Perry v. Commisioner of the Social Security Administration of the United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

________________________________________________________________

BILLY G. PERRY, )

)

Plaintiff, )

)

v. ) No. 22-1055-TMP

)

COMMISSIONER OF SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

________________________________________________________________

ORDER AFFIRMING THE COMMISSIONER’S DECISION

________________________________________________________________

On March 21, 2022, Billy G. Perry filed a Complaint seeking

judicial review of a social security decision.1 (ECF No. 1.) Perry

seeks to appeal a final decision of the Commissioner of Social

Security (“Commissioner”) denying his application for Title II

disability benefits. (ECF No. 16 at PageID 1365.) For the following

reasons, the decision of the Commissioner is AFFIRMED.

I. BACKGROUND

A. Procedural History

On August 27, 2012, Perry filed an application for Social

Security Disability benefits under Title II of the Social Security

1After the parties consented to the jurisdiction of a United States

magistrate judge on May 25, 2022, this case was referred to the

undersigned to conduct all proceedings and order the entry of a

final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.

Civ. P. 73. (ECF No. 12.)

Act (“Act”), 42 U.S.C. §§ 404-434. (ECF No. 16 at PageID 1365.)

The application, which alleged an onset date of January 1, 2004,

was denied initially and on reconsideration. (Id.) Perry then

requested a hearing, which was held before an Administrative Law

Judge (“ALJ”) on April 4, 2014. (Id.) In a decision issued on May

22, 2014, the ALJ found that Perry was not disabled under sections

216(i) and 223(d) of the Act. (R. 19.) On September 25, 2015, the

Social Security Appeals Council denied Perry’s request for further

review. (R. 1-3.)

On October 15, 2015, Perry filed an appeal in the United

States District Court for the Western District of Tennessee. On

October 9, 2019, United States Magistrate Judge Charmiane G.

Claxton remanded Perry’s case “for the limited purpose of

addressing the opinions of the consulting examiners, in accordance

with 20 C.F.R. § 404.1527(e), and to adequately justify the

resulting residual functional capacity (RFC) in light of all of

the opinions and evidence of record.” (R. 711.)

On March 1, 2020, the Appeals Counsel issued an order

remanding the case to a new ALJ for further proceedings consistent

with the district court’s order. (R. 712-15.) A hearing was held

on January 6, 2020, and Perry did not appear or provide testimony.

(Tr. 672-80.) On July 29, 2020, the ALJ again found that Perry was

not under a “disability” as defined in the Act. (Tr. 650-71.) On

January 21, 2022, the Appeals Council declined to assume

jurisdiction over the case. (R. 368.) Perry has exhausted his

administrative remedies, and the ALJ’s decision stands as the final

decision of the Commissioner. Under section 205(g) of the Act — 42

U.S.C. § 405(g) — judicial review of the Commissioner’s “final

decision” is available if requested within sixty days of the

mailing of the decision. Perry timely filed the instant action.

(ECF No. 1.)

B. The ALJ’s Decision and the Five-Step Analysis

After considering the record and the testimony given at the

hearing, the ALJ used the five-step analysis set forth in the

Social Security Regulations to conclude that Perry was not

disabled. See C.F.R. § 404.1520(a); (R. 665.) That five-step

sequential analysis is as follows:

1. An individual who is engaging in substantial gainful

activity will not be found to be disabled regardless

of medical findings.

2. An individual who does not have a severe impairment

will not be found to be disabled.

3. A finding of disability will be made without

consideration of vocational factors, if an individual

is not working and is suffering from a severe

impairment which meets the duration requirement and

which meets or equals a listed impairment in Appendix

1 to Subpart P of the regulations.

4. An individual who can perform work that he has done

in the past will not be found to be disabled.

5. If an individual cannot perform his or her past work,

other factors including age, education, past work

experience and residual functional capacity must be

considered to determine if other work can be

performed.

Petty v. Comm’r of Soc. Sec., No. 1:14-cv-01066-STA-dkv, 2017 WL

396791, at *2 (W.D. Tenn. Jan. 30, 2017) (citing Willbanks v. Sec’y

of Health & Human Servs., 847 F.2d 301 (6th Cir. 1988)). “The

claimant bears the burden of proof through the first four steps of

the inquiry, at which point the burden shifts to the Commissioner

to ‘identify a significant number of jobs in the economy that

accommodate the claimant’s residual functional capacity.’” Warner

v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)).

At the first step, the ALJ found that Perry did not engage in

substantial gainful activity during the period from his alleged

onset date of January 1, 2004, through his date last insured of

December 31, 2008.2 (R. 656.) At the second step, the ALJ concluded

that Perry had the following severe impairments: “seizure disorder

and hypertension.” (Id.)

At the third step, the ALJ concluded that Perry’s impairments

do not meet or medically equal, either alone or in the aggregate,

the severity of one of the impairments listed in 20 C.F.R. Part

2The ALJ acknowledged that there is evidence on the record that

Perry worked after the alleged disability onset date. (R. 656.)

However, the fact that he had no reported earnings since 2003 did

not support a finding that he had engaged in substantial gainful

activity since his alleged onset date. (Id.)

404, Subpart P, Appendix 1.3 (R. 658.) The ALJ considered the pre-

2016 listings 11.02 and 11.03 and the current listing of 11.02.

(Id.)

The ALJ found that Perry’s seizure disorder did not meet or

medically equal the pre-2016 listing of 11.02 because the listing

requires documentation of “convulsive epilepsy occurring more

frequently than once a month in spite of at least three months of

prescribed treatment.” (Id.) The ALJ found that Perry’s medical

records did not show that he was having seizures that frequently.

(Id.) The ALJ also found that Perry’s seizure disorder did not

meet or medically equal the pre-2016 listing of 11.03 because that

listing required “petit mal seizure more than once a week, despite

medical compliance.” (Id.) Again, the ALJ found that Perry’s

medical records did not show he was having seizures frequently

enough to meet the listing. (Id.)

The ALJ found that Perry did not meet the current listing of

11.02 for the following reasons:

The current listing 11.02 can be met four ways: (1)

generalized tonic-clonic seizures occurring at least

once a month for at least three consecutive months

despite adherence to prescribed treatment; (2)

dyscognitive seizures occurring at least once a week for

3The criteria in the Listing of Impairments that the Commissioner

uses to evaluate disability claims involving neurological

disorders was revised comprehensively on July 1, 2016, with the

new regulations effective September 29, 2016. Rodway v. Comm’r

Soc. Sec., 1:18CV0169, 2019 WL 540871 (N.D. Ohio Jan. 24, 2019).

Perry’s original hearing was held on April 4, 2014. Thus, the pre-

2016 listings are applicable in this case.

at least three consecutive months despite adherence to

prescribed treatment; (3) generalized tonic-clonic

seizures occurring at least once every two months for at

least four consecutive months despite adherence to

prescribed treatment and a marked limitation in one of

five identified area of functioning; or (4) dyscognitive

seizures occurring at least once every two weeks for at

least three consecutive months despite adherence to

prescribed treatment and a marked limitation on one of

five identified areas of functioning. There is no

current listing 11.03. The medical records during the

prescribed period does not substantiate the required

number of seizures despite adherence to prescribed

treatment to meet either version of listing 11.02 or the

pre-2016 listing 11.03.

(Id.) Further, the ALJ noted that there is no listing criteria for

hypertension, but noted that this impairment has been considered

generally under listing 4.00H1. The ALJ stated that based on the

that Listing’s requirements, Perry’s “impairment does not rise to

listing level severity.” (Id.)

When a claimant’s impairments do not meet or equal a Listed

Impairment, an assessment of their residual functional capacity

(“RFC”) is conducted, based on all the relevant medical and other

evidence in the case record. 20 C.F.R. § 404.1520(e). The RFC is

used at step four and, if necessary, step five in the process.

First, at step four, it is used to determine whether the claimant

can perform their past relevant work. 20 C.F.R.

§§ 404.1520(a)(4)(iv), (f). If a claimant has the RFC to perform

their past relevant work, they are not disabled. 20 C.F.R.

§ 404.1520(a)(4)(iv). The ALJ found that Perry had the RFC to

perform “a full range of work at all exertional levels but with no

exposure to workplace hazards, such as unprotected heights and

dangerous machinery. (R. 658-59.) Based on Perry’s RFC, the ALJ

found that Perry was unable to perform any past relevant work. (R.

662.)

In reaching the RFC determination, the ALJ discussed Perry

and his wife Juliet Perry’s testimony and the medical evidence in

the record. The ALJ summarized their testimony as follows:

The claimant and his wife both testified at the original

hearing. They alleged the claimant suffers from medical

conditions that caused him to experience seizures,

dizziness, loss of consciousness, fatigue, and

difficulty bending, standing, walking, remembering, and

concentrating. Specifically, they alleged that the

claimant experienced “blackout” seizures on at least a

weekly basis and grand mal seizures at least every other

month prior to the date last insured. Ms. Perry testified

that claimant would have up to five seizures in a day.

In addition, the claimant’s wife alleged the claimant

has difficulty following written instructions, and

cannot pay attention for extended periods. However, they

admitted that the claimant was generally capable of

managing his own personal care and hygiene, preparing

meals, performing typical household chores, reading,

watching sports, attending church regularly, and

spending time with others.

(R. 659) (internal citations omitted). In evaluating the

credibility of Ms. Perry’s opinion, the ALJ stated:

Claimant’s wife, Juliet Perry, testified at the hearing

in April 2014 and assisted Mr. Perry in completing a

function report on September 10, 2012. The function

report at Exhibit 4E reported claimant’s functioning at

the time the report was completed in September 2012. As

such, it offers little assistance as to claimant’s

limitations as of December 31, 2008, the date last

insured. Ms. Perry’s testimony was given over five years

after the date last insured. It is difficult for any

witness to offer specific testimony concerning

limitations five years in the past and to differentiate

those limitations from the present. Ms. Perry’s

testimony in 2014 is not consistent with the treating

records or objective findings prior to the date last

insured. Therefore, her opinion is assessed no weight.

(R. 662.) (internal citations omitted). The ALJ concluded that

“the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, the

claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent

with the medical evidence and other evidence in the record. . .”

(Id.)

The ALJ then considered Perry’s medical records and treatment

history, noting that the record shows that Perry continued to work

after the alleged onset date and after the date last insured. (Id.)

The ALJ stated:

Medical records substantiate a seizure-like episode that

occurred on a work site in December 2009 witnessed by

the claimant’s foreman, as indicated by ambulance

personnel records. The claimant also sought treatment

for bronchitis in November 2010, apparently triggered by

house remodeling dust. Similarly, the record indicates

that he continued to work into 2011, as indicated by

neurology treatment notes. Neurologist Michael

Brueggeman, M.D., warned the claimant against the

inherent risks involved in roofing work in January 2011.

After the claimant reported a mild seizure the following

month, his wife attributed this episode to his “working

very hard that day.”

(R. 659-60.) Further, the ALJ found that the bulk of the medical

evidence in the records concerned examinations, illnesses, and

impairments that were diagnosed and treated after the date Perry

was last insured, December 31, 2008. (R. 660.) The ALJ stated,

“[w]hile the undersigned has considered these treatment notes for

context of the claimant’s severe impairments, the claimant must

establish, through the medical record, that he was disabled on or

before December 31, 2008 in order to be entitled to a period of

disability and disability insurance benefit.” (R. 660.) The ALJ

summarized Perry’s medical records prior to December 31, 2008:

The records prior to the date last insured are sparse.

The medical evidence supports that the claimant has a

history of high blood pressure, which was generally

controlled with medications. However, the claimant had

notable periods of noncompliance, which appeared to

contribute to episodic seizures. As noted above,

claimant was hospitalized from September 12, 2005 until

September 15, 2005 due to a seizure secondary to

hypertensive encephalopathy. It was noted that he was

not compliant with his hypertension medication and

drinking a six pack of beer per day at the time of

hospitalization. Claimant’s medications were adjusted.

However, he was not started on antiepileptic medications

following an extensive neurological workup, because the

claimant’s seizure was considered secondary to

hypertensive encephalopathy. A head CT revealed no

evidence of acute intracranial process, and chest x-rays

were similarly negative.

There are no further report of seizures or seizure-like

activity until June 10, 2007. On that date, claimant was

treated for a reported seizure. It was noted that

claimant was not on medications to control seizures and

that he had not taken his blood pressure medications

“since yesterday morning.” His blood pressure was

elevated. His wife reported to EMS that he had a seizure

two months prior. He was treated and released the same

day. It was noted as a “single isolated seizure.” On

September 5, 2007, an ambulance was dispatched to

respond to a “near syncope” event at ABC Supply Company,

which is listed in the EMS records as an “industrial

place or premises.” Bystanders reported that claimant

was looking into space and not responding. It was noted

that claimant advised EMS that he has Jacksonian

seizures and takes medication for them, but forgot to

take his medication that morning. Claimant’s wife was

contacted by phone. Claimant and his wife both requested

that claimant not be transported to the hospital. He was

not transported to the hospital.

Claimant started treatment with Family Healthcare of

Jackson on April 10, 2006. At that time, claimant was

reportedly taking blood pressure medications and

aspirin. He did not report a personal history of epilepsy

or seizure disorder at intake. (Exhibit 9F, p. 28) He

was seen at this clinic nine times prior to the date

last insured of December 31, 2008. These records are

largely illegible. However, they do not detail

uncontrolled or frequent seizures. The records primarily

relate to refills of medications for hypertension with

some notation of non-compliance. The only clear

reference to seizures prior to the date last insured in

these records was on September 5, 2008 where Dr. Stewart

noted “possible seizure.” On the June 21, 2007 note,

there may be a reference to a seizure and the emergency

room visit on June 10, 2007, but is unclear. It does not

appear that any other record references seizures. At

some point, claimant was prescribed Keppra as it is

referenced in Dr. Stewart’s note of September 5, 2008.

It is unclear when this medication was first prescribed.

According to the medical records, claimant reported that

he was not prescribed any seizure medications when he

was treated for a reported seizure on June 10, 2007, but

reported to EMS that he was prescribed seizure

medication (but failed to take it) on September 5, 2007.

Aside from episodic emergency room treatment for

periodic seizures in the context of not complying with

prescribed medication, the record contains minimal

evidence of ongoing treatment that would suggest more

significant impairment during the period at issue.

Therefore, the undersigned concludes that, while the

claimant should have certainly avoided hazardous

situations including working at unprotected heights or

around dangerous machinery due to his seizure disorder,

the record contains minimal evidence suggesting any

further limitations that existed between January 1, 2004

and December 31, 2008.

(R. 660-61) (internal citations omitted.) The ALJ also considered

the opinions of two State medical consultants, who reviewed Perry’s

medical records as part of his benefits application. (R. 661.) In

assessing their opinions, the ALJ stated the following:

[T]he undersigned accords great weight to the

determination of the State agency medical consultants,

who determined the claimant had no exertional

limitations, but should have avoided all exposure to

hazards during the period at issue. This determination

is accorded great weight because it is well supported by

the objective medical evidence which shows that the

claimant suffered periodic events during the relevant

period, typically in association with medication

noncompliance. However, there is minimal evidence of

other impairments or ongoing treatment during the period

at issue that would suggest further impairment. Where

noted, physical examinations demonstrated generally

normal findings, without evidence of neurological

impairment. Therefore, the determinations of the medical

consultants are accorded great weight.

(Id.) (internal citations omitted.)

The ALJ also considered the evaluation of Perry’s treating

physician, Dr. Earl Stewart, stating:

No weight is accorded to the statement of Earl Stewart,

M.D., who submitted a form indicating that the claimant

met the seizure listing and is not able to work due to

grand mal seizures prior to December 31, 2008. This

opinion is not persuasive for multiple reasons. First,

Dr. Stewart fails to provide any assessment of the

claimant’s functional limitations attributable to his

seizure disorder. It is a wholly conclusory finding that

claimant is not able to work and meets the listing for

seizures. The determination of whether the claimant is

able to work or meets/equals a listing are issues

reserved to the Commissioner.

Additionally, Dr. Stewart’s opinion was rendered on

March 31, 2014, over five years after the claimant’s

date last insured. Dr. Stewart’s own treatment notes,

where legible, indicate that the claimant had generally

normal physical functioning prior to the date last

insured. This opinion further states that the claimant’s

medications were at therapeutic levels, yet seizures

continued. However, this statement is not supported by

the record during the period at issue. As detailed above,

medical records indicate the claimant’s few documented

seizures or seizure-like events occurred in the presence

of medication noncompliance. No contemporaneous medical

records substantiate the presence, reports or

allegations of seizures occurring more frequently than

once a month in spite of prescribed treatment. As noted

above, prior to the date last insured, there are a total

of five possible events documented from the alleged

onset of January 1, 2004 through December 31, 2008. There

was a seizure in 2005 due to noncompliance with

hypertension medication, two potential seizure events in

2007 where an ambulance was dispatched with reports of

noncompliance with medication. One additional potential

seizure event reported by claimant’s wife to EMS in June

2007 and one reference to a “possible seizure” in Dr.

Stewart’s notes in September 2008. Such objective

records do not support uncontrolled seizures occurring

more frequently than once a month in spite of at least

three months of prescribed treatment, nor does it

support seizures continued during the relevant period

despite medication being a therapeutic levels. As such,

the opinion of Dr. Stewart is accorded no weight.

(R. 661-62) (internal citations omitted.) In light of this

evidence, the ALJ concluded that Perry has the RFC to perform a

full range of work at all exertional levels with no exposure to

workplace hazards. (R. 662.) A vocational expert testified that “a

hypothetical individual with the same age, education, work history

and residual functional capacity as the claimant” would be unable

to perform Perry’s past relevant work as a Roofer. (R. 663.) The

ALJ agreed with this assessment. (Id.)

Finally, at step five, the ALJ found that “considering the

claimant’s age, education, work experience, and residual

functional capacity, there were jobs that existed in significant

numbers in the national economy that the claimant could have

performed.” (R. 663.) The ALJ explained that Perry’s “ability to

perform work at all exertional levels was compromised by

nonexertional limitations.” (R. 664.) The vocational expert

testified that, considering these limitations along with Perry’s

age, education, RFC, and work experience, Perry would be able to

perform the requirements of representative occupations, such as

“industrial cleaner,” “grounds keeper,” and “Nursery Worker

(plants).” (Id.) Based on this testimony, the ALJ concluded Perry

“is capable of making a successful adjustment to other work that

exists in significant numbers in the national economy.” (Id.)

On appeal, Perry argues that 1) the ALJ should have found

that Perry met Listing 11.02; 2) the ALJ wrongfully dismissed the

findings of Perry’s treating physician; 3) the ALJ erred by failing

to contact the treating physician when he found records to be

illegible; 4) the ALJ improperly granted weight to DDS source forms

and statements from non-examining reviewing experts; and 5) the

ALJ’s decision is not supported by substantial evidence.

II. ANALYSIS

A. Standard of Review

Under 42 U.S.C. § 405(g), a claimant may obtain judicial

review of any final decision made by the Commissioner after a

hearing to which they were a party. “The court shall have power to

enter, upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the

Commissioner's decision is limited to whether there is substantial

evidence to support the decision and whether the Commissioner used

the proper legal criteria in making the decision. Id.; Cardew v.

Comm'r of Soc. Sec., 896 F.3d 742, 745 (6th Cir. 2018); Cole v.

Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm'r of

Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence

is more than a scintilla of evidence but less than a preponderance

and is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Kirk v. Sec'y of Health &

Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971)).

In determining whether substantial evidence exists, the

reviewing court must examine the evidence in the record as a whole

and “must ‘take into account whatever in the record fairly detracts

from its weight.’” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.

1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.

1984)). If substantial evidence is found to support the

Commissioner's decision, however, the court must affirm that

decision and “may not even inquire whether the record could support

a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794

(6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs.,

893 F.2d 106, 108 (6th Cir. 1989)). Similarly, the court may not

try the case de novo, resolve conflicts in the evidence, or decide

questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d

709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506,

509 (6th Cir. 2007)). Rather, the Commissioner, not the court, is

charged with the duty to weigh the evidence, to make credibility

determinations, and to resolve material conflicts in the

testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th

Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990).

B. Whether Substantial Evidence Supported the ALJ’s Step Three

Finding

Perry argues that the ALJ should have found that Perry met

the pre-2016 listing 11.02. The claimant bears the burden of

showing their impairments meet or equal a listed impairment. See 20

C.F.R. § 416.920(a)(4)(iii); Rhodes v. Comm’r Soc. Sec., No. 15-

cv-1230-TMP, 2018 WL 1811290, at *5 (W.D. Tenn. Apr. 17, 2018)

(citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001)). “A

claimant can demonstrate that [they are] disabled because [their]

impairments are equivalent to a listed impairment by presenting

‘medical findings equal in severity to all the criteria for the

one most similar listed impairment.’” Rhodes, 2018 WL 1811290, at

*5 (quoting Foster, 279 F.3d at 354). To satisfy Listing 11.02 for

the disability of epilepsy, an individual must suffer more than

one seizure a month with at least three months of treatment and

the record must contain a description of a typical seizure. See 20

C.F.R. Pt. 404 Subpt. P, App. 1, § 11.02. The ALJ recognized that

the medical evidence submitted by Perry was insufficient to compel

a finding of disabled under this listing. Specifically, the ALJ

noted that Perry’s medical records did not show that he experienced

more than one seizure a month. (R. 658.) Indeed, between the

alleged onset date of January 1, 2004, through the date last

insured of December 31, 2008, the ALJ identified only five seizure

events in Perry’s medical records. (R. 660-62.)

Perry argues that his treating physician, Dr. Stewart, stated

in his opinion that Perry “suffers seizures at the listing level

and frequency, with more than 3 months of treatment and medications

at therapeutic levels, from before the last date insured.” (ECF

No. 16 at PageID 1378.) However, the ALJ found that Dr. Stewart’s

opinion was conclusory and not supported by contemporaneous

medical records. (R. 661-62.)

Perry wife testified at the original hearing that Perry

“experienced ‘blackout’ seizures on at least a weekly basis and

grand mal seizures at least every other month prior to the date

last insured.” (R. 659.) She also stated that Perry would have up

to five seizures per day. (R. 659.) However, the ALJ provided

sufficient reasons for discounting Ms. Perry’s credibility. The

ALJ found that Ms. Perry’s testimony was not consistent with the

medical records prior to the date last insured. (R. 662.)

Additionally, her testimony was given five years after the date

last insured, and the ALJ stated “it is difficult for any witness

to offer specific testimony concerning limitations five years in

the past and to differentiate those limitations from the present.”

(R. 662.) Thus, the ALJ’s determination that Perry did not meet or

medically equal Listing 11.02 was supported by substantial

evidence.

C. Whether the ALJ’s Assessment of the Opinion Evidence Was

Supported by Substantial Evidence

1. Dismissal of Treating Physician Opinion

Perry argues that the ALJ erroneously dismissed the opinion

of his treating physician, Dr. Stewart. (ECF No. 16 at PageID

1378.) As a preliminary matter, because Perry filed his application

for benefits before March 27, 2017, the ALJ was required to adhere

to 20 C.F.R. § 404.1527 in considering medical opinions and prior

administrative medical findings in the record. See Jones v.

Berryhill, 392 F. Supp. 3d 831, 839 (E.D. Tenn. 2019). For claims

filed after March 27, 2017, 20 C.F.R. § 404.1520c governs the

evaluation of medical opinion evidence. The distinction is

meaningful because the revisions to the regulatory language

“eliminate the ‘physician hierarchy,’ deference to specific

medical opinions, and assigning ‘weight’ to a medical opinion.”

Lester v. Saul, No. 5:20CV1364, 2020 WL 8093313, at *10 (N.D. Ohio,

Dec. 11, 2020), report and recommendation adopted by, 2021 WL

119287 (N.D. Ohio Jan. 13, 2021) (quoting Ryan L.F. v. Comm'r of

Soc. Sec., No. 6:18-cv-01958-BR, 2019 WL 6468560, at *4 (D. Ore.

Dec. 2, 2019)). In other words, claims filed before March 27, 2017,

which fall under 20 C.F.R. § 404.1527, are subject to the “treating

physician rule.” Jones, 392 F. Supp. 3d at 839.

A treating source's opinion is due controlling weight if it

is “well-supported by medically acceptable clinic and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in [the claimant's] case record.” 20 C.F.R.

§ 416.927(c)(2); Turk v. Comm'r of Soc. Sec., 647 F. App'x 638,

640 (6th Cir. 2016). If the ALJ discounts the weight normally given

to a treating source opinion, he or she must explain his or her

decision. 20 C.F.R. § 416.927(c)(2). “Where an ALJ does not give

controlling weight to a treating source opinion, [he or she] weighs

that opinion in light of the regulations, using the factors in 20

C.F.R. § 404.1527(c)(2)-(6).”4 Perry v. Comm'r of Soc. Sec., 734

F. App'x 335, 339 (6th Cir. 2018). These factors are: “the length,

nature, and extent of the treatment relationship; the

4The same factors can now be found at 20 C.F.R. § 416.927(c).

supportability of the physician's opinion and the opinion's

consistency with the rest of the record; and the physician's

specialization.” Steagall v. Comm'r of Soc. Sec., 596 F. App'x

377, 380 (6th Cir. 2015) (citing Wilson v. Comm'r of Soc. Sec.,

378 F.3d 541, 544 (6th Cir. 2004)). “The ALJ need not perform an

exhaustive, step-by-step analysis of each factor; [they] need only

provide ‘good reasons’ for both [their] decision not to afford the

physician's opinion controlling weight and for [their] ultimate

weighing of the opinion.” Id. (quoting Biestek v. Comm'r of Soc.

Sec., 880 F.3d 778, 785 (6th Cir. 2017)). “These reasons must be

‘supported by the evidence in the case record, and must be

sufficiently specific to make clear to any subsequent reviewers

the weight the adjudicator gave to the treating source's medical

opinion and the reasons for that weight.’” Dugan v. Comm'r of Soc.

Sec., 742 F. App'x 897, 902-03 (6th Cir. 2018) (quoting Gayheart

v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013)); see

also SSR 96–2p, 1996 WL 374188, at *5 (July 2, 1996). The Sixth

Circuit has explained that, in addition to facilitating meaningful

review, this rule “‘exists, in part, to let claimants understand

the disposition of their cases, particularly in situations where

a claimant knows that her physician has deemed her disabled and

therefore might be especially bewildered when told by an

administrative bureaucracy that she is not, unless some reason for

the agency's decision is supplied.’” Winn v. Comm'r of Soc. Sec.,

615 F. App'x 315, 321 (6th Cir. 2015) (internal alterations

omitted) (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544

(6th Cir. 2004)). “Because of the significance of the notice

requirement . . . a failure to follow the procedural requirement

of identifying the reasons for discounting the opinions and for

explaining precisely how those reasons affected the weight

accorded the opinions denotes a lack of substantial

evidence[.]” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th

Cir. 2007). This is true “even where the conclusion of the ALJ may

be justified based upon the record.” Id.

It is undisputed that Dr. Stewart is a treating physician who

has been Perry’s doctor since 2006. As such, Dr. Stewart’s opinion

is controlling if it is supported by objective medical evidence,

consistent with other substantial evidence in the record, and if

“there is [not] substantial evidence to the contrary.” Wilson, 378

F.3d at 544; Loy v. Sec'y of Health & Human Servs., 901 F.2d 1306,

1308–09 (6th Cir. 1990); C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

The ALJ provides several reasons for giving no weight to Dr.

Stewart’s opinion. First, Dr. Stewart gave a conclusory finding

that Perry was not able to work and met the listing seizure

disorders. However, Dr. Stewart did not provide any assessment of

Perry’s functional limitations that stem from his seizure

disorder. Bass, 499 F.3d at 511 (holding that an ALJ is not

inherently bound by a treating physician’s opinion because “a

conclusion of disability is reserved to the Secretary . . . no

‘special significance’ will be given to opinions of disability,

even if they come from a treating physician.”) Second, Dr.

Stewart’s own treatment notes showed that Perry had “generally

normal physical functioning prior to the date last insured.” The

ALJ found that this was at odds with Dr. Stewart’s opinion that

Perry was disabled. Inconsistency between the opinion of a treating

physician and that physician’s treatment notes is a “good reason”

to discount the opinion. Lester v. Soc. Sec. Admin., 596 F. App’x

387, 389 (6th Cir. 2015) (holding that it was reasonable for the

ALJ to discount a treating physician’s opinion when it was

inconsistent with his own treatment notes). Third, the ALJ found

that Dr. Stewart’s opinion was inconsistent with Perry’s medical

records, which do not show that Perry experienced seizures “more

frequently than once a month, in spite of prescribed treatment.”

(R. 662.) See Keeler v. Comm'r of Soc. Sec., 511 F. App'x 472, 473

(6th Cir. 2013) (holding that there was substantial evidence to

justify giving decreased weight to a treating physician’s opinion

where the opinion was internally inconsistent, based on subjective

complaints, and contradicted by the record).

Although the ALJ did not systematically address each factor

listed in 20 C.F.R. 404.1527, the ALJ noted that Perry had been a

patient of Dr. Stewart since 2006, that Dr. Stewart was a treating

physician, and that Dr. Stewart’s opinion was not consistent with

Perry’s medical records, including Dr. Stewart’s treatment notes.

The only factor the ALJ did not directly address was Dr. Stewart’s

specialization as a physician, which this court has held is not,

on its own, a reason to find reversible error. See Lucy v. Saul,

No. 19-1083-TMP, 2020 WL 1318803, at *6 (W.D. Tenn. Mar. 20, 2020).

An ALJ satisfies their duty where the opinion gives “the claimant

and a reviewing court a clear understanding of the reasons for the

weight given a treating physician’s opinion.” Francis, 414 F.

App'x at 805 (citing Friend, 375 F. App'x at 551). The ALJ has

done so here and, thus, has not committed reversible error.

2. Illegible Portions of the Record

Perry claims that the ALJ erred in failing to recontact Dr.

Stewart, as required by 20 C.F.R. § 404.1519p, when he found

portions of his records partly illegible.5 (ECF No. 16 at PageID

1381.) Section 404.1519p does, in certain circumstances, require

an ALJ to allow for supplementation of a report. See 20

C.F.R. § 404.1519p(b). That section, however, applies only to

reports of consultative examinations, defined as “a physical or

mental examination or test purchased for you at our request and

expense.” Overman v. Kijakazi, No. 1:21-cv-01008-atc, 2022 WL

16859976, at *6 n.2 (W.D. Tenn. Sept. 29, 2022) (citing 20

C.F.R. § 404.1519). Dr. Stewart was plaintiff’s treating physician

5Perry has not identified any relevant evidence in Dr. Stewart’s

notes that the ALJ failed to consider.

and not a consultative examiner. Therefore, § 404.1519p(b)is

inapplicable, and the ALJ was not obligated to provide Dr. Stewart

with an opportunity to supplement his treatment notes.

3. Non-Examining State Medical Consultants

Perry asserts that the opinions of the non-examining state

medical consultants, Drs. Brown and Thrush, cannot be “substantial

evidence,” seemingly as a matter of law. (ECF No. 16 at 1383.)

(“Richardson clearly holds that to be substantial evidence,

opinions must at least be from examiners, and we urge within the

reporter’s area of expertise.”) The ALJ’s decision here was based

on more than just the administrative reviewers’ assessments, as

discussed above. But even were it not so, Perry’s wider proposition

overreads Richardson far beyond its pages. Richardson itself

contemplated the use of “medical adviser[s]” to provide evidence,

even those who had not examined the patient but nonetheless

examined their records and gave an opinion as to their condition.

See Richardson, 402 U.S. at 408. Further, federal regulations

require ALJs to evaluate administrative medical evidence “because

our Federal or State agency medical or psychological consultants

are highly qualified and experts in Social Security disability

evaluation.” 20 C.F.R. §§ 404.1513a(b)(1). As a matter of law,

these opinions must at least be considered. Where the ALJ finds

them substantiated and consistent, they are within their role in

finding them persuasive as well. The ALJ properly considered the

findings of Drs. Brown and Thrush in accordance with the

regulations.

Perry functionally asks the court to reweigh the evidence and

credit the opinion of Dr. Stewart more than the ALJ did. (ECF No.

16 at PageID 1384.) The court cannot. Blakely, 581 F.3d at 406

(“the substantial-evidence standard . . . presupposes that there

is a zone of choice within which the decisionmakers can go either

way, without interference by the courts”) (citing Mullen v. Bowen,

800 F.2d 535, 545 (6th Cir. 1986)). The undersigned finds that the

ALJ adhered to the regulations in considering medical opinion

evidence, and that the record provides substantial evidence to

support the ALJ’s decision.

III. CONCLUSION

For the reasons above, the decision of the Commissioner is

AFFIRMED.

IT IS SO ORDERED.

s/ Tu M. Pham ____

TU M. PHAM

Chief United States Magistrate Judge

March 1, 2023 ___

Date