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

> District Court, W.D. Tennessee · March 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10441377

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** March 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10441377

## How later opinions describe it (automated extraction)

- 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
- 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.”
- holding that it was reasonable for the ALJ to discount a treating physician’s opinion when it was inconsistent with his own treatment notes

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10441377. Public record. Not legal advice.