Thomas Blakley v. Comm'r of Social Security ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0343p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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THOMAS H. BLAKLEY,
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Plaintiff-Appellant,
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No. 08-6270
v.
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Defendant-Appellee. -
COMMISSIONER OF SOCIAL SECURITY,
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Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 07-00436—Danny C. Reeves, District Judge.
Submitted: April 23, 2009
Decided and Filed: September 24, 2009
Before: BATCHELDER, Chief Judge; SUHRHEINRICH and SUTTON, Circuit Judges.
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COUNSEL
ON BRIEF: Julie Anne Atkins, ATKINS LAW OFFICE, Harlan, Kentucky, for Appellant.
Haila Naomi Kleinman, Holly A. Grimes, Mary Ann Sloan, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF GENERAL COUNSEL, Atlanta, Georgia, John S.
Osborn III, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee.
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OPINION
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SUHRHEINRICH, Circuit Judge. Thomas Blakley seeks review of a district court’s
judgment affirming the decision of an administrative law judge (“ALJ”), who denied
Blakley’s request for social security disability benefits. Blakley argues that the ALJ
improperly rejected the opinions of his treating physicians and failed to provide reasons on
the record for according them less than controlling weight. Because the ALJ failed to “give
good reasons” for discounting the opinions of Blakley’s treating physicians, in violation of
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No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 2
20 C.F.R. § 404.1527(d)(2), we REVERSE the judgment of the district court affirming the
ALJ’s decision and REMAND with instructions to return the claim to the Commissioner of
Social Security (“Commissioner”) for further proceedings consistent with this opinion.
I. Background
A. Factual Background
Born in 1959, Thomas Blakley was 47 years old at the time of the ALJ’s decision.
Blakley has a high-school education and worked in underground coal mines from 1979 until
February 11, 2004, when he was injured while attempting to hang a six-inch pump line,
which fell and hit him across his shoulder and neck.
Blakley was immediately seen at the emergency room following his accident.
Thereafter, on February 19, 2004, Blakley’s primary-care physician started him on a course
of physical therapy. On March 17, 2004, Blakley had two MRI scans, which showed
degenerative disc disease of the cervical spine and a left rotator-cuff tear. One of the MRI
scans revealed disc-space changes between C5-C6 and C6-C7, a large disc osteophyte
complex at C5-C6 with some flattening of the spinal cord, and large central disc osteophyte
complex at C6-C7 with some flattening of the spinal cord.
Blakley began treatment with Dr. Steven Kiefer, a neurosurgeon, in April 2004.
Based on Blakley’s ongoing complaints of pain, Dr. Kiefer ordered a cervical myelogram
and a corresponding cervical CT scan. The cervical myelogram revealed osteophytes and
disc protrusions on the cervical spine. The CT scan confirmed this finding and also
established that Blakley had narrowing of the neuroforamen at C5-C6, large hypertrophic
boney spurs, and a mild disc bulge. It further revealed boney spurs at C6-C7.
Based on these findings, Dr. Kiefer performed an anterior cervical discectomy of the
C5-C6 vertebra on July 12, 2004. Though the tests had also revealed problems with the C6-
C7 vertebra, that area of Blakley’s spine was not treated with surgery. Dr. Kiefer followed
up with Blakley on August 6, 2004, noting that Blakley was “coming along,” had normal
pain from surgery, had relief of radicular symptoms in his arms, but continued to have some
trouble with his hands.
No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 3
Dr. Kiefer also reviewed a May 2004 electrodiagnostic study and diagnosed Blakley
with carpal tunnel syndrome. Dr. Kiefer prescribed wrist splints to help with Blakley’s
numbness and pain, and further noted that Blakley may need carpal tunnel surgery in the
future.
At the next two follow-up visits with Dr. Kiefer, Blakley complained of continued
pain in his right arm with bothersome intrascapular pain. He also complained of persistent
numbness in the right thumb and index finger, and numbness in the right distal arm without
pain.
On February 8, 2005, Blakley was seen again by Dr. Kiefer. This time, Dr. Kiefer
noted that Blakley’s complaints of aches and pains related to the neck were “in excess of
what I would expect at this point.” Dr. Kiefer ordered an MRI of Blakley’s thoracic spine,
which showed degenerative disc disease at T7-T8, T8-T9, and T9-T10 with disc protrusions.
At both T7-T8 and T8-T9, the MRI showed disc material protrusion with an annular tear.
On April 27, 2005, Blakley again reported to Dr. Kiefer that he continued to have
intrascapular pain and left shoulder pain. Blakley also complained of upper thoracic pain
with intermittent radiation into his anterior chest.
Contemporaneous with Dr. Kiefer’s treatment, Blakley began treatment with Dr. Ben
Kibler, an orthopedic surgeon, on May 4, 2004, for problems related to his shoulder. During
Blakley’s initial visit, Dr. Kibler reviewed Blakley’s MRI, which showed that Blakley had
a left rotator-cuff tear and bruising of the bone. On October 20, 2004, Dr. Kibler performed
surgery to repair Blakley’s rotator-cuff tear. Blakley’s shoulder improved after surgery. By
January 6, 2005, Dr. Kibler opined that Blakley would be out of work for another six weeks,
after which “we can turn him loose.” However, on January 24, 2005, Blakley filed an
application for a period of disability and disability insurance benefits.
On February 18, 2005, Blakley reported to Dr. Kibler that his condition had
worsened. He complained of soreness and tenderness and a feeling that something was
catching in his shoulder. In his office notes, Dr. Kibler expressed, “I am not real sure why
he has regressed.”
No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 4
On March 25, 2005, Blakley reported an improvement in his shoulder, but
complained to Dr. Kibler of some acromioclavicular (AC) joint soreness and tenderness. On
May 15, 2005, Blakley underwent an AC joint repair. On June 15, 2005, Blakley reported
some soreness, but overall had better strength and range of motion after the AC joint surgery.
At the request of the Social Security Administration (“Agency”), Blakley was
evaluated by Dr. Mark Burns in June 2005, shortly after Blakley’s May 2005 AC joint
repair. In his evaluation, Dr. Burns noted that Blakley had the ability to handle objects and
had “normal gross manipulation and grip strength.” Dr. Burns’s examination also revealed
“no clubbing cyanosis or edema . . . [and] no deformities, redness or tenderness” of Blakley’s
extremities. Dr. Burns also noted that Blakley “states he is now wearing wrist splints
bilaterally with fair relief.”
Dr. Burns determined that Blakley “has ability to perform activities involving sitting,
standing, moving about, lifting, carrying, handling objects, hearing, seeing, speaking, and
traveling” and that his physical and orthopedic examination were “within normal limits with
the exception of decreased flexion and abduction involving the left shoulder.” Dr. Burns
opined that Blakley “will obtain full range of motion after continued intense physical
therapy.”
Two consulting state agency physicians performed a records review of Blakley’s
evidence and claims on June 30, 2005, and September 21, 2005, respectively. They
determined that Blakley could lift 50 pounds occasionally, 25 pounds frequently, and sit,
stand, or walk for six hours of an eight-hour workday. The state agency physicians also
found that Blakley could climb ladders, ropes, and scaffolds occasionally, but he would be
limited in his ability to reach in all directions. The physicians also adopted the June 2005
opinion of Dr. Mark Burns, who determined that Blakley “has ability to perform activities
involving sitting, standing, moving about, lifting, carrying, handling objects, hearing, seeing,
speaking, and traveling” and that his physical and orthopedic examination were “within
normal limits with the exception of decreased flexion and abduction involving the left
shoulder.”
On August 19, 2005, after another follow up with Blakley, Dr. Kibler noted that
Blakley continued to make progress and his range of motion continued to improve.
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However, Blakley continued to complain of back pain, which Dr. Kibler thought may require
some stabilization program. An October 18, 2005 radiography comparison showed that
Blakley had some post-surgical changes of the AC joint with sclerosis on the surface of the
left humeral head with possible necrosis or ostosis. On October 25, 2005, Dr. Kibler opined
that most of Blakley’s pain was related to his neck and back.
On December 18, 2005, Dr. Kibler restricted Blakley to “no more than 20 pounds
lifting to his waist and no overhead lifting on a repetitive basis.” In the report, Dr. Kibler
explained that Blakley continued to have generalized problems, “some of which are related
to his shoulder, a lot are related to his neck and back,” all of which necessitated the
restriction.
Dr. Kibler’s office notes from February 16, 2006, revealed that Blakley continued
to have some problems from his neck, back, and knees. Dr. Kibler also noted that Blakley
showed “excellent strength in external rotation with arm down at the side” and that “[h]is x-
rays do not show any abnormality of the AC joint or of the glenohumeral joint.” Dr. Kibler
concluded that “he may very well have some problems with the rotator cuff and AC joint but
these are relatively minimal and are not giving him his functional disability.”
In May 2006, at the request of Blakley’s counsel, Dr. David Muffly performed an
orthopedic consultative examination. In his report, Dr. Muffly reviewed Blakley’s October
2005 functional capacity examination and adopted the recommendations of no overhead
lifting and no more than 20 pounds from floor to waist level. Dr. Muffly noted that Blakley
had normal arm strength but exhibited signs of carpal tunnel syndrome. Dr. Muffly assessed
a 28% impairment to the whole body based on Blakley’s cervical spine impairment, 11% for
the shoulder impairment, and 36% for the combined impairment. He also calculated a 6%
impairment (3% for each hand) for carpal tunnel syndrome. In Dr. Muffly’s opinion,
Blakley’s carpal tunnel syndrome combined with his other impairments left him “totally
disabled.”
On June 8, 2006, Dr. Muffly completed another medical assessment. That
assessment incorporated the 20-pound limitation, and further restricted Blakley from sitting,
standing, or walking for more than three hours in an eight hour workday, no more than
No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 6
occasional stooping, crouching, kneeling, or crawling, never climbing or balancing, and
restrictions on reaching, handling, feeling, pushing, pulling, moving machinery, and heights.
Blakley was also seen for mental impairments. Dr. Syed Raza, a psychiatrist, first
saw Blakley on April 23, 2005, for a consultative evaluation at the Agency’s behest. Dr.
Raza observed that Blakley was well groomed, had normal posture and gait, was oriented,
and had fair memory. Dr. Raza also noted Blakley had sleep difficulty, irritability,
anhedonia, and feelings of helplessness. Dr. Raza diagnosed a mood disorder resulting from
Blakley’s general medical condition and stated that the prognosis was guarded due to
Blakley’s poor understanding of the need for professional help. Dr. Raza also found that
Blakley would benefit from psychotropic medications, that Blakley had the ability to
understand one- and two-step instructions, that Blakley had good concentration, but that he
was unable to complete tasks in a normal time due to neck, shoulder, and hand pain. Dr.
Raza also opined that Blakley had poor coping skills and responded abnormally to pressure.
Dr. Raza subsequently began treating Blakley at the Cumberland Comprehensive
Care facility beginning in November 2005. In his November 2005 and January 2006 reports,
Dr. Raza noted that Blakley exhibited mood disorders brought on by his medical conditions
and that he isolated himself. Blakley continued regular treatment with Dr. Raza through July
2006.
At the request of Blakley’s counsel, Dr. Barbara Belew, a psychologist, provided a
consultative examination of Blakley on May 24, 2006. She reported that (1) Blakley’s short-
term visual memory was impaired, (2) he had evidence of emotional distress affecting
several aspects of his life, (3) he appeared distressed, and (4) he had a tendency to withdraw.
Dr. Belew found that Blakley had developed symptoms of anxiety and depression, despite
the fact that he was taking medication and participating in monthly therapy sessions.
Ultimately, Dr. Belew opined that, given Blakley’s combination of features, there was
adequate evidence to determine he is disabled.
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B. Procedural History
The Commissioner denied Blakley’s claim for benefits initially on July 20, 2005, and
upon reconsideration on September 28, 2005. Blakley subsequently requested a hearing
before an ALJ.
That hearing was held on August 23, 2006. Both Blakley and an impartial vocational
expert testified. Blakley testified to experiencing pain in his left shoulder, neck, and arms.
Blakley also reported numbness in his hands, making it difficult to pick things up. During
his testimony, Blakley explained that he is only able to raise his left arm half way before “it
catches.” He also testified to feeling nervous and depressed since his accident, for which he
was taking prescription medications. Blakley further explained that his surgeon had inserted
a titanium plate and screws into his neck, which causes Blakley to suffer “bad” headaches.
Blakley claimed that, as a result, his neck becomes so tired during the day that he has
trouble holding his head up. As a result, Blakley reported having to lie down three or four
times daily for 20 or 30 minutes to rest his neck.
The vocational expert testified that Blakley’s prior jobs in the coal mines were
medium and skilled. The ALJ posed five hypothetical questions to the expert. The ALJ’s
first hypothetical, upon which the ALJ ultimately relied, restricted Blakley to a “medium”
level of exertion, no more than occasional climbing and reaching overhead, and a “seriously
limited but not precluded” ability to deal with work stresses. The expert responded that
Blakley could not return to work as a roof bolter in the coal mines but could perform other
“medium level” jobs, including cleaner, cashier, stock clerk, and hand packer. The expert
also opined that Blakley could perform light jobs.
On December 27, 2006, the ALJ issued her decision, holding that Blakley was not
disabled under sections 216(i) and 223(d) of the Social Security Act, 42 U.S.C. §§ 416(i) and
423(d). The ALJ made Blakley’s disability determination following the governing five-step
analysis outlined in 20 C.F.R. § 404.1520. At step one, the ALJ found that Blakley had not
engaged in substantial gainful activity since his disability onset date. At step two, the ALJ
determined that Blakley suffered from a “severe” combination of impairments consisting of
osteoarithritis, mood and anxiety disorders, stage II black lung, and residuals of cervical disc
with allografting and plating, anterior cervical discectomy with allografting and plating, and
No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 8
AC joint repair. Third, the ALJ concluded that Blakley’s impairments did not meet or
medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart B, Appendix
1. Fourth, the ALJ adopted the state agency physicians’ opinions and RFC determinations,
finding that Blakley retained the residual functional capacity to perform a range of medium
work, and that Blakley could “lift 50 pounds occasionally, 25 pounds frequently, and sit,
stand, or walk about 6 hours of an 8 hour workday.” The ALJ determined that Blakley could
also occasionally climb ropes, ladders, and scaffolds but could do no more than occasional
reaching in all directions. Blakely had, however, a limited ability to deal with work stresses.
At the fifth step, the ALJ concluded that, given Blakley’s RFC, there were a significant
number of jobs in the national economy that Blakley could perform. Accordingly, the ALJ
concluded that Blakley was not disabled.
The Appeals Council denied Blakley’s request for review of the ALJ’s decision,
making the ALJ’s decision the final decision of the Commissioner of Social Security. See
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Blakley subsequently
filed a complaint in the district court for review of the Commissioner’s decision pursuant to
42 U.S.C. § 405(g).
On August 12, 2008, upon cross-motions for summary judgment, the district court
issued a memorandum opinion affirming the ALJ’s decision, and entered an order granting
summary judgment in favor of the Commissioner. Blakley then filed this timely appeal.
II. Analysis
A. Standard of Review
In social security cases, the Commissioner determines whether a claimant is disabled
within the meaning of the Social Security Act and, thereby, entitled to benefits. 42 U.S.C.
§ 405(h). Our review of the ALJ’s decision is limited to whether the ALJ applied the correct
legal standards and whether the findings of the ALJ are supported by substantial evidence.
Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). The substantial-evidence standard is
met if a “reasonable mind might accept the relevant evidence as adequate to support a
conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). “The
substantial-evidence standard . . . presupposes that there is a zone of choice within which the
No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 9
decisionmakers can go either way, without interference by the courts.” Mullen v. Bowen,
800 F.2d 535, 545 (6th Cir.1986). Therefore, if substantial evidence supports the ALJ’s
decision, this Court defers to that finding “even if there is substantial evidence in the record
that would have supported an opposite conclusion.” Callahan, 109 F.3d at 273. We give
de novo review to the district court’s conclusions on each issue. Valley v. Comm’r of Soc.
Sec., 427 F.3d 388, 390 (6th Cir. 2005).
B. The Treating Physician Rule and the “Reason-Giving Requirement”
In assessing the medical evidence supporting a claim for disability benefits, the ALJ
must adhere to certain standards. One such standard, known as the treating physician rule,
requires the ALJ to generally give greater deference to the opinions of treating physicians
than to the opinions of non-treating physicians because
“these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of [the claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
The ALJ “must” give a treating source opinion controlling weight if the treating
source opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and is “not inconsistent with the other substantial evidence in [the] case record.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)). On the other hand, a Social
1
Security Ruling explains that “[i]t is an error to give an opinion controlling weight
simply because it is the opinion of a treating source if it is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent
the with other substantial evidence in the case record.” Soc. Sec. Rul. 96-2p, 1996 WL
374188, at *2 (July 2, 1996). If the ALJ does not accord controlling weight to a treating
physician, the ALJ must still determine how much weight is appropriate by considering
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Although Social Security Rulings do not have the same force and effect as statutes or
regulations, “[t]hey are binding on all components of the Social Security Administration” and “represent
precedent final opinions and orders and statements of policy” upon which we rely in adjudicating cases.
20 C.F.R. § 402.35(b).
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a number of factors, including 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 any specialization
of the treating physician. Wilson, 378 F.3d at 544; see also 20 C.F.R. § 404.1527(d)(2).
Closely associated with the treating physician rule, the regulations require the
ALJ to “always give good reasons in [the] notice of determination or decision for the
weight” given to the claimant’s 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. 96-2p, 1996 WL 374188, at *5. The Wilson Court explained the
two-fold purpose behind this procedural requirement:
“The requirement of reason-giving exists, in part, 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 especially bewildered when told by an administrative
bureaucracy that she is not, unless some reason for the agency’s decision
is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). The
requirement also ensures that the ALJ applies the treating physician rule
and permits meaningful review of the ALJ’s application of the rule.
Wilson, 378 F.3d at 544. Because the reason-giving requirement exists to “ensur[e] that
each denied claimant receives fair process,” we have held that an ALJ’s “failure to
follow the procedural requirement of identifying the reasons for discounting the opinions
and for explaining precisely how those reasons affected the weight” given “denotes a
lack of substantial evidence, even where the conclusion of the ALJ may be justified
based upon the record.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir.
2007) (emphasis added).
Here, the ALJ favored the opinions of the state agency physicians over Blakley’s
treating sources, but as we demonstrate in the next section, the ALJ violated Agency
regulations by failing to adequately explain the weight given to the treating physicians
in her decision.
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C. The ALJ Failed to Properly Evaluate Blakley’s Treating Physicians
1. Dr. Kiefer
The ALJ has placed nothing on the record indicating that she considered the
opinion of Dr. Kiefer as a treating physician. “Classifying a medical source requires us
to interpret the definitions in [20 C.F.R.] § 404.1502, a question of law we review de
novo.” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). We accord
substantial deference to any factual finding by the ALJ that bears on the question,
however. Id. Here, the ALJ did not make any findings on the record with respect to Dr.
Kiefer, so we do not defer to the ALJ’s decision.
A physician is a treating source if he has provided medical treatment or
evaluation and has had an ongoing treatment relationship with the claimant . . . “with a
frequency consistent with accepted medical practice for the type of treatment and/or
evaluation [that is] typical for the [treated condition(s)].” 20 C.F.R. § 404.1502. Dr.
Kiefer treated Blakley’s neck injury and performed the discectomy. As such, Dr. Kiefer
developed an extensive treatment relationship, spanning over one year, and qualifies as
one of Blakley’s treating physicians.
In addition to performing Blakley’s discectomy in July 2004, Dr. Kiefer provided
ongoing medical notes for Blakley from April 2004 through April 2005. Dr. Kiefer also
continued to send Blakley for MRIs, CT scans, and x-rays based on Blakley’s complaints
of pain. And those studies revealed objective findings of degenerative disc disease in
the cervical and thoracic spine. Dr. Kiefer expressed concern that the degenerative disc
disease in Blakley’s thoracic spine may require “aggressive” treatment. Dr. Kiefer also
made Blakley’s diagnosis of carpal tunnel syndrome. Therefore, as a treating physician,
any opinions Dr. Kiefer made should have been given controlling weight absent
justifiable reasons–made on the record–for discounting those opinions. Soc. Sec. Rul.
96-2p, 1996 WL 374188, at *4-5. However, Dr. Kiefer is not mentioned anywhere in
the ALJ’s opinion.
No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 12
2. Dr. Kibler
Dr. Kibler performed two surgeries on Blakley, a rotator cuff repair in October
2004 and AC joint repair in May 2005, and provided notes on Blakley from February
2004 through February 2006. The ALJ rejected Dr. Kibler’s assessment as follows:
Although a treating physician [i.e., Dr. Kibler] indicated [Blakley] should
not do more than 20 pounds lifting to his waist and no overhead lifting
on a repetitive basis, the possibility always exists that a doctor may
express an opinion in an effort to assist a patient with whom he or she
sympathizes for one reason or another. Another reality which should be
mentioned is that patients can be quite insistent and demanding in
seeking supportive notes or reports from their physicians, who might
provide such a note in order to satisfy their patient’s requests and avoid
unnecessary doctor/patient tension. While it is difficult to confirm the
presence of such motives, they are more likely in situations where the
opinion in question departs substantially from the rest of the evidence of
record, as in the current case.
Even assuming arguendo that the ALJ correctly reached her determination that
Dr. Kibler should be discredited, the ALJ’s summary rejection of Dr. Kibler without
explaining the weight given his opinions falls short of the Agency’s own procedural
requirements: “[A] finding that a treating source medical opinion . . . is inconsistent with
the other substantial evidence in the case record means only that the opinion is not
entitled to ‘controlling weight,’ not that the opinion should be rejected.” Soc. Sec. Rul.
96-2p, 1996 WL 374188, at *4. “Treating source medical opinions are still entitled to
deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527
and 416.927.” Id.
3. Dr. Raza
Dr. Raza began his relationship with Blakley as a consulting psychiatrist in 2004.
That relationship expanded to include treatment at the Cumberland River
Comprehensive Care Center in 2005. Though the ALJ summarizes Blakley’s time at
Cumberland, which is Dr. Raza’s place of practice, the ALJ does not explain in her
decision whether she weighed Dr. Raza as an expert, a treater, or both. Here again, the
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ALJ failed to account for Dr. Raza’s opinions as a treating physician in disregard of 20
C.F.R. § 404.1527.
D. The State Agency Physicians’ Opinions
The ALJ adopted the 2005 findings of the state agency physicians, as well as a
state agency psychologist, in finding that Blakley was not disabled.2 As justification,
the ALJ mentions only that “[t]he finding that the claimant can perform a range of
medium work is consistent with the opinion of the State Agency medical consultants.”
Certainly, the ALJ’s decision to accord greater weight to state agency physicians over
Blakley’s treating sources was not, by itself, reversible error. “In appropriate
circumstances, opinions from State agency medical . . . consultants . . . may be entitled
to greater weight than the opinions of treating or examining sources.” Soc. Sec. Rul. 96-
6p, 1996 WL 374180, at *3 (July 2, 1996). One such circumstance may occur, for
example, when the “State agency medical . . . consultant’s opinion is based on a review
of a complete case record that . . . provides more detailed and comprehensive
information than what was available to the individual’s treating source.” Id.
Here, however, the Agency’s non-examining sources offered their opinions, upon
which the ALJ relied, on June 30, 2005, and September 21, 2005. Consequently, those
non-examining sources did not have the opportunity to review, at minimum, Dr. Kibler’s
October 2005 assessment, Dr. Kibler’s December 2005 restrictions, Dr. Muffly’s June
2006 review, and Dr. Raza’s psychiatric treatment records. And because much of the
over 300 pages of medical evidence reflects ongoing treatment and notes by Blakley’s
treating sources, “we require some indication that the ALJ at least considered these facts
before giving greater weight to an opinion that is not ‘based on a review of a complete
2
In adopting the opinions and RFC determination given by the state agency physicians, the ALJ
also dismissed Dr. Muffly and Dr. Belew’s consultative opinions, stating that their “conclusory statements
are inconsistent with the claimant’s benign clinical examinations, objective tests, and conservative
treatment history.” The ALJ further discredited Dr. Muffly’s “generalized statements of disability”
because (1) those “statements are inconsistent with the claimant’s benign clinical examinations, objective
tests, and conservative treatment history,” (2) because Dr. Muffly saw Blakley “through attorney referral,”
and (3) because Dr. Muffly’s opinion that Blakley is disabled requires a vocational analysis that is reserved
to the Commissioner.
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case record.’” Fisk v. Astrue, 253 F. App’x 580, 585 (6th Cir. 2007) (quoting Soc. Sec.
Rul. 96-6p, 1996 WL 374180, at *3).
E. The Agency’s Failure to Follow its Regulations Was Not Excusable Harmless
Error
The Wilson Court instructs that where the ALJ fails to give good reasons on the
record for according less than controlling weight to treating sources, we reverse and
remand unless the error is a harmless de minimis procedural violation. See Wilson, 378
F.3d at 547. Such harmless error may include the instance where “a treating source’s
opinion is so patently deficient that the Commissioner could not possibly credit it,” or
where the Commissioner “has met the goal of . . . the procedural safeguard of reasons.”
Wilson, 378 F.3d at 547. However, the ALJ’s failure to follow the Agency’s procedural
rule does not qualify as harmless error where we cannot engage in “meaningful review”
of the ALJ’s decision. Id. at 544.
In this case, the ALJ’s incomplete weighing of Blakley’s treating sources is not
an excusable de minimis procedural violation. First, we cannot engage in meaningful
review of the ALJ’s decision because her reasoning is not “sufficiently specific to make
clear,” Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5, that the ALJ recognized and
evaluated the treating relationships of Drs. Kiefer, Kibler, and Raza. Second, we cannot
tell whether the ALJ recognized that Dr. Raza treated Blakley for a significant period of
time after his injury and was not only a consulting source.
Third, there is no evidence in the record that any of the recommendations of these
treating sources is “so patently deficient that the Commissioner could not possibly credit
it.” Wilson, 378 F.3d at 547. To the contrary, Blakley’s numerous x-rays, CT scans, and
MRIs present objective findings that are, at the very least, not inconsistent with his
treating physicians’ opinions. And finally, even if we were to agree that substantial
evidence supports the ALJ’s weighing of each of these doctors’ opinions, substantial
evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2) as
harmless error. See Wilson, 378 F.3d at 546 (“[T]o recognize substantial evidence as a
defense to non-compliance with § 1527(d)(2)[] would afford the Commissioner the
No. 08-6270 Blakley v. Comm’r of Soc. Sec. Page 15
ability [to] violate the regulation with impunity and render the protections promised
therein illusory. The general administrative law rule, after all, is for a reviewing court,
in addition to whatever substantive factual or legal review is appropriate, to ‘set aside
agency action . . . found to be . . . without observance of procedure required by law.’”
(quoting Administrative Procedure Act, 5 U.S.C. § 706(2)(D) (2001))).
The Wilson Court cautioned that an agency’s failure to follow its own regulations
may cause “unjust discrimination,” “deny adequate notice,” and consequently “may
result in a violation of an individual’s constitutional right to due process.” Wilson, 378
F.3d at 545 (quoting Sameena, Inc., v. U. S. Air Force, 147 F.3d 1148, 1153 (9th Cir.
1998)). We publish this decision as a modest reminder--that the Commissioner must
follow his own procedural regulations in crediting medical opinions.
III. Conclusion
In conclusion, the analysis supplied by the ALJ prevents this Court from finding
that the Commissioner’s decision is supported by substantial evidence. However, we do
not decide today whether there is substantial evidence on the record to award or deny
benefits because the Commissioner has discretion over that determination. Instead, we
hold that the ALJ failed to follow the applicable procedural requirements in reaching her
disability determination, which precludes meaningful review. We therefore REVERSE
the judgment of the district court with instructions to REMAND to the Commissioner
for further proceedings consistent with this opinion.