### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2628

C URTIS K. H ALL

, Plaintiff

‐ Appellant

,

v.

N ANCY A. B ERRYHILL

, Acting Commissioner of Social Security,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16

‐ cv

‐ 938

— Marvin E. Aspen

, Judge

.

____________________

A RGUED O CTOBER 2, 2018

— D ECIDED O CTOBER 15, 2018

____________________

Before B AUER

, K ANNE

, and S CUDDER

, Circuit Judges

.

P ER C URIAM

. While loading chemicals onto a truck, Curtis

Hall felt a sharp pain in his back. This back pain formed the

basis of his application for disability insurance bene fi ts. An

administrative law judge denied his application, and a district

court upheld that determination. On appeal, Hall contends

that the ALJ improperly discounted his treating physician’s2 No. 17

‐ 2628

opinion and discredited his own testimony. Because

substantial evidence supports the ALJ’s decision, we a ffi rm.

I

Hall, a tanker loader at a chemical company, was hooking

a hose underneath a tanker truck in mid

‐ 2006 when he felt

pain in his low back. His pain persisted so he saw Dr. George

Miz, an orthopedic surgeon, who ordered an MRI of Hall’s

lumbar spine. After reviewing the MRI, Dr. Miz found that

Hall had a large disc herniation at L

‐ 5 that was pinching a

spinal nerve root. Dr. Miz recommended “conservative

treatment,” so Hall began physical therapy while continuing

to work, and he reported progress from the therapy. As of

November 2006, Hall was still experiencing “ups and downs”

in terms of pain, and by December, Dr. Miz thought that any

improvement Hall felt with his back had “essentially

plateaued.” Because the pain persisted, Hall and Dr. Miz

began planning a lumbar microdiscectomy to relieve the

pressure on his spinal nerve root.

In March 2007, Hall stopped working and underwent the

operation. The surgery was successful. Hall’s back improved,

and by June his range of motion during physical therapy had

increased. He reassured Dr. Miz the next month that he had

“slow but steady progress with physical therapy.” By

December, after an epidural steroid injection, Hall reported

that his pain was “down to 2 to 3/10.”

Meanwhile, since the day of his surgery, Hall has received

temporary total worker’s compensation bene fi ts. The record

shows that Hall continues to receive these bene fi ts to this day.

In 2008, Hall’s functionality continued to improve. In June

he said that he could sit, stand, and walk for about an hour.No. 17

‐ 2628 3

Dr. Miz referred him to a physical therapist later that summer

for a functional capacity evaluation, and a therapist adminis

‐

tered a ba tt ery of tests before fi nding that Hall could return to

work at the “light” level (meaning that he could lift 20 pounds

infrequently, 10 pounds frequently, and carry 10 pounds or

more). The tests also showed that Hall could sit for 15–20

minutes and stand for 30 minutes. The following month,

Dr. Miz said that Hall could work within the parameters of

the functional capacity evaluation, though Hall did not return

to work.

In September 2010, Dr. Hutchinson, an orthopedist at the

University of Illinois at Chicago Medical Center, reviewed

Hall’s records and examined him in connection with his

worker’s compensation case. Dr. Hutchinson agreed with

Dr. Miz that Hall could work at the “light” level, consistent

with the results of the 2008 functional capacity evaluation.

Dr. Hutchinson opined that Hall had a protruding disc, but

that Hall could continue to work.

One month later, in October 2010, a CT scan con fi rmed

Dr. Hutchinson’s opinion that Hall’s disc was still protruding.

Shortly thereafter, Dr. Miz performed a lumbar discography,

a diagnostic procedure to determine if one or more discs was

the cause of Hall’s back pain. Based on the results of the dis

‐ cography, Dr. Miz concluded that the L5

‐ S1 area was causing

Hall’s pain. In February 2011, Dr. Miz recommended that Hall

undergo a “transforaminal interbody fusion” to stabilize his

spine.

Put o ff by the prospect of another surgery, Hall heeded the

recommendation of his internist and turned for a second

opinion to a neurosurgeon, Dr. Martin Luken. In June 2011,

Dr. Luken recommended that Hall undergo a foraminotomy,4 No. 17

‐ 2628

a minimally invasive surgery to remove whatever was com

‐ pressing his nerve root. Meanwhile, Dr. Luken proposed

(without elaboration) that Hall be “o ff work.”

A few months later a state

‐ agency physiatrist consultant,

Dr. Barbara Heller, examined Hall and opined that he had

persistent L5

‐ S1 discogenic disease with persistent right L5

‐

S1 radiculopathy. But because Hall’s pain medications were

working well, she determined that he could return to light

work consistent with the functional capacity evaluation from

2008.

In 2012, Hall applied for disability insurance bene fi ts

based on his continued back pain. He alleged an onset date of

March 7, 2007—the day of his surgery—and a date last in

‐

sured of December 31, 2012.

In September 2013, almost a year after Hall’s date last in

‐

sured, Dr. Luken performed the foraminotomy, and within

days Hall reported “substantial relief.” According to

Dr. Luken, Hall’s progress over the next few months was

“generally very encouraging.” In November, Hall told

Dr. Luken that his pain had “slowly but steadily improved,”

and that he was con fi dent that it was less severe than before

the surgery. The next month, Hall reported being “steadily

more comfortable,” so Dr. Luken released him back to work

at the “strictly sedentary” level. In February 2014, Hall told

Dr. Luken that he was still ge tt ing “slowly be tt er,” so

Dr. Luken released him to work at “light or medium duty.”

In 2014, Hall appeared at a hearing before an administra

‐

tive law judge. He testi fi ed that before his date last insured he

could not bend or lift anything, but that he could exercise for

an hour on the bike or treadmill, do laundry, mow grass, andNo. 17

‐ 2628 5

take short walks. Hall also testi fi ed that to manage his pain,

he had recently started taking Norco, a narcotic that a ff ected

his concentration.

Applying the familiar fi ve

‐ step analysis, see 20 C.F.R.

§ 404.1520(a), the ALJ denied disability insurance bene fi ts.

The ALJ determined that Hall had not been engaged in sub

‐

stantial gainful activity since his alleged onset date (step one);

that his degenerative disc disease with radiculopathy was se

‐

vere (step two); and that his impairment did not meet or med

‐ ically equal a listing (step three).

The ALJ then considered Hall’s residual functional capac

‐ ity and decided that Hall could perform light work, with ca

‐

veats not relevant here except that Hall could alternate be

‐

tween si tt ing and standing as needed. In evaluating Hall’s

RFC, the ALJ concluded that Hall’s statements concerning the

intensity, persistence, and limiting e ff ects of his symptoms

were “not fully credible” because there was evidence that Hall

exaggerated his symptoms. The ALJ gave Dr. Luken’s opin

‐

ions “li tt le weight” because they were generally inconsistent

with the other doctors’ opinions and appeared to rely too

heavily on Hall’s self

‐ reported symptoms. After fi nding that

Hall could not perform any past relevant work (step four), the

ALJ credited the vocational expert’s testimony that Hall could

work as an assembler, screener, or an information clerk (step

fi ve). The Appeals Council denied Hall’s request for review.

Hall sought judicial review of the Commissioner’s deci

‐

sion, and the district court granted the Commissioner’s mo

‐

tion for summary judgment. The court agreed with the ALJ’s

decision not to give controlling weight to Dr. Luken’s opinion

primarily because his opinion was inconsistent with the

weight of other medical evidence in the record. The court6 No. 17

‐ 2628

found insu ffi cient the ALJ’s consideration of some factors set

forth in 20 C.F.R. § 404.1527(c) (the “treating

‐ physician rule”),

but deemed any error harmless because of substantial evi

‐

dence that “heavily” undermined Dr. Luken’s opinion—in

particular, the absence of details in Dr. Luken’s treatment

notes, his unfamiliarity with Hall’s previous functional capac

‐ ity evaluation, and contradictory opinions expressed by other

doctors (Miz, Hutchinson, and Heller). The district court also

determined that the ALJ adequately substantiated his conclu

‐

sion that Hall was “not fully credible” by explaining that the

objective evidence did not support Hall’s reports about the

severity of his symptoms.

II

On appeal Hall challenges the ALJ’s application of the

treating

‐ physician rule to Dr. Luken’s opinion. Under the

rule, which (although now repealed) applies to Hall’s claim

based upon it being fi led before March 27, 2017, a treating

doctor’s opinion generally is entitled to controlling weight if

it is consistent with the record. See 20 C.F.R. § 404.1527(c)(2).

Hall primarily contends that the ALJ wrongly discounted

Dr. Luken’s opinion based on his fi nding that the opinion was

inconsistent with the record.

We disagree. The record shows that Dr. Luken’s opinion

was at odds with the other doctors’ opinions. For example,

while Dr. Luken said that Hall should be “o ff work” in March

and June 2011, Drs. Miz, Heller, and Hutchinson had contem

‐

poraneous, con fl icting, and fully reasoned opinions that Hall

could continue to work. Indeed, once Hall’s back worsened in

2010, to the point at which Dr. Miz recommended a spinal fu

‐

sion surgery, Dr. Miz nonetheless rea ffi rmed that Hall could

still work within the parameters of the functional capacityNo. 17

‐ 2628 7

evaluation done by the physical therapist in 2008. And after

thoroughly reviewing Hall’s medical records and conducting

physical examinations, Drs. Hutchinson and Heller agreed

with Dr. Miz that Hall could work at the “light” level. Those

doctors all based their opinions on relevant objective evidence

that Dr. Luken did not have access to—the 2008 functional ca

‐ pacity evaluation—and the ALJ was entitled to credit their

opinions over Dr. Luken’s.

To be sure, Hall is right with two of his observations re

‐ garding Dr. Luken. First, we agree with Hall that the ALJ in

‐ appropriately commented that Dr. Luken’s opinions “seem to

contain a level of sympathy.” If the ALJ somehow found it

necessary to o ff er such a view, he needed to root the observa

‐

tion in speci fi c record evidence—for example, an express

statement in a physician’s treatment notes. See 20 C.F.R.

§ 404.1527(c)(2). That did not happen. Instead, the ALJ

broadly speculated—with no citation to any portion of the

record—that Dr. Luken’s opinions “seem[ed] to contain a

level of sympathy as they are not supported by the overall ev

‐

idence.” We discourage such stray, unsupported conjecture.

Second, we agree with Hall that the ALJ should not have

discounted Dr. Luken’s opinion because the doctor was re

‐

ferred by Hall’s internist and was therefore “essentially one

of the claimant’s choosing.” Hall went to see his internist

about his back pain, and the internist reasonably referred Hall

to a neurosurgeon rather than a tt empt back surgery himself.

We see no reason for Hall, who was in pain, to avoid his doc

‐

tor’s recommendation to see a neurosurgeon who was quali

‐

fi ed to treat his back. We fail to understand why Dr. Luken’s

credibility was called into question because Hall decided to

follow

‐ through with the referral.8 No. 17

‐ 2628

These two de fi ciencies in the ALJ’s reasoning do not un

‐

dermine the ALJ’s broader conclusion that Dr. Luken’s opin

‐

ions were inconsistent with the opinions from other doctors.

Furthermore, the opinions lacked detail and did not show that

he knew of the functional capacity evaluation from 2008. Put

di ff erently, we cannot say that the ALJ’s other misplaced rea

‐

sons for discounting Dr. Luken make the ALJ’s overarching

credibility determination “patently wrong.” Schaaf v. Astrue

,

602 F.3d 869, 875 (7th Cir. 2010).

We turn now to Hall’s argument that the ALJ improperly

discounted his own testimony without giving adequate rea

‐

sons, thereby violating a regulation requiring ALJs to give

speci fi c reasons for credibility determinations that are sup

‐ ported by the evidence, see SSR 96

‐ 7p. But the ALJ’s credibil

‐ ity determination here was not “patently wrong” because the

ALJ found Hall “not fully credible” for many speci fi c reasons

supported by the evidence. See Schaaf

, 602 F.3d at 875.

Foremost, Hall’s presentation of symptoms was incon

‐

sistent. Though multiple doctors (including Dr. Luken) found

that Hall had a normal gait and range of motion, his physical

therapist expressly stated that Hall “exaggerated” the sever

‐ ity of his pain while moving and that he was “self

‐ limiting.”

In addition, Hall’s testimony about his limitations was incon

‐

sistent: he said that he could exercise for an hour, mow grass,

drive, prepare meals, clean, shop, and do laundry, but he sim

‐ ultaneously insisted that he could not bend or lift anything.

And fi nally, though Hall testi fi ed that pain medication (Sub

‐

oxone) would “wipe him out” physically, he seemed to use it

successfully at the time, as he reported no side e ff ects to his

doctor.No. 17

‐ 2628 9

Hall’s fi nal two arguments are underdeveloped. First, in a

cursory discussion, Hall asserts that the ALJ erred in assessing

his RFC by omi tt ing his level of pain, his need to shift regu

‐ larly from si tt ing to standing, and his need for narcotic medi

‐

cation. His argument is “perfunctory and undeveloped,” and

therefore waived. Crespo v. Colvin

, 824 F.3d 667, 674 (7th Cir.

2016). In any event, the ALJ’s RFC determination did include

Hall’s need to change position, as it allowed him to “alternate

[between si tt ing and standing] as needed.” The ALJ consid

‐

ered Hall’s allegations of pain when he evaluated Hall’s testi

‐

mony before fi nding that Hall was “not fully credible.” And

Hall himself testi fi ed that he began taking narcotics after his

date last insured.

In another undeveloped argument, Hall contends that the

ALJ did not consider unspeci fi ed “medical and testimonial

facts of record” showing that he met Listing 1.04A regarding

spine diseases. That listing, however, requires that a claimant

also have a condition beyond degenerative disk disease:

Evidence of nerve root compression character

‐

ized by neuro

‐ anatomic distribution of pain,

limitation of motion of the spine, motor loss (at

‐ rophy with associated muscle weakness or mus

‐

cle weakness) accompanied by sensory or re fl ex

loss and, if there is involvement of the lower

back, positive straight

‐ leg raising test (si tt ing

and supine).

20 C.F.R. § Pt. 404, Subpt. P, App. 1. Though doctors opined

that Hall had nerve root compression, he has not pointed to

any fi nding by a medical professional that he had a

“limitation of motion of the spine,” and “motor loss”

“accompanied by sensory or re fl ex loss.” To the contrary,10 No. 17

‐ 2628

several doctors found that Hall had a normal gait and range

of motion. Hall had the burden of proof to show that he met

the listing, see Briscoe ex rel. Taylor v. Barnhart

, 425 F.3d 345,

352 (7th Cir. 2005), and he failed to meet it.

We AFFIRM the district court’s judgment upholding the

denial of bene fi ts.