Perry v. Commissioner of Social Security

Filing 19

OPINION AND ORDER AFFIRMING the decision of the Commissioner of Social Security. The Clerk is directed to enter judgment in favor of the Commissioner and against Perry. Signed by Magistrate Judge Roger B Cosbey on 12/9/11. (jcp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JODY D. PERRY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CAUSE NO. 1:11-CV-00108

OPINION AND ORDER
Plaintiff Jody Perry appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application under the Social
Security Act (the “Act”) for a period of disability and Disability Insurance Benefits (“DIB”).1
(See Docket # 1.) For the following reasons, the Commissioner’s decision will be AFFIRMED.
I. PROCEDURAL HISTORY
Perry applied for DIB on February 27, 2006, alleging that she became disabled as of
October 23, 2003. (Tr. 12, 15.) She was last insured for DIB on March 31, 2007 (Tr. 15);
therefore, she must establish that she was disabled on or before such date. See Stevenson v.
Chater, 105 F.3d 1151, 1154 (7th Cir. 1997) (explaining that a claimant must establish that she
was disabled as of her date last insured in order to recover DIB benefits).
The Commissioner denied Perry’s application initially and upon reconsideration, and
Perry requested an administrative hearing. (Tr. 49.) Administrative Law Judge (“ALJ”) Ronald

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All parties have consented to the Magistrate Judge. See 28 U.S.C. § 636(c).

Jordan conducted a hearing on October 1, 2008, at which Perry (who was represented by
counsel) and a vocational expert testified. (Tr. 611-33.) Due to the complexity of the medical
evidence, the ALJ held a supplemental hearing on February 23, 2009, at which Perry (who again
was represented by counsel), her mother, a vocational expert, and Jack Thomas, Ph.D., a clinical
psychologist, testified. (Tr. 636-76.)
On May 8, 2009, the ALJ rendered an unfavorable decision to Perry, concluding that she
was not disabled because she could perform a significant number of jobs in the national economy
despite the limitations caused by her impairments. (Tr. 12-22.) The Appeals Council denied
Perry’s request for review, making the ALJ’s decision the final decision of the Commissioner.
(Tr. 4-8.)
Perry filed a complaint with this Court on March 30, 2011, seeking relief from the
Commissioner’s final decision. (Docket # 1.) She primarily argues in this appeal that the ALJ
improperly discounted both the credibility of her symptom testimony and the opinion of her
treating psychologist, Dr. Trexler, who stated that she is disabled.
II. FACTUAL BACKGROUND2
As of her date last insured, Perry was thirty-eight years old, held a Bachelor’s degree in
criminal justice, and was working twenty-five to thirty hours a week as a public speaker in
schools educating students about traumatic brain injuries. (Tr. 15, 44, 57, 618-19.) She also
possessed work experience as a police officer, landscape assistant, and table buser at a
restaurant. (Tr. 57, 621-22, 626, 628.)

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In the interest of brevity, this opinion recounts only the portions of the 676-page record necessary to the

decision.

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A. Perry’s Testimony at the Hearings
At the hearings, Perry testified that she lives in her own home and independently
performs her activities of daily living; she also drives a car, but must take a break after driving
two and one-half hours. (Tr. 619-20, 626, 645.) She reported that, since her brain trauma in
1995, she has difficulty controlling her emotions and interacting with others. (Tr. 623-25.) She
stated that she quit working because she became mentally and physically fatigued on the job,
would feel frustrated and irritable, and then could not keep up with job requirements. (Tr. 619,
622-23.) She contended that when she gets tired, she experiences “split vision.” (Tr. 626.)
Perry’s mother also testified at the hearing, relaying that Perry becomes “easily frustrated
by things” and that everything becomes more difficult for her when she is tired. (Tr. 640, 642,
650.) She elaborated that Perry has difficulty with multi-tasking, is impatient, and that
extraneous noise and activity cause her fatigue. (Tr. 641-43.)
B. Summary of the Relevant Medical Evidence
Perry sustained a closed head injury in a motor vehicle accident in May 1995 while
working as a Connecticut state trooper. (Tr. 14, 233-590.) Two months later, Frances Goff,
Ph.D., Perry’s treating neuropsychologist, performed a detailed assessment and concluded that
Perry had a mild impairment of brain functioning and that her impairments were more related to
motor functioning, motor speed, incidental memory, and visual-spatial skills, rather than
alertness, attention, or abstract concept formation. (Tr. 581-83.) In December 1995, Dr. Goff
opined that Perry was “mentally and emotionally ready to return to independence” and that,
although she likely would not be able to return to the “stringent” requirements of police work,
she would “be able to work in related areas.” (Tr. 589.)

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More than eight years later, in February 2004, Lance Trexler, Ph.D., performed a
neuropsychological evaluation, which indicated that Perry had some deficits in motor speed in
her right arm and right-left confusions, mildly impaired judgment, moderately impaired
concentration and attention, intact memory with some visual memory impairment, average
intelligence, and a “long-term mood of depression.” (Tr. 192-93.) At the time, Perry was not
taking any medication and was working two part-time jobs. (Tr. 191.) Dr. Trexler concluded
that although Perry had some residual emotional and cognitive deficits, including “frontal lobe
personality changes, primarily characterized by depression, flat affect, and irritability,” she had
recovered relatively well from a very severe head injury. (Tr. 193.) He recommended, however,
that she have some supervision when performing complex activities, such as financial
management, and that she might benefit from a neurostimulant to reduce her irritability and
attention deficits. (Tr. 193.)
In April 2004, Perry visited Andrea Conti, D.O., and she prescribed a trial dose of
Ritalin. (Tr. 189.) The next month, Perry reported no noticeable improvement from the Ritalin,
and Dr. Conti doubled the dosage. (Tr. 189.)
In December 2004, Dr. Trexler documented that Perry reported a “good mood”; in
addition, Dr. Maria Solito observed that Perry had a “bright affect” and denied depression,
anxiety, insomnia, and sleep disturbance. (Tr. 224-27.) Dr. Solito noted that Perry wanted to
continue in her job as a public speaker but that she also was “currently looking for a more
challenging with action type of job.” (Tr. 225.) Dr. Trexler’s progress notes in 2005 indicate that
Perry’s affect was brighter and that her mood improved with medication. (Tr. 195-204.)
In June 2006, Perry underwent a consultative mental status examination and Wechsler

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Memory Scale III administered by Barbara Gelder, Ph.D. (Tr. 153-57, 160-64.) She diagnosed
Perry with organic encephalopathy and dysthymia and assigned her a current Global Assessment
of Functioning (“GAF”) score of 55 and a past GAF of 57.3 (Tr. 157.)
The next month, Dr. H.M. Bacchus performed a consultative physical examination. (Tr.
143-46.) Other than noting that Perry had a slightly flat affect, his examination findings were
unremarkable. (Tr. 143-46.) He concluded that Perry retained the functional capacity to perform
general, repetitive-type duties in a simplified, low-challenging work environment. (Tr. 145.)
Also in July 2006, Dr. F. Lavallo, a state agency physician, reviewed Perry’s record and
concluded that she could perform the full range of medium work; that is, she could lift twentyfive pounds frequently and fifty pounds occasionally; stand or walk about six hours in an eighthour workday; sit for about six hours in an eight-hour workday; perform unlimited pushing and
pulling; frequently stoop, kneel, crouch, and crawl; and occasionally climb ramps and stairs but
never ladders, ropes, or scaffolds. (Tr. 16-23.) Dr. Lavallo’s opinion was later affirmed by a
second state agency physician. (Tr. 15.)
That same month, Donna Unversaw, Ph.D., a state agency psychologist, reviewed Perry’s
record and found that she had mild limitations in most categories of understanding and memory,
concentration and persistence, social interaction, and adaption, with the exception of moderate
limitations in her ability to understand, remember, and carry out detailed instructions; maintain
concentration for extended periods; and complete a normal workday and workweek without

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GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed., Text Rev.
2000). A GAF score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers). Id.

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interruptions from psychologically based symptoms. (Tr. 24-26.) She concluded that Perry
retained the capacity to perform simple, repetitive tasks. (Tr. 26.) Dr. Unversaw’s opinion was
later affirmed by F. Kladder, Ph.D., another state agency psychologist. (Tr. 15.)
In October 2006, Dr. Trexler penned a letter to Perry’s attorney stating that Perry had on
multiple occasions attempted to work but failed due to persisting cognitive difficulties from her
head injury. (Tr. 79.) He reported that she also suffered from recurrent episodes of major
depression, which caused deterioration in her functioning. (Tr. 79.) He emphasized that the
neuropsychological testing documented cognitive disturbances, particularly in attention and
working memory, and that she “cannot cognitively keep up with even the simplest of job
demands.” (Tr. 79.)
C. The Medical Expert’s Testimony at the Hearing
Dr. Jack Thomas, a clinical psychologist, testified at the second hearing as a medical
expert. (Tr. 653-75.) He stated that the medical evidence, including the neuropsychological
testing, revealed that Perry did not have much of a cognitive impairment and that her memory
and intelligence scores were in the average to low-average range. (Tr. 655-57.) Specifically, Dr.
Thomas summarized: “The objective evidence suggest largely all of her cognitive scores are
intact, and even her lowest cognitive scores are in the 40th percentile, and . . . the 40th percentile
is still in the average range.” (Tr. 670.) He further opined that any inattentiveness, concentration
difficulties, or inflexibility that Perry experienced would not be severe. (Tr. 661, 671.) Dr.
Thomas concluded that Perry had the capacity to perform simple, repetitive work as well as
some detailed and executive tasks. (Tr. 663.)

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III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The
Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003). Nonetheless, “substantial evidence” review should not be a simple rubber-stamp
of the Commissioner’s decision. Clifford, 227 F.3d at 869.
IV. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB if she establishes an “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). A physical or mental impairment is “an

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impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §
404, Subpt. P, App. 1; (4) whether the claimant is unable to perform her past work; and (5)
whether the claimant is incapable of performing work in the national economy.4 See 20 C.F.R. §
404.1520; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). An affirmative answer
leads either to the next step or, on steps three and five, to a finding that the claimant is disabled.
Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer at any point other than
step three stops the inquiry and leads to a finding that the claimant is not disabled. Id. The
burden of proof lies with the claimant at every step except the fifth, where it shifts to the
Commissioner. Clifford, 227 F.3d at 868.
B. The ALJ’s Decision
On May 8, 2009, the ALJ rendered his decision. (Tr. 12-22.) He found at step one of the
five-step analysis that Perry had not engaged in substantial gainful activity after her alleged
onset date. (Tr. 16.) At step two, he concluded that the residuals of the closed head injury Perry
sustained in 1995 constitute a severe impairment. (Tr. 15.) The ALJ then at step three
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Before performing steps four and five, the ALJ must determine the claimant’s residual functional capacity
(“RFC”) or what tasks the claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a). The RFC
is then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20
C.F.R. § 404.1520(e).

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determined that Perry’s impairment or combination of impairments were not severe enough to
meet a listing. (Tr. 17.)
Before proceeding to step four, the ALJ found that Perry’s subjective complaints were
“less than fully credible” (Tr. 20) and that as of her date last insured she had the following RFC:
[T]he claimant has the residual functional capacity to perform a full range of work
at all exertional levels, including heavy/very heavy work. Giving the claimant the
full benefit of doubt with regard to her allegations and subjective complaints it is
found that she is limited to simple, repetitive tasks which would afford the
claimant her own workstation at which the work is performed. She is further
limited to low stress work that would require only superficial contact with
supervisors and co-workers. She should not be expected to perform jobs that
would require contact with the general public.
(Tr. 18). Based on this RFC and the vocational expert’s testimony, the ALJ concluded at step
four that Perry was unable to perform her past relevant work as a police officer. (Tr. 20.) The
ALJ concluded at step five, however, that she could perform a significant number of other jobs
within the economy, including packer, assembler, and machine tender/feeder. (Tr. 21.)
Therefore, Perry’s claim for DIB was denied. (Tr. 22.)
C. The ALJ’s Credibility Determination Will Not Be Disturbed
Perry first contends that the ALJ improperly discounted the credibility of her testimony
of debilitating limitations. The ALJ’s credibility determination, however, will not be disturbed.
Because the ALJ is in the best position to evaluate the credibility of a witness, his
determination is entitled to special deference. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000). If an ALJ’s determination is grounded in the record and articulates his analysis of the
evidence “at least at a minimum level,” Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988); see
Ottman v. Barnhart, 306 F. Supp. 2d 829, 838 (N.D. Ind. 2004), creating “an accurate and
logical bridge between the evidence and the result,” Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th
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Cir. 2006), her determination will be upheld unless it is “patently wrong.” Powers, 207 F.3d at
435; see also Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (remanding an ALJ’s
credibility determination because the ALJ’s decision was based on “serious errors in reasoning
rather than merely the demeanor of the witness . . . .”).
Here, the ALJ found Perry’s testimony of debilitating limitations was “less than fully
credible.”5 (Tr. 20.) In doing so, the ALJ adequately considered the various factors set forth in
20 C.F.R. § 404.1529(c) and Social Security Ruling 96-7p for assessing a claimant’s credibility.
First, the ALJ considered Perry’s activities of daily living. (Tr. 19-20.) He noted that
Perry lived alone; is independent in her self care; drives a car; performs her own household
chores including cooking, cleaning, laundry, and grocery shopping; and enjoys working out,
going to the lake, and having dinner with friends. (Tr. 19-20); 20 C.F.R. § 404.1529(c)(3)(i); see
Rice, 384 F.3d 363 at 371 (finding that the ALJ properly considered the claimant’s daily
activities, among other factors, when assessing her credibility); Schmidt, 395 F.3d at 746-47
(considering claimant’s performance of daily activities as a factor when discounting claimant’s
credibility). In addition, the ALJ considered that, when taking medication, Perry was able to
make as many as seven presentations in one day and between one and four engagements per
week in her job as a public speaker, which was skilled and stressful work. (Tr. 20.) He also
noted that in May 2008 Perry worked part time as a pet and house sitter. See Berger v. Astrue,

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Perry contends that the ALJ found Perry fully credible because when assigning her RFC he stated that he
was “[g]iving [her] the full benefit of doubt with regard to her allegations and subjective complaints.” (Tr. 18.)
Perry’s nitpicking of the ALJ’s phraseology, however, is unavailing. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.
2004) (explaining that when reviewing the ALJ’s decision, the court will “give the opinion a commonsensical
reading rather than nitpicking at it”). When penning his credibility determination, the ALJ expressly found Perry’s
symptom testimony “less than fully credible,” a fact which she blatantly ignores. Id. (“[The claimant’s] argument
amounts to nothing more than a dislike of the ALJ’s phraseology.”).

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516 F.3d 539, 546 (7th Cir. 2008) (finding that claimant’s ability to work part-time undermined
his claim of total disability).
The ALJ also considered the objective medical evidence when determining the credibility
of Perry’s complaints. See Eichstadt v. Astrue, 534 F.3d 663, 558 (7th Cir. 2008) (“The claimant
bears the burden of producing medical evidence that supports her claims of disability.”). He
noted that the medical evidence indicated that Perry’s memory skills were in the low average
range and that her depression and fatigue improved with medication. (Tr. 20.) In addition, he
emphasized that her allegations of visual problems lacked objective support, as a July 2006
examination reflected that her uncorrected vision was 20/20 in both eyes. (Tr. 20.) He also
found that there were no objective findings to support her complaints of chronic neck and
shoulder pain. (Tr. 20.) Of course, an ALJ is entitled to consider the objective medical evidence,
or lack thereof, as a factor in assessing credibility. 20 C.F.R. § 404.1529(c)(2); SSR 96-7p; see
Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (“[S]ubjective complaints need not be
accepted insofar as they clash with other, objective medical evidence in the record.”); Smith v.
Apfel, 231 F.3d 433, 439 (7th Cir. 2000) (“[A]n ALJ may consider the lack of medical evidence
as probative of the claimant’s credibility.”); Crawford v. Astrue, 633 F. Supp. 2d 618, 633 (N.D.
Ill. 2009) (“[A]n ALJ may properly discount portions of a claimant’s testimony based on
discrepancies between [the c]laimant’s allegations and objective medical evidence.”).
In addition, the ALJ observed that Perry’s symptoms improved with medication and that
there was no evidence that she suffered adverse side effects from its use. (Tr. 19.) The ALJ is
certainly entitled to consider the types of treatment, or lack thereof, that a claimant has
undergone when determining her credibility. 20 C.F.R. § 404.1529(c)(3) (considering a

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claimant’s use of medications and treatment measures as two factors in analyzing claimant’s
subjective symptoms); see Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005) (finding
that claimant’s subjective complaints of disabling pain were not entirely credible where the
claimant’s treatment was “routine and conservative”); Ellis v. Astrue, No. 2:09-cv-145, 2010 WL
3782265, at *20 (N.D. Ind. Sept. 20, 2010) (affirming the ALJ’s discounting of claimant’s
complaints of debilitating fatigue given the discrepancies between her self-reported symptoms
and the lack of treatment for the purported condition); SSR 96-7p.
Moreover, although the ALJ did not fully credit Perry’s subjective symptom testimony,
he did recognize that the record indicated that Perry certainly experienced some residual
limitations from her brain injury. (Tr. 18.) Accordingly, the ALJ restricted Perry to performing
simple, repetitive tasks at her own workstation in a low stress situation that would require only
superficial contact with supervisors and co-workers and no contact with the public. (Tr. 18.)
Thus, the ALJ did indeed credit Perry’s symptom testimony to some degree, acknowledging that
she experiences some limitations from her brain injury. See, e.g., Vincent v. Astrue, No. 1:07-cv28, 2008 WL 596040, at *16 (N.D. Ind. Mar. 3, 2008) (affirming ALJ’s credibility determination
where he discredited the claimant’s symptom testimony only in part).
In sum, the ALJ adequately considered the credibility of Perry’s symptom testimony in
accordance with the factors identified in 20 C.F.R. § 404.1529(c) and Social Security Ruling 967p and determined that the evidence did not support the alleged severity of her impairments. In
doing so, the ALJ adequately built an accurate and logical bridge between the evidence and his
conclusion that Perry’s symptom testimony was less than fully credible, and his determination is
not “patently wrong.” Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000); Powers, 207 F.3d at

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435. Therefore, the ALJ’s credibility determination, which is entitled to special deference,
Powers, 207 F.3d at 435, will not be disturbed.
D. The ALJ’s Discounting of Dr. Trexler’s Opinion Is Supported by Substantial Evidence
Perry also contends that the ALJ improperly discounted Dr. Trexler’s letter to her
attorney, which stated that she “cannot cognitively keep up with even the simplest of job
demands.” (Tr. 79.) The ALJ’s decision to discount this evidence, however, is indeed supported
by substantial evidence.
The Seventh Circuit Court of Appeals has instructed that “more weight is generally given
to the opinion of a treating physician because of his greater familiarity with the claimant’s
conditions and circumstances.” Clifford, 227 F.3d at 870; see 20 C.F.R. § 404.1527(d)(2).
However, this principle is not absolute, as “a treating physician’s opinion regarding the nature
and severity of a medical condition is [only] entitled to controlling weight if it is well supported
by medical findings and not inconsistent with other substantial evidence in the record.”6 Clifford,
227 F.3d at 870; see Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002); 20 C.F.R. §
404.1527(d)(2).
Furthermore, a claimant is not entitled to DIB simply because his treating physician
opines that he is “unable to work” or “disabled.” Clifford, 227 F.3d at 870. The determination of

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In the event the treating physician’s opinion is not well supported or is inconsistent with other substantial
evidence, the Commissioner must apply the following factors to determine the proper weight to give the opinion: (1)
the length of the treatment relationship and frequency of examination; (2) the nature and extent of the treatment
relationship; (3) how much supporting evidence is provided; (4) the consistency between the opinion and the record
as a whole; (5) whether the treating physician is a specialist; and (6) any other factors brought to the attention of the
Commissioner. 20 C.F.R. § 404.1527(d); see Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996).

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disability is reserved to the Commissioner.7 Id.; Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th Cir.
1995); 20 C.F.R. § 404.1527(e)(1). Regardless of the outcome, the Commissioner must always
give good reasons for the weight ultimately applied to the treating source’s opinion. Clifford, 227
F.3d at 870; 20 C.F.R. § 404.1527(d)(2).
Here, the ALJ discussed Dr. Trexler’s opinion in detail, penning three paragraphs on the
matter. (Tr. 24-25.) Ultimately, however, he chose to assign “little weight” to Dr. Trexler’s
opinion that Perry was disabled (expressed in the October 12, 2006, letter to Perry’s attorney),
finding it lacked objective support and was inconsistent with other medical evidence of record.
(Tr. 19.)
More particularly, the ALJ emphasized that Dr. Trexler’s letter to Perry’s attorney did
not cite any objective evidence to support its conclusion that she was disabled. See Luster v.
Astrue, 358 F. App’x 738, 740 (7th Cir. 2010) (unpublished) (discounting treating physician’s
opinion that claimant could not work a full day where it was not supported by clinical findings or
diagnostic tests). Of course, “[a]n ALJ need not give controlling weight to a treating physician’s
opinion if it is not supported by objective clinical findings.” Henderson v. Apfel, 179 F.3d 507,
514 (7th Cir. 1999); see Smith, 231 F.3d at 441 (collecting cases); 20 C.F.R. § 404.1527(d)(3)
(“The more a medical source presents relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight [the ALJ] will give that opinion.”).
In addition, the ALJ observed that Dr. Trexler’s opinion finding Perry disabled was

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That is, “a medical source statement must not be equated with the administrative finding known as the
RFC assessment,” which is “based upon consideration of all relevant evidence in the case record, including medical
evidence and relevant nonmedical evidence, such as observations of lay witnesses of an individual’s apparent
symptomology, an individual’s own statement of what he or she is able or unable to do, and many other factors that
could help the adjudicator determine the most reasonable findings in light of all the evidence.” SSR 96-5p (emphasis
added); see 20 C.F.R. § 404.1545.

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inconsistent with the results of her psychometric testing, which indicated that her cognitive
abilities were in the average range and memory skills in the low average range. (Tr. 19.) The
ALJ also found Dr. Trexler’s opinion inconsistent with Dr. Solito’s September 2005 note,
reflecting Dr. Trexler’s view that Perry was “showing improvements” with Ritalin and,
accordingly, that she was “ready to be weaned down with visits further apart.” (Tr. 126.) Of
course, an ALJ is entitled to discount a medical source opinion when it is inconsistent with the
other evidence of record. 20 C.F.R. § 404.1527(d) (“Generally, the more consistent an opinion is
with the record as a whole, the more weight we will give to that opinion.”); see Schmidt v.
Astrue, 496 F.3d 833, 842 (7th Cir. 2007) (discounting treating physician’s opinion that claimant
was unable to perform even sedentary work where it was inconsistent with other medical
evidence of record); Books, 91 F.3d at 979 (stating that an ALJ must consider a variety of
factors, including the consistency of the evidence, when assessing conflicting medical opinion
evidence).
In light of these inconsistencies and the lack of objective medical evidence, the ALJ
reasonably determined that “the evidence as a whole did not lend credibility to [Dr. Trexler’s]
restrictive assessment of [Perry’s] functional capacity.” Smith, 231 F.3d at 442. Of course, as the
Seventh Circuit has noted, “a claimant’s treating physician may be biased in favor of the
claimant.” Id. That is, “[t]he patient’s regular physician may want to do a favor for a friend and
client, and so the treating physician may too quickly find disability.” Schmidt v. Astrue, 496 F.3d
833, 842 (7th Cir. 2007) (quoting Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985)); see
Dixon, 270 F.3d at 1177 (questioning the validity of treating physician’s opinion where it was
provided in response to a question prepared by the claimant’s attorney and failed to cite

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objective medical evidence in support).
Instead, the ALJ assigned an RFC consistent with the opinions of Dr. Unversaw, Dr.
Kladder, Dr. Bacchus, and Dr. Thomas, who all determined that Perry retained the capacity to
perform simple, repetitive tasks. (Tr. 17, 126, 145, 663.) Of course, “[t]he regulations, and this
Circuit, clearly recognize that reviewing physicians and psychologist[s] are experts in their field
and the ALJ is entitled to rely on their expertise.” Ottman, 306 F. Supp. 2d. at 839; see 20 C.F.R.
§ 404.1527(f)(2)(i) (“State agency medical and psychological consultants and other program
physicians and psychologists are highly qualified physicians and psychologists who are also
experts in Social Security disability evaluation.”).
In sum, Perry has failed to show that a remand is warranted based on the ALJ’s
consideration of Dr. Trexler’s opinion. This Court simply cannot accept her plea to reweigh the
medical source evidence in the hope that it will come out in her favor this time.8 See Cannon v.
Apfel, 213 F.3d 970, 974 (7th Cir. 2000) (explaining that the court is not allowed to substitute its

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Perry also argues that her several unsuccessful work attempts conclusively establish that she is disabled.
(See Tr. 596-600.) She does not suggest, however, much less prove, that any of her past jobs (for example, busing
tables, landscaper, or public speaker) reflect the limitations assigned in her RFC—that is, low stress work consisting
of simple, repetitive tasks performed at her own workstation with only occasional contact with supervisors or
coworkers and no contact with the public. In fact, an agency representative indicated just the opposite. (Tr. 101
(“The attorney rep submitted letters from workplaces [claimant] has attempted to work at—however, it is noted that
these job descriptions are more than simple 1-2 step types of work.”).)
In addition, Perry suggests in her reply brief that the Commissioner failed to respond to her argument “that
she meets a listing.” (Reply Br. 4.) Perry, however, did not develop this argument in her opening brief, and therefore
it is deemed waived. United States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000) (stating that the Seventh Circuit has
“repeatedly ha[s] made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived”); see also Clarett v. Roberts , 657 F.3d 664, 674 (7th Cir. 2011); Gross v. Town of
Cicero, 619 F.3d 697, 704-05 (7th Cir. 2010). In any event, “[t]o meet the requirements of a listing, [a claimant]
must have a medically determinable impairment(s) that satisfies all of the criteria of the listing.” 20 C.F.R. §
404.1525(d). Here, Perry makes no effort to connect the evidence she cites to the requirements of Listing 12.02 to
show that she met all of its requirements—a burden that is hers to bear. Rice, 384 F.3d at 369-70; Sims v. Barnhart,
309 F.3d 424, 429 (7th Cir. 2002). Furthermore, Dr. Thomas specifically opined at the hearing that the evidence of
record indicated that Perry’s deficits were non-severe and did not satisfy Listing 12.02. (Tr. 652-74.)

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judgment for the ALJ by “reweighing evidence” or “resolving conflicts in evidence”).
IV. CONCLUSION
For the reasons articulated herein, the decision of the Commissioner is AFFIRMED. The
Clerk is directed to enter a judgment in favor of the Commissioner and against Perry.
SO ORDERED.
Enter for this 9th day of December, 2011.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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