Cole v. Astrue

• Decision Date: 22 September 2011
• Docket Number: No. 09–4309.,09–4309.
• Citation: 173 Soc.Sec.Rep.Serv. 19,661 F.3d 931
• Parties: Richard COLE, Plaintiff–Appellant, v. Michael ASTRUE, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

173 Soc.Sec.Rep.Serv. 19

661 F.3d 931

Richard COLE, Plaintiff–Appellant,

v.Michael ASTRUE, Commissioner of Social Security, Defendant–Appellee.

No. 09–4309.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 8, 2010.Decided and Filed: Sept. 22, 2011.

ARGUED: Clifford M. Farrell, Manring & Farrell, Columbus, Ohio, for Appellant. Brian J. Saame, Social Security Administration, Chicago, Illinois, for Appellee. ON BRIEF: Clifford M. Farrell, Manring & Farrell, Columbus, Ohio, for Appellant. Brian J. Saame, Social Security Administration, Chicago, Illinois, for Appellee.Before: MOORE and STRANCH, Circuit Judges; COHN, District Judge. ^*

AMENDED OPINION

JANE B. STRANCH, Circuit Judge.

Richard L. Cole suffered a work-related back injury, subsequently developed depression then sought disability. The Commissioner of Social Security adjudged him not to be disabled for purposes of social security disability benefits. Cole appeals from the district court's judgment affirming the Commissioner's decision. We reverse and remand.

I. BackgroundA. Factual Background

Cole was involved in a work-related vehicle accident that injured his back in 1994. He continued working off and on until June 2000, when pain prohibited his work as a truck driver. A November 1999 MRI revealed a mild disc bulge at the L4–5 level with spinal canal narrowing. By September 15, 2000, a MRI showed Cole's injury to have digressed to “a prominent diffuse disc bulge.” Cole had back surgery on July 20, 2001. By August, Cole's pain and other symptoms had improved markedly, and in February 2002, Cole informed doctors he had experienced complete relief of pain down his legs.

Sometime thereafter, Cole began experiencing increasing pain in his back. His orthopedic spine surgeon, Dr. Daryl Sybert, diagnosed him as having chronic myofascial pain related to his surgical fusion. However, tests revealed no abnormalities and Dr. Sybert released Cole to go back to work with the restriction of no repetitive lifting greater than 50 lbs. In May 2002, Dr. Sybert opined that there was not much more he could do for Cole other than to monitor the fusion point.

Cole began to be absent from his scheduled appointments apparently because his worker's compensation provider ceased paying for these visits. He had a MRI in February 2004 which revealed only post-operative changes to his spine, but he failed to follow up with Dr. Sybert about the results until February 22, 2005. From March 2004 until March 2005, Cole saw Dr. Julie Rindler on several occasions for physical rehabilitation, but he stopped these visits, despite their benefit, due to insurance problems. Dr. Rindler also noted there was little more she could do for Cole. In February 2004, Cole's family physician, Dr. Richard Potts, opined that Cole was then unemployable but was improving with physical therapy and counseling.

Cole first sought mental health counseling in August 2002 due to difficulty sleeping, poor eating habits, weight loss of nearly 40 pounds in a two month period, and anxiety. His counselor, Melodee Bass, gave Cole a DSM–IV diagnosis of mood disorder with depressive features.

In September 2002, Ms. Bass referred Cole to a psychiatrist, Dr. Kalpana Vishnupad, to set up a medication regimen. He was initially assessed by social worker Mary Dailey, who diagnosed Cole as suffering major depression, single event, severe without psychotic features as per DSM–IV guidelines. Cole saw both regularly for counseling and therapy. On April 21, 2003, Dr. Vishnupad rated Cole's residual functional capacity (“RFC”) due to his mental condition as “marked” impairment in the five categories of social interaction, “marked” and “moderate” impairment in the six categories of sustained concentration and persistence, and “marked” impairment in the six categories of adaptation to work conditions.¹ Dr. Vishnupad noted that Cole “continues with agitation and irritability, loses temper frequently—has had ‘blow ups' on jobs in the past with other employees/supervisors.” She further opined that Cole's condition would likely deteriorate if placed under the stress of a job, and that his impairments would not likely improve even if only minimal contact or interaction with others was required.

Cole saw Ms. Dailey and Dr. Vishnupad regularly until October 2004, when he failed to appear for a scheduled counseling appointment and his case was terminated. However, Cole reappeared for counseling in August 2005 and his case was reopened. Two months later, he again began missing appointments, and Ms. Dailey terminated his case. However, Cole continued to see Dr. Vishnupad periodically for medication management. Throughout 2006, Dr. Vishnupad most often noted Cole's mood as “fair” or “ok,” adjusting his medications accordingly.

During the course of therapy, Cole saw two consulting psychologists. He saw Dr. Michael Farrell, an employer-selected consultant, in June 2003 in conjunction with his worker's compensation claims. During the consultation, Dr. Farrell conducted a Minnesota Multiphasic Personality Inventory–2 (MMPI–2), but declared the results invalid due to Cole's perceived over-reporting of symptoms. He concluded that Cole did not meet the DSM–IV criteria for major depressive disorder, and instead showed signs of chronic and low grade depression.

On March 23, 2004, Cole saw Dr. Owen Ward, a psychologist who gave a consultative opinion of Cole's mental impairments. Dr. Ward stated Dr. Farrell's opinion was flatly incorrect due to Dr. Farrell's misreading of the DSM–IV criteria. Dr. Ward agreed with Dr. Vishnupad's diagnosis of major depressive disorder, single episode, without psychotic features.

Cole alleged disability due to his back problems during a closed period from June 2000 to February 2002 and since August 2002 due to his combined physical and mental impairments.

B. Procedural Background

In September 2001, Mr. Cole filed for social security disability insurance benefits and was denied. His first full disability hearing was conducted on July 26, 2004. The ALJ heard testimony from Cole, the Commission's medical expert (“ME”) Arthur Lorver, and the Commission's vocational expert (“VE”) Vanessa Harris.

Lorver testified that, after surgery, Cole did not meet or equal Listing 1.04, ² although he would require a sedentary job in order to be employable. Lorver testified only as to Cole's physical impairments, and the Commissioner offered no expert testimony on his mental impairments. Harris testified that there were approximately 3,200 jobs in the region that Cole could perform given the restrictions imposed by the ALJ. Taking Dr. Vishnupad's RFC of his mental impairments as “marked,” Ms. Harris testified that none of the 3,200 jobs would be available.

On September 21, 2004, the ALJ issued a decision finding that Cole was not disabled due to his ability to perform a significant number of jobs in the economy. In coming to that conclusion, the ALJ declined to give Dr. Vishnupad's RFC assessment controlling weight due to its perceived conflict with other evidence on the record, namely Cole's own testimony about his daily activities.

Cole challenged the decision in federal court. The Magistrate Judge opined that the ALJ's decision was not supported by substantial evidence, finding the ALJ failed to articulate any reasons for partially rejecting the testimony of the Commission's medical expert. On June 8, 2006, the district court adopted the Magistrate's Report and Recommendations and remanded the matter for re-evaluation of the record.

A second full hearing was held before the ALJ on January 24, 2007, at which Cole, the Commission's ME Richard Hutson, and the Commission's VE Charlotta Ewers testified. Hutson testified that Cole did not meet or equal Listing 1.04 because of his physical impairments. The Commissioner did not offer expert testimony as to his mental impairments. Ewers testified that, given the job restrictions imposed by the ALJ, there were 4,000 suitable jobs in the region. Taking Dr. Vishnupad's RFC as true, Ewers said that Cole would not be capable of doing the jobs identified.

The ALJ issued a decision on June 8, 2007, again finding Cole was not disabled. While the ALJ found Cole's physical and mental impairments to be severe, he concluded that they did not meet or equal the appropriate listing level and that Cole's RFC allowed him to perform a significant number of jobs in the economy. The ALJ determined that the opinion of Cole's treating physician, Dr. Potts, that Cole was unemployable did not merit controlling weight because it was not well supported by objective evidence and not consistent with other substantial evidence. Physically, the ALJ found that Cole had a mild limitation in activities of daily living, noting that Cole “helped out with laundry, cooked dinner, drove regularly, and attended church services and softball games.” Mentally, the ALJ found that Cole has a moderate limitation in social functioning, based on his relatively successful work history with no “significant interpersonal conflicts with anyone at work.” He also found Cole to have a moderate limitation in concentration, persistence or pace due to his chronic depression.

Ultimately, the ALJ concluded Cole could return to sedentary work with a sit/stand option and a number of other physical and stress-related restrictions and adopted Ewers's testimony about available jobs. Based on the applicable grid regulation, ³ the ALJ concluded Cole was not disabled.

Cole sought review before the agency Appeals Council, which declined jurisdiction. Cole then filed a federal suit, and the Magistrate Judge recommended affirming the agency's decision. On September 4, 2009, the district court affirmed the ALJ's decision. This appeal timely followed.

II. AnalysisA. Standard of Review

This Court reviews district court decisions regarding social security benefits determinations de novo. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir.20...