                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0639n.06

                                           No. 09-2291

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


PATRICK SAWDY,                                      )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
COMMISSIONER OF SOCIAL                              )   EASTERN DISTRICT OF MICHIGAN
SECURITY,                                           )
                                                    )                   FILED
       Defendant-Appellee.                          )
                                                                   Aug 29, 2011
                                                             LEONARD GREEN, Clerk

       Before: GUY, COOK, and STRANCH, Circuit Judges.


       COOK, Circuit Judge. This case stems from an administrative law judge (ALJ) denying a

claimant disability benefits under the Social Security Act without giving controlling weight to the

claimant’s treating physicians or providing good reasons for not doing so. Because such action

violates the agency’s procedural regulations, we vacate the district court’s judgment and remand for

further proceedings consistent with this opinion.


                                                 I.


       Appellant Patrick Sawdy has a history of mental and physical impairments. He suffers from

mood, anxiety, and paranoia disorders; and he has strained, fractured, and torn his left shoulder.
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These problems prompted Sawdy to apply for Social Security disability benefits, see 42 U.S.C. §§

416(i), 423(d), 1382c, and an ALJ held a hearing on his claim.


        The record before the ALJ contained several doctors’ opinions on Sawdy’s shoulder

condition, including a 2003 letter from Dr. Gilyard, Sawdy’s treating orthopedic surgeon. After

examining Sawdy and ordering an MRI, Dr. Gilyard noted that Sawdy’s shoulder had “significant”

joint instability, and that the MRI revealed a labral tear that left Sawdy unable to work.


        This opinion held little sway with the ALJ. When evaluating Sawdy’s shoulder, the ALJ

passed over Dr. Gilyard’s letter, choosing not to reference him by name. Instead, the ALJ found that

Sawdy’s medications, coupled with treatment records that preceded Dr. Gilyard’s opinion,

demonstrated that Sawdy could lift fifteen to twenty pounds occasionally and ten pounds frequently,

within certain restrictions.


        Also in the record were opinions on Sawdy’s mental disorders, such as a 2007

correspondence from Dr. Lujan, Sawdy’s psychiatrist. Having treated Sawdy for several months,

Dr. Lujan opined that Sawdy had generalized anxiety disorder, dysthymic disorder, and schizoid

personality disorder; that he had a GAF score of only 40; and that, accordingly, he could not “work

in any capacity.”


        Dr. Lujan’s opinion suffered a fate similar to Dr. Gilyard’s. In addressing Sawdy’s mental

condition, the ALJ brushed aside Dr. Lujan’s letter, noting that he treated Sawdy for only four


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months and based his opinion on “the claimant’s subjective reports.” After discussing Sawdy’s daily

activities, current medications, and earlier treatment records, the ALJ concluded that Sawdy’s mental

problems amounted to “‘moderate’ difficulties in social functioning” that would not prevent him

from performing “simple, repetitive tasks” in an isolated environment.


       Based on these functional-capacity findings and Sawdy’s other characteristics, the ALJ asked

a vocational expert whether the economy offered a significant number of jobs that a person like

Sawdy could perform. The expert testified that a person with Sawdy’s limitations could find suitable

work as a packager or visual inspector, and that his conclusion accorded with the Dictionary of

Occupational Titles (DOT). The ALJ agreed. This meant that Sawdy could not collect benefits.


       After unsuccessfully appealing to the Appeals Council, Sawdy filed this action in the district

court, arguing, among other things, that the ALJ committed procedural error by discounting his

treating physicians’ opinions without sufficient explanation. Ruling from the bench, the court

granted summary judgment to the Commissioner because “the ALJ’s decision is supported by

substantial evidence on the whole record and that means the decision must be upheld.”


                                                 II.


       On appeal, Sawdy continues to argue that the ALJ committed procedural error in her handling

of Drs. Gilyard’s and Lujan’s medical opinions. With this we agree. He also contends that the

vocational expert gave insufficiently precise testimony. With this we disagree.


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       In reviewing ALJ decisions, we ask two separate questions: whether the decision finds

support in substantial record evidence, and whether it conforms to proper legal standards. Rogers

v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Even when “substantial evidence

otherwise supports the [ALJ’s] decision,” we must remand if “the agency failed to follow its own

procedural regulation.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).


       The “treating source rule” is one such regulation. It demands that an ALJ give “controlling

weight” to a medical opinion of a claimant’s treating physician as long as it “is well-supported by

medically acceptable . . . diagnostic techniques” and “not inconsistent with the other substantial

evidence” in the record. 20 C.F.R. § 404.1527(d)(2). If an ALJ declines to give controlling weight

to such an opinion, the rule still requires the ALJ to fully consider it in accordance with certain

factors, id. § 404.1527(d)(2)–(6), and to provide “good reasons” for discounting the opinion, id. §

404.1527(d)(2)—i.e., reasons “sufficiently specific to make clear to any subsequent reviewers the

weight . . . [given] to the . . . opinion and the reasons for that weight,” SSR 96-2p, 1996 WL 374188,

at *5 (July 2, 1996).


       The ALJ here failed to give Sawdy’s physicians the proper treating-source treatment. She

gave no reason why she deemed Dr. Gilyard’s opinion unworthy of “controlling weight,” and

provided no indication of what weight, if any, she attributed to it. And though the ALJ referenced

Dr. Lujan’s opinion and arguably found it unsupported by “acceptable . . . diagnostic techniques,”

see 20 C.F.R. § 404.1527(d)(2), she failed to then consider it in light of the § 404.1527(d) factors


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and explain the weight that it received in her analysis, along with the specific “good reasons” for that

weight.


          The course that we must now follow is well charted: when an ALJ violates the treating-

source rule, “[w]e do not hesitate to remand,” 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) (first alteration

in original) (internal quotation marks and citation omitted).


          Resisting this result, the Commissioner argues that substantial evidence nonetheless supports

the ALJ’s decision. But this is beside the point. We “cannot excuse the denial of a mandatory

procedural protection simply because . . . there is sufficient evidence in the record for the ALJ to

discount the treating source’s opinion and, thus, a different outcome on remand is unlikely,” because

this “would afford the Commissioner the ability [to] violate the regulation with impunity and render

the protections promised therein illusory.” Wilson, 378 F.3d at 546.


          Though the foregoing analysis requires remand, Sawdy’s alternative argument would not.

He contends that the vocational expert failed to articulate the precise packaging and inspection jobs

in the DOT that he could allegedly perform, and that a number of these positions required abilities

beyond his. But Sawdy raised no objection to the vocational expert’s testimony below, the ALJ had

no “affirmative duty . . . to conduct an independent investigation into the testimony,” Martin v.

Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006), and Sawdy presents no authority now

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demonstrating an inconsistency between these types of jobs and the limitations considered by the

expert.




                                                  III.


          For these reasons, we vacate the district court’s judgment with instructions to remand to

the Commissioner for further proceedings consistent with this opinion.




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