IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SCOTT C. STENN, )

)

Plaintiff, )

)

v. ) No. 12 C 3990

)

MICHAEL J. ASTRUE, )

Commissioner of Social Security,)

)

Defendant. )

MEMORANDUM OPINION AND ORDER

On December 18, 2008 Scott Stenn (“Stenn”) filed an

application for Title II disability insurance benefits. 

Commissioner of the Social Security Administration Michael Astrue

(“Commissioner”) upheld the denial of Stenn’s application and his

later appeals, and Stenn now seeks the reversal or remand of

Commissioner’s decision. As is typical in these cases, the

parties have filed cross-motions for summary judgment. For the

reasons stated below, Commissioner’s motion is granted while

Stenn’s is denied, and Commissioner’s decision is thus upheld.

Applicable Law

Social security claimants must suffer from a disability, as

defined under the Social Security Act (“Act” ), to be eligible 1

for disability benefits. “Disability” is defined in Section

423(d)(1)(A) as “inability to engage in any substantial gainful

 Citations to the Act will take the form “Section --,” 1

using the Title 42 numbering but omitting the prefatory “42

U.S.C.”

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activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or

which has lasted or can be expected to last for a continuous

period of not less than 12 months . . . .”

Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995) sets out

the customary five-step inquiry prescribed by 20 C.F.R.

§404.1520(a)(4) for determining whether a claimant is disabled: 2

(1) whether the claimant is currently employed;

(2) whether the claimant has a severe impairment;

(3) whether the claimant’s impairment meets or

equals one of the impairments listed by the [Act], see

20 C.F.R. §404, Subpt. P, App. 1;

(4) whether the claimant can perform [his] past

work; and

(5) whether the claimant is capable of performing

work in the national economy.

In addition to being “under a disability,” a claimant must

also meet the insured-status requirements outlined in Section

416(i)(3) to receive disability benefits. In essence, that means

Stenn must show he was under a disability before his insured

status expired (Reg. §131(a); Martinez v. Astrue, 630 F.3d 693,

699 (7th Cir. 2011)). 

General Background

Stenn is a 53 year-old male with a college degree in

 Further citations to the regulations will take the form 2

“Reg. §--,” with the “--” reference omitting the prefatory “20

C.F.R. §404.”

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political science. Before November 2003 he was a pit trader at

Chicago’s Mercantile Stock Exchange, but back pain caused him to

cease that work. From 2003 to 2009 he attempted to make money by

trading stocks and developing real estate, but neither of those

pursuits turned out to be fruitful (R. 51). In 2009 Stenn

returned to the full-time work force, serving as a shipping

service sales representative--a job he apparently still holds (R.

7-8).

Medical Evidence

In November 2003 Stenn visited Dr. Mitchell Weisberg and

reported that he had been having back pain, which was exacerbated

by a tubing accident (R. 985). Stenn had already been seeing a

Dr. Jonathon Citow about his back troubles and was considering a

spinal fusion (id.). Dr. Weisberg diagnosed Stenn with chronic

pain syndrome due to a herniated disc, suggested that he might

need a spinal fusion and prescribed Neurontin for pain management

(id.).

In March 2004 Stenn returned to Dr. Citow, who observed that

Stenn suffered from “chronic back pain without radicular leg

pain, numbness, weakness or paresthesias” (R. 991). Dr. Citow

noted that Stenn’s medication was providing only partial relief

(id.) and diagnosed Stenn with L5-S1 degenerative disease,

suggesting that an L5-S1 fusion would be necessary to alleviate

Stenn’s pain (id.).

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Before undergoing such a fusion, Stenn decided to try

conservative pain management, administered through Dr. Howard

Konowitz (R. 1181). In December 2004 Stenn visited Dr. Konowitz,

who reported cervical radiculopathy with radiation to the

rhomboids and scapula, and between January and October of 2005

Dr. Konowitz administered three rounds of epidural steroid

injections (R. 1159-77). 

In November 2005 Stenn determined that conservative

treatment was not sufficiently alleviating his pain, so he

decided to have surgery (R. 992, 1016). Dr. Jesse Butler,

Stenn’s surgeon, observed that Stenn had a lumbarized S1 with a

congenital fusion at S1-S2 and that he would benefit from a twolevel fusion (R. 1013-15, 1089-91). Dr. Butler performed a

lumbar laminectomy at L4-L5 and a posterior spinal fusion from L4

to S1 (R. 1000). After the surgery Dr. Butler prescribed Norco,

Zanaflex and Fentanyl patches for Stenn’s pain (R. 1001, 1003). 

Stenn stopped using the patches a few weeks after his surgery 3

despite the fact that his pain persisted.

Stenn continued to see Drs. Weisberg, Butler and Konowitz

after his surgery. Despite various medicinal regimens, facet

injections, physical and water therapy and ultrasound and

 Stenn returned to the patches for a few months in 2007, 3

but he once again stopped using the patches--by September 2007 at

the latest--due to their side effects (which include drowsiness)

(R. 987).

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electrical stimulation, Stenn’s pain persisted (R. 987) and,

indeed, was continually aggravated by his sitting or standing for

long periods (id.).

Stenn’s continued pain was due at least in part to several

of his postoperative activities. Shortly after the surgery Dr.

Butler noted that Stenn’s frequent use of a car aggravated his

pain (R. 1092). In April 2006 a physician’s assistant in Dr.

Butler’s office noted that Stenn’s pain was aggravated by his

playing paddle tennis on a cruise and attending a Bar Mitzvah,

where Stenn carried a Torah and danced (R. 988, 1084). As late

as March 2008 Dr. Konowitz reported that Stenn was working out

with a trainer in a manner “inappropriate for his level of

discomfort” (R. 1153)--a workout routine that included lunges,

squats, abdominal crunches, pushups, pullups and boxing (R.

1154). Stenn also walked for 25 minutes on a treadmill five days

a week (R. 24-25) and occasionally worked eight hour days (R.

1123). 

In November 2006 Stenn began complaining of pain in his neck

that radiated to his right shoulder (R. 1036-38). By February

2007 he reported that the pain caused tingling in his arm (R.

1036). Stenn also reported tingling to a new doctor, Dr. Lanoff,

who noted paresthesia in two of Stenn’s fingers (R. 995). Dr.

Lanoff told Stenn that he should not be engaging in heavy lifting

or prolonged standing and diagnosed him with “significant

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degenerative changes at the C3-4 level with osteophytes and some

disk protrusion,” a large disc protrusion at the C5-6 level and

“[m]ild general degenerative changes” at the C4-5 and C6-7 levels

(R. 995). 

In September 2007 Stenn visited with another new doctor, Dr.

Timothy Lubenow (R. 987). Stenn again reported that prolonged

sitting and standing aggravated his back pain (id.). Dr. Lubenow

observed decreased range of motion in his lumbar spine and full

strength in his lower extremities. 

Next Stenn saw Dr. Avi Bernstein in May 2008 (R. 1050). 

Stenn told Dr. Bernstein that he was most comfortable when lying

down (R. 1049). After reviewing a CT scan Dr. Bernstein reported

a successfully healed fusion, though Stenn was still experiencing

back pain (id.). Dr. Bernstein also discovered significant

degenerative changes in Stenn’s back and mild degenerative

changes in Stenn’s hip joints (R. 1054). Stenn returned to Dr.

Bernstein again in June 2008, reporting “incapacitating” back

pain (R. 1047). Stenn also mentioned that he had a “bicycle

incident” while in Aspen, Colorado, which aggravated his back

pain (id.). Dr. Bernstein recommended facet injections, which

Dr. Konowitz eventually provided to no avail (R. 1047)). 

Over the next two years or so Stenn continued to see his

doctors due to his “progressively deteriorating lower back pain”

(R. 1077, 1080). His doctors continued to diagnose him with

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spinal problems (such as cervical degenerative disc disease and

cervical disc herniation), for which his treatment--which

included epidural steroid injections and muscle relaxants--was

ineffective (see R. 1077). By June 2009 Dr. Weisberg reported

that Stenn’s lower back pain caused a “complete disability” (R.

1209). 

In February 2009 Stenn underwent a residual functional

capacity (“RFC”) assessment, completed by a state agency reviewer

(“State Reviewer”) (R. 1122-29). That reviewer was charged with

examining Stenn’s medical records and determining Stenn’s

physical abilities as they related to potential full-time work. 

He determined (1) that Stenn could occasionally lift 20 pounds

and frequently lift 10 pounds, (2) that he could stand, sit

and/or walk, with breaks, for about six hours in an eight hour

day and (3) that he could climb, stoop, kneel, crouch and crawl,

but only occasionally (id.). As for Stenn’s subjective

complaints, the State Reviewer found them to be only partially

credible (R. 1124). That assessment was later affirmed by

another non-examining physician (R. 1194).

On March 1, 2010 Stenn had a second operation--an anterior

cervical discectomy and fusion for his C5-C6 herniated disc (R.

1215-16). That surgery was intended to alleviate Stenn’s neck

and arm pain, but it succeeded with the latter only (R. 11).

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Procedural Background

On December 18, 2008 Stenn filed his benefits claim--as was

required by his insurance company--stating that his back pain

made driving difficult and prevented him from sitting or standing

for a long time (R. 918). Stenn’s claimed period of disability

began in November 2003 (id.). Stenn’s claim was denied on

February 18, 2009, and his application for reconsideration was

denied a few months later (R. 49). Stenn then requested a

hearing, which was held on April 1, 2010 and conducted by

Administrative Law Judge Maren Dougherty (the “ALJ”) (id.). 

Hearing Testimony

Two witnesses testified at the hearing: Stenn himself and

vocational expert James Breen. Stenn testified that the pain he

felt before his first surgery was like a “burning sciatic” (R.

13). He stated that after the surgery the pain was less severe,

but was still around “24/7" (id.). Because of his pain Stenn

could only stand or sit for 45 minutes before having to switch

positions due to discomfort (id.). Walking was less

uncomfortable, but he would get cramps after 45 minutes (R. 16-

17).

During Stenn’s alleged period of disability he worked two

jobs (R. 18-21). First he tried to trade stocks using his own

money (R. 18), working from a small office and spending three to

five hours a day on a computer (R. 18, 28). Stenn stated that he

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would generally work from 8 a.m. until 11:30 a.m., at which point

he would take a break to walk, get coffee or occasionally--and

particularly when he was on Fentanyl patches--take a nap (R. 28-

29). Next Stenn worked as a real estate developer from both his

house and a small office (R. 19). He admitted to having driven

too much for that job, which aggravated his back pain (R. 21). 

Stenn thought that he worked 15 to 20 hours a week while working

in real estate (id.).

Stenn acknowledged that he still engaged in several workout

activities during his claimed period of disability, such as

walking for 25 minutes three times a week, doing core exercises

and attempting yoga (though he stopped yoga after two months

because it was painful) (R. 24). Stenn also attended dinners,

movies and his daughter’s swim meets, though the hard benches at

the swim meets caused him to have to alternate between sitting

and standing (R. 25, 30). Around the house Stenn cooked--usually

for 20 minutes, often standing but sometimes sitting--but did not

do any other chores (R. 27). According to his own assessment, a

gallon of milk was the most he could lift (R. 32). He reported

taking naps from 4 to 5:30 p.m. most days due to his poor sleep

at night, caused by back pain (R. 35).

In addition to his back pain, Stenn testified to the onset

of additional neck, shoulder and arm pain (R. 31-32). He claimed

that beginning, he believed, in May 2009 he felt tingling and

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numbness in his arm (R. 31-32, 37). Stenn suggested that the arm

pain made it difficult for him to use a computer mouse for over

15 minutes (R. 32). He said that although his second surgery

successfully relieved his arm trouble, his back and neck were

still in pain (id.). Stenn reported that after his second

surgery he spent two to three hours per day on his computer (R.

31).

As for the vocational expert, his very brief testimony began

with a categorization of Stenn’s various jobs (R. 38-39). He

characterized both Stenn’s job as a floor trader and his new job

as a shipping services sale representative as semiskilled and

light work (id.). His work as a real estate developer was also

described as light, but was considered skilled (id.). Stenn’s

brief stint as a stock trader was considered skilled and

sedentary (id.).

As to Stenn’s ability to work a different job during his

alleged period of disability, the vocational expert stated that

none of Stenn’s floor-trading skills was transferable (R. 39). 

But he did report that there were numerous jobs available for

someone in Stenn’s position--that is, someone who was between the

age of 43 and 48, who had a college education and Stenn’s work

experience and who needed a job that allowed changing his or her

position every 45 minutes (R. 39). Specifically, the expert said

that Stenn could have worked as a charge account clerk, an

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information clerk or an order clerk, all of which are unskilled

sedentary jobs (id.). Notably, the vocational expert said that

bimanual dexterity is required on a frequent basis for the jobs

open to Stenn (R. 41).

ALJ’s Decision

Considering the medical evidence and testimony just

described, the ALJ affirmed the determination that Stenn was not

disabled under the terms of the Act (R. 59). She began her

analysis by noting that Stenn last met the insured status

requirements of the Act on December 31, 2008, so that Stenn

needed to show that he was disabled on or before that date (R.

51). She then engaged in the earlier-described five-step

disability inquiry.

At the first step the ALJ determined that neither Stenn’s

work as a real estate developer nor his work as a stock trader

constituted substantial gainful activity (R. 51). At step two

she found that Stenn had the severe impairments, as defined in

Reg. §1520(c), of degenerative disc disease of the lumbar and

cervical spine (R. 51). But because those impairments did not

meet or medically equal one of the impairments listed in Reg.

Part 404, Subpart P, App’x 1, Stenn had not proved a disability

at step three (R. 52).4

 ALJ Dougherty did find that Stenn’s cervical stenosis and 4

herniation met or medically equaled a listed disability in 2009

(R. 52)--but because his last insured date was in 2008, that

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At that point the ALJ’s next task was to determine Stenn’s

RFC. On that score the ALJ found that Stenn had the ability “to

perform light work as defined in 20 C.F.R. 404.1567(b) except

that he...can sit or stand for no more than 45 minutes at one

time” (R. 52), and she reasoned that the medical evidence

presented did not contradict her RFC finding. Although she did

note Dr. Weisberg’s passing comment in 2009 that Stenn’s lower

back pain caused a “complete disability” (R. 1209), she did not

accord it material weight because “[Dr. Weisberg] is not an

orthopedic or neurological specialist, his opinion is conclusory,

and it may not consider the full array of possibilities for work

and likely refers to the claimant’s ability to perform his past

relevant work” (R. 57). Instead the ALJ credited the opinion of

the State Reviewer--which, it will be recalled, included a

determination that Stenn could sit, stand or walk for six hours

total in an eight hour day that involved normal breaks (see R.

57). 

As for Stenn’s complaints of disabling pain, the ALJ found

them not to be entirely credible (R. 56). In support she cited

the lengthy gap between two of Stenn’s doctor visits, Stenn’s

overexertion through physical activities proscribed by doctor’s

warnings (such as paddle ball, biking and core exercises) and

finding did nothing to help Stenn establish that he was entitled

to disability benefits (see Perkins v. Chater, 107 F.3d 1290,

1295 (7th Cir. 1997)).

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Stenn’s ability to engage in everyday activities (such as going

to the movies and to dinners, driving and taking care of his

personal needs) (id.). ALJ Dougherty did note Stenn’s contention

that he needs to lie down in the afternoon, but she cited Stenn’s

many early-day activities as the cause of that necessity (id.),

apparently concluding that Stenn’s custom of napping in the

afternoon would not interfere with his ability to hold a fulltime job. 

With her RFC determination complete, the ALJ determined that

Stenn could not have performed, on a full-time basis, any of his

past relevant work (R. 57). Next, then, was whether Stenn was

capable of performing alternative jobs. Given his age,

education, work experience and RFC, the ALJ determined--based

largely on the testimony of the vocational expert and its

consistency with the Dictionary of Occupational Titles--that

Stenn could serve as a charge account clerk, an information clerk

or an order clerk (all sedentary jobs), each of which existed in

ample numbers (R. 58). Thus, according to the ALJ, Stenn was not

disabled under the Act between November 2003 and December 2008,

and he was therefore not eligible for Social Security benefits

(R. 58-59).

Validity of Commissioner’s Decision

Stenn brings two challenges to the ALJ’s (and hence

Commissioner’s) decision: that both the RFC determination and

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the credibility determination were erroneous. Stenn maintains

that both challenges are legal in nature.

Whether Stenn is in fact alleging only legal error is

important, for the standards of review for legal and factual

errors differ. Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir.

2005) (citations and internal quotation marks omitted) aptly

summarizes the difference in analysis:

We review the ALJ’s legal conclusions de novo. We

deferentially review the ALJ’s factual determinations,

however, and will affirm a decision if it is supported

by substantial evidence. Substantial evidence...[is]

such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. We review

the record as a whole, but we are not to reweigh the

evidence or substitute our own judgment for that of the

ALJ. In rendering a decision, the ALJ must build a

logical bridge from the evidence to his conclusion. 

The ALJ need not, however, provide a complete written

evaluation of every piece of testimony and evidence.

So as this opinion reviews both of Stenn’s challenges, it will

not simply take his word for the characterization of his

arguments as legal.

Challenge to ALJ’s RFC Determination

Stenn’s challenge of the RFC determination includes several

arguments, the first of which is factual despite Stenn’s

contention to the contrary. In that regard Stenn challenges the

ALJ’s finding that he could stand for six hours in an eight hour

workday. Stenn admits that the ALJ had evidence to rely on in

reaching her conclusion, not least of which was the report of the

State Examiner, but he maintains that a different report, written

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by Dr. Lanoff, should have been credited instead. As Stenn would

have it, the “significant evidence” in Dr. Lanoff’s report is a

single phrase that says Stenn could not engage in “prolonged

standing.” 

There is no need to decide whether the ALJ was within her

discretion to trust the report of the State Examiner over Dr.

Lanoff’s report, because the two reports are in no way

inconsistent. Indeed, the ALJ unquestionably recognized that

Stenn could not engage in “prolonged standing”--her findings

explicitly stated that Stenn could stand for only 45 minutes at a

time (R. 52) and that he was no longer able to engage in his

former occupation of pit trader because it required prolonged

standing (R. 57).

As for the cumulative amount of time Stenn could stand in a

given day, Dr. Lanoff’s report is silent. Hence it was perfectly

logical for the ALJ to rely on the specific conclusions of the

State Reviewer in that respect, especially considering Stenn’s

own testimony that the pain caused by standing for too long could

be relieved by alternating between standing and sitting (R. 31). 

In sum, the single nonspecific term in Dr. Lanoff’s report does

not undercut the substantial evidence on which the ALJ based her

conclusion. 

Stenn next argues that it was legal error for the ALJ not to

mention Dr. Lanoff’s report in her reasoning. But the quoted

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excerpt from Haynes (which in its original form quoted in turn

from Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995)) teaches

that an ALJ need not discuss every piece of evidence submitted as

long as she considers the line of evidence in which a given piece

falls. Here the ALJ specifically took into account Stenn’s

inability to stand for a prolonged period, and Dr. Lanoff’s

report added nothing more on that score. Clearly a lack of

reference to that report was not legal error.

Stenn next asserts that the ALJ failed to consider Stenn’s

limited bimanual dexterity. As Stenn notes, the vocational

expert testified that the three jobs found available to Stenn

could not be filled by someone with bimanual dexterity

limitations (R. 40-41)--and according to Stenn the medical

evidence indicates that he had bimanual dexterity limitations due

to cervical radiculopathy during his alleged period of

disability.

In that respect Stenn highlights the records of Dr. Konowitz

(who observed cervical radiculopathy in 2005), Dr. Weisberg (who

noted neck pain radiating to Stenn’s shoulder in 2006 and arm

tingling in 2007) and Dr. Lanoff (whose March 2007 report

mentions paresthesia in Stenn’s fingers). According to Stenn the

ALJ’s failure to explain explicitly why the clerk positions were

suitable for him despite his diagnosis of cervical radiculopathy

constituted legal error.

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There is indeed evidence that Stenn had bimanual dexterity

limitations due to cervical radiculopathy. In 2009 Dr. Weisberg

noted that cervical radiculopathy was responsible for significant

pain in Stenn’s right arm (R. 1210), which was presumably the

cause of Stenn’s asserted inability to use a computer mouse for

more than 15 minutes at a time. But as Commissioner points out,

Dr. Weisberg stated that problem was of “new onset” in 2009

(R.1210)--a fact confirmed by Stenn’s own testimony. When asked

by the ALJ how long he had experienced physical limitation in his

right arm, Stenn reported an onset date of around May 2009. So 

even if Stenn’s 2009 bimanual dexterity issues rendered him

“disabled” as defined by the Act, that disability would not have 5

begun before Stenn’s last insured date (December 31, 2008), and

it thus could not serve as the basis for disability benefits

(Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997)).

That, though, is not the end of Stenn’s argument. All the

evidence of cervical radiculopathy pointed out in Stenn’s brief

was from pre-2009 records, while Stenn was still fully insured

under the Act. If such cervical radiculopathy caused the

requisite bimanual dexterity limitations before Stenn’s last

insured date, a disability finding might have been justified. At

the very least the ALJ should have considered any line of

 ALJ Dougherty actually found that Stenn would have 5

qualified for benefits in 2009 were it not for the fact that his

insured status had expired (R. 52).

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evidence that tended to show Stenn experienced trouble with his

bimanual dexterity pre-2009.

Stenn’s problem is that no such line of evidence exists. 

Most of the pre-2009 reports noting cervical radiculopathy do not

say that the symptoms extended to Stenn’s arm, nor do they

discuss bimanual dexterity limitations. Reports from February

and March of 2007 note tingling in Stenn’s arm and fingers, but

those reports make no mention of Stenn having trouble with the

actual use of his arm or hand (R. 995, 1036). In fact Stenn

testified that he traded stocks on a computer--a sedentary job,

just like the clerk positions--from 2006 until at least December

2008 (R. 913-15), as contrasted with the situation that developed

in 2009, when he experienced true bimanual disability limitations

while using a computer mouse. In short, then, there simply was

no “line of evidence” for the ALJ to consider as to any inability

on Stenn’s part to use both hands effectively pre-2009.

Stenn’s final RFC-based contention is a conclusory statement

suggesting that the ALJ failed to build a “logical bridge from

the evidence to her conclusion” (S. Mem. 18). That contention

flat-out fails, for the ALJ explained at length the bases for her

conclusion, most notably the State Examiner’s report. In finding

that report credible, the ALJ found corroboration in (1) the

numerous activities in which Stenn engaged while allegedly

disabled and (2) the lack of any clear medical evidence

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contradicting such a finding. That explanation constructs a

perfectly logical bridge, also calling for the rejection of

Stenn’s position that the ALJ’s RFC determination is reversibly

erroneous.

Challenge to ALJ’s Credibility Determination

When medical evidence does not on its own show a claimant’s

inability to sustain full-time work, an ALJ can still rely on a

claimant’s subjective complaints of pain as the basis for a

disability finding (see Carradine v. Barnhart, 360 F.3d 751, 753

(7th Cir. 2004)). It has already been explained at length that

the ALJ found the medical evidence did not itself support a

disability finding. As for the other possibility--that looking

to a claimant’s subjective complaints--the ALJ found that Stenn

was only partially credible and that his claims of “disabling”

pain were overblown, negating his chance at proving a disability

under the Act. Stenn now challenges that finding. 

In that regard Stenn mistakenly contends that the judicial

review of his challenge to the ALJ’s credibility determination

should be de novo. Under this circuit’s jurisprudence an ALJ’s

credibility determinations will be left undisturbed unless they

are “patently wrong” (Diaz, 55 F.3d at 308) or are based on

“serious errors of reasoning” (Carradine, 360 F.3d at 754). It

is true that a reviewing court has more room to operate when a

credibility determination is based on objective factors, as

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opposed to an ALJ’s subjective observations (see Indoranto v.

Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)), but that principle

is a far cry from de novo review. As our Court of Appeals

requires, this opinion will review the ALJ’s credibility finding

simply to determine whether it had a logical basis (see Elder v.

Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008)). 

Most of Stenn’s arguments are vain attempts to undercut the

damaging evidence upon which the ALJ rested her credibility

finding. For instance, Stenn argues that, contrary to the ALJ’s

finding, he was not overexerting himself during his claimed

period of disability. Thus he asserts that he played paddle ball

for only two minutes before aggravating his back pain, and he

points out that the bicycle incident he experienced in Aspen was

the result of road biking, not mountain biking. But the ALJ did

not suggest otherwise, and the fact remains that a person with

truly debilitating back pain would not be a likely candidate for

playing paddle ball or engaging in road biking to begin with. 

And though Stenn also argues that the core exercises in which he

engaged with a personal trainer have served a therapeutic

purpose, that contention is at odds with Dr. Konowitz’

observations (R. 1154):

He did attend six visits of physical therapy with

Jersey Dorman for which he only does not fully follow

his exercise program and instead he does many other

activities that I feel could be significantly

aggravating factors for the patient’s pain state with

his personal trainer as well as his chiropractor such

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as multiple sets of lunges, squats, abdominal crunches

on the ball and other activities on the ball, pushups,

pull ups on a bar for which the trainers force him,

boxing for which he demonstrates a lot of these

activities to me today in the room, which are of a

twisting nature for example.

Hence the ALJ had more than ample evidence to reach two

conclusions: (1) that Stenn’s pain was not so severe and constant

as to prevent him from participating in the mentioned activities

and (2) that his pain would have been lessened, and his ability

to work a full-time job greater, if he had listened to his

doctors. Stenn’s attempt to downplay the import of the evidence

illustrating his own overexertion is nothing more than

impermissible second guessing--an invitation to reweigh the

evidence that this Court is legally bound to avoid (see Jens v.

Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)).

Stenn also asserts that the ALJ should not have considered

his ability to engage in certain activities of daily living when

making a credibility determination. Stenn maintains that his

ability to swim, stretch, drive, cook, walk on a treadmill and go

to dinner and the movies is not inconsistent with an inability to

work a full-time job. Of course some participating in one or

more of those activities would not on its own prove that an

individual could work a full-time job, but the fact that Stenn

engaged in each of them regularly certainly tends to show that he

was capable of remaining active for extended periods of time. 

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Those activities of daily living therefore help to provide a

logical basis upon which the ALJ could support her credibility

finding, despite Stenn’s belief that the ALJ assigned them too

much weight.

Next Stenn maintains that a large gap in his visits to

doctors--from March 2004 with Dr. Citow to December 2004 with Dr.

Konowitz--does not show that his complaints of disabling pain

were incredible, given that he ended up following Dr. Citow’s

advice and having surgery on his back. Once again Stenn fails to

dispel the logicality ??? of the ALJ’s reasoning. Stenn’s

eventual decision to have surgery does help support his claim of

disabling pain, but it is completely unrelated to the ALJ’s

observation that a person with truly disabling back pain is

unlikely to go nine months without seeing a doctor. In sum,

then, the ALJ had plenty of evidence on which to base her

credibility finding, and this Court will not reweigh that

evidence to determine whether it too would have found Stenn only

partially credible.

Stenn’s final argument contesting the ALJ’s credibility

determination is a legal one. Stenn contends (1) that his

drowsiness--a side effect from Fentanyl patches--prevented him

from working full-time and (2) that the ALJ failed to consider

his drowsiness in discounting his asserted need to lie down

throughout the day. Stenn is correct that the side effects of

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necessary medication should be considered when an ALJ is making a

disability determination (see Social Security Ruling 96-7p). So

if Stenn’s Fentanyl patches really did make him too drowsy to

work, it would have been error for the ALJ not to have considered

that fact. But Stenn himself admitted that he used the patches

for only a brief period after his first surgery and for a month

or two in 2007. There was therefore no way for the Fentanylinduced drowsiness to prevent Stenn from working full-time for 12

months--the amount of time necessary for a non-life-threatening

impairment to be considered a disability (Section 423(d)(1)(A))--

and thus the ALJ had no reason to consider whether the Fentanyl

patches prevented Stenn from working.

In sum, then, the ALJ’s credibility determination is not

“marred by legal error,” as Stenn suggests. So his final

argument goes by the boards, just as his earlier ones did.

Conclusion

To conclude, Stenn has failed to show that the ALJ lacked

substantial evidence for her RFC or credibility determinations or

that she committed harmful legal error in reviewing the denial of

Stenn’s claim for disability benefits. Stenn’s motion is

therefore denied, Commissioner’s motion is granted, and this

action is dismissed.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: August 6, 2013

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