The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JODI H.,1 : Case No. 3:20-cv-00145
:
Plaintiff, : Magistrate Judge Caroline H. Gentry
: (by full consent of the parties)
vs. :
:
COMMISSIONER OF THE SOCIAL :
SECURITY ADMINISTRATION, :
:
Defendant. :
DECISION AND ORDER
I. INTRODUCTION
Plaintiff filed an application for Disability Insurance Benefits and Disabled
Widow’s Benefits in September 2016. Her claims were denied initially and upon
reconsideration. After a hearing at Plaintiff’s request, the Administrative Law Judge
(ALJ) concluded that Plaintiff was not eligible for benefits because she is not under a
“disability” as defined in the Social Security Act. The Appeals Council denied Plaintiff’s
request for review. Plaintiff subsequently filed this action.
Plaintiff seeks an order remanding this matter for benefits, or in the alternative, for
further proceedings. The Commissioner asks the Court to affirm the ALJ’s non-disability
1 See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
decision. The case is before the Court upon Plaintiff’s Statement of Errors (Doc. 11), the
Commissioner’s Memorandum in Opposition (Doc. 13), Plaintiff’s Reply (Doc. 14) and
the administrative record (Doc. 10).
II. BACKGROUND
Plaintiff asserts that she has been under a disability since September 14, 1998. She
was thirty-three years old on the alleged disability onset date. Accordingly, she was
considered a “younger person” under Social Security Regulations. See 20 C.F.R.
§ 404.1563(c).2 She has at least a high school education. See 20 C.F.R. § 404.1564(b)(4).
The evidence of record related is summarized in the ALJ’s decision (Doc. 10-2,
PageID 55-73), Plaintiff’s Statement of Errors (Doc. 11), the Commissioner’s
Memorandum in Opposition (Doc. 13), and Plaintiff’s Reply (Doc. 14). Rather than
repeat these summaries, the Court will focus on the pertinent evidence in the discussion
below.
III. STANDARD OF REVIEW
The Social Security Administration provides Disability Insurance Benefits and
Disabled Widow’s Benefits to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 402, 423(a)(1), 1382(a). The term “disability” means “the inability to do any
substantial gainful activity by reason of any medically determinable physical or mental
2 The remaining citations will identify only the pertinent Disability Insurance Benefits Regulations, as
they are similar in all relevant respects to the corresponding Disabled Widow’s Benefits Regulations.
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impairment which … has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 404.1505(a).
This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” (Id.)
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). This limited standard of review does not permit the Court to weigh the
evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(citation omitted). This standard “presupposes that there is a zone of choice within which
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the decisionmakers can go either way, without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the
ALJ’s decision even if substantial evidence in the record supports the opposite
conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009). “[E]ven 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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
IV. FACTS
A. The ALJ’s Findings of Fact
The ALJ was tasked with evaluating the evidence related to Plaintiff’s application
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
the Social Security Regulations. See 20 C.F.R. § 404.1520. The ALJ made the following
findings of fact:
Step 1: Plaintiff engaged in substantial gainful activity during the following
periods: 2006, 2008, 2009, and the first 11 months of 2010.
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However, there has been a continuous 12-month period(s) during
which she did not engage in substantial gainful activity.
Step 2: She has the severe impairment of history of anterior cervical
discectomy, substance abuse, posttraumatic stress disorder, panic
disorder, and major depression.
Step 3: She does not have an impairment or combination of impairments
that met or medically equaled the severity of one in the
Commissioner’s Listing of Impairments, 20 C.F.R. Part 404, Subpart
P, Appendix 1.
Step 4: Her residual functional capacity, or the most she could do despite
her impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002), consists of medium work … except that she can
frequently crawl, reach overhead with both upper extremities, and
climb ladders, ropes, and scaffolds. She should not be exposed to
environmental hazards such as unprotected heights, dangerous
machinery, or commercial driving. She can perform simple routine
repetitive tasks but not at a fast production rate pace and with no
strict production rate or quotas. She would be able to adapt to a
work setting with routine changes. She can occasionally interact
with coworkers and supervisors. She should not interact with the
general public.
She is unable to perform her past relevant work.
Step 5: Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that she can perform.
(Doc. 10-2, PageID 58-73.) These findings led the ALJ to conclude that Plaintiff does
not meet the definition of disability and so is not entitled to benefits. (Id., PageID 73.)
B. Treating Physician Abdullahi Mubarak, M.D.
Treating physician Abdullahi Mubarak, M.D., was Board Certified in Family
Practice from 1985 to 2000, and became certified by the American Society of Addiction
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Medicine in 1990. (Doc. 10-8, PageID 685.) Dr. Mubarak began treating Plaintiff in
August 2015 for opiate addiction. (Doc. 10-8, PageID 595.) He initially diagnosed her
with opioid type dependence, alcohol abuse, and post-traumatic stress disorder. (Id.) He
later also diagnosed her with cannabis dependence, panic disorder without agoraphobia,
and spondylosis. (Id. at PageID 600.)
In November 2018, Dr. Mubarak opined that it was not reasonably probable that
Plaintiff would be able to be prompt and regular in attendance, withstand the pressure of
meeting normal standards of work productivity and accuracy, demonstrate reliability,
complete a normal workday and workweek, or perform at a consistent pace. (Doc. 10-8,
PageID 686-87.) He did not explain the basis for these opinions. (Id.) Dr. Mubarak did
state that Plaintiff was “[d]isabled psychologically after her husband’s death” (id. at
PageID 690), which happened in 2016. He did not identify any physical restrictions or
limitations. (Doc. 10-8, PageID 687-91.)
On the same date, Dr. Mubarak filled out a mental impairment questionnaire.
(Doc. 10-8, PageID 692-95.) He identified the following signs and symptoms: sleep
disturbance, mood disturbances, emotional lability, decreased energy, intrusive
recollections of a traumatic experience, generalized persistent anxiety, feelings of guilt/
worthlessness, hostility, and irritability. (Id. at 693.)
Dr. Mubarak opined that Plaintiff would be off task during twenty percent or more
of a typical workweek, and would be absent from work three times a month. (Id.) He
opined that Plaintiff was markedly limited in her ability to relate to and work with
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supervisors, coworkers and the public, and in her ability to regulate her emotions and
control her behavior in a work setting. (Doc. 10-8, PageID 694.) He opined that Plaintiff
was moderately limited in her ability to focus attention on work activities and to stay on
task at a sustained rate. (Id.) He opined that Plaintiff was mildly limited in her overall
ability to learn, recall, or use information to perform work activities. (Id.) Dr. Mubarak
did not provide an explanation for his opinions. (Id. at PageID 692-95.)
The ALJ recognized that Dr. Mubarak was a treating source but rejected his
opinion after finding that it was not entitled to any significant weight, explaining:
[Dr. Mubarak] does not provide sufficient clinical and laboratory data to
support his conclusion. His treatment notes, discussed above, contain
absolutely no psychological assessments or observations of the claimant’s
mental status, though he does report that he provided a physical
examination on each occasion, so the basis of his opinions is unclear. It is
presumed that he would have remarked on any mental abnormalities that
could be identified by a casual observer, though he did not perform any
formal assessments, however he did not do so. His opinion about the
claimant’s mental impairments falls outside his area of professional training
and specialization, as he is not a psychiatrist or psychologist, merely a
prescriber of opiate agonist medication.
(Doc. 10-2, PageID 70.) The ALJ emphasized that Dr. Mubarak did not identify training
or certification in the area of mental illness, other than addiction. (Id., PageID 69.)
C. Consultative Examiner Mary Ann Jones, Ph.D.
Clinical psychologist Mary Ann Jones, Ph.D. conducted a consultative evaluation
of Plaintiff. (Doc. 10-7, PageID 544-51.) Dr. Jones diagnosed Plaintiff with post-
traumatic stress disorder, major depression, and opioid abuse (in three-month remission).
(Id. at PageID 550.) Dr. Jones opined that Plaintiff could understand, remember, and
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carry out instructions consistent with a low range of intelligence, but may do so
inconsistently due to “questionable emotional stability and recent cessation of drug use.”
(Id.) Dr. Jones opined that Plaintiff’s psychological symptoms would negatively impact
her ability to sustain attention and concentration, and to maintain adequate persistence
and pace. (Id.) Based on Plaintiff’s reported difficulties in getting along with others, Dr.
Jones opined that her ability to interact appropriately with coworkers and supervisors
would be limited. (Id.) She also opined that Plaintiff would be limited in her ability to
tolerate stress in the workplace. (Id. at PageID 550-51.)
The ALJ concluded that Dr. Jones’ opinion is entitled to some weight:
Unfortunately, Dr. Jones does not indicate the nature and severity of these
limitations [regarding interacting with coworkers and supervisors], which
appear to be based primarily on the claimant’s subjective report of her
history…. Dr. Jones’ opinion is given some weight, as it is the result of her
own observations, a clinical interview, and a mental status evaluation,
though it appears to be heavily weighted towards the claimant’s subjective
reports, and is supported by very limited collateral information.
(Doc. 10-2, PageID 67.) Noting that Plaintiff gave Dr. Jones inaccurate information about
the status of her substance abuse addictions, the ALJ also found that this misinformation
would negatively impact Dr. Jones’ ability to make an accurate assessment of Plaintiff’s
functional limitations. (Id.)
D. State Agency Reviewing Psychologists Robyn Murry-Hoffman, Ph.D.
& Aracelis Rivera, Psy.D.
State agency reviewing psychologist Robyn Murry-Hoffman, Ph.D. noted that
Plaintiff has been diagnosed with anxiety, depression, post-traumatic stress disorder, and
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substance addiction disorders. (Doc. 10-3, PageID 112-13.) State agency reviewing
psychologist Aracelis Rivera, Psy.D. noted that Plaintiff has been diagnosed with
depressive, bipolar and related disorders; and trauma- and stressor-related disorders. (Id.
at PageID 145.) Because their opinions are similar, they will be discussed together.
Both reviewing psychologists opined that Plaintiff is moderately limited in her
ability to understand and remember detailed instructions, and can understand, remember,
and carry out simple 1-3 step tasks. (Id., PageID 117, 149.) They opined that Plaintiff is
moderately limited in her ability to carry out detailed instructions, maintain attention and
concentration for extended periods, and complete a normal workday and workweek. (Id.)
They concluded that Plaintiff “can carry out simple 1-3 step tasks in which duties are
routine and predictable, with no demands for fast pace or high production.” (Id.) They
opined that Plaintiff is moderately limited in her ability to respond appropriately to
changes in the work setting, and reiterated that she “can adapt to a setting in which duties
are routine and predictable.” (Id. at PageID 118, 150.)
Both reviewing psychologists limited Plaintiff to occasional interaction with
coworkers and supervisors, and no interaction with the general public. (Doc. 10-3,
PageID 118, 150.) However, their opinions on Plaintiff’s social limitations differed.
Whereas Dr. Murry-Hoffman opined that Plaintiff is not significantly limited in her
ability to interact appropriate with the general public, Dr. Rivera opined that Plaintiff’s
ability in this regard is markedly limited. (Id.) Similarly, whereas Dr. Murry-Hoffman
opined that Plaintiff is not significantly limited in her ability to get along with coworkers
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or peers, Dr. Rivera opined that Plaintiff’s ability in this regard is moderately limited.
(Id.) Both psychologists opined that Plaintiff is moderately limited in her ability to accept
instructions and respond appropriately to criticism from supervisors. (Id.) Dr. Murry-
Hoffman opined that Plaintiff is moderately limited in her ability to ask simple questions
and request assistance, but Dr. Rivera opined that Plaintiff’s ability in this regard was not
significantly limited. (Id.)
The ALJ gave great weight to the opinions of Drs. Murry-Hoffman and Rivera:
Although neither examining nor treating physicians or mental health
providers, these experts are medical doctors and licensed psychologists
with knowledge of the Social Security Administration’s program and
requirements. Their opinions are consistent with the medical evidence of
record…. [T]heir analysis and conclusions have been carefully considered
and relied upon in formulating a policy compliant functional capacity ….
Some of the limitations have been expressed in more vocationally relevant
terms.
(Doc. 10-2, PageID 71.)
V. LAW AND ANALYSIS
Plaintiff contends that the ALJ erred in assessing the medical opinion evidence.
Defendant maintains that the ALJ properly weighed the medical opinion evidence. The
Court finds that the ALJ complied with the applicable regulations and her decision is
supported by substantial evidence. Therefore, the Court affirms the ALJ’s decision.
A. Applicable Law
Because Plaintiff’s claim was filed before March 27, 2017, the opinion evidence
rules set forth in 20 C.F.R. § 404.1527 apply. These regulations require ALJs to adhere to
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certain standards when weighing medical opinions. First, the ALJ is required to consider
and evaluate every medical opinion in the record. See 20 C.F.R. § 404.1527(b), (c).
Further, “greater deference is generally given to the opinions of treating physicians than
to those of non-treating physicians, commonly known as the treating physician rule.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (citations omitted).
The regulations define a “treating source” as a claimant’s “own acceptable medical
source who provides . . . medical treatment or evaluation and who has . . . an ongoing
treatment relationship” with a claimant. 20 C.F.R. § 404.1527(a)(2). The “treating
physician” rule is straightforward: “Treating-source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically
acceptable clinical and laboratory diagnostic techniques’; and (2) the opinion ‘is not
inconsistent with the other substantial evidence in [the] case record.’” Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20 C.F.R.
§ 416.927(c)(2)); see Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014).
The treating physician rule does not require ALJs to ignore inconsistencies
between a treating source’s opinion and the evidence in the record. Instead, an ALJ can
“properly discount even a treating source opinion if the opinion is unsupported and
inconsistent with other substantial evidence in the record.” Herndon v. Comm’r of Soc.
Sec., Case No. 20-6094, 2021 U.S. App. LEXIS 15178, *15 (6th Cir. May 20, 2021).
If the treating physician’s opinion is not controlling, then “the ALJ, in determining
how much weight is appropriate, must consider a host of factors, including the length,
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frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson v. Comm’r of Soc. Sec,
378 F.3d 541, 544 (6th Cir. 2004)).
“Separate from the treating physician rule, but closely related, is the requirement
that the ALJ ‘always give good reasons’ for the weight ascribed to a treating-source
opinion.” Hargett v. Comm’r of Soc. Sec., 964 F.3d 546, 552 (6th Cir. 2020) (citing 20
C.F.R. § 404.1527(c)(2); other citation omitted)); see Wilson, 378 F.3d at 544. This
mandatory “good reasons” requirement is satisfied when the ALJ provides “specific
reasons for the weight placed on a treating source’s medical opinions.” Hargett, 964 F.3d
at 552 (quoting SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996))3. The goal is to make
clear to any subsequent reviewer the weight given and the reasons for giving that weight.
(Id.) Substantial evidence must support the reasons provided by the ALJ. (Id.)
B. Analysis
Plaintiff asserts that the opinion of her treating physician, Dr. Mubarak, was
erroneously rejected. (Doc. 11, PageID 723.) She argues that Dr. Mubarak’s opinion was
well-supported and is not inconsistent with the other medical evidence of record. The
3 Social Security Ruling (SSR) 96-2p has been rescinded. However, this rescission is effective only for
claims filed on or after March 27, 2017. See SSR 96-2p, 2017 WL 3928298 at *1. Because Plaintiff filed
his application for benefits prior to March 27, 2017, SSR 96-2p still applies in this case.
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Court finds that the ALJ’s decision to reject Dr. Mubarak’s opinion complies with the
applicable rules and regulations, and is supported by substantial evidence.
The ALJ correctly observed that Dr. Mubarak’s opinions were not supported by
any objective medical evidence or his own observations. The signs and symptoms that
Dr. Mubarak identified in his opinion are absent from his treatment notes. To the
contrary, his notes consistently reflect that Plaintiff appeared well and in no acute distress
(Doc. 10-7, PageID 478-507; Doc. 10-8, PageID 595-684, 712-17), although he did note
on one occasion that Plaintiff was “tearful.” (Id., PageID 487.) The ALJ’s findings on this
issue are supported by substantial evidence.
The ALJ also did not err by relying on Dr. Mubarak’s lack of specialization in the
area of mental health to give his opinion less weight. See 20 C.F.R. § 404.1527(c)(5)
(“We generally give more weight to the medical opinion of a specialist about medical
issues related to his or her area of specialty than to the medical opinion of a source who is
not a specialist.”) Plaintiff argues that as a family physician, Dr. Mubarak handles
behavioral sciences as part of his medical specialty. (Doc. 11, PageID 725-26.) But the
fact that Dr. Mubarak treats mental health issues as part of his family practice does not
make him a specialist in that area. Absent evidence that Dr. Mubarak is a mental health
specialist (aside from addiction)—and there is no such evidence in the record—the ALJ’s
conclusion complies with the applicable regulation (20 C.F.R. § 404.1527(c)(5)) and is
supported by substantial evidence.
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Plaintiff argues that the ALJ should have given Dr. Mubarak’s opinion more
weight because his findings were “not inconsistent with those of consultative examiner
Mary Ann Jones, Ph.D.” (Doc. 11, PageID 724.) Yet, the ALJ declined to afford Dr.
Jones’ opinions more than “some weight” because those opinions lacked specificity about
the nature and severity of Plaintiff’s limitations, appeared to be based on her subjective
complaints, and were supported by very limited information. (Doc. 10-2, PageID 67-68.)
The Court finds that the ALJ’s findings are based upon substantial evidence.
Finally, Plaintiff argues that the ALJ erroneously applied more rigorous scrutiny to
Dr. Mubarak’s opinion than to the opinions of state agency reviewing psychologists Dr.
Murry-Hoffman and Dr. Rivera. (Doc. 11, PageID 726 (citing Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013).) Gayheart noted that “[t]he regulations
provide progressively more rigorous tests for weighing opinions as the ties between the
source of the opinion and the individual become weaker,” because opinions from treating
sources are generally afforded more weight than opinions from non-treating sources. 710
F.3d at 375 (quoting SSR 96-6p, 1996 SSR LEXIS 3, *5 (July 2, 1996)). This proposition
is generally true, but ALJs are still permitted to reject treating-source opinions that are
unsupported and inconsistent. Herndon v. Comm’r of Soc. Sec., Case No. 20-6094, 2021
U.S. App. LEXIS 15178, *15 (6th Cir. May 20, 2021) (holding that an ALJ can “properly
discount even a treating source opinion if the opinion is unsupported and inconsistent
with other substantial evidence in the record.”). The ALJ’s assessment of the opinions of
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Dr. Murry-Hoffman and Dr. Rivera is supported by substantial evidence and complies
with the applicable regulations, and therefore cannot be reversed by this Court.
VI. CONCLUSION
For the reasons discussed above, the ALJ properly applied the governing legal
framework and substantial evidence supports her conclusions. Accordingly, Plaintiff’s
Statement of Errors lacks merit.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff’s Statement of Errors (Doc. 11) is OVERRULED;
2. The Court AFFIRMS the Commissioner’s non-disability determination;
and
3. The case is terminated on the Court’s docket.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
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