NONPRECEDENTIAL DISPOSITION

To cited accordance Fed. R. App. P. 32.1 United States Court of Appeals

For Seventh Circuit

Chicago, Illinois Argued December Decided January

Before

WILLIAM J. BAUER, Circuit Judge KENNETH F. RIPPLE, Circuit Judge DIANE S. SYKES, Circuit Judge No. ‐

DANNY McFADDEN, Appeal United States District

Plaintiff ‐ Appellant Court Eastern District Wisconsin. v . 2:15 cv WED

NANCY A. BERRYHILL, William E. Duffin, Acting Security, Magistrate Judge .

Defendant Appellee .

O R D E R

Danny challenges denial application Disability Insurance Benefits Supplemental Income. An administrative law judge severely impaired myriad conditions, including obesity, hypertension, diabetes, esophagitis, reflux disease, left shoulder rotator cuff tendinitis, vein disease, degenerative joint left knee, torn medial meniscus right knee. these impairments disabling. magistrate judge, presiding consent, upheld decision. appeal insufficiently explained assign little weight physician’s argues 17 ‐ 1597 2 erroneously rejected his additional evidence, which he maintains was “new and material.” We affirm.

Background

McFadden drove a transport bus handicapped people until his bus was rear ended a semi ‐ truck in 2007. Since then he has complained of back and knee pain, has gained roughly pounds (exacerbating his obesity), and has developed type II diabetes, vein disease, esophagitis, and reflux disease. years old of original disability onset date—mid 2007—which fell roughly a month after accident. McFadden later amended onset date 50th birthday, August had effect shifting age category under regulations favorable category “[p]erson closely approaching advanced age.” 404.1563(d), 416.963(d) (2015).

Dr. Joan Ordman, an agency physician, reviewed initial application and completed Disability Determination Explanation in November 2011. Dr. Ordman recognized felt some discomfort, he could still move about and use limbs “satisfactory manner.” She believed could stand or walk six hours out eight hour workday could lift pounds occasionally pounds frequently. Although credited complaints “severe knee problems limited movement causing pain,” stated could occasionally kneel, crouch, crawl, could freely stoop.

Dr. Agnes Lun, another agency physician, examined September 2012. She reported difficulty standing, relied heavily cane, antalgic gait (a induced limp). In Dr. Lun’s opinion, could stand minutes time, walk only one block, could lift pounds (but carry pounds).

An agency consultative physician, Dr. Mina Khorshidi, reviewed Dr. Lun’s report shortly it made produced own report. Khorshidi considered Lun’s overly restrictive relied subjective report symptoms substantially record. Khorshidi’s own conclusions echoed Ordman’s, stating fit light stand sit up six hours work day. She lifting slightly limited (only pounds occasionally pounds frequently) and his posture slightly less limited, finding only that he could kneel than frequently. last came from McFadden’s primary care physician since 2009, Dr. Adedapo Okusanya. Dr. Okusanya treated McFadden primarily for his diabetes (which often went uncontrolled), hypertension, chronic pain, and reflux. He also directed McFadden to specialists surgery on his varicose veins and knee joints. On two page form dated May 2013, Dr. Okusanya circled answers questions regarding McFadden’s functional capacity. Okusanya assigned limitations far severe than those suggested doctors, but he provided practically no comment or explanation. On form, answers reflected that McFadden could stand or sit only minutes at time and only two hours each per day; he limited lifting five pounds, and only occasionally. Okusanya advised that never could stoop, perform fine manipulation with his hands, or tolerate heat, cold, noise, dust; only occasionally could he work with his arms or drive car. He opined would unreliable at work, would miss occasionally pain, need elevate his legs frequently. Cardone, another physician who treated veins in provide His discharge instructions surgery, however, stated needed ice his legs recover, but could resume normal activities.

At his hearing before ALJ, testified he suffered from continuing pain in his knees lessened only medication, which he obtained from three different providers since his accident. Regarding his daily living, he said he could, with difficulty, prepare food, complete errands, visit with family. He testified he often change position sitting standing could sit minutes hour stand up minutes time. estimated he lift pounds, condition he blamed fingers elbows. His most comfortable position reclining legs above heart, testified he elevated legs three times daily. When asked about past drug use, attested last smoked marijuana noted been denied medication based positive tests early marijuana cocaine, which then admitted using.

In March issued testimony description symptoms “not entirely credible.” She highlighted McFadden’s initial denial of his history of drug abuse and his failure comply with other treatment options for his ailments, such physical therapy. She concluded that there was no reason believe needed his legs during work day; discharge instructions advised elevating his legs covered only period immediately following surgery and thus were entitled “little weight.”

Similarly, gave “little weight” because, she said, was “not well supported by objective evidence” was “inconsistent with substantial evidence.” She criticized his neither identifying impairments on based his conclusions nor providing clinical findings or diagnostic test results. also determined reliability of undermined by his failure substantiate his finding could not perform fine manipulation with either hand.

But gave opinions of Drs. Lun, Khorshidi, Ordman “great weight.” Their opinions, found, were supported substantial evidence, particularly clinical findings diagnostic tests reflecting osteoarthritis knees mild. She found their opinions McFadden’s statements could care himself independently, cook, shop, drive, perform household chores.

Applying required five step analysis, see 404.1520(a), 416.920(a), found not disabled. She determined engaged substantial gainful activity since alleged onset date (step one) most conditions (“degenerative joint disease knees status post left knee arthroscopy (2007) status post right knee arthroscopic debridement torn medial meniscus (April 2010), hypertension, obesity, diabetes mellitus, esophagitis, reflux disease, vein status post ablation procedures, left shoulder rotator cuff tendinitis”) were severe impairments (step two). hand problems, found, severe impairments—the treated ganglion cyst wrist limit him than months there no fingers. She none impairments equaled listed impairment (step three). She then Residual Functional Capacity (RFC) perform light with limitations: could occasionally kneel carry pounds; could never crouch, crawl, or exposed hazards; stand minutes time, walk no than one block, option use cane alternate between sitting standing, no limit ability sit. These limitations prevented performing past as home attendant, driver, laborer (step four). Based on the testimony vocational expert (VE), however, the ALJ concluded that McFadden perform jobs such general office clerk, counter clerk, information clerk (step five).

The Appeals Council denied review. McFadden had included appeal pages records from the Center Pain Management, reflecting treatment he received back shoulder March September 2013. The Council provided boilerplate denial, stating that additional “information does provide basis changing the Administrative Law Judge’s decision.” magistrate judge, presiding by consent, upheld the ALJ’s decision. Of relevance this appeal, the magistrate judge the additional McFadden submitted the Appeals Council neither new nor material it predated the hearing further the adverse credibility finding—as stopped the Center again being denied narcotics.

Analysis initially presented three arguments on appeal: (1) the erred

discounting Okusanya’s opinion little reasoning; (2) the failed follow Ruling requiring “consider extent any erosion occupational base”; (3) erred when refused consider additional believes new material. waived first two arguments properly presenting them magistrate judge. In district court different attorney, who focused appeal sufficiency

hypothetical posed VE Okusanya’s often legs. concedes argument based SSR forfeited, believe adequately preserved contention improperly weighed principally argues reasons given insufficient deny controlling weight under treating physician rule, 404.1527(c)(2), 416.927(c)(2). Under regulations apply claims filed

before March physician’s is entitled controlling weight if 1597 6 is “well supported by medically acceptable clinical laboratory diagnostic techniques” is not inconsistent with other substantial evidence the record. Id.

We conclude substantial evidence supports the ALJ’s determination Dr. Okusanya’s opinion not well supported by objective medical evidence contradicted by other evidence the record, including the opinions the consulting physicians. See Bates v. Colvin , F.3d 1093, 1099–1100 (7th Cir. 2013). As the ALJ highlighted, Dr. Okusanya’s opinion does not substantiate its dire picture relative to the other doctors. Its reliability is further undermined by its unsupported limitation fine manipulation, a finding odds absence any evidence received hands. first challenges conclusion checklist

form did not cite impairments provide clinical findings support opinion. quotes Minnick v. Colvin , F.3d (7th Cir. 2015), which we said a doctor “was obligated . . . provide any reasons” justify checkbox But misconstrues case: Minnick decided erred by adopting unexplained checkbox opinion nontreating doctor quotation refers. Id. treating physician’s opinion is given more weight by virtue treating physician’s ability give “detailed, longitudinal picture” provide insight “that cannot obtained from objective medical findings alone.” C.F.R.

§ 404.1527(c)(2). The reasonably demanded Okusanya some explanation finding limitations so much more severe than those recognized by doctors, entitled discount providing explanation. See C.F.R. § 404.1527(c)(3) (“The medical source presents relevant evidence support . . . weight will give opinion.”); Denton v. Astrue , F.3d (7th Cir. 2010) (“Even though claimant’s condition may worsen, expert is obligated point objective medical evidence explain worsening prognosis.”). improperly rejected by

“cherry picking” single unsupported limitation fine manipulation. “cherry pick”; reviewed record directly confronted contradicted Okusanya. See Moore v. Colvin F.3d 17 1597 7 1118, 1123 (7th Cir. 2014). Substantial evidence supports conclusion not been treated in fingers not need elevate legs during hours. For instance, 2012 diagnosis of “relatively mild” degenerative in fingers appears in the record but nothing more. Similarly, the discharge instructions were the evidence in the record legs, those instructions related the recovery period immediately veins surgery thus appropriately given “little weight” outside of period. Contrary argument, the properly viewed opinion in light of the whole record when thoroughly reviewed the objective evidence before concluding warranted “little weight.” finally contends the not discount the lack

of explanation, “a duty solicit additional information” under our in Barnett v. Barnhart , 381 F.3d 664, 669 (7th Cir. 2004) (citing 20 C.F.R. § 404.1527(c)(3)). may evaluate the explanations provided support an “need recontact the source every time undertakes such evaluation.” Simila v. Astrue , 573 F.3d 503, 516 (7th Cir. 2009). Moreover, Barnett relied § 404.1527(c)(3), regulation was eliminated two years before hearing. See Fed. Reg. 10,651, 10,656 (Feb. 23, 2012).

Finally, contends the Appeals Council committed reversible legal error when it rejected evidence that, believes, is “new material.” See 404.970(b), 416.1470(b); Farrell v. Astrue , F.3d 767, (7th Cir. 2012) (recognizing ambiguity Council’s boilerplate response remanding because new material evidence was rejected erroneously). Because the evidence was all dated before September hearing February commissioner contends evidence “in existence available claimant time administrative proceeding” thus “new” under Stepp v. Colvin , F.3d (7th Cir. 2015) (quoting Perkins v. Chater , F.3d (7th Cir. 1997)). argues applied wrong standard Stepp evidence is “new” simply because it “[n]ot part claim(s) record date decision,” H EARINGS , PPEALS AND L ITIGATION L AW M ANUAL (HALLEX) § I 6(B) (2015).

We need decide today proper definition “new” review evidence any event immaterial. parties agree is material “if creates ‘reasonable probability have reached different conclusion been considered.’” Stepp F.3d at (quoting Perkins F.3d at 1296). The evidence includes diagnosis lumbosacral degeneration otherwise absent record, shows discontinued at Center Pain Management being weaned off narcotics drug abuse. highlighted precisely this chain events earlier clinics when credible witness. This evidence bolsters ALJ’s conclusion leads us believe maintain determination disabled.

Because substantial supports findings legally err rejecting presented it, AFFIRM.

[1] physician rule eliminated Administration claims filed March 2017. Opinion is now governed 404.1520c, 416.920c (2017).