000 suitable jobs in the region. Taking Dr. Vishnupad’s RFC as true, Ewers said
that Cole would not be capable of doing the jobs identified.

       The ALJ issued a decision on June 8, 2007, again finding Cole was not disabled.
While the ALJ found Cole’s physical and mental impairments to be severe, he concluded
that they did not meet or equal the appropriate listing level and that Cole’s RFC allowed


       2
           20 C.F.R., Part 404, Subpart P, Appendix 1 (Listing of Impairments by the Commissioner).
No. 09-4309         Cole v. Comm’r of Soc. Sec.                                        Page 6


him to perform a significant number of jobs in the economy. The ALJ determined that
the opinion of Cole’s treating physician, Dr. Potts, that Cole was unemployable did not
merit controlling weight because it was not well supported by objective evidence and not
consistent with other substantial evidence. Physically, the ALJ found that Cole had a
mild limitation in activities of daily living, noting that Cole “helped out with laundry,
cooked dinner, drove regularly, and attended church services and softball games.”
Mentally, the ALJ found that Cole has a moderate limitation in social functioning, based
on his relatively successful work history with no “significant interpersonal conflicts with
anyone at work.” He also found Cole to have a moderate limitation in concentration,
persistence or pace due to his chronic depression.

        Ultimately, the ALJ concluded Cole could return to sedentary work with a
sit/stand option and a number of other physical and stress-related restrictions and
adopted Ewers’s testimony about available jobs.             Based on the applicable grid
regulation,3 the ALJ concluded Cole was not disabled.

        Cole sought review before the agency Appeals Council, which declined
jurisdiction. Cole then filed a federal suit, and the Magistrate Judge recommended
affirming the agency’s decision. On September 4, 2009, the district court affirmed the
ALJ’s decision. This appeal timely followed.

II.     Analysis

        A.      Standard of Review

        This Court reviews district court decisions regarding social security benefits
determinations de novo. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010).
However, that review “is limited to determining whether the Commissioner’s decision
is supported by substantial evidence and was made pursuant to proper legal standards.”
Id. (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)). The
substantial-evidence standard requires the Court to affirm the Commissioner’s findings


        3
         Vocational Rule 201.28 20, C.F.R., Part 404, Subpart P, Appendix 2 (Medical-Vocational
Guidelines promulgated by the Commissioner).
No. 09-4309        Cole v. Comm’r of Soc. Sec.                                      Page 7


if they are supported by “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(citation omitted). An ALJ’s failure to follow agency rules and regulations “denotes a
lack of substantial evidence, even where the conclusion of the ALJ may be justified
based upon the record.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.
2009) (citations omitted).

       B.      The Treating Physician Rule and the Good Reasons Requirement

       The Commissioner has elected to impose certain standards on the treatment of
medical source evidence. 20 C.F.R. § 404.1502. Under one such standard, commonly
called the treating physician rule, the Commissioner has mandated that the ALJ “will”
give a treating source’s opinion controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record.” 20 C.F.R. § 404.1527(d)(2). If the ALJ
declines to give a treating source’s opinion controlling weight, he must then balance the
following factors to determine what weight to give it: “the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the record as
a whole, and specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. §404.1527(d)(2)).

       Importantly, the Commissioner imposes on its decision makers a clear duty to
“always give good reasons in our notice of determination or decision for the weight we
give [a] treating source’s opinion.” 20 C.F.R. §404.1527(d)(2). Those good reasons
must be “supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” Soc. Sec. Rul. No. 96-2p,
1996 SSR LEXIS 9, at *12 (Soc. Sec. Admin. July 2, 1996). This requirement is not
simply a formality; it is to safeguard the claimant’s procedural rights. It is intended “to
let claimants understand the disposition of their cases, particularly in situations where
a claimant knows that his physician has deemed him disabled and therefore might be
No. 09-4309          Cole v. Comm’r of Soc. Sec.                                      Page 8


especially bewildered when told by an administrative bureaucracy that []he is not.”
Wilson, 378 F.3d at 544. Significantly, the requirement safeguards a reviewing court’s
time, as it “permits meaningful” and efficient “review of the ALJ’s application of the
[treating physician] rule.” Id. at 544-45.

        At issue in this case is opinion evidence from Cole’s four mental health sources,
Drs. Vishnupad, Ward, Farrell, and counselor Dailey. To judge compliance with the
treating source rule, we first determine, de novo, if any of those four are treating sources.
See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). Both Dr.
Vishnupad and Ms. Dailey are treating sources because both “[have], or [have] had, an
ongoing treatment relationship” with Cole. 20 C.F.R. § 404.1502. However, as to both
Vishnupad and Dailey, the ALJ failed to properly apply the treating physician rule and
the good reasons rule.

        As to Dr. Vishnupad, the ALJ labeled her Cole’s “treating psychiatrist” and
accepted her diagnosis of major depression, finding it consistent with the medical record
in light of the overall evidence. It appears the ALJ deemed Dr. Vishnupad’s medical
opinion to be deserving of controlling weight pursuant to § 1527(d)(2) (“not inconsistent
with the other substantial evidence in [the] case record”), although he fails to address
weight explicitly.

        After accepting Dr. Vishnupad’s diagnosis, the ALJ then rejected the conclusions
contained in her RFC assessment about the severity of Cole’s impairments as they relate
to work. Before doing so, the ALJ failed to conduct the balancing of factors to
determine what weight should be accorded these treating source opinions, and the
Commissioner conceded at oral argument that the ALJ did not assign a specific weight
to Dr. Vishnupad’s RFC assessment. This alone constitutes error, as “[a] finding that
a treating source medical opinion . . . is not entitled to controlling weight [does] not
[mean] that the opinion should be rejected.” Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 408 (6th Cir. 2009).

        The Commissioner argues that, even though the ALJ did not specifically address
Dr. Vishnupad’s 2003 RFC assessment in his 2007 decision, he correctly addressed it
No. 09-4309         Cole v. Comm’r of Soc. Sec.                                       Page 9


in the first decision and is not required to re-analyze it in a subsequent decision. While
that concept is accurate, it was not satisfied here. In the first decision, the ALJ relied
on Cole’s testimony about his daily activities to decline to give controlling weight to Dr.
Vishnupad’s RFC assessment; but, he failed to conduct any subsequent analysis as to
what weight to give the RFC. Balancing the Wilson factors is required to satisfy the
second prong of the treating physician rule. The 2007 decision thus fails to complete
the required analysis. It is also inadequate because the ALJ’s 2007 factual basis for
declining to give controlling weight to Dr. Vishnupad’s opinion, Cole’s testimony about
his daily activities, changed between the first hearing and the second hearing. Thus, the
2007 decision regarding Dr. Vishnupad does not provide an adequate basis for the
current decision.

        In addition to balancing the factors to determine what weight to give a treating
source opinion denied controlling weight, the agency specifically requires the ALJ to
give good reasons for the weight actually assigned. This decision failed to assign a
weight and failed to provide any reasons for disregarding Dr. Vishnupad’s RFC
assessment after having found her diagnosis deserving of controlling weight. Instead,
the ALJ conducted his own analysis of Cole’s RFC based on Cole’s testimony.
However, the ALJ’s restatement of Cole’s daily activities is contrary to Cole’s testimony
in the second hearing in a number of relevant respects. For example, Cole testified he
never goes to church, but the ALJ stated he attended church regularly. The ALJ relied
heavily on his finding that Cole had never had interpersonal conflicts at work, despite
his mental impairments. However, Dr. Vishnupad wrote in her notes that Cole has had
past “blow ups” at his place of employment. As this Court has recently held, the ALJ’s
focus on the claimant’s ability to do certain activities in discounting the treating source’s
opinion does not constitute “good reasons” for doing so when the claimant’s testimony
and other record evidence contradict the ALJ’s finding. See Johnson v. Comm’r Soc.
Sec., No. 10-5226 at *9 (6th Cir. July 8, 2011) (“The ALJ’s focus on claimant’s ability
to do ‘yard work’ is misplaced; in his testimony he stated, ‘I don’t dig in the garden or
anything like that, nothing heavy or manual.’”). In addition, the ALJ fails to mention
No. 09-4309           Cole v. Comm’r of Soc. Sec.                                           Page 10


Ms. Dailey, Cole’s treating counselor, in the analysis of Cole’s diagnosis and RFC and
gives no reasons for not crediting her opinions.

        The assessment of the medical evidence conducted at a hearing is particularly
important at Step 5 of the evaluation of a social security disability claim because the
RFC articulated by the ALJ will be used by the vocational expert to assess the claimant’s
ability to perform work. In order for a VE’s testimony to constitute substantial evidence
that a significant number of jobs exists, “the question[s] must accurately portray a
claimant’s physical and mental impairments.” Ealy, 594 F.3d at 516.

        While it may be true that the opinions of Dr. Vishnupad and Ms. Dailey, though
categorized as treating source opinions, should not ultimately be accorded controlling
weight as to Cole’s RFC, the ALJ did not go through the required analysis to arrive at
that conclusion. This Court has made clear that “[w]e do not hesitate to remand when
the Commissioner has not provided ‘good reasons’ for the weight given to a treating
physician’s opinion and we will continue remanding when we encounter opinions from
ALJ’s that do not comprehensively set forth the reasons for the weight assigned to a
treating physician’s opinion.” Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009)
(quoting Wilson, 378 F.3d at 545).4

        C.       Substantial Evidence

        This leads us to the ultimate question: Is the Commissioner’s decision supported
by substantial evidence and was it made pursuant to proper legal standards? The answer
is no. The ALJ’s failure to follow agency rules and regulations “denotes a lack of
substantial evidence, even where the conclusion of the ALJ may be justified based upon
the record.” Blakely, 581 F.3d at 407.

        However, a violation of the good reasons rule can be deemed to be “harmless
error” if “(1) a treating source’s opinion is so patently deficient that the Commissioner
could not possibly credit it; (2) if the Commissioner adopts the opinion of the treating


        4
          Thus, we need not address Mr. Cole’s second assignment of error on appeal that the examining
source opinions do not, in fact, contradict the treating source opinions.
No. 09-4309        Cole v. Comm’r of Soc. Sec.                                    Page 11


source or makes findings consistent with the opinion; or (3) where the Commissioner has
met the goal of § 1527(d)(2) . . . even though she has not complied with the terms of the
regulation.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010)
(quoting Wilson, 378 F.3d at 547). In this case, we do not find the ALJ’s violation of the
good reasons rule to be harmless. It cannot be said that Dr. Vishnupad’s opinions are
patently deficient, because the ALJ found them sufficient as to Cole’s category of
diagnosis. Likewise, the Commissioner did not adopt Dr. Vishnupad’s RFC assessment
or make findings consistent with it. Nor can we say that the goal of § 1527(d)(2) was
met, because the ALJ’s decision leaves this Court without a clear understanding of why
the ALJ credited Dr. Vishnupad’s opinion as to diagnosis but discredited it as to work
limitations. The same is true of Ms. Dailey’s opinions.

       Our finding that the ALJ’s decision is not supported by substantial evidence is
based on the ALJ’s violation of the agency’s procedural rules. It may be true that, on
remand, the Commissioner reaches the same conclusion as to Cole’s disability while
complying with the treating physician rule and the good reasons requirement; however,
Cole will then be able to understand the Commissioner’s rationale and the procedure
through which the decision was reached. The case must be remanded. “To hold
otherwise . . . would afford the Commissioner the ability [to] violate the regulation[s]
with impunity and render the protections promised therein illusory.” Wilson, 378 F.3d
at 546. Those protections must be afforded to Cole in the disposition of his claim.

III.   Conclusion

       For the foregoing reasons, we REVERSE the judgment of the district court with
instructions to REMAND to the Commissioner for further proceedings consistent with
this opinion.
