Kevin Rabbers v. Commissioner Social Security

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0357p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KEVIN J. RABBERS,

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Plaintiff-Appellant,

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No. 08-2317

v.

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COMMISSIONER SOCIAL SECURITY

Defendant-Appellee. -

ADMINISTRATION,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 07-00845—Richard A. Enslen, District Judge.

Submitted: April 22, 2009

Decided and Filed: October 5, 2009

*

Before: CLAY and McKEAGUE, Circuit Judges; HOLSCHUH, Senior District Judge.

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COUNSEL

ON BRIEF: Frederick W. Bleakley, BLEAKLEY LAW OFFICES, P.C., Muskegon,

Michigan, for Appellant. Charles R. Goldstein, SOCIAL SECURITY

ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL, Chicago, Illinois, for

Appellee.

McKEAGUE, J., delivered the opinion of the court, in which CLAY, J., joined.

HOLSCHUH, D. J. (pp. 22-35), delivered a separate opinion dissenting in part and

concurring in part.

*

The Honorable John D. Holschuh, Senior United States District Judge for the Southern District

of Ohio, sitting by designation.

1

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 2

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OPINION

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McKEAGUE, Circuit Judge. In this appeal, Plaintiff-Appellant Kevin Rabbers

(“Rabbers”) challenges the district court’s decision affirming the denial of his

application for disability insurance benefits by Defendant-Appellee Commissioner of

Social Security (“Commissioner”). Rabbers argues that the Administrative Law Judge

(“ALJ”) failed to make specific findings regarding the severity of his mental

impairment—bipolar disorder—as required by the regulations. He also argues that the

ALJ improperly rejected the opinion of his treating source, Dr. Bobga Fomunung, in

determining that his bipolar disorder did not meet the criteria of a listed impairment.

The ALJ clearly did not make the required findings regarding the severity of

Rabbers’s mental impairment. We conclude, however, that this error was harmless. It

did not deprive Rabbers of a substantial procedural right. Nor did it prejudice him on

the merits, as the administrative record indicates that his bipolar disorder was not severe

enough to render him disabled. In fact, the ALJ properly rejected the only evidence in

the record that would have supported a contrary conclusion: the opinion of Dr.

Fomunung. We therefore affirm the decision of the district court.

I.

Rabbers was born on July 10, 1961. He is a high school graduate who has

completed two years of college. Among other occupations, Rabbers has previously been

employed as a welder, machine fabricator, maintenance supervisor, machine operator,

and autobody technician.

In July 2003, apparently due to work stress, Rabbers sought outpatient

counseling at Holland Community Hospital Outpatient Behavioral Health Services

Clinic (the “Holland Clinic”) in Holland, Michigan. He met regularly with a

psychiatrist, who prescribed Paxil, as well as a social worker.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 3

By June 2004, Rabbers had recently lost his job, had been arrested for drunk

driving, and was in the midst of a divorce from his wife of twelve years. On June 13,

2004, he was voluntarily admitted to Allegan General Hospital in Allegan, Michigan,

because he was apparently acting “emotionally erratic” and threatening to kill his wife

and two children. Upon admission to the hospital, he tested positive for marijuana and

had a blood alcohol level of .16. Dr. Mary Kirkwood diagnosed Rabbers with bipolar

disorder with mixed features and a history of alcohol abuse. She prescribed Depakote

and Seroquel for mood stabilization and paranoia. After eight days in the hospital,

Rabbers was discharged to jail.

Following his discharge from the hospital and release from jail, Rabbers stopped

taking his medication because he believed it was causing him to experience abdominal

pain. He was voluntarily admitted to Allegan General Hospital a second time on July

7, 2004. Upon admission, he tested positive for marijuana. Dr. Kirkwood again

diagnosed Rabbers with bipolar disorder with mixed features and a history of alcohol

abuse and prescribed Depakote and Seroquel. Rabbers was discharged from the hospital

after a ten-day stay.

After his second hospitalization, Rabbers continued his outpatient treatment at

the Holland Clinic through July 2006. During his visits there, Rabbers was asked to rate

his symptoms on a scale of 1-5 (with “1=very bad” and “5=no problem”).1 Most of the

time, Rabbers rated all of his symptoms as a 4 or 5; only twice, in March and September

2005, did he rate some of his symptoms below a 4. Also during this time period,

Rabbers consistently reported that he was taking his medication and did not report any

side effects. Sometime around the fall of 2005, Rabbers began receiving his outpatient

treatment at the Holland Clinic from Dr. Bobga Fomunung.2 The record indicates that

1

These symptoms included anxiety, depression, crying episodes, panic attacks, social withdrawal,

appetite, weight gain/loss, memory, concentration, decision making, ability to enjoy, energy level,

motivation, interest, irritability, suicidal thoughts, suicidal plans, suicidal behavior, and feeling

hopeless/worthless.

2

On September 22, 2006, Dr. Fomunung provided a sworn statement indicating that he had been

treating Rabbers for “[a]bout a year now, a year and a couple months.” As the magistrate judge’s report

and recommendation points out, however, the record does not clearly identify Dr. Fomunung as Rabbers’s

care provider. But it does contain six pages of treatment notes taken during the alleged time period of Dr.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 4

Rabbers met with Dr. Fomunung approximately once every two to three months, for a

total of six visits, with each visit lasting between fifteen and thirty minutes.

On September 28, 2004, Rabbers filed an application for disability insurance

benefits with the Social Security Administration (“SSA”), alleging onset of his disability

on January 21, 2004. He claimed that he was unable to engage in any substantial gainful

activity due to his bipolar disorder.

On November 19, 2004, psychologist Dennis L. Mulder conducted a consultative

evaluation for the Michigan Disability Determination Service. According to Dr.

Mulder’s report, Rabbers would usually perform household chores in the morning, visit

a soup kitchen in the afternoon, and attend a support group in the evening. Dr. Mulder

also noted that Rabbers “complain[ed] of . . . episodes of depression and mania . . ., but

he states that this has improved with his use of medication and therapy.” Dr. Mulder

diagnosed Rabbers with bipolar disorder “improving with treatment,” and “[h]istory of

alcohol abuse in short-term remission.” He ultimately concluded that the potential for

Rabbers to become gainfully employed in simple, unskilled work was fair, “pending his

continued compliance with psychiatric treatment and substance abuse treatment.”

On January 21, 2005, Dr. William Schirado completed a Psychiatric Review

Technique Form (“PRTF”) addressing Rabbers’s mental impairment. Determining that

Rabbers suffered from bipolar disorder and persistent disturbances of mood or affect, Dr.

Schirado concluded that Rabbers satisfied the Part A criteria for sections 12.04

(Affective Disorders) and 12.08 (Personality Disorders) of the Listing of Impairments.3

However, Dr. Schirado determined that Rabbers failed to satisfy the Part B criteria of

these listings. Specifically, he determined that Rabbers had moderate restriction of his

activities of daily living, moderate difficulties in maintaining social functioning,

Fomunung’s treatment. Although the signature on these notes is illegible, we, like the magistrate judge,

assume that they were authored by Dr. Fomunung.

3

Dr. Schirado also concluded that Rabbers’s impairment fell under section 12.09 (Substance

Addiction Disorders) of the Listing of Impairments. The severity of a substance addiction disorder under

section 12.09, however, is evaluated under the requirements of other applicable sections of the Listing of

Impairments. In this case, the applicable section was section 12.08 (Personality Disorders). For this

reason, we will discuss the severity of Rabbers’s mental impairment only under sections 12.04 and 12.08.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 5

moderate difficulties in maintaining concentration, persistence, or pace, and only one or

two episodes of decompensation. Dr. Schirado also completed a Mental Residual

Functional Capacity Assessment Form rating Rabbers’s limitations in twenty categories

involving understanding and memory, sustained concentration and persistence, social

interaction, and adaptation. Dr. Schirado found that Rabbers was moderately limited in

only six of these categories. With respect to the remaining fourteen categories, Dr.

Schirado concluded that Rabbers was either not significantly limited or that there was

no evidence of limitation.

On January 28, 2005, the Commissioner denied Rabbers’s application for

disability insurance benefits. Rabbers filed a timely request for a hearing before an ALJ.

He appeared before an ALJ with counsel on March 23, 2007. At the hearing, Rabbers

testified that he still had “crying episodes and mania” and was prone to agitation,

irritability, and anger, but he admitted that these symptoms had decreased as a result of

his medications. However, he testified that his medication “makes it kind of hard to get

up in the morning and stay focused and stay awake.” He did not believe he would be

able to work at a full-time job because he “would have a hard time with attendance,

staying awake.” According to Rabbers, he would not be able to go to work

approximately fifteen out of every thirty days because of the side effects of his

medication. Rabbers’s attorney also referred the ALJ to Dr. Fomunung’s sworn

statement, in which Dr. Fomunung testified that the side effects of Rabbers’s

medications “really affect[ ] his ability to function, the sedation in particular, makes him

very tired, very exhausted, very groggy, and so he’s not able to function.”

In addition to Rabbers’s own testimony, the ALJ heard testimony from a medical

expert, Dr. Kathleen O’Brien, and a vocational expert, Lee Knudsen. Dr. O’Brien

testified that Rabbers’s outpatient records did not “substantiate the severity of symptoms,

either as they are reported by [Rabbers] or in the sworn statement of [Dr. Fomunung],”

and that in fact there was “a progressive improvement in [Rabbers’s] report to his

treatment providers.” Dr. O’Brien also testified that any use of alcohol or drugs by

Rabbers “would eliminate the ability of the meds to do their job” and “would account

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 6

for the amount of sedation that he’s experiencing.” After hearing Dr. O’Brien’s

testimony, the ALJ posed two hypothetical questions to Knudsen. If the ALJ found that

Rabbers was capable of simple, unskilled work, Knudsen testified that there were a

significant number of jobs available to him in the Grand Rapids-Muskegon-Holland

combined statistical area.4 If the ALJ found that Rabbers’s testimony was credible,

however, Knudsen testified that Rabbers “would not be able to sustain or keep

employment” because he would “have trouble with attendance” and “difficulty in

accepting criticism or supervision.”

In a written decision dated April 16, 2007, the ALJ found that Rabbers was not

disabled and denied his application for disability insurance benefits. The Social Security

Appeals Council denied Rabbers’s request for review, rendering the ALJ’s decision the

final decision of the Commissioner. Pursuant to 42 U.S.C. § 405(g), Rabbers sought

judicial review of the Commissioner’s decision in the United States District Court for

the Western District of Michigan. The case was referred to a magistrate judge, who

recommended affirmance. See Rabbers v. Comm’r of Soc. Sec., No. 1:07-CV-845, 2008

WL 4151350, at *2 (W.D. Mich. Sept. 4, 2008). Over Rabbers’s objections, the district

court adopted the magistrate judge’s recommendation and affirmed the Commissioner’s

decision. Id. at *1-2. Rabbers filed a timely notice of appeal with this court.

II.

We review a district court’s decision in social security cases de novo. Valley v.

Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). We must affirm the

Commissioner’s decision if it “is supported by substantial evidence and was made

pursuant to proper legal standards.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241

(6th Cir. 2007); see also 42 U.S.C. § 405(g). Yet, even if supported by substantial

evidence, “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.” Bowen v. Comm’r of Soc. Sec., 478 F.3d

4

Knudsen testified that Rabbers could perform at least 13,500 jobs at the medium level of

exertion, 6,000 jobs at the light level of exertion, and 1,980 jobs at the sedentary level of exertion.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 7

742, 746 (6th Cir. 2007); see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47

(6th Cir. 2004).

A.

To be entitled to disability insurance benefits, an individual must be under a

disability within the meaning of the Social Security Act.5 42 U.S.C. § 423(a)(1)(E). The

Social Security Act defines “disability” as the “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). The SSA has

established a five-step sequential evaluation process for determining whether an

individual is disabled. 20 C.F.R. § 404.1520(a). If the claimant is found to be

conclusively disabled or not disabled at any step, the inquiry ends at that step. Id. The

five steps are as follows:

1) If the claimant is doing substantial gainful activity, the claimant is not

disabled.

2) If the claimant does not have a severe medically determinable

physical or mental impairment—i.e., an impairment that significantly

limits his or her physical or mental ability to do basic work

activities—the claimant is not disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of

the listings in Appendix 1 to Subpart P of the regulations and meets the

duration requirement, the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing

his or her past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is

not disabled. If the claimant cannot make an adjustment to other work,

the claimant is disabled.

Id. §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g); see also Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 539 (6th Cir. 2007); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th

5

The individual also must be insured for disability insurance benefits, have not attained retirement

age, and have filed an application for benefits. 42 U.S.C. § 423(a)(1). The Commissioner does not

contend that Rabbers failed to satisfy any of these requirements.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 8

Cir. 1997). The claimant bears the burden of proof through step four; at step five, the

burden shifts to the Commissioner. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474

(6th Cir. 2003).

Here, the ALJ applied the governing five-step analysis and determined that

Rabbers was not disabled. At step one, the ALJ found that Rabbers had not engaged in

any substantial gainful activity since January 21, 2004. At step two, the ALJ concluded

that Rabbers’s diagnosed bipolar disorder constituted a severe medically determinable

mental impairment. He found at step three that Rabbers’s bipolar disorder did not meet

or medically equal an impairment listed in Appendix 1 to Subpart P of the regulations.

At that point, the ALJ concluded that Rabbers possessed the residual functioning

capacity (“RFC”) to perform simple, unskilled work. Moving to step four, the ALJ

concluded that Rabbers was unable to perform his past relevant work. However, at step

five, the ALJ found that Rabbers was “capable of making a successful adjustment to

other work that exists in significant numbers in the national economy.” Based upon this

last finding, the ALJ found that Rabbers was not disabled within the meaning of the

Social Security Act.

B.

On appeal, Rabbers argues that the ALJ failed to make specific findings

regarding the severity of his mental impairment, which is required at steps two and three

of the five-step framework. The regulations provide a “special technique” for evaluating

the severity of a mental impairment at steps two and three. 20 C.F.R. § 404.1520a(a).

This special technique must be followed at each level in the administrative review

process. Id.

At step two, an ALJ must evaluate the claimant’s “symptoms, signs, and

laboratory findings” to determine whether the claimant has a “medically determinable

mental impairment(s).” Id. § 404.1520a(b)(1). If the claimant has a medically

determinable mental impairment, the ALJ “must then rate the degree of functional

limitation resulting from the impairment(s)” with respect to “four broad functional

areas”: “[a]ctivities of daily living; social functioning; concentration, persistence, or

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 9

pace; and episodes of decompensation.” Id. §§ 404.1520a(b)(2), (c)(3). These four

functional areas are commonly known as the “B criteria.” See 20 C.F.R. pt. 404, subpt.

P, app. 1, § 12.00 et seq.; Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008). The degree

of limitation in the first three functional areas is rated using the following five-point

scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). The

degree of limitation in the fourth functional area (episodes of decompensation) is rated

using the following four-point scale: none, one or two, three, four or more. Id. If the

ALJ rates the first three functional areas as “none” or “mild” and the fourth area as

“none,” the impairment is generally not considered severe and the claimant is

conclusively not disabled. Id. § 404.1520a(d)(1). Otherwise, the impairment is

considered severe and the ALJ will proceed to step three. See id. § 404.1520a(d)(2).

At step three, an ALJ must determine whether the claimant’s impairment “meets

or is equivalent in severity to a listed mental disorder.” Id. The Listing of Impairments,

located at Appendix 1 to Subpart P of the regulations, describes impairments the SSA

considers to be “severe enough to prevent an individual from doing any gainful activity,

regardless of his or her age, education, or work experience.” Id. § 404.1525(a). In other

words, a claimant who meets the requirements of a listed impairment will be deemed

conclusively disabled.

Each listing specifies “the objective medical and other findings needed to satisfy

the criteria of that listing.” Id. § 404.1525(c)(3). A claimant must satisfy all of the

criteria to meet the listing. Id. Under section 12.04 (Affective Disorders), for example,

the so-called A criteria are satisfied by medical documentation of bipolar syndrome with

a history of episodic periods. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. Evidence of

persistent disturbances of mood or affect is sufficient to satisfy the A criteria of the other

relevant listing in this case, section 12.08 (Personality Disorders). The B criteria of both

listings are satisfied by a showing of at least two of the following functional limitations:

1) a marked restriction of activities of daily living, 2) marked difficulties in maintaining

social functioning, 3) marked difficulties in maintaining concentration, persistence, or

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 10

pace, or 4) repeated episodes of decompensation, each of extended duration.6 Id. If the

ALJ determines that the claimant has a severe mental impairment that neither meets nor

medically equals a listed impairment, the ALJ will then assess the claimant’s RFC and

move on to steps four and five. 20 C.F.R. § 404.1520a(d)(3).

Importantly, the regulations require an ALJ to document the application of this

special technique in the written decision. Id. § 404.1520a(e). Until 2000, an ALJ was

required to complete a PRTF and append the form to the decision. See Revised Medical

Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg.

50,746 (Aug. 21, 2000). Now, the regulations require only an ALJ’s written decision

to “incorporate the pertinent findings and conclusions based on the technique.” 20

C.F.R. § 404.1520a(e)(2). The decision must refer to the “significant history, including

examination and laboratory findings, and the functional limitations that were considered

in reaching a conclusion about the severity of the mental impairment(s).” Id. The

decision must also “include a specific finding as to the degree of limitation in each of the

functional areas.” Id. At step three, the ALJ’s decision must “record the presence or

absence of the criteria [of the listing] and the rating of the degree of functional

limitation.” Id. § 404.1520a(d)(2).

Here, as discussed above, the ALJ concluded that Rabbers’s bipolar disorder

constituted a severe impairment at step two, but concluded at step three that the

impairment did not meet or medically equal one of the listed impairments. At neither

step, however, did the ALJ make specific findings regarding Rabbers’s degree of

limitation in each of the four functional areas, or B criteria. Rather, he cited Dr.

O’Brien’s testimony that Rabbers’s symptoms met the A criteria of section 12.04 of the

Listing of Impairments, but ultimately did not satisfy the listing because they were

6

Even if a claimant does not meet the B criteria, he or she will still satisfy section 12.04 if he or

she meets the C criteria. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. Rabbers, however, does not raise

the C criteria as an alternative basis for his argument that he satisfies section12.04; as such, the C criteria

are not applicable in this case.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 11

“mild” or “nonexistent” and “nonsevere.”7 The ALJ also referred to Dr. O’Brien’s

opinion that “symptoms and the impairment are considered as severe if the person is

unable to function on a daily basis, and if so, such a person would need to see a doctor

or counselor more than once every three months.”

The Commissioner concedes that the ALJ erred by neglecting to make specific

B criteria findings as required under under § 404.1520a(e)(2). Notwithstanding the

ALJ’s procedural error, however, the Commissioner urges us to affirm. Had the ALJ

made the required findings, the Commissioner argues, he still would have concluded at

step three that Rabbers’s symptoms were not of listing-level severity, and therefore the

error was harmless.

III.

We have recognized that “[i]t is an elemental principle of administrative law that

agencies are bound to follow their own regulations.” Wilson, 378 F.3d at 545; see also

5 U.S.C. § 706(2)(D) (“The reviewing court shall . . . hold unlawful and set aside agency

action . . . found to be . . . without observance of procedure required by law.”); Morton

v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the rights of individuals are affected, it is

incumbent upon agencies to follow their own procedures.”). Generally, however, we

review decisions of administrative agencies for harmless error. Heston v. Comm’r of

Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001); NLRB v. Wyman-Gordon Co., 394 U.S.

759, 766 n.6 (1969) (noting that courts are not required to “convert judicial review of

agency action into a ping-pong game” where “remand would be an idle and useless

formality”). Accordingly, if an agency has failed to adhere to its own procedures, we

will not remand for further administrative proceedings unless “the claimant has been

prejudiced on the merits or deprived of substantial rights because of the agency’s

procedural lapses.” Connor v. United States Civil Serv. Comm’n, 721 F.2d 1054, 1056

(6th Cir. 1983); see also Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539

7

The ALJ’s decision seems to have overlooked the applicability of section 12.08. Because the

B criteria for section 12.04 and section 12.08 are identical, however, the ALJ’s oversight is not particularly

relevant to our resolution of this case.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 12

(1970) (holding that agency’s failure to follow its own regulations did not require

reversal absent a showing of substantial prejudice by the affected party).

But in what circumstances, if any, can an agency’s noncompliance with a

procedural regulation such as § 404.1520a be deemed harmless? We are aware of only

one prior decision in which this circuit has addressed the issue. In an unpublished

decision, this court held that an ALJ’s failure to attach a PRTF to the written opinion,

as required by the prior regulations, amounted to harmless error. Thornsberry v.

Comm’r of Soc. Sec., 37 F. App’x 749, 751 (6th Cir. 2002). According to the court, the

ALJ’s opinion “contained an extensive analysis of [the claimant’s] mental impairments,

which provide[d] the essential information that would have been contained on a PRTF,”

and the claimant “[had] not shown how he was prejudiced by the ALJ’s failure to attach

a separate form.” Id.

Other circuits, however, have been inclined to reverse and remand in cases where

an ALJ failed to follow the special procedure of § 404.1520a. Some of these circuits

have left open the possibility that noncompliance with § 404.1520a can be harmless in

certain circumstances. See Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008) (noting

that “an ALJ’s failure to adhere to the regulations’ special technique might under other

facts be harmless”); Craft, 539 F.3d at 675 (“Under some circumstances, the failure to

explicitly use the special technique may indeed be harmless error.”); see also

Montgomery v. Shalala, 30 F.3d 98, 100 (8th Cir. 1994) (remanding after concluding

that ALJ’s error of failing to complete PRTF under prior regulations was not harmless).

Other circuits have appeared to adopt a per se rule requiring remand in any case where

an ALJ has failed to follow § 404.1520a and where the claimant has presented at least

a colorable claim of mental impairment. See Moore v. Barnhart, 405 F.3d 1208, 1214

(11th Cir. 2005); Shivel v. Astrue, 260 F. App’x 88, 91 (10th Cir. 2008); Selassie v.

Barnhart, 203 F. App’x 174, 176 (9th Cir. 2006); see also Gutierrez v. Apfel, 199 F.3d

1048, 1051 (9th Cir. 2000) (remanding for failure to comply with prior regulations); Hill

v. Sullivan, 924 F.2d 972, 975 (10th Cir. 1991) (same).

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 13

Because we are neither bound by this court’s decision in Thornsberry, see 6TH

CIR. R. 206(c); Thomas v. Eby, 481 F.3d 434, 441 (6th Cir. 2007), nor the decisions of

our sister circuits, see Bowling Green v. Martin Land Dev. Co., Inc., 561 F.3d 556, 560

(6th Cir. 2009), we consider these cases for their persuasive effect, if any, but undertake

an independent review of the arguments made in this case.

A.

Rabbers first argues that the ALJ’s failure to rate the B criteria was not harmless

because it deprived him of a substantial procedural right. He argues, in other words, that

he was entitled to the procedure of § 404.1520a itself. At least one circuit—the

Ninth—appears to have embraced a similar concept. See Selassie, 203 F. App’x at 176

(stating that the requirements of § 404.1520a “are not mere technicalities that can be

ignored as long as the ALJ reaches the same result that it would have if it had followed

those requirements”).

As support for his argument, Rabbers cites to this court’s decision in Wilson v.

Commissioner of Social Security. In Wilson, this court held that an ALJ’s failure to give

“good reasons” for not crediting the opinion of a treating physician, as required by 20

C.F.R. § 404.1527(d)(2), was not harmless and would almost always require reversal and

remand to the Commissioner. 378 F.3d at 546. In reaching its decision, the court

distinguished between “regulations ‘intended primarily to confer important procedural

benefits upon individuals’ and regulations ‘adopted for the orderly transaction of

business before [the agency].’” Id. at 547 (quoting Am. Farm Lines, 397 U.S. at 538-39)

(alteration in original). In the former case, the regulation confers a substantial

procedural right; in the latter, it does not. Id. Because the Wilson court concluded that

the reasons-giving requirement of § 404.1527(d)(2) “creat[es] an important procedural

safeguard for claimants for disability benefits,” the court could “not excuse the denial

of [such] a mandatory procedural protection simply because . . . there [was] sufficient

evidence in the record for the ALJ to discount the treating source’s opinion and, thus,

a different outcome on remand [was] unlikely.” Id. As a result, the ALJ’s failure to

follow the regulation was not harmless. However, the Wilson court stopped short of

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 14

holding that a failure to give good reasons for rejecting a treating source’s opinion could

never be harmless. In fact, it explicitly did not “decide the question of whether a de

minimis violation may qualify as harmless error.”8 Id.

Wilson’s circumscribed form of harmless error review has not been applied

outside the context of the reasons-giving requirement of § 404.1527(d)(2), and we

decline the invitation to extend it to this case. The treating physician rule occupies a

special place in social security cases; indeed, treating physicians 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.” 20 C.F.R. § 404.1527(d)(2). Because the opinion

of the treating physician plays such a central and important role in a claimant’s

application for social security benefits, the reasons-giving requirement of

§ 404.1527(d)(2) serves its own independent and important function: as a safeguard to

“ensure[ ] that the ALJ applies the treating physician rule.” Wilson, 378 F.3d at 544.

We are unable to conclude that the same rationale applies in the context of an ALJ’s

failure to rate the B criteria.

Rather, the requirement that an ALJ assign a score to each of the B criteria strikes

us more as an “adjudicatory tool” designed to aid the SSA in determining the severity

of a claimant’s mental impairment, Clark v. Sullivan, No. 92-1030, 1992 WL 296709,

at *4 (6th Cir. Oct. 19, 1992) (per curiam) (describing the PRTF as an “adjudicatory

tool”)—in other words, a regulation “‘adopted for the orderly transaction of business’”

before the SSA—as opposed to a regulation “‘intended primarily to confer important

procedural benefits upon’” claimants, Wilson, 378 F.3d at 547 (quoting Am. Farm Lines,

397 U.S. at 538-39). The regulation itself provides that “[u]sing the [special] technique

helps us: (1) Identify the need for additional evidence to determine impairment severity;

8

For example, the court continued, a treating source’s opinion could be “so patently deficient that

the Commissioner could not possibly credit it,” the Commissioner might essentially adopt the opinion of

the treating source without explicitly doing so, or the Commissioner might “[meet] 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.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 15

(2) Consider and evaluate functional consequences of the mental disorder(s) relevant to

your ability to work; and (3) Organize and present our findings in a clear, concise, and

consistent manner.” 20 C.F.R. § 404.1520a(a) (emphasis added). Interestingly, this

language is worded in terms of the procedure’s benefit to the SSA, not the claimant.

Another important purpose of the treating physician rule, as the Wilson court

noted, is to ensure that a claimant understands the disposition of his or her case,

“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.’” Wilson, 378 F.3d at 545 (quoting Snell v. Apfel, 177 F.3d

128, 134 (2d Cir. 1999)). In such cases, the claimant is entitled to an explanation as to

why the agency is rejecting the treating physician’s opinion. But as the Commissioner

points out, this special concern is absent in the context of § 404.1520a, where the ALJ’s

procedural violation is neither as strong nor as personal: a claimant would not be so

“especially bewildered” or offended if an ALJ did not explicitly rate the B criteria before

concluding that the claimant’s mental impairment was not severe enough to satisfy any

of the listings.

Finally, it is much easier for a reviewing court to determine whether an error

under § 404.1520a is harmless. The Wilson court noted that the reasons-giving

requirement of § 404.1527(d)(2) “permits meaningful review of the ALJ’s application

of the [treating physician] rule.” Wilson, 378 F.3d at 544. If an ALJ rejects a treating

physician’s opinion but gives no reasons for doing so, it is difficult for a reviewing court

to conduct its own analysis and make a judgment as to what the ALJ’s reasons would

have been—unless, as the Wilson court recognized, the treating physician’s opinion is

“so patently deficient that the Commissioner could not possibly credit it.” Wilson, 378

F.3d at 547. Faced with an ALJ’s failure to address the B criteria, however, a reviewing

court need only ask whether the record indicates that the claimant’s mental impairment

would have ultimately satisfied the B criteria. This kind of evidence—evidence

regarding the claimant’s activities of daily living, social functioning, concentration,

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 16

persistence, or pace, and episodes of decompensation—is objective, concrete factual and

medical evidence that will be apparent in the record, at least in some cases.

For these reasons, we hold that the special technique of § 404.1520a does not

confer such an “important procedural safeguard” upon claimants that an ALJ’s failure

to rate the B criteria will rarely be harmless. Wilson, 378 F.3d at 547. Rabbers’s

argument that the error was not harmless because he was “deprived of substantial rights”

therefore fails. Connor, 721 F.2d at 1056.

B.

Rabbers’s next argument is essentially that the ALJ’s failure to rate the B criteria

prejudiced him on the merits by making it impossible to conduct adequate review of the

ALJ’s decision. Some circuits apparently have embraced this concept as well. See, e.g.,

Kohler, 546 F.3d at 269 (“[T]he record in this case does not allow us to say that the

ALJ’s failure here was harmless.”); Craft, 539 F.3d at 675 (“We cannot conclude that

[the error] was harmless here because . . . . the ALJ gave short shrift to potential

limitations caused by [the claimant’s] mental impairments . . . .”); Moore, 405 F.3d at

1214 (“Because the ALJ’s decision lacks consideration of these factors . . . we cannot

even evaluate the Commissioner’s contention that the ALJ’s error was harmless.”).

We agree that in some cases it may be difficult, or even impossible, to assess

whether an ALJ’s failure to rate the B criteria was harmless. In such cases, the record

may contain conflicting or inconclusive evidence relating to the B criteria. Or it may

contain evidence favorable to the claimant that the ALJ simply failed to acknowledge

or consider. As a result, courts generally should exercise caution in conducting harmless

error review in this context. In this case, though, we are satisfied from our review of the

record that the ALJ’s failure to rate the B criteria was indeed harmless.

First, the ALJ’s failure to rate the B criteria at step two of the five-step analysis

was clearly harmless. Notwithstanding this error, the ALJ ultimately concluded that

Rabbers had a severe mental impairment and proceeded to step three, which was all

Rabbers could have asked for. Cf. Wilson, 378 F.3d at 547 (stating that failure to explain

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 17

weight given to treating physician’s opinion may be harmless if Commissioner

ultimately makes findings consistent with that opinion).

Second, even had the ALJ made specific findings regarding the B criteria, he

would have reached the same conclusion at step three: that Rabbers’s bipolar disorder

was not sufficiently severe to meet the criteria of any listed impairment. As previously

discussed, the B criteria of the relevant listings in this case are satisfied by a showing of

at least two of the following functional limitations: 1) a marked restriction of activities

of daily living, 2) marked difficulties in maintaining social functioning, 3) marked

difficulties in maintaining concentration, persistence, or pace, or 4) repeated episodes

of decompensation, each of extended duration. 20 C.F.R. pt. 404, subpt. P, app. 1,

§ 12.04. “A marked limitation may arise where several activities or functions are

impaired, or even when only one is impaired, as long as the degree of limitation is such

as to interfere seriously with [the claimant’s] ability to function independently,

appropriately, effectively, and on a sustained basis.” Id.; see also 20 C.F.R.

§ 404.1520a(c)(1).

As to the first of the four B criteria, the record clearly indicates that Rabbers did

not have a marked restriction in his activities of daily living. Activities of daily living

“include adaptive activities such as cleaning, shopping, cooking, taking public

transportation, paying bills, maintaining a residence, caring appropriately for . . .

grooming and hygiene, using telephones and directories, and using a post office.”

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(1). Although the ALJ did not make a

specific finding regarding Rabbers’s degree of limitation in this functional area, his

written decision did refer in detail to the findings of Dr. Mulder’s consultative

evaluation:

The claimant described his activities of daily living as waking up at 9:00

am, doing household chores and watching television in the morning. In

the afternoon, he will visit a soup kitchen and watch television. He does

chores, attends NA [Narcotics Anonymous] or AA [Alcoholics

Anonymous] meetings, or watches television in the evening and goes to

bed at 10:00 pm.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 18

Dr. Mulder’s report also indicated that Rabbers did “some of the vacuuming, dusting,

cooking, dishes, and laundry” and that he “mow[ed] the lawn and rake[d] the yard.”

Moreover, the ALJ referred to Rabbers’s medical records, which indicated that his

symptoms were “either not a problem or mild with no side effects from medication.” He

also cited Dr. O’Brien’s testimony for the proposition that a person who was unable to

function on a daily basis “would need to see a doctor or counselor more than once every

three months.” Even Dr. Fomunung, Rabbers’s treating source, testified that the

restriction in Rabbers’s activities of daily living “would be perhaps mild.” Although the

PRTF completed by Dr. Schirado was more favorable to Rabbers—rating the restriction

on his activities of daily living as “moderate”—it is still insufficient to show that

Rabbers suffered a marked restriction. The record therefore clearly shows that Rabbers’s

bipolar disorder did not seriously interfere with his ability to function on a daily basis.

Regarding the second of the four functional areas, the record does not indicate

that Rabbers had marked difficulties in maintaining social functioning. Social

functioning involves a claimant’s “capacity to interact independently, appropriately,

effectively, and on a sustained basis with other individuals.” 20 C.F.R. pt. 404, subpt.

P, app. 1, § 12.00(C)(2). The ALJ acknowledged Rabbers’s testimony at the

administrative hearing that he “has anger management problems and is not much of a

people person, but he is better around machines.” The record indicates, however, that

Rabbers almost always rated his symptoms of “social withdrawal” as a 4 or a 5 on his

self-assessment forms. According to Dr. Mulder’s report, Rabbers got along well with

most of his family, including his father, mother, brother, ex-wife, and children. He also

apparently had six to ten close friends outside of his family. In addition, the PRTF

completed by Dr. Schirado indicates only moderate, not marked, difficulties in

maintaining social functioning. The ALJ speficially cited Dr. Schirado’s conclusions

that Rabbers was moderately limited in his ability to “interact appropriately with the

general public” and to “accept instructions or criticism from supervisors.” On top of

that, Dr. Schirado also concluded that Rabbers was not significantly limited in the ability

to ask simple questions or request assistance, get along with coworkers or peers, or

maintain socially appropriate behavior. Thus, although the evidence suggests that

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 19

Rabbers sometimes found it difficult to get along with others, it does not show that his

bipolar disorder seriously interfered with his ability to maintain social functioning.

As to the third functional area—maintaining concentration, persistence, or

pace—there is no evidence that Rabbers suffered marked difficulties. This area involves

“the ability to sustain focused attention and concentration sufficiently long to permit the

timely and appropriate completion of tasks commonly found in work settings.” 20

C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(3). On his self-assessment forms, Rabbers

almost always rated his concentration as a 5. Only a few times did he rate it as a 4, and

only once as a 3. Further, Dr. Schirado concluded that Rabbers had only moderate

difficulties in maintaining concentration, persistence, or pace. The ALJ specifically

referred to Dr. Schirado’s finding that Rabbers was moderately limited in his ability to

“understand, remember, or carry out detailed instructions” and to “work in coordination

or proximity to others without being distracted.” Accordingly, the evidence indicates

that Rabbers did not have marked difficulties in maintaining his concentration,

persistence, and pace as a result of his bipolar disorder.

Finally, with respect to the last of the four functional areas, the record shows that

Rabbers experienced only one or two episodes of decompensation. Episodes of

decompensation “are exacerbations or temporary increases in symptoms or signs

accompanied by a loss of adaptive functioning, as manifested by difficulties in

performing activities of daily living, maintaining social relationships, or maintaining

concentration, persistance, or pace.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(4).

They “may be demonstrated by an exacerbation in symptoms or signs that would

ordinarily require increased treatment or a less stressful situation (or a combination of

the two).” Id. “The term repeated episodes of decompensation, each of extended

duration . . . means three episodes within 1 year, or an average of once every 4 months,

each lasting for at least 2 weeks.” Id. Here, Rabbers’s two visits to the hospital in June

and July of 2004 are the only episodes of decompensation in the record. At the hearing,

Dr. O’Brien referred to “a period of decompensation where [Rabbers] was hospitalized

on two occasions between June, once in June and once in July of 2004.” On the PRTF,

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 20

Dr. Schirado also concluded that Rabbers had suffered from only one or two episodes

of decompensation. Thus, the record shows that Rabbers did not suffer from repeated

episodes of decompensation, each of extended duration.

In fact, the only medical evidence in the record that would have even arguably

supported a finding that Rabbers met the B criteria is the testimony of Rabbers’s treating

source, Dr. Fomunung.9 Dr. Fomunung testified that “the side effects of the medication

really affects [Rabbers’s] ability to function, the sedation in particular, makes him very

tired, very exhausted, very groggy, and so he’s not able to function.” Dr. Fomunung also

testified that Rabbers had “marked” difficulties in maintaining social functioning,

“marked” difficulties in maintaining concentration, persistence, or pace, and “four or

more” repeated episodes of decompensation. The ALJ considered, but ultimately

rejected, this testimony. Rabbers asserts that the ALJ was required to afford controlling

weight to Dr. Fomunug’s opinions because Dr. Fomunung was his treating physician.

Rabbers is correct that the opinions of treating sources are generally entitled to

controlling weight. 20 C.F.R. § 404.1527(d)(2); Rogers, 486 F.3d at 242. An ALJ must

give the treating source’s opinion on the nature and severity of the claimant’s

impairment 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 [the] case record.” 20 C.F.R. § 404.1527(d)(2). If the ALJ does not accord

the opinion of the treating source controlling weight, it must apply certain factors in

determining what weight to give the opinion. Id. These factors include the length of the

treatment relationship and the frequency of examination, the nature and extent of the

treatment relationship, the supportability of the opinion, the consistency of the opinion

with the record as a whole, and the specialization of the treating source. Id.

§§ 404.1527(d)(2)(i)-(ii), (d)(3)-(6). As discussed above, the ALJ must give “good

9

Rabbers’s own testimony regarding his symptoms was insufficient to establish that he met the

B criteria of one of the listed impairments. See 42 U.S.C. § 423(d)(5)(A) (“An individual’s statement as

to pain or other symptoms shall not alone be conclusive evidence of disability . . . there must be medical

signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which

show the existence of a medical impairment . . . .”).

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 21

reasons” for the weight given to the treating source’s opinion. Id.; Wilson, 378 F.3d at

544.

Here, the ALJ properly rejected Dr. Fomunung’s opinion. He concluded that it

was “not supported by the medical records and treatment notes from previous treating

psychiatrists or psychologists. . . . [A]ll treatment notes indicate mild or no symptoms

and no side effects from medications.” In fact, throughout the course of his treatment,

Rabbers never reported any sedative side effects of his medication. Further, the ALJ

noted that Dr. Fomunung only saw Rabbers for about fifteen to thirty minutes every two

to three months. Accordingly, the ALJ afforded “greater weight to the opinions of Dr.

Mulder and Dr. O’Brien since they [were] consistent with the objective medical evidence

of record.” The ALJ gave several valid reasons why Dr. Fomunung’s assessment was

contrary to the other substantial evidence in the record. See Bass v. McMahon, 499 F.3d

506, 512 (6th Cir. 2007) (holding that ALJ properly rejected treating source’s opinion

where, among other things, “other evaluators found that plaintiff was not disabled, a

finding the ALJ found to be better supported by objective medical evidence”); Smith v.

Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007) (holding that substantial

evidence supported the rejection of treating sources’ opinions). Because the ALJ

properly rejected the only evidence in the record that would have potentially supported

a finding that Rabbers satisfied the B criteria of a listed impairment, his failure to

specifically rate the B criteria did not prejudice Rabbers on the merits.

IV.

We hold that the ALJ’s failure to rate the B criteria, while error, was harmless

in this case. Accordingly, we AFFIRM the district court’s decision upholding the

Commissioner’s denial of Rabbers’s application for disability insurance benefits.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 22

__________________________________________________________

DISSENTING IN PART AND CONCURRING IN PART

__________________________________________________________

HOLSCHUH, District Judge, dissenting in part and concurring in part. This

appeal involves an important issue in the administration of the law applicable in Social

Security appeals. When an ALJ intentionally or negligently violates the law, in this case

20 C.F.R. § 404.1520a that sets forth a mandated special technique for the evaluation of

claims based on mental illness, is such a violation merely of a regulation intended only

for the internal administration of the business of the Social Security Administration or

is it a violation of a regulation intended to confer important procedural benefits upon

such claimants?

Any discussion of this issue must start with this court’s decision in Wilson v.

Commissioner of Social Security, 378 F.3d 541 (6th Cir. 2004).

I. The Wilson Case

In Wilson, as in the present case, the ALJ violated the Social Security

Administration’s own procedural regulation. The regulation in Wilson, 20 C.F.R.

§ 404.1527(d)(2), provided, in part, 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.” The court gave three reasons for this procedural requirement.

First, “to let claimants understand the disposition of their cases.” The quoted

portion of the sentence is from Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999) in which the

court said, “the requirement of reason-giving exists, in part, to let claimants understand

the disposition of their cases—and perhaps especially—when those dispositions are

unfavorable.” Id. at 134. The Snell court explained that when a claimant knows her

physician has deemed her disabled, and no reason has been given for rejecting that

physician’s opinion, she might be “bewildered when told by an administrative

bureaucracy that she is not, unless some reason for the agency’s decision is supplied.”

Id. The Wilson court adopted this language and reasoning to illustrate the importance

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 23

of a regulation that enables a claimant to understand the outcome of the claimant’s case.

Wilson, 378 F.3d at 544.

The second reason given by the Wilson court for the regulation was that “the

requirement also ensures that the ALJ applies the treating physician rule.” Id.

The third reason for the requirement was that it “permits meaningful review of

the ALJ’s application of the rule.” Id.

The Sixth Circuit in Wilson emphasized the importance of a federal agency

following its own regulations:

It is an elemental principle of administrative law that agencies are bound

to follow their own regulations. As the Ninth Circuit well summarized in

applying this principle: “The Supreme Court has long recognized that a

federal agency is obliged to abide by the regulations it promulgates. See

Vitarelli v. Seaton, 359 U.S. 535, 545, 79 S.Ct. 968, 3 L.Ed.2d 1012

(1959); Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1 L.Ed.2d

1403 (1957); Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499,

98 L.Ed. 681 (1954). An agency's failure to follow its own regulations

‘tends to cause unjust discrimination and deny adequate notice’ and

consequently may result in a violation of an individual's constitutional

right to due process. Where a prescribed procedure is intended to protect

the interests of a party before the agency, ‘even though generous beyond

the requirements that bind such agency, that procedure must be

scrupulously observed.’ Vitarelli, 359 U.S. at 547, 79 S.Ct. 968

(Frankfurter, J., concurring); see also Note, Violations by Agencies of

Their Own Regulations, 87 Harv. L. Rev. 629, 630 (1974) (observing that

agency violations of regulations promulgated to provide parties with

procedural safeguards generally have been invalidated by courts).”

Id. at 545 (quoting Sameena, Inc. v. United States Air Force, 147 F.3d 1148, 1153 (9th

Cir. 1998) (parallel citations and circuit court citations omitted)).1

1

The sentence in the above quotation from Wilson, “[a]n agency's failure to follow its own

regulations ‘tends to cause unjust discrimination and deny adequate notice’ and consequently may result

in a violation of an individual's constitutional right to due process,” while true, is found in NLRB v.

Welcome-American Fertilizer Co., 443 F.2d 19, 20 (9th Cir. 1971), not in Vitarelli v. Seaton, 359 U.S. 535,

547 (1959). In Vitarelli, Justice Frankfurter did say that:

An executive agency must be rigorously held to the standards by which it professes its

action to be judged. See Securities & Exchange Commission v. Chenery Corp., 318 U.S.

80, 87-88. Accordingly, if dismissal from employment is based on a defined procedure,

even though generous beyond the requirements that bind such agency, that procedure

must be scrupulously observed. See Service v. Dulles, 354 U.S. 363. This judicially

evolved rule of administrative law is now firmly established and, if I may add, rightly

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 24

Of great importance in the present case is the Wilson court’s rejection of the

argument that failure to follow the regulation in that case was harmless error. The court

held that even if the record should show that there would be little chance for success if

the case were remanded, a violation of the agency’s own rules cannot be excused as

harmless error.

“[A] procedural error is not made harmless simply because [the

aggrieved party] appears to have had little chance of success on the

merits anyway.” Mazaleski v. Treusdell, 562 F.2d 701, 719 n. 41 (D.C.

Cir. 1977); see also Ingalls Shipbuilding, Inc. v. Dir., Office of Workers'

Comp. Programs, 102 F.3d 1385, 1390 (5th Cir. 1996). To hold

otherwise, and to recognize substantial evidence as a defense to

non-compliance with § 1527(d)(2), would afford the Commissioner the

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.”

Administrative Procedure Act, 5 U.S.C. § 706(2)(D) (2001).

Id. at 546.

With reference to when an agency’s violation of its own regulations would not

require a remand, the court noted that when a regulation merely provides for the orderly

transaction of the agency’s business and does not confer any substantial right on a

claimant, it is necessary for the claimant to show prejudice as a result of the violation

before a remand is ordered.

The Supreme Court has recognized the distinction between regulations

“intended primarily to confer important procedural benefits upon

individuals” and regulations “adopted for the orderly transaction of

business before [the agency].” Am. Farm Lines v. Black Ball Freight

Serv., 397 U.S. 532, 538-39, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970)

(internal quotation marks omitted). In the former case, the regulation

bestows a “substantial right” on parties before the agency, and “it is

incumbent upon agencies to follow their own procedures . . . even where

so. He that takes the procedural sword shall perish with that sword.

359 U.S. at 546-47. Similarly, in the present case, the Social Security Administration “must be rigorously

held to the standards by which it professes its action to be judged,” and having enacted 20 C.F.R.

§ 404.1520a, having taken “the procedural sword,” its conduct in violation of that regulation should cause

that conduct to “perish with that sword.”

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 25

the internal procedures are possibly more rigorous than otherwise would

be required.” Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 39

L.Ed.2d 270 (1974); see also Vitarelli v. Seaton, 359 U.S. 535, 540, 79

S.Ct. 968, 3 L.Ed.2d 1012 (1959); United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 98 L.Ed. 681 (1954). In

contrast, in the case of procedural rules “adopted for the orderly

transaction of business,” an agency has the discretion “to relax or modify

its procedural rules” and such action “is not reviewable except upon a

showing of substantial prejudice to the complaining party.” Am. Farm

Lines, 397 U.S. at 539, 90 S.Ct. 1288 (quotation omitted). Section

1527(d)(2) falls in the former category, creating an important procedural

safeguard for claimants for disability benefits. Snell, 177 F.3d at 134.

Id. at 547.

II. Application of Wilson to the Facts of the Present Case

The majority opinion rejects any application in the present case of the law set

forth in Wilson regarding the need to reverse and remand when the Social Security

Administration has violated its own regulation. It attempts to distinguish Wilson with

the following arguments.

First, the regulations are different:

Because the opinion of the treating physician plays such a central and

important role in a claimant’s application for social security benefits, the

reasons-giving requirement of § 404.1527(d)(2) serves its own

independent and important function: as a safeguard to “ensure[ ] that the

ALJ applies the treating physician rule.” Wilson, 378 F.3d at 544. We are

unable to conclude that the same rationale applies in the context of an

ALJ’s failure to rate the B criteria.

Majority Opinion, p. 14.

I disagree. In my opinion, the ALJ’s failure to rate the B criteria and include in

the ALJ’s decision specific findings as to the degree of limitation in each of the

functional areas of the B criteria, as required by law in § 404.1520a, is just as important

as the failure of an ALJ to include in his decision the reasons for the weight given the

claimant’s treating physician, as required by law in § 404.1527(d)(2). As noted, the

Wilson court gave three reasons why enforcement of the regulation in that case was so

important.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 26

1. The regulation lets “claimants understand the disposition of their

cases.”

2. The regulation “ensures that the ALJ applies the treating physician

rule.”

3. The regulation “permits meaningful review of the ALJ’s application

of the rule.”

Wilson, 378 F.3d at 544. Those reasons apply with equal, if not greater, force in the

present case.

A. The Need For Claimants to Understand the Disposition of Their Cases

Section 404.1520a created a “special technique” which the regulation states in

subsection (a), “we must follow.” The heart of that special technique is the requirement

that the ALJ rate the degree of a claimant’s limitations in four functional areas: daily

living activities; social functioning; concentration, persistence or pace; and episodes of

decompensation; and include the findings on each of these areas in the decision that is

rendered.

The court in Wilson pointed out that if a claimant knows that the claimant’s

physician has deemed him disabled, the claimant might be especially bewildered when

“told by an administrative bureaucracy” that he is not. Wilson, 378 F.3d at 544. In the

present case, it is just as likely, as it was in Wilson, that the claimant was aware that his

treating physician, Dr. Fomunung, was of the opinion that claimant was disabled. Dr.

Fomunung testified under oath that Rabbers was disabled as a result of his bipolar

mental condition. The transcript of that testimony shows that Dr. Fomunung described

Rabbers’s condition in great detail, e.g., Rabbers was not able to function at work and

even if he could make it to work, “it’s just trouble,” (A.R. 257); he was not able to

follow the demands of a work environment, follow rules and instructions, or get along

with co-workers. (A.R. 265). More importantly, in the context of this particular case,

Dr. Fomunung testified regarding the B criteria. He found that with respect to Rabbers’s

“Restriction of Activities of Daily Living,” it would be “mild.” With respect to

Rabbers’s “Difficulty in Maintaining Social Functioning,” the limitation would be

“marked.” With respect to “Difficulties Maintaining Concentration, Persistence, or

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 27

Pace,” the limitation would be “marked.” With respect to “Repeated Episodes of

Decompensation,” Dr. Fomunung found “four or more.” (A.R. 266-67). The only thing

that was needed to find Rabbers disabled under the applicable listing was at least two

“marked,” or one “marked” and three or more episodes of decompensation.2

The majority opinion is that “the ALJ’s procedural violation [of § 404.1520a] is

neither as strong nor as personal” as the ALJ’s procedural violation of § 404.1527(d)(2),

the regulation at issue in Wilson. Consequently, the majority thinks that a claimant will

not be as “‘especially bewildered’ or offended” by the ALJ’s failure to apply the law in

the instant case as compared to the bewilderment and offense felt by a claimant when an

ALJ fails to apply the law in a case involving § 404.1527(d)(2). Majority Opinion, p. 15.

I seriously question whether a court of appeals’ opinion regarding the degree of

bewilderment or offense a claimant may suffer as a result of an ALJ’s unlawful conduct

is a valid measurement of how that conduct should be treated by the court. I believe that

any violation of the law by an ALJ that affects a claimant, who expects the ALJ to apply

the law properly and fairly, is very serious and should not be subject to how “bewildered

or offended” the claimant may or may not be as a result of that violation.

B. The Need to Ensure that Administrative Law Judges Apply the Law

In Wilson, this court explained that the second reason why enforcement of the

regulation in that case was so important was that the regulation “ensures that the ALJ

applies the treating physician rule.” Wilson, 378 F.3d at 544. In response to this finding,

the majority states that, “[w]e are unable to conclude that the same rationale applies in

the context of an ALJ’s failure to rate the B criteria.” Majority Opinion, p. 14. I

disagree. It is just as important in the present case as it was in Wilson to ensure that

administrative law judges apply the regulation in question, a regulation dealing with a

required special technique and a disclosure in the ALJ’s decision of the required findings

the ALJ must make. In Wilson, the court said that to excuse non-compliance simply

because there is substantial evidence that a different outcome on remand is unlikely

2

20 C.F.R. Pt. 404, Subpt. P., App. 1, §12.04(B).

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 28

would not be right. “To hold otherwise, and to recognize substantial evidence as a

defense to non-compliance with § 1527(d)(2), 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.

I believe that the same reasoning is applicable in this case. To not reverse a

decision which resulted from the ALJ intentionally or negligently violating the law

required for a fair decision would “afford the Commissioner the ability [to] violate the

regulation with impunity and render protections promised therein illusory.” Id.

Furthermore, an agency’s failure to follow its own regulations “tends to cause unjust

discrimination and deny adequate notice contrary to fundamental concepts of fair play

and due process.” NLRB, 443 F.2d at 20.

C. The Need for a Meaningful Review of the ALJ’s Decision

The third reason given in Wilson as to why enforcement of the regulation

requiring disclosure of specific reasons for the weight given to the treating physician’s

opinion is important is that it “permits meaningful review” of the ALJ’s application of

the regulation requiring an ALJ to give more weight to opinions from treating

physicians. The need for a meaningful review applies with equal, if not greater force,

in the present case. As noted earlier, the heart of the special technique for evaluating

mental impairments is the mandatory application of that procedure and the disclosure of

the required B criteria findings by the ALJ. Rather than just a requirement to disclose

the ALJ’s reasons for the ALJ’s evaluation of a treating physician’s opinion, the

regulation in the present case requires that the ALJ make and also disclose the ALJ’s

own opinions regarding the B criteria which are critical to a finding of disability or no

disability. As noted earlier, the fact that a reviewing court is of the opinion that based

on the record presented to the court, the claimant would have little success on the merits

anyway is not a sufficient reason to not enforce compliance with the regulation. Wilson,

378 F.3d at 546. A person is entitled by law to know how the ALJ evaluated the B

criteria so that the claimant can argue whether the ALJ’s evaluation is supported by or

in conflict with the evidence and whether an appeal is warranted. A complete record,

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 29

one that is required by law, is necessary not only for the benefit of the claimant but also

for the benefit of a reviewing court.

III. 20 C.F.R. § 404.1520a is Not Merely an “Adjudicatory Tool”

I believe, for the reasons stated above, that the rationale of the Wilson case does

apply, with equal, if not greater force, in the context of an ALJ’s failure to rate the B

criteria. The majority, however, states that the law specifically requiring an ALJ to

assign a score to each functional area of the B criteria and to publish the ALJ’s

evaluations “strikes us more as an ‘adjudicatory tool’ designed to aid the SSA in

determining the severity of a claimant’s mental impairment.” Majority Opinion, p. 14.

I disagree. Wilson, of course, did draw the distinction between regulations intended

primarily to confer important procedural benefits upon individuals and regulations

adopted only for the orderly transaction of business before the agency. In the former

case, an agency must follow its own procedures, whereas in the latter case the agency’s

action is not reviewable except upon a showing of substantial prejudice to the

complaining party. Supra, p. 4. The only authority cited by the majority in support of

its opinion that § 404.1520a is nothing more than an “adjudicatory tool” is an

unpublished per curiam opinion, Clark v. Sullivan, No. 92-1030, 1992 WL 296709, at

*4 (6th Cir. Oct. 19, 1992) (per curiam).

Clark is inapplicable in the present case. That case involved an allegation that

the ALJ erred by not requiring a psychiatrist who had submitted a report of his

examination to also complete the Psychiatric Review Technique form (PRT form),

although two other doctors had in fact completed the PRT form. Id. The Clark decision

contains a single sentence reference to the ALJ’s failure to have a psychiatrist complete

the PRT form—“[t]he failure to complete the Psychiatric Review Technique form, an

adjudicatory tool, see 20 C.F.R. § 404.1520a(d) (1992), is not significant.” It is followed

by this statement: “Moreover, nothing in the record indicates that Mrs. Clark has a

mental impairment. None of her treating physicians noted any mental problems or

recommended psychiatric treatment.” Id. Thus, Clark is an unpublished per curiam

opinion by a panel of this court with no analysis whatsoever for the bare conclusion that

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 30

the regulation in effect at that time was “an adjudicatory tool,” and the remark was made

in the context of a record that contained absolutely no evidence of any mental

impairment.

Furthermore, the regulations in effect at the time of the Clark decision required

that the PRT form be completed at the initial and reconsideration levels and also at the

administrative law judge hearing and Appeals Council levels. The administrative law

judge, either alone or with the assistance of a medical advisor, was required to complete

the form, and for all cases involving mental disorders at the administrative law judge

hearing or Appeals Council levels, the form had to be appended to the decision.3 The

current regulations do not require that this form be completed at all levels of the process.

Instead, it was recognized that the PRT form

. . . simply documents application of the technique with a checklist of our

conclusions . . . Administrative law judge and Appeals Council decisions

include a more detailed explanation of the findings and conclusions

reached, supported by a narrative rationale. The decisions under these

final rules must include, among other things, the pertinent findings and

conclusions required in the application of the technique.

Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury,

65 Fed. Reg. 50746, 50757 (August 21, 2000) (emphasis added).

Therefore, while the form itself, being a “checklist” regarding application of the

special technique at the lower initial and reconsideration levels, arguably could be

considered an “adjudicatory tool” at those stages, it obviously is not an “adjudicatory

tool” at the ALJ and Appeals Council levels. As explained above, the form is not needed

at those levels because the decisions themselves must contain “the pertinent findings and

conclusions required in the application of the technique.” Section 404.1520a(e)(2)

provides:

At the administrative law judge hearing and Appeals Council levels, and

at the Federal reviewing official, administrative law judge, and the

3

See Federal Old-Age, Survivors, and Disability Insurance; Listing of Impairments–Mental

Disorders, 50 Fed. Reg. 35038, 35065 (Aug. 28, 1985) for relevant commentary and the text of

§ 404.1520a(d) as it existed at the time of the Clark decision.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 31

Decision Review Board levels in claims adjudicated under the

procedures in part 405 of this chapter, the written decision must

incorporate the pertinent findings and conclusions based on the

technique. The decision must show the significant history, including

examination and laboratory findings, and the functional limitations that

were considered in reaching a conclusion about the severity of the

mental impairment(s). The decision must include a specific finding as to

the degree of limitation in each of the functional areas described in

paragraph (c) of this section.

(Emphasis added). The “functional areas described in paragraph (c) of this section” are

the B criteria.

The only other comment made by the majority regarding its belief that §

404.1520a is simply a regulation enacted for the benefit of the agency and not for the

benefit of claimants is a reference to the difference between the word “us” and the word

“you.” Section 404.1520a(a) states, in the introductory “general” section, that the

special technique helps “us” to:

(1) Identify the need for additional evidence to determine impairment

severity;

(2) Consider and evaluate functional consequences of the mental

disorder(s) relevant to your ability to work; and

(3) Organize and present our findings in a clear, concise, and consistent

manner.

To find that the use of the word “us” instead of “you” in the general introductory

paragraph to § 404.1520a makes that regulation merely for the benefit of the agency, and

not for the benefit of the claimant, is, in my view, unsupportable. How can it be said,

for example, that a regulatory requirement imposed on the ALJ to set forth in the ALJ’s

opinion the specific findings as to the degree of limitation in each of the functional areas

of the B criteria be solely for the benefit of the agency and not for claimants?

Contrary to the majority opinion, I believe that the regulation governing

evaluation of mental impairments was not enacted merely for the benefit of the agency

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 32

but was obviously enacted for the benefit of persons claiming mental impairments who

are entitled to have their claims processed fairly and in strict compliance with the special

technique regulation and entitled to have the required findings made known to them in

documentary form, especially in any decisions by the ALJ and the Appeals Council.

While there may indeed be rare instances in which failure to comply with the

regulation can be found to be harmless error—the de minimis violation in Clark is an

example—the present case is obviously not such a case. The present case includes

vastly different opinions regarding the claimant’s disability, including specific findings

of disability by the claimant’s own treating psychiatrist. This is clearly a case of a

regulation of exactly the same nature as the one in Wilson—one intended to confer

important procedural benefits on claimants—and is subject to exactly the same

requirement that it be “scrupulously observed,” because “[a]n agency’s failure to follow

its own regulations ‘tends to cause unjust discrimination and deny adequate notice’ . .

. of an individual’s constitutional right to due process.” Wilson, 378 F.3d at 545 (citation

omitted).

IV. The Ease With Which a Court of Appeals Can Make its Own Findings of

Fact is Not a Valid Reason to Reject the Reasoning of the Wilson Case.

The last effort of the majority to distinguish the Wilson case is its finding that,

as compared with the regulation in that case, “it is much easier for a reviewing court to

determine whether an error under § 404.1520a is harmless.” Majority Opinion, p. 15.

According to the majority, if the reason-giving requirement of § 404.1527(d)(2) is

violated, as it was in Wilson, it is difficult for the court of appeals to “make a judgment

as to what the ALJ’s reasons [for rejecting the treating physician’s opinion] would have

been.” Id. The majority finds that if the special technique application and documentation

requirement of § 404.1520a is violated, as it was here, it is easier for the court of appeals

to “make a judgment as to what the ALJ’s reasons would have been” and to make its

own factual findings. I do not believe, however, that the ease or the difficulty with

which a court of appeals can make its own findings that the law requires an ALJ to make

and provide in the ALJ’s decision should make any difference as to how this regulation

should be enforced. The court of appeals in Wilson did not vacate the judgment of the

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 33

district court because it had difficulty in deciding what reasons the ALJ would have

given if he had complied with the regulation. It did not even mention such a problem.

It vacated the judgment of the district court for one reason and one reason only—the

agency violated its own regulation, and the violation was not a de minimis violation.

V. The Majority’s Search For Prejudice or No Prejudice

The Wilson court noted that, unlike a regulation that confers a substantial right

on a claimant, a regulation which is adopted only for the orderly transaction of the

agency’s business “is not reviewable except upon a showing of substantial prejudice to

the complaining party.” Wilson, 378 F.3d at 547 (quoting American Farm Lines, 397

U.S. at 539). Because the majority in the present case believes that § 404.1520a is

nothing more than an “adjudicatory tool” enacted for the benefit of the agency in the

orderly transaction of the agency’s business, it necessarily had to determine whether the

violation of the regulation resulted in substantial prejudice to Rabbers. This, in turn, led

the majority to search the record for evidence that would be relevant to each of the four

B criteria functional limitations. As a result, the majority makes its own findings of fact:

1. “Rabbers did not have a marked restriction in his activities of daily living.”

Majority Opinion, p. 17.

2. “[T]he record does not indicate that Rabbers had marked difficulties in

maintaining social functioning.” Majority Opinion, p. 18.

3. “As to the third functional area—maintaining concentration, persistence, or

pace—there is no evidence that Rabbers suffered marked difficulties.” Majority

Opinion, p. 19.

4. “Finally, with respect to the last of the four functional areas, the record shows

that Rabbers experienced only one or two episodes of decompensation.”

Majority Opinion, p. 19.

To support a finding of no prejudice and therefore its opinion that the violation

was a harmless error, the majority also noted that the ALJ properly rejected Dr.

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 34

Fomunung’s opinion for the reasons given by the ALJ, and that Dr. Fomunung’s opinion

was “the only evidence in the record that would have potentially supported a finding that

Rabbers satisfied the B criteria of a listed impairment.” Majority Opinion, p. 21.

Because I regard the regulation that the ALJ violated as a law that confers

substantial procedural rights on a claimant, it is not necessary, in my opinion, to scour

the record and make findings of fact that the ALJ was required by law to make. Instead,

it is my belief that a violation of this type of regulation requires the court of appeals to

vacate the judgment of the district court and remand the case with instructions that the

ALJ comply with the law and make the required findings, unless the violation is a de

minimis violation or a remand would be a useless formality.4 In the Wilson case, this

court quoted from NLRB v. Wyman-Gordon, 394 U.S. 759, 766 n. 6 (1969), that where

“remand would be an idle and useless formality,” courts are not required to “convert

judicial review of agency action into a ping-pong game.” Wilson, 378 F.3d at 547.

Accordingly, the only question in a case of this nature is whether the ALJ’s

intentional or negligent violation of the law can be considered to be a de minimis

violation or, if not a de minimis violation, is there any reason why the case should not

be remanded with instructions that the ALJ comply with the law and make the required

findings on the four functional limitations listed in the B criteria.

4

In fact, the Commissioner recognizes that a different standard of review applies in such cases

when he refers in his brief to the “heightened harmless error standard described in Wilson.” (Appellee’s

Br. 17).

No. 08-2317 Rabbers v. Comm’r of Soc. Sec. Page 35

VI. Remand in This Particular Case Would be an Idle and Useless Formality

As the majority correctly observed, the only medical evidence in the record that

could support a finding by the ALJ that Rabbers’s condition met the B criteria is the

testimony of Dr. Fomunung.5

I also conclude, as did the majority, that “the ALJ properly rejected Dr.

Fomunung’s opinion” for the reasons given in the majority opinion. The obvious result,

therefore, of any reversal and remand would be a repetition by the ALJ of his rejection

of Dr. Fomunung’s opinion for exactly the same reasons he previously explained. There

then being no medical evidence to counter the medical evidence relied upon by the

Commissioner, requiring the ALJ to make the necessary B criteria findings would be

fruitless.

While I do not regard the intentional or negligent violation of the law by the ALJ

to be in any sense a de minimis violation, this is a rare case in which a reversal and

remand would be an “idle and useless formality.” For that reason, and for that reason

alone, I concur with the judgment of this court affirming the district court’s decision

upholding the Commissioner’s denial of Rabbers’s application for disability insurance

benefits.

VII. Conclusion

I dissent from the majority’s opinion that the reasons for a reversal and remand

when an agency violates its own law, as set forth in this court’s opinion in Wilson, do

not apply to the regulation in this case which the majority believes is a mere

“adjudicatory tool.” I concur with the majority’s affirmance of the district court’s

judgment upholding the Commissioner’s denial of Rabbers’s application for disability

benefits, only because a reversal and remand under the particular circumstances of this

case would be futile.

5

The majority opinion notes that Rabbers’s own testimony regarding his symptoms was

insufficient to establish that he met the B criteria of one of the listed impairments. According to 42 U.S.C.

§ 423(d)(5)(A), “there must be medical signs and findings, established by medically acceptable clinical

or laboratory diagnostic techniques, which show the existence of a medical impairment . . . .”