NOT RECOMMENDED FOR PUBLICATION File Name: 22a0492n.06
No. 22-1293
UNITED STATES COURT OF APPEALS FILED Dec 01, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk ) MOHAMED MASON NASSER, ) Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) MICHIGAN COMMISSIONER OF SOCIAL SECURITY, ) Defendant-Appellee. ) OPINION )
Before: SUTTON, Chief Judge, GRIFFIN and NALBANDIAN, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Mohamed Nasser appeals a district court decision affirming the denial of benefits
under the Social Security Act. For the following reasons, we affirm.
I.
Nasser applied for Supplemental Security Income and Disability Insurance Benefits in
2017. Nasser has a history of back issues, dating back to a lifting injury that occurred in 2011. He
duly reported “disorders of back discogenic & degenerative” as a disability, along with
“depressive, bipolar and other related disorders.” The Commissioner of Social Security denied his
application in March 2018.
Nasser requested a hearing before an Administrative Law Judge (ALJ) to contest the denial.
The ALJ concluded, however, that Nasser was not entitled to benefits because he was not
“disabled” under the Social Security Act. In reaching that decision, the ALJ discussed the medical No. 22-1293, Nasser v. Comm’r of Soc. Sec.
opinions of four doctors. Three of those opinions—by Drs. Cynthia Shelby-Lane, Thomas Flake,
and Kathy Morrow—were that Nasser had limitations on his ability to work based on his mental
and physical conditions, but that he could still generally perform some work. The fourth, by Dr.
Haranath Policherla, was that Nasser was disabled and could not work; however, the ALJ found
Dr. Policherla’s opinion unpersuasive because it conflicted with Nasser’s treatment records.
Nasser then filed a complaint in district court, contending that the ALJ’s decision was
“contrary to the fact[s] and against the evidence in that Plaintiff is disabled from performing
substantial gainful activity.” A magistrate judge recommended affirming the Commissioner’s and
ALJ’s decisions, which Nasser objected to as failing to apply 20 C.F.R. § 404.1520c correctly.
The district court concluded that the ALJ correctly applied the governing standard and did not err
in his analysis of the medical opinion evidence presented or in evaluating Nasser’s impairments.
Nasser then appealed here.
II.
We must determine whether the ALJ’s determination that Nasser was not disabled under
20 C.F.R. § 404.1520c was proper. However, our review is limited to “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, 405 (6th Cir. 2009). Substantial
evidence exists if a “reasonable mind might accept the relevant evidence as adequate to support a
conclusion.” Id. at 406 (citation omitted). We review the district court’s conclusion on each issue
de novo. Id.
Nasser limits his appeal to whether the ALJ properly applied 20 C.F.R. § 404.1520c and
weighed the evidence correctly. Under that revised regulation, applicable to this case, the opinions
of treating physicians (such as Dr. Policherla) are no longer entitled to special deference. Compare
-2- No. 22-1293, Nasser v. Comm’r of Soc. Sec.
20 C.F.R. § 404.1520c(a), with 20 C.F.R. § 404.1527(a)–(c) (applying to all claims filed before
March 27, 2017). Rather, the ALJ evaluates “the persuasiveness of medical opinions by
considering (1) whether they are supported by objective medical evidence, (2) whether they are
consistent with other medical sources, (3) the relationship that the source has with the claimant,
(4) the source’s specialization, and (5) any other relevant factors.” Bowers v. Kijakazi, 40 F.4th
872, 875 (8th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)). Yet “the regulations only require ALJs
to discuss the first two—supportability and consistency,” which are the most important factors.
Hardy v. Comm’r of Soc. Sec., 554 F. Supp. 3d 900, 905 (E.D. Mich. 2021) (citing 20 C.F.R.
§ 404.1520c(b)(2)).
Substantial evidence supports the ALJ’s determination that Nasser was not disabled. The
ALJ determined that neither Nasser’s physical disorders nor his mental impairments rose to a level
of disability, and the medical opinions produced provide substantial evidence for this
determination. Dr. Shelby-Lane concluded that Nasser had “frequent limitations” in his mobility,
Dr. Flake opined that Nasser’s conditions limited him to light work, and Dr. Morrow stated
similarly that Nasser’s conditions did not preclude him from work. These medical opinions, which
the ALJ found persuasive, provide support for the conclusion that Nasser had limitations but was
not necessarily disabled. On the other hand, Dr. Policherla opined that Nasser was unable to work
because of his constant and severe pain, his limitations on mobility, and his inability to perform
any number of work-related activities. But the ALJ did not find this opinion persuasive because
Dr. Policherla’s opinions were inconsistent with his prior treatment records. Indeed, the record
confirms this. In some of his examinations, Dr. Policherla stated that Nasser “cannot do toe-
walking, heel-walking, and tandem gait,” while, in other examinations, Dr. Policherla stated that
his “[t]oe-walking, heel-walking, and tandem gait [were] within normal limits.” Further, Dr.
-3- No. 22-1293, Nasser v. Comm’r of Soc. Sec.
Policherla noted that Nasser had full or nearly full strength in his upper and lower extremities.
Because these treatment records were inconsistent with Dr. Policherla’s later opinion, the ALJ had
a basis to find Dr. Policherla’s opinion unpersuasive. See 20 C.F.R. § 404.1520c(c)(2); accord
Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 786 (6th Cir. 2017) (discounting certain physician
opinions as inconsistent with prior MRI results). Therefore, substantial evidence exists to support
the ALJ’s conclusion that Dr. Policherla’s opinion was unpersuasive and Nasser was not disabled
based on the opinions of the other three doctors.
Nasser tries to avoid this conclusion by arguing that the ALJ applied § 1520c incorrectly.
However, his arguments are a veiled attempt to have us reweigh the evidence. For example, he
contends that only Dr. Policherla’s opinion satisfied all the factors of § 1520c(c) because he was
the physician with the closest relationship to Nasser, his opinion was submitted under oath, and
because both Dr. Morrow’s and Dr.
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NOT RECOMMENDED FOR PUBLICATION File Name: 22a0492n.06
No. 22-1293
UNITED STATES COURT OF APPEALS FILED Dec 01, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk ) MOHAMED MASON NASSER, ) Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) MICHIGAN COMMISSIONER OF SOCIAL SECURITY, ) Defendant-Appellee. ) OPINION )
Before: SUTTON, Chief Judge, GRIFFIN and NALBANDIAN, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Mohamed Nasser appeals a district court decision affirming the denial of benefits
under the Social Security Act. For the following reasons, we affirm.
I.
Nasser applied for Supplemental Security Income and Disability Insurance Benefits in
2017. Nasser has a history of back issues, dating back to a lifting injury that occurred in 2011. He
duly reported “disorders of back discogenic & degenerative” as a disability, along with
“depressive, bipolar and other related disorders.” The Commissioner of Social Security denied his
application in March 2018.
Nasser requested a hearing before an Administrative Law Judge (ALJ) to contest the denial.
The ALJ concluded, however, that Nasser was not entitled to benefits because he was not
“disabled” under the Social Security Act. In reaching that decision, the ALJ discussed the medical No. 22-1293, Nasser v. Comm’r of Soc. Sec.
opinions of four doctors. Three of those opinions—by Drs. Cynthia Shelby-Lane, Thomas Flake,
and Kathy Morrow—were that Nasser had limitations on his ability to work based on his mental
and physical conditions, but that he could still generally perform some work. The fourth, by Dr.
Haranath Policherla, was that Nasser was disabled and could not work; however, the ALJ found
Dr. Policherla’s opinion unpersuasive because it conflicted with Nasser’s treatment records.
Nasser then filed a complaint in district court, contending that the ALJ’s decision was
“contrary to the fact[s] and against the evidence in that Plaintiff is disabled from performing
substantial gainful activity.” A magistrate judge recommended affirming the Commissioner’s and
ALJ’s decisions, which Nasser objected to as failing to apply 20 C.F.R. § 404.1520c correctly.
The district court concluded that the ALJ correctly applied the governing standard and did not err
in his analysis of the medical opinion evidence presented or in evaluating Nasser’s impairments.
Nasser then appealed here.
II.
We must determine whether the ALJ’s determination that Nasser was not disabled under
20 C.F.R. § 404.1520c was proper. However, our review is limited to “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, 405 (6th Cir. 2009). Substantial
evidence exists if a “reasonable mind might accept the relevant evidence as adequate to support a
conclusion.” Id. at 406 (citation omitted). We review the district court’s conclusion on each issue
de novo. Id.
Nasser limits his appeal to whether the ALJ properly applied 20 C.F.R. § 404.1520c and
weighed the evidence correctly. Under that revised regulation, applicable to this case, the opinions
of treating physicians (such as Dr. Policherla) are no longer entitled to special deference. Compare
-2- No. 22-1293, Nasser v. Comm’r of Soc. Sec.
20 C.F.R. § 404.1520c(a), with 20 C.F.R. § 404.1527(a)–(c) (applying to all claims filed before
March 27, 2017). Rather, the ALJ evaluates “the persuasiveness of medical opinions by
considering (1) whether they are supported by objective medical evidence, (2) whether they are
consistent with other medical sources, (3) the relationship that the source has with the claimant,
(4) the source’s specialization, and (5) any other relevant factors.” Bowers v. Kijakazi, 40 F.4th
872, 875 (8th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)). Yet “the regulations only require ALJs
to discuss the first two—supportability and consistency,” which are the most important factors.
Hardy v. Comm’r of Soc. Sec., 554 F. Supp. 3d 900, 905 (E.D. Mich. 2021) (citing 20 C.F.R.
§ 404.1520c(b)(2)).
Substantial evidence supports the ALJ’s determination that Nasser was not disabled. The
ALJ determined that neither Nasser’s physical disorders nor his mental impairments rose to a level
of disability, and the medical opinions produced provide substantial evidence for this
determination. Dr. Shelby-Lane concluded that Nasser had “frequent limitations” in his mobility,
Dr. Flake opined that Nasser’s conditions limited him to light work, and Dr. Morrow stated
similarly that Nasser’s conditions did not preclude him from work. These medical opinions, which
the ALJ found persuasive, provide support for the conclusion that Nasser had limitations but was
not necessarily disabled. On the other hand, Dr. Policherla opined that Nasser was unable to work
because of his constant and severe pain, his limitations on mobility, and his inability to perform
any number of work-related activities. But the ALJ did not find this opinion persuasive because
Dr. Policherla’s opinions were inconsistent with his prior treatment records. Indeed, the record
confirms this. In some of his examinations, Dr. Policherla stated that Nasser “cannot do toe-
walking, heel-walking, and tandem gait,” while, in other examinations, Dr. Policherla stated that
his “[t]oe-walking, heel-walking, and tandem gait [were] within normal limits.” Further, Dr.
-3- No. 22-1293, Nasser v. Comm’r of Soc. Sec.
Policherla noted that Nasser had full or nearly full strength in his upper and lower extremities.
Because these treatment records were inconsistent with Dr. Policherla’s later opinion, the ALJ had
a basis to find Dr. Policherla’s opinion unpersuasive. See 20 C.F.R. § 404.1520c(c)(2); accord
Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 786 (6th Cir. 2017) (discounting certain physician
opinions as inconsistent with prior MRI results). Therefore, substantial evidence exists to support
the ALJ’s conclusion that Dr. Policherla’s opinion was unpersuasive and Nasser was not disabled
based on the opinions of the other three doctors.
Nasser tries to avoid this conclusion by arguing that the ALJ applied § 1520c incorrectly.
However, his arguments are a veiled attempt to have us reweigh the evidence. For example, he
contends that only Dr. Policherla’s opinion satisfied all the factors of § 1520c(c) because he was
the physician with the closest relationship to Nasser, his opinion was submitted under oath, and
because both Dr. Morrow’s and Dr. Flake’s opinions were inconsistent with other parts of the
record. These are classic examples of invitations to reweigh the evidence and to find other medical
opinions more persuasive. See Kidd v. Comm’r of Soc. Sec., 283 F. App’x 336, 341–43 (6th Cir.
2008); see also Bowers, 40 F.4th at 875–76 (noting similarly under the new § 1520c). Further, we
note that the opinions of Dr. Flake and Dr. Morrow do not suffer from the same level of
inconsistency as Dr. Policherla. Dr. Flake’s diagnosis of spinal disorder is consistent with Nasser’s
diagnosis of herniated disks, and that Dr. Morrow used the pronoun “she” once does not show that
she confused him with another claimant. And, in any event, what weight these factors carry is not
something that we may resolve. See Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990) (“The
Secretary, and not the court, is charged with the duty to weigh the evidence, to resolve material
conflicts in the testimony, and to determine the case accordingly.”). Finally, Nasser’s protestations
that the ALJ ran afoul of Blakley and Bowen v. Comm’r of Soc. Sec., 478 F.3d 742 (6th Cir. 2007),
-4- No. 22-1293, Nasser v. Comm’r of Soc. Sec.
are unavailing. Both addressed the governing regulations before the codification of § 1520c, and
thus required far more deference to a “treating physician.” See Bowen, 478 F.3d at 747. Because
of that deference, we held that either the “failure to mention” a treating physician, id., or the failure
to “give good reasons” to discount that opinion, Blakley, 581 F.3d at 406, violated 20 C.F.R.
§ 404.1527(d)(2). Those cases are inapposite to the current situation where the ALJ discussed all
material aspects of Dr. Policherla’s opinion and complied with § 1520c. Therefore, Nasser’s
arguments fail as the ALJ applied the regulations correctly, even if the ALJ did not weigh the
evidence in his favor. Because the ALJ both applied the law correctly and substantial evidence
supports his determination, the district court properly granted summary judgment in favor of the
Commissioner.
III.
For those reasons, we affirm the judgment of the district court.
-5-