                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0096p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                               Plaintiff-Appellant, -
 DAVID BOWEN,
                                                      -
                                                      -
                                                      -
                                                          No. 06-5622
          v.
                                                      ,
                                                       >
 COMMISSIONER OF SOCIAL SECURITY,                     -
                             Defendant-Appellee. -
                                                     N
                      Appeal from the United States District Court
                    for the Eastern District of Kentucky at Pikeville.
                   No. 05-00168—Danny C. Reeves, District Judge.
                                           Argued: January 30, 2007
                                     Decided and Filed: March 9, 2007
             Before: GILMAN and SUTTON, Circuit Judges; TARNOW, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Leonard J. Stayton, Inez, Kentucky, for Appellant. William Hogan, SOCIAL
SECURITY ADMINISTRATION, OFFICE OF GENERAL COUNSEL, Atlanta, Georgia, for
Appellee. ON BRIEF: Leonard J. Stayton, Inez, Kentucky, for Appellant. Haila Kleinman, Dennis
R. Williams, Mary Ann Sloan, Roy Satterwhite, Natalie Jemison, Douglas Wilson, SOCIAL
SECURITY ADMINISTRATION, OFFICE OF GENERAL COUNSEL, Atlanta, Georgia, for
Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        RONALD LEE GILMAN, Circuit Judge. In April of 2002, David Bowen applied for
disability insurance benefits from the Social Security Administration (SSA). He claimed that he had
become disabled due to both physical and mental conditions that rendered him incapable of working.
During two hearings held before an Administrative Law Judge (ALJ), both Bowen and the
Commissioner presented medical evidence related to Bowen’s conditions. The ALJ ultimately
concluded that Bowen was not entitled to disability benefits because he retained a sufficient residual
functional capacity (RFC) to work. In so concluding, the ALJ credited the medical evidence that


         *
          The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                          1
No. 06-5622           Bowen v. Comm’r of Social Security                                       Page 2


Bowen was, at most, only moderately limited in his functional capabilities, and rejected without
discussion the severe functional limitations that Bowen’s treating psychologist ascribed to him.
         After the SSA’s Appeals Council denied Bowen’s request for review, he filed suit in federal
district court. The district court ruled in favor of the Commissioner. For the reasons set forth below,
we VACATE the judgment of the district court with instructions to REMAND the case to the
Commissioner for further proceedings consistent with this opinion.
                                        I. BACKGROUND
A.     Factual background
        Bowen is presently 50 years old, has an eighth-grade education, and is married with two
children. He worked for 21 years at a mining operation in Kentucky as a buggy operator and a prep-
plant operator. In April of 1998, Bowen suffered a work-related injury to his back, aggravating a
previous injury from 1996. Initially, he was able to continue working, but he claims that the injury
worsened to the point where he had to cease work in September of 1998. He has not worked since
that time and has experienced symptoms of depression.
        Bowen filed his present application for disability insurance benefits in April of 2002,
asserting that both physical and psychological conditions preclude him from working. On appeal,
Bowen challenges only that portion of the ALJ’s decision addressing his psychological condition.
We will therefore limit our discussion to the facts relevant to that determination.
        Bowen was first admitted to the Mountain Comprehensive Care Center (MCCC) in eastern
Kentucky in July of 1999. He was referred to the mental-health unit for symptoms that included
depression. Since that time, he has been evaluated by a number of psychologists and psychiatrists.
These health professionals all diagnosed Bowen with some form of depression. Their particular
diagnoses, however, varied significantly regarding the extent of Bowen’s depression, his residual
mental capabilities, the possibility that he suffered from other psychological impairments, and the
possibility of his malingering.
        The record on appeal includes the opinions of eight psychologists and psychiatrists: Dr. Jane
Brake, Dr. Richard Cohen, Dr. James Dumas, Dr. Wayne Edwards, Dr. Robert Granacher, Dr.
Dorothy Holean, Dr. Eric Johnson, and Dr. Lea Perritt. In addition, the ALJ identified Bowen’s
written treatment records from MCCC as a medical source. These records consist of notes taken
during Bowen’s periodic outpatient visits to MCCC and the results of his annual status
examinations. The vast majority of these notes and examination records are signed by both Dr.
Holean and a “Chris Caudill, B.S./M.H.A.,” the latter not being further identified by the parties. As
the Commissioner notes, Dr. Holean was Bowen’s treating psychologist at MCCC. The record
contains treatment notes signed jointly by Dr. Holean and Caudill beginning in July of 2000 and
continuing through the end of the relevant record in 2003.
        Bowen was also treated by Dr. Dumas, a psychiatrist at MCCC. The other medical sources
listed above either examined Bowen or reviewed his records on behalf of the SSA pursuant to his
disability claims. Most relevant to this appeal are the opinions of Drs. Dumas and Holean, who
treated Bowen, and those of Drs. Brake and Cohen, who reviewed Bowen’s records on behalf of the
SSA. Their opinions form the basis of Bowen’s principal claim of error.
       Dr. Holean submitted an assessment in April of 2003 that found Bowen to possess a “poor”
RFC regarding his ability to deal with stress, maintain attention or concentration, behave in an
emotionally stable manner, and perform other essential workplace activities. After reviewing
Bowen’s record on behalf of the SSA in December of 2003, Dr. Cohen submitted an RFC
assessment that appeared to agree with this bleak evaluation of Bowen’s generally “poor” RFC.
No. 06-5622           Bowen v. Comm’r of Social Security                                        Page 3


Elsewhere on his evaluation, however, Dr. Cohen noted—paradoxically and without further
explanation—that “there are no marked functional limitations.” Dr. Cohen added that Bowen
exhibited evidence of malingering on portions of his psychological testing. Drs. Edwards and
Johnson both echoed these concerns of possible malingering.
        In sharp contrast to the severe assessments of Drs. Cohen and Holean, Dr. Brake submitted
an RFC assessment in November of 2002 that found Bowen’s depression to only “moderately” limit
his functional capabilities. Dr. Brake reviewed Bowen’s medical records on behalf of the SSA and
assessed him to be either “not significantly limited” or only “moderately limited” in all 20 categories
included on the RFC chart that she completed. She further opined that Bowen was able to
understand and recall material, maintain the mental effort needed to complete tasks, function in an
object-focused setting, and handle routine situations.
       Bowen’s treating psychiatrist at MCCC, Dr. Dumas, submitted an evaluation of Bowen in
April of 2003, but he did not assess Bowen’s RFC specifically. Instead, Dr. Dumas’s narrative
psychiatric evaluation diagnosed Bowen with depression and an adjustment disorder. He concluded
that Bowen’s depression was “being fairly well-treated.” Dr. Dumas also determined that Bowen
“appears to have responded well to his current medication,” his “cognition appears to be intact,” his
“judgment and insight appear to be reasonable,” and his “mood was much improved.”
       Despite finding that Bowen’s condition was “fairly well-treated,” Dr. Dumas increased
Bowen’s dosage of Prozac for a trial period. Dr. Dumas also assigned Bowen a Global Assessment
of Functioning (GAF) score of 60, indicating moderate impairment. See Kornecky v. Comm’r of
Soc. Sec., 167 F. App’x 496, 503 (6th Cir. 2006) (explaining that a “GAF of 51-60 indicates
moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).”) (brackets and quotation marks omitted).
        As noted above, the record consists of multiple other medical opinions that generally fall in
line with either Dr. Brake’s assessment or with that of Drs. Cohen and Holean. Because this appeal
primarily raises a procedural issue, however, we will omit any detailed discussion of the remaining
expert opinions.
B.      Procedural background
         The present litigation stems from Bowen’s second application to the Commissioner for
disability benefits. His first application claimed that he became disabled in September of 1998 due
to back problems, right-leg pain, high blood pressure, nerves, depression, foot problems, and
arthritis. An ALJ issued an unfavorable decision regarding that application, which was upheld by
both the Appeals Council and the district court.
        Following the final denial of his first application, Bowen filed his second application in April
of 2002, asserting that his continued affliction with substantially the same conditions rendered him
totally disabled. Because the SSA had already issued a final decision on his first application, the
ALJ concluded that res judicata barred Bowen from claiming benefits for the period between
September of 1998 and November of 1999, when the Appeals Council affirmed the denial of his first
application. The ALJ thus considered Bowen’s present application for benefits to cover only the
period from November of 1999 through the date that his disability insurance coverage expired in
December of 2003.
        After a hearing, the ALJ denied Bowen’s second application for benefits. The Appeals
Council declined Bowen’s request for review in April of 2005, which rendered the ALJ’s decision
the final decision of the Commissioner. Bowen subsequently filed suit in the United States District
No. 06-5622           Bowen v. Comm’r of Social Security                                      Page 4


Court for the Eastern District of Kentucky. The district court affirmed the Commissioner’s denial
of benefits to Bowen, and this timely appeal followed.
                                          II. ANALYSIS
A.     Standard of review and legal framework
        This court will uphold the Commissioner’s decision if it is supported by substantial evidence
and if the Commissioner applied the correct legal criteria. 42 U.S.C. § 405(g); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Heston v. Comm’r of Soc. Sec.,
245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
        Even if supported by substantial evidence, however, a decision of the Commissioner will not
be upheld where the SSA fails to follow its own regulations and where that error prejudices a
claimant on the merits or deprives the claimant of a substantial right. Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 546-47 (6th Cir. 2004) (quoting Connor v. United States Civil Service Commission,
721 F.2d 1054, 1056 (6th Cir. 1983), for the principle that an agency’s decision will be reversed
upon a “showing that the claimant has been prejudiced on the merits or deprived of substantial rights
because of the agency’s procedural lapses.”).
        The ALJ’s decision to deny disability benefits to Bowen followed the governing five-step
inquiry outlined in 20 C.F.R. § 404.1520. First, the ALJ determined that Bowen was not currently
performing gainful work. The ALJ next concluded that Bowen’s depressive disorder amounted to
a “severe” condition within the meaning of the regulations. Step three of the inquiry required the
ALJ to determine whether Bowen’s depression met or equaled the medical impairments listed in the
regulations. If so, Bowen would have been presumed disabled without further inquiry. The ALJ
determined that Bowen’s depression did not meet the listed criteria, however, and Bowen’s present
appeal does not challenge that determination.
        Steps four and five of the inquiry required an analysis of whether Bowen’s limitations
permitted him either to resume his past relevant work or to adjust to other jobs that exist in
significant numbers in the national economy. In order to make these determinations, the ALJ had
to evaluate the extent of Bowen’s impairment. Bowen specifically challenges this aspect of the
ALJ’s decision. He argues both that the ALJ erred by failing to follow the SSA’s procedural
requirements and that the decision was not supported by substantial evidence.
B.     The ALJ’s failure to address the opinion of Bowen’s treating psychologist
        In order to make a determination under the fourth and fifth steps of the inquiry outlined
above, the ALJ posed two hypothetical questions to a vocational expert (VE) trained to evaluate
whether a claimant with a given RFC is capable of performing the various types of work available
in the national economy. First, the ALJ posed a hypothetical based primarily on Dr. Brake’s
assessment of Bowen’s abilities. This hypothetical claimant was said to be, at worst, “moderately”
limited in his RFC. The VE determined that such a claimant could not return to Bowen’s past work,
but would be capable of making an adjustment to occupations that exist in significant numbers in
the national economy. This hypothetical claimant would therefore not be entitled to receive
disability insurance benefits.
        Next, the ALJ posed a second hypothetical in which the claimant was said to be limited in
the manner described by Dr. Cohen, that is, with a “poor” RFC. The ALJ made no mention of Dr.
Holean’s virtually identical assessment. Given these limitations, the VE concluded not only that
such a hypothetical claimant would be unable to return to Bowen’s past relevant work, but also that
no jobs exist in the national economy that could accommodate a claimant so impaired. The VE
No. 06-5622           Bowen v. Comm’r of Social Security                                      Page 5


specifically emphasized that the combined effect of a “poor” ability to deal with stress, maintain
attention and concentration, and behave in an emotionally stable manner would likely preclude
employability. This second hypothetical claimant would therefore be entitled to receive disability
insurance benefits based on the VE’s opinion.
        Bowen’s eligibility for benefits essentially hinged on the determination of whether his mental
impairments corresponded more closely with the first hypothetical claimant possessing only
“moderate” limitations as described by Dr. Brake or with the second hypothetical claimant afflicted
with the severe limitations described by Drs. Cohen and Holean. Required to choose between these
two possibilities, the ALJ ultimately “d[id] not accept the severe limitations as assessed by Dr.
Cohen” and instead adopted the “modest limitations” set forth by Dr. Brake.
        The key problem with the ALJ’s decision, however, is that it completely fails to
acknowledge the expert opinion of Dr. Holean, Bowen’s treating psychologist. Nowhere in the
ALJ’s 12-page opinion does the ALJ mention Dr. Holean’s name, the fact that she treated Bowen
for over three years, or the fact that she submitted an RFC assessment in this case that corresponds
with the severe limitations assessed by Dr. Cohen. Dr. Holean’s opinion is noted only in a long
listing of medical records appended to the ALJ’s decision, but any mention of her assessment is
totally absent from the decision itself.
         This court has frequently recognized that where “the opinion of a treating source is not
accorded controlling weight, an ALJ must apply certain factors . . . in determining what weight to
give the opinion.” Wilson, 378 F.3d at 544 (emphasis added). Specifically, § 404.1527(d) of the
SSA’s regulations prescribes that the ALJ is to consider (1) the length of the treatment relationship
and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the
supportability of the opinion, (4) the consistency of the opinion with the record as a whole, and
(5) the specialization of the treating source. 20 C.F.R. § 404.1527(d). The regulation further assures
claimants that “[w]e will always give good reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.” 20 C.F.R. § 404.1527(d)(2).
        Here, the ALJ’s complete failure to mention Dr. Holean plainly violated the terms of
§ 1527(d)(2). This court held in Wilson that, because § 1527(d)(2) provides claimants with an
“important procedural safeguard,” the SSA was not free to relax or disregard the rule in an ad hoc
fashion. 378 F.3d at 547. The Wilson court determined that the ALJ’s failure to “give good
reasons” for rejecting the opinion of the claimant’s treating physician in that case required a remand
because it violated the substantive protection afforded by the regulation. Id. at 546 (quotation marks
omitted). In so holding, however, Wilson left open the possibility that a violation of § 1527(d)(2)
might amount to harmless error in other situations, including “where the Commissioner has met the
goal of § 1527(d)(2)—the provision of the procedural safeguard of reasons—even though she has
not complied with the terms of the regulation.” Id. at 547. Wilson made clear, however, that the
harmless-error inquiry required more than a showing that the claimant simply had little chance of
winning on the merits. Id. at 546.
        Two recent cases interpreting this harmless-error exception help to outline its contours. One
is Hall v. Comm’r of Soc. Sec., 148 F. App’x 456, 461-62 (6th Cir. 2005), where this court
considered the Commissioner’s argument that the ALJ’s failure to directly address the conclusions
of a treating physician amounted to harmless error. Hall involved a claimant who asserted total
disability based on both physical and psychological impairments. Id. at 458. The ALJ addressed
the opinion of Hall’s treating physician in the course of discussing Hall’s psychological impairment,
but failed to address the physician’s findings with regard to Hall’s physical limitations. Id. at 463.
Two particular aspects of the ALJ’s decision troubled the court. First, the court emphasized that the
ALJ’s decision was inconsistent in that it accepted the treating physician’s opinion in some respects
but rejected it in others without explanation. Id. at 465. The court also noted that, although the ALJ
No. 06-5622           Bowen v. Comm’r of Social Security                                      Page 6


addressed other medical opinions related to Hall’s physical limitations, none of them supported the
specific RFC that the ALJ ultimately adopted. Id. at 465-66. Because the court was unable to
discern the ALJ’s reasons for the weight that he gave to the opinion of Hall’s treating physician, the
§ 1527(d)(2) violation necessitated a remand. Id. at 467.
        In contrast, this court in Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 472 (6th Cir.
2006) (per curiam), held that the ALJ’s failure to abide by the letter of § 1527(d)(2) amounted to
harmless error. The court determined that the ALJ’s analysis satisfied the goals of § 1527(d)(2) by
“indirectly attacking” the treating physicians’ opinions. Id at 471. In Nelson, the ALJ had briefly
referred to the opinions of two of the claimant’s treating physicians, but had not fully explained why
he accorded them little weight as required by § 1527(d)(2). Id at 470. Nevertheless, the court held
that those brief references, which arose in the context of discussing a multitude of contrary medical
evidence, met the regulatory goal of addressing the opinions of the treating sources as well as their
inconsistency with the record as a whole. Id. at 472.
        We first note that the ALJ’s adoption in this case of an assessment contrary to Dr. Holean’s
opinion—without even addressing her involvement—transgressed § 1527(d)(2) beyond even the
violations in Hall, Nelson, and Wilson, where the treating source was at least mentioned. This fact
alone counsels strongly in favor of a remand. Neither we nor Bowen can even be certain that the
ALJ was aware that Dr. Holean’s assessment represented that of a treating source. In fact, the
conspicuous absence of any reference to her as such tends to indicate the contrary. The ALJ
specifically acknowledged Dr. Cohen’s virtually identical RFC assessment at several points in the
hearing and in his opinion, but failed to mention that the psychologist who treated Bowen for over
three years happened to agree with it.
       Nonetheless, the Commissioner argues that the violation of § 1527(d)(2) was harmless
because the ALJ met the goals of the rule by discussing Bowen’s psychological condition generally
and by explicitly deciding to adopt Dr. Brake’s assessment over Dr. Cohen’s. In other words, the
ALJ allegedly met the goals of § 1527(d)(2) insofar as he rejected Dr. Holean’s RFC assessment
through the proxy of Dr. Cohen’s similar opinion. We find this argument unpersuasive for several
reasons.
        First, although we agree that the ALJ might have discounted Dr. Holean’s opinion for the
same reason that he discounted Dr. Cohen’s, another possibility is that the ALJ simply overlooked
Dr. Holean’s opinion altogether. In addition, the ALJ’s opinion explains only that he “d[id] not find
such severe restrictions [described by Dr. Cohen] to be warranted based upon the rationale provided
by Dr. Cohen.” (Emphasis added.) This statement indicates that the ALJ might have rejected Dr.
Cohen’s assessment as a matter of credibility, perhaps based upon Dr. Cohen’s self-contradictory
notation that “there are no marked functional limitations.” In discrediting Dr. Cohen’s opinion, the
ALJ also expressed concern over Bowen’s possible malingering in his SSA examinations and
subjective complaints, as suggested by several sources. We are unsure, however, whether the ALJ
drew the additional conclusion that Bowen malingered in the course of his three-year treating
relationship with Dr. Holean, given the ALJ’s silence on that issue.
        Moreover, the ALJ’s rationale for crediting Dr. Brake’s assessment raises an additional
concern. The ALJ adopted Dr. Brake’s assessment in part because he found it to be supported by
Bowen’s treatment records at MCCC. Those records, the ALJ concluded, “offer[] the most accurate
reflection of [Bowen’s] mental status and . . . [are] generally benign.” The ALJ failed to note,
however, that the vast majority of those treatment records are initialed by none other than Dr.
Holean. This presents a problem of inconsistency similar to that found in Hall because the ALJ lent
credence to Dr. Holean in one respect (albeit unwittingly), but then ignored her RFC assessment
without explanation.
No. 06-5622           Bowen v. Comm’r of Social Security                                      Page 7


        On the one hand, this could be seen as “indirectly attacking” the supportability of Dr.
Holean’s opinion on the basis that Dr. Holean’s treatment records are inconsistent with her RFC
assessment. See Nelson, 195 F. App’x at 471. Alternatively, it might be viewed as further evidence
that the ALJ simply overlooked Dr. Holean’s opinion. We see no rational explanation for crediting
Dr. Holean’s treatment notes as “accurate,” but then discounting her RFC assessment without the
slightest mention. The problem, again, is that we just do not know why the ALJ disregarded Dr.
Holean’s RFC assessment, and the goals of § 1527(d)(2) cannot be satisfied by bald speculation.
         Attempting to salvage this omission, the Commissioner highlights the fact that the ALJ relied
heavily on the opinion of Dr. Dumas, Bowen’s treating psychiatrist, in choosing to adopt Dr. Brake’s
assessment over Dr. Cohen’s. Properly addressing or adopting one treating physician’s opinion,
however, does not obviate the need to comply with § 1527(d)(2) in addressing the opinions of other
treating sources that reach contrary conclusions. See Sharp v. Barnhart, 152 F. App’x 503, 508 (6th
Cir. 2005) (remanding a claim to the Commissioner where “the ALJ satisfied these [§ 1527(d)(2)]
procedural requirements with respect to the opinions of some of [the claimant’s] treating physicians
but not with respect to others of them.”) Moreover, exclusive reliance on Dr. Dumas’s opinion is
misplaced because he did not submit an RFC assessment of Bowen. Although Dr. Dumas’s general
findings are certainly relevant considerations, they do not speak directly to what became the heart
of this dispute: whether Bowen’s RFC permitted him to work despite his psychological impairment.
         This case is unlike Nelson because there is not even a passing reference to Dr. Holean’s
opinion in the ALJ’s decision that allows us to infer that the ALJ intended to indirectly attack it.
In Nelson, this court cautioned that the scenario there represented the “rare case” in which a
§ 1527(d)(2) violation was deemed harmless because the ALJ’s analysis met the goal, but not the
letter, of the rule. 195 F. App’x at 472. Although Wilson contemplated other scenarios in which a
§ 1527(d)(2) violation might be considered harmless, such as where the treating physician’s opinion
is “patently deficient” or where the ALJ adopts a treating source’s opinion without discussion, that
is not the situation here. See Wilson, 378 F.3d at 547.
         We are not unsympathetic to the plight of an ALJ confronted, as in this case, with the
opinions of eight different psychological medical sources, in addition to multiple opinions relating
to alleged physical impairments. Nevertheless, invoking the harmless-error exception here—where
the ALJ entirely failed to address the primary treating source’s presumptively supportable
opinion—plainly risks having the exception swallow up the rule. A remand is therefore necessary
so that the ALJ may fully consider and address Dr. Holean’s opinion consistent with § 1527(d)(2).
                                       III. CONCLUSION
        For all of the reasons set forth above, we VACATE the judgment of the district court with
instructions to REMAND the case to the Commissioner for further proceedings consistent with this
opinion.
