*

The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0272a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _____________

RICHARD COLE,

 Plaintiff-Appellant,

v.

MICHAEL ASTRUE, Commissioner of Social

Security,

 Defendant-Appellee.

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No. 09-4309

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: September 22, 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. 

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

______________________

AMENDED 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

1

Dr. Vishnupad’s assessment defines “Marked impairments” as those rendering the person

“unable to function in this area from 26% to 50% of the work day or work week,” and “Moderate

impairments” as those rendering the person “unable to function in this area from 11% to 25% of the work

day or work week.” But see 20 C.F.R. Pt. 404, Sbpt. P, App. 1 § 12.00 (C).

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.
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

2

20 C.F.R., Part 404, Subpart P, Appendix 1 (Listing of Impairments by the Commissioner).

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
No. 09-4309 Cole v. Comm’r of Soc. Sec. Page 6

3

Vocational Rule 201.28 20, C.F.R., Part 404, Subpart P, Appendix 2 (Medical-Vocational

Guidelines promulgated by the Commissioner).

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
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). Dr. Vishnupad is

a treating source because she “has, or has had, an ongoing treatment relationship” with

Cole. 20 C.F.R. § 404.1502. However, the ALJ failed to properly apply the treating

physician rule and the good reasons rule to her opinions.

 The ALJ labeled Dr. Vishnupad 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

in the first decision and is not required to re-analyze it in a subsequent decision. While
No. 09-4309 Cole v. Comm’r of Soc. Sec. Page 9

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.’”).
No. 09-4309 Cole v. Comm’r of Soc. Sec. Page 10

4

Mr. Cole’s situation is not unique; many unemployed disability applicants receive treatment at

clinics that render care to low income patients by providing mental health treatment through such

counselors. The practical realities of treatment for those seeking disability benefits underscores the

importance of addressing the opinion of a mental health counselor as a valid “other source” providing

ongoing care.

5

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.

In addition, the ALJ fails to mention Ms. Dailey, Cole’s treating counselor, in the

analysis of Cole’s diagnosis and RFC and gives no reasons for not crediting her

opinions. While Ms. Dailey is not a treating source, her opinion is entitled to

consideration by the Commissioner. The agency’s regulations limit treating sources to

“acceptable medical sources,” 20 C.F.R. § 404.1502, the definition of which does not

include mental health counselors such as Ms. Dailey, 20 C.F.R. § 404.1513(a).

However, Ms. Dailey is an “other source,” 20 C.F.R. § 404.1513(d)(1), who is entitled

to consideration due to her expertise and long-term relationship with Cole.4

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 Dr. Vishnupad’s opinion, though categorized as a

treating source opinion, 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).5
No. 09-4309 Cole v. Comm’r of Soc. Sec. Page 11

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

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.

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.
No. 09-4309 Cole v. Comm’r of Soc. Sec. Page 12

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.