UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TRACY HEINRICH, )

)

Plaintiff, )

) No. 12-CV-4352

v. )

) Magistrate Judge Susan E. Cox

MICHAEL ASTRUE, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Tracy Heinrich, seeks judicial review of a final decision by the Commissioner of

the Social Security Administration (“SSA”) denying her application for a period of disability and

disability insurance benefits under the Social Security Act (“the Act”).1 Ms. Heinrich has filed a

motion for summary judgment, seeking to reverse the Commissioner’s final decision or remand the

case for reconsideration. The commissioner has also filed a motion for summary judgment seeking

to uphold the commissioner’s decision. For the reasons set forth, Ms. Heinrich’s motion is denied

[dkt. 12] and the commissioner’s motion is granted [dkt. 15].

I. Procedural History 

Ms. Heinrich filed a Title II application for a period of disability and disability insurance

benefits on September 9, 2009, alleging that her disability began on February 14, 2008.2

 Ms.

Heinrich filed a request for a hearing before an Administrative Law Judge (“ALJ”) on June 1,

1

 42 U.S.C. § 416 (1). 2

 R. at 17.

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2010.3

 Ms. Heinrich testified before the ALJ on June 9, 2011.4 The ALJ issued an unfavorable

decision on June 15, 2011, concluding that Ms. Heinrich had not been disabled from February 14,

2008, through the date of the decision.5

 Ms. Heinrich filed a Request for Review of Hearing

Decision on June 24, 2011,6 which was denied by the Appeals Council on May 7, 2012, making this

the final decision of the Commissioner.7

II. Factual Background 

The facts set forth below are derived from the administrative record. Ms. Heinrich was born 

June 3, 1965.8 She was forty-five years old when she filed for disability benefits.9 Ms. Heinrich lists

several ailments in her applications for benefits, including: degenerative disc disease, spinal stenosis,

and obesity. For all of these conditions Ms. Heinrich was treated by numerous health care

professionals over an extended period of time. Therefore, our review will be configured into the

following chronological periods: (1) first known office visits for her back pain until her alleged

onset of disability, which was from 1997 - February 14, 2008; (2) the onset of her disability until

the 2010 surgery, which was from February 14, 2008 – February 11, 2010, and; (3) post-surgery

until the ALJ hearing, which was from February 12, 2010 - June 9, 2011.

3 Id.

4 Id.

5 Id.

6

 R. at 12-13.

7

 R. at 1.

8

 R. at 36.

9

 R. at 17.

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1. First Known Office Visits for Back Pain until Alleged Onset of Disability:

1997 - February 14, 2008

 Ms. Heinrich listed in her disability report that she was treated by Robert Passavoy, M.D.,

from 1997-2008, for pain control.10 Ms. Heinrich also mentioned in the report that Dr. Passavoy

diagnosed her with spinal stenosis, a narrowing of the space within the vertebrae,11 at some point

between 1997 and 2005.12 Additionally, a reference is made to a 2005 surgery to remove part of Ms.

Heinrich’s disk in her lower back.13 However, Ms. Heinrich did not provide any of these early

treatment or surgical records for the purposes of her present disability application.

2. Period from Alleged Onset of Disability to Surgery (February 14, 2008 –

February 11, 2010)

Ms. Heinrich claimed her disability began on February 14, 2008.14 However, the medical

records do not begin until June 2009, when Ms. Heinrich was initially treated at the Grundy County

Pain Center by Parveen Varma, M.D.15 There is no explanation as to why Ms. Heinrich waited until

September 2009, over one year after her disability began, before applying for disability. These first

records indicate that Ms. Heinrich had lower back pain that radiated down to her left foot.16 She also

experienced pain when she rose from a sitting position, but she was “more or less” comfortable in

10 R. at 172.

11 McGraw-Hill Dictionary of Scientific and Technical Terms 2029 (6th ed. 2003).

12 R. at 173.

13 R. at 353.

14 R. at 17.

15 R. at 280.

16 Id.

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a seated position.17 Dr. Varma recommended a physical therapy evaluation to evaluate range of

motion.18

The next month, Bradley Immel, D.C., evaluated Ms. Heinrich.19 Dr. Immel noted that Ms.

Heinrich could perform normal daily activities without significant lower back pain, although she

continued to have mobility restrictions.20 She then went back to Dr. Varma on August 4, 2009, and

September 14, 2009.21 Ms. Heinrich stated that overall, her lower back pain had improved but she still

had pain on the left side of her lower back and left buttock.22 Dr. Varma noted that Ms. Heinrich’s

back pain was possibly due to degenerative changes at her sacroiliac joint, the segment of the

vertebral column that forms part of the pelvis,23 and recommended physical therapy and a back

brace.24

The following month, Dr. Varma’s notes indicated that the back brace enabled Ms. Heinrich

to sit, stand, and walk without significant trouble, and her pain had decreased.25 On a follow up visit

on September 29, 2009, Ms. Heinrich’s lower back was tender, but there was no swelling or

discoloration.26 Dr. Varma gave Ms. Heinrich a non-steroid injection at two different locations to

alleviate pain caused by disc dysfunction in those areas, after which Ms. Heinrich reported no pain

in the area.27

17 R. at 280.

18 R. at 281.

19 R. at 306.

20 Id. 21 R. at 296-297.

22 R. at 297.

23 Stedman’s Medical Dictionary 1714 (28th ed. 2007).

24 R. at 297.

25 R. at 298.

26 R. at 299.

27 Id.

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Ms. Heinrich was also evaluated by her family doctor, Allison Verenna, M.D., that same day

who recommended Ms. Heinrich to an Orthopedist, William Earman, D.O.28 Dr. Earman evaluated

Ms. Heinrich on October 19, 2009, noting signs of degenerative disc disease, which is disc

deterioration associated with age,29 in her lower back.30

Soon after applying for benefits, on November 2, 2009, state agency medical consultant

Lenore Gonzalez, M.D., performed a physical residual functional capacity assessment on Ms.

Heinrich.31 Dr. Gonzalez found that Ms. Heinrich could stand, walk, or sit six hours in an eight-hour

workday and exhibited no muscular atrophy.32

Pursuant to a referral from her orthopedist, Ms. Heinrich was seen next by Kanchan Patel,

M.D., a pain specialist, on November 4, 2009.33 Ms. Heinrich described her pain as a three out of ten

on a pain scale.34 Dr. Patel also noted that Ms. Heinrich was taking 100 mg of pain medication twice

per day and had a history of morbid obesity.35 Ms. Heinrich again visited Dr. Patel on December 2,

2009, who noted that Ms. Heinrich slept six to eight hours per night and exhibited no numbness in

her extremities.36 He advised her to gradually resume her regular activities.37

3. Surgery until ALJ Hearing: February 12, 2010 – June 15, 2011

In February Ms. Heinrich went back to her orthopedist, Dr. Earman, who performed a surgical

fusion of four of Ms. Heinrich’s vertebrae to address her stenosis and degenerative disc disease in

28 R. at 353.

29 McGraw-Hill Dictionary of Scientific and Technical Terms 565 (6th ed. 2003). 30 R. at 544.

31 R. at 324-331.

32 R. at 325.

33 R. at 343-344.

34 Id. 35 Id. 36 R. at 340-341.

37 Id.

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those areas.38 There were no complications reported.39 Furthermore, the discharge instructions did

not mention any specific restrictions or instructions other than to rest at home.40 She was released

from the hospital on February 15, 2010.41

Ms. Heinrich’s pain and activity levels improved during the first three months following her

surgery. During her February 22 appointment, Ms. Heinrich stated that her pain was decreasing and

she was increasing her activities.42 Dr. Earman also noted that Ms. Heinrich exhibited good strength.43

Dr. Earman’s notes from Ms. Heinrich’s March visit indicate that she had been gradually increasing

her activities; Dr. Earman advised Ms. Heinrich to continue to increase her activities and planned to

lower her medications.44

Then, though there is no recorded office visit on April 22, 2010, Dr. Earman’s notes indicate

that he wrote a note for Ms. Heinrich, at her request.45 This note prohibited her from working for six

months.46

Another state medical consultant, France Vincent, M.D., completed a second residual

functional capacity assessment in May 2010. Dr. Vincent simply affirmed what the previous state

medical consultant had found; that Ms. Heinrich was capable of light work between November 2009

until the February 2010 surgery.47 He also estimated that her current limitations would not last more

38 R. at 389-391.

39R. at 391.

40 R. at 548.

41 R. at 394.

42 R. at 399.

43 Id. 44 R. at 397.

45 R. at 530.

46 Id.. 47 R. at 411-421.

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than twelve months, at which time she would able to sustain sedentary work as described in this

assessment.48

Ms. Heinrich went back to her family doctor, Dr. Verenna, on May 28, 2010 and June 17,

2010.49 Ms. Heinrich mentioned that the radiation of pain into her lower extremities had improved,

but she was still experiencing lower back pain.50 Dr. Verenna encouraged her to monitor her diet and

continue her current level of activity.51 Dr. Verenna also noted that Ms. Heinrich was morbidly obese

but exhibited normal range of motion without pain and good motor strength.52

A month later, Ms. Heinrich requested a second, and then a third letter from her orthopedist.

Again, Ms. Heinrich was not seen by Dr. Earman on July 1, 2010, but the record indicates that Dr.

Earman provided Ms. Heinrich, upon her request, with a note stating that she could return to work

as soon as possible.53 Not even a month later, Dr. Earman provided her with a third note, upon her

request, stating that she could not work more than four hours per day, and never on consecutive

days.54

On September 16, 2010, Ms. Heinrich was examined by Scott Ciechna, M.D., where she

exhibited no acute pain.55 This was Ms. Heinrich’s first visit with Dr. Ciechna, and it is not clear who

referred her to his office. The following year, Ms. Heinrich was again seen by Dr. Ciechna on March

16, 2011, complaining of lower back pain and fatigue.56 Regarding Ms. Heinrich’s fatigue, Dr.

Ciechna noted that Ms. Heinrich’s blood test from six months prior returned with completely normal

48 R. at 421.

49 R. at 423, 502.

50 R. at 423.

51 Id. 52 R. at 502. 53 R. at 529.

54 R. at 527.

55 R. at 505.

56 R. at 507-509.

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results.57 Additionally, Dr. Ciechna noted that Ms. Heinrich exhibited mild back tenderness, and

refilled her muscle relaxers.58

In February 2011, one year after her surgery, Ms. Heinrich returned to her orthopedist, Dr.

Earman.59 He noted that Ms. Heinrich was still experiencing some lower back pain, although the pain

was no longer radiating, and she was otherwise stable.60 Several months later, Dr. Earman completed

a physical residual functional capacity questionnaire for Ms. Heinrich’s social security disability

claim.61 He noted that Ms. Heinrich could only sit for forty-five minutes at a time, stand for thirty

minutes at a time, was only capable of low stress jobs, and could only sit and stand for a combined

total of four hours per working day.62 He also noted that Ms. Heinrich would likely be absent from

work four days per month as a result of her impairments.63

There are no additional medical records prior to Ms. Heinrich’s hearing before the ALJ. The

month before, however, we know Ms. Heinrich went to the Morris Hospital Emergency Room

complaining of lower back pain.64

III. ALJ Hearing and Opinion 

 The ALJ hearing took place on June 9, 2011.65 Ms. Heinrich was forty-six years old at the

57 Id. 58 Id. 59 R. at 512.

60 Id. 61 R. at 484-489.

62 R. at 485-486.

63 R. at 487.

64 R. at 548.

65 R. at 17.

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time. Ms. Heinrich, and Mr. Brady, the Vocational Expert (“VE”), testified at the hearing.66 Ms.

Heinrich was represented by her attorney, Jared Cook.67

1. Ms. Heinrich’s Testimony

Heinrich began by testifying about her previous employment as a cashier for Osco.68 She

claimed to have quit because she could no longer stand because of her lower-back pain.69 Next, Ms.

Heinrich described her inability to sit and stand for longer than thirty minutes at a time.70 Ms.

Heinrich also listed the medications she was taking: Fentanyl pain patch, the anti-inflammatory

Nevimatone, Flexeril, Ibuprofen, and Xanax to help her sleep at night when the pain was more

severe.71 When questioned by the ALJ about her daily activities, Ms. Heinrich stated that she takes

care of her four year old granddaughter.72 Ms. Heinrich also commented that she used the computer

for general uses and goes shopping with her son.73

 Ms. Heinrich next spoke about her decision not to attend physical therapy and to quit the

gym. Ms. Heinrich felt that she did not need physical therapy at the time, although she also stated

that she could not walk because she felt like someone was twisting her spine.74 Ms. Heinrich

attempted to exercise at the gym, but she was unable to do so because of her pain.75 Ms. Heinrich then

testified that she experienced sleepiness, nausea, and dizziness as side effects from her medications.76

Next, Ms. Heinrich stated that her current pain level was the same as it was prior to her

66 Id. 67 Id. 68 R. at 37.

69 Id. 70 Id. 71 R. at 38.

72R. at 38-39.

73 R. at 39.

74 R. at 40.

75 R. at 40-41.

76 R. at 41.

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surgery, and she still experienced some pain and numbness in her leg.77 Ms. Heinrich also testified

that she visited the emergency room on May 17, 2010, because her pain was so intense.78 She had

been performing normal activities at the time, but her pain prevented her from standing, sitting,

walking, and her medications did nothing to alleviate the pain.79 In addition to receiving an increased

dose of her fentanyl pain patch, Ms. Heinrich also mentioned that she experienced muscle spasms

each day that sometimes lasted for the entire day and prevented her from sleeping at night.80

Later, Ms. Heinrich testified that she spends at least three to four hours per eight hour work

day lying down.81 Additionally, Ms. Heinrich testified that she had used a back brace in the past, but

does not currently use one.82 Ms. Heinrich then stated that she prepares two meals per week, for

fifteen to thirty minutes at a time, with her husband’s assistance.83 Lastly, Ms. Heinrich stated that

she cannot sweep, vacuum, or clean and fold laundry because of her ailments.84 

2. VE’s Testimony

Next, Mr. Brady, the VE, testified.85 The ALJ asked the VE a series of hypothetical questions

regarding an individual of the same age, education, and past work experience as Ms. Heinrich.86 The

ALJ also specified that such an individual would be limited to sedentary work, lifting ten pounds

occasionally, less than ten frequently, sitting six of eight hours in a typical work day, and could stand

77 Id. 78 R. at 43.

79 Id. 80 R. at 43-44.

81 Id. 82 R. at 45.

83 Id. 84 R. at 46.

85 Id. 86 R. at 48.

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and walk up to two hours in an eight hour workday.87 When asked if such an individual could perform

any of Ms. Heinrich’s past work, the VE responded that he believed such an individual could return

to a data entry clerk position and the appointment clerk position.88 Additionally, the VE stated that

such an individual could perform the following jobs: information clerk, order clerk, and call out

operator.89 The VE also testified that some of these jobs would be available to an individual with the

limitations from the hypothetical where there was the option to alternate between sitting and standing

for thirty minute periods.90

The VE also stated, when questioned by Ms. Heinrich’s attorney, that an individual who could

only sit for forty-five minute periods for a total of four hours and stand up to thirty minutes for two

hours, would not be able to perform full time work activity.91 The VE then stated that an individual

who would miss three to four days per month, as Dr. Earman’s RFC asserted, would not be able to

maintain any employment.92

3. ALJ’s Decision

In an opinion issued June 15, 2011, the ALJ concluded that Ms. Heinrich was not disabled

within the meaning of the Social Security Act, both in terms of a period of disability and disability

insurance benefits, from February 14, 2008, through the date of the decision.93

Social security regulations require all ALJs to follow a five-step sequential process to

determine whether or not an individual is disabled.94 The burden of proof rests with the complainant

87 Id. 88 Id. 89 R. at 49.

90 Id. 91 R. at 50.

92 R. at 51.

93 R. at 17.

94 20 C.F.R. § 404.1520 (a).

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in steps 1-4 to prove she is disabled; if she meets this burden, then the burden shifts to the ALJ in step

five to prove that the complainant is capable of other work, based upon her age, RFC, and work

experience, within the economy.95 First, the ALJ must determine whether the claimant is presently 

 engaged in substantial, gainful activity; if so, this precludes a finding of disability.96 In the present

case, the ALJ found that Ms. Heinrich had not engaged in substantial gainful activity since the

alleged onset date of February 14, 2008.97

At step two, the ALJ must determine whether the claimant has a “severe” impairment or

combination of impairments.98 An impairment is considered “severe” if it significantly interferes with

a person’s ability to perform basic work activities.99 In the present case, the ALJ found that Ms.

Heinrich had the following severe impairments: status post discectomy, decompression laminectomy

and spinal fusion of the lumbar spine, and obesity.100 The ALJ also found that these impairments more

than minimally impacted Ms. Heinrich’s ability to perform basic work activities.101

The ALJ’s third step is to consider whether the claimant’s impairment or combination of

impairments meets the criteria of a listing in 20 CFR Part 404, Subpart P, Appendix 1. 20 CFR

404.1520(d), 404.1525, and 404.1526.102 The ALJ determined that the evidence did not document a

listing-level severity and that no “acceptable” medical source listed mentioned findings that were

equivalent in severity to any listed impairment or combination of impairments.103

95 20 C.F.R. § 404.1520 (a)(4)(v). 96 R. at 18.

97 R. at 19.

98 20 C.F.R. § 404.1572 (c). 99 Id. 100 R. at 19. 101 Id. 102 20 C.F.R. Part § 404, Subpart P, Appendix 1. 20; 20 C.F.R. §§ 404.1520 (d), 404.1525, and 404.1526. 103 R. at 20.

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If no impairments are found that meet the social security regulations listing requirements, the

ALJ must proceed to the fourth step to determine whether Ms. Heinrich has the residual functional

capacity (“RFC”) to perform the requirements of past relevant work.104 An RFC is an assessment of

the maximum work related activities the complainant, with her limitations, can complete.105 If Ms.

Heinrich has the residual functional capacity to perform past relevant work, Ms. Heinrich is not

disabled.106

When the ALJ must assess the complainant’s subjective complaints in order to determine the

RFC, the ALJ must follow a two-step process.107 First, the ALJ must determine whether there is an

underlying impairment that can reasonably be accepted, based upon medical evidence, to cause the

symptoms alleged.108 If so, the ALJ must evaluate how the intensity and persistence of the symptoms

affect the claimant’s ability to work.109

Here, the ALJ found that Ms. Heinrich had the RFC to perform sedentary work as defined by

20 CFR 404.1567(a).110 However, the ALJ also noted that Ms. Heinrich can never climb ladders,

ropes, scaffolds, ramps or stairs; she may only occasionally balance, stoop, kneel, crouch and crawl

and she must avoid concentrated exposure to hazards.111 The ALJ found that Ms. Heinrich’s

medically determinable impairments could be expected to cause her symptoms but found her

statements regarding the intensity, persistence, and limiting effects of the symptoms were not

104 20 C.F.R. § 404.1520 (a)(4)(iv); S.S.R. 82-61. 105 Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001); 20 C.F.R. § 404.1545(a). 106 20 C.F.R. § 404.1520(a)(4)(iv). 107 20 C.F.R. § 404.1545(a). 108 20 C.F.R. § 404.1545(b). 109 20 C.F.R. § 404.1545(c). 110 R. at 20. 111 Id.

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credible.112

In his credibility determination, the ALJ highlighted inconsistencies between Dr. Earman’s

office notes between February 2010 and May 2011 and the ALJ hearing, and the RFC questionnaire

Dr. Earman filled out in April 2011 regarding how many days per week and how long each day Ms.

Heinrich was capable of sitting and standing.113 Additionally, Ms. Heinrich’s work history report,

completed nearly two years after her alleged onset date, did not support Ms. Heinrich’s statements

regarding her physical limitations due to pain; Ms. Heinrich wrote that she stood six hours during her

twelve hour shifts as a cashier during the alleged disability period.114

Next, the ALJ specifically pointed to three notes Dr. Earman wrote, each of which were

written at the request of Ms. Heinrich or her attorney.115 One stated she could not work for six

months, another written three months later provided that she could return to work immediately.116

Then a third note, written only weeks later, stated that Ms. Heinrich could only work four hours per

day and never on consecutive days.117

The ALJ gave limited weight to the residual functional capacity assessment completed by Dr.

Gonzalez in November 2009.118 The state agency doctor concluded that Ms. Heinrich was capable

of performing the requirements of light work between November 2009 and February 2010.119

However, the ALJ found that Ms. Heinrich’s allegations and medical records during this period

supported additional limitations; specifically, the ALJ noted that Ms. Heinrich was “limited to less

112 R. at 21. 113 R. at 26 (referring to R. at 512-520, 483-489). 114 R. at 26 (referring to R. at 236-242). 115 R. at 26 (referring to R. at 527-531). 116 Id. 117 Id. 118 R. at 25 (referring to R. at 324-331). 119 R. at 25 (referring to R. at 413).

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than the full range of sedentary work” prior to the February 2011 Surgery.120

However, the ALJ gave some weight to the second residual functional capacity assessment

issued by state agency medical consultant, Dr. Vincent, in May 2010.121 Dr. Vincent had concluded

that Ms. Heinrich would be able to sit for six hours and stand less than two hours in an eight hour

workday by February 2011, one year after her recent surgery.122 But the ALJ noted that Ms. Heinrich

recovered much sooner than Dr. Vincent estimated. To support this point, the ALJ referenced Dr.

Verenna, Ms. Heinrich’s treating physician, who noted on June 17, 2010, that Ms. Heinrich only

exhibited mild tenderness, denied any numbness, and exhibited a full range of motion.123 Therefore,

after evaluating the record in its entirety, the ALJ found Ms. Heinrich capable of performing

sedentary work.124

IV. Standard of Review

The Court must sustain the Commissioner’s findings of fact that are supported by substantial

evidence and free from legal error.125 Substantial evidence is more than a “scintilla” of proof: it is

“what a reasonable mind might need to support a conclusion.”126 The Court must review the entire

record, but it “will not decide the facts anew, re-weigh evidence, or substitute our judgment for that

of the ALJ.”127 Additionally, where conflicting evidence allows for alternative reasonable

conclusions, it is the Commissioner’s responsibility to determine whether the plaintiff is disabled,

120 R. at 25 (referring to R. at 411-413). 121 Id. 122 Id. 123 R. at 25 (referring to R. at 502). 124 Id. 125 42 U.S.C. § 405 (g). 126 Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). 127 Butera v. Apfel, 173 F.3d 1049,1055 (7th Cir. 1999).

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not the Court.128 Although the ALJ does not have to discuss every piece of evidence, she must still

articulate, at a minimum level, her analysis of the evidence129 and “build a logical bridge” between

the evidence and his conclusion.130

V. Analysis

Ms. Heinrich proffers the following three arguments for remand: (1) the ALJ did not give

adequate weight to Dr. Earman’s medical opinion; (2) the ALJ failed to consider all statutorily

relevant factors when he determined Ms. Heinrich’s credibility, and; (3) the ALJ failed to consider

that Ms. Heinrich would not be able to perform sedentary work because of her ailments. For the

reasons set forth below, we uphold the Commissioner’s findings.

1. The Weight Given to Dr. Earman’s Opinion

 We begin with an assessment of the weight the ALJ gave to Dr. Earman’s opinion. Ms.

Heinrich claims that had the ALJ given Dr. Earman’s opinion proper weight, it would have been clear

that she could not perform even sedentary work. Specifically, Ms. Heinrich describes an inability

to maintain employment because of her inability to work more than four days per week, referring to

Dr. Earman’s April 2011 RFC questionnaire.131 We find there is sufficient evidence in the record to

support the ALJ’s determination that Dr. Earman’s “own treatment notes do not support the level of

limitations he described in his report on April 10, 2011.”132

Social security regulations state that “a treating physician’s opinion is entitled to controlling

weight when it is supported by the medical evidence and is not inconsistent with other substantial

128 Walker v. Bowen, 834 F.2d 635, 640 (7th Circ. 1987). 129 Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Brindisi ex. Rel. Brindisi v. Barnhart, 315 F.3d 

 783, 786 (7th Cir. 2003). 130 McKenzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011). 131 Pl.’s M. Summ. J. at 16 (referencing R. at 483-489). 132 R. at 25.

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evidence.”133 When the treating physician’s opinions are “not consistent with other substantial

evidence,” the presumption that the treating physician’s opinions are entitled to controlling weight

disappears.134 Substantial evidence consists of “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”135

Here, the ALJ found two inconsistencies. First, the ALJ referenced Dr. Earman’s notes from

Ms. Heinrich’s multiple offices visits in February, March, and May of 2011 where Dr. Earman

repeatedly noted that Ms. Heinrich had good motor strength, no neurological deficits, and negative

straight leg testing.136 The ALJ also highlighted an office visit from February 2011, two months prior

to the ALJ hearing, where Dr. Earman wrote that an x-ray indicated a solid fusion in Ms. Heinrich’s

lumbar spine and that she was stable on her medications.137 The ALJ gave credit to these notes.

The ALJ discounted, however, the last medical record that Dr. Earman completed, which was

an RFC questionnaire specifically filled out for Ms. Heinrich’s disability application. Dr. Earman

listed numerous limitations in the RFC questionnaire, such as the inability to work more than four

days per week.138 The ALJ found Dr. Earman’s answers regarding Ms. Heinrich’s limitations

inconsistent with his examination notes because Dr. Earman had noted in February 2011, two months

before he filled out the questionnaire, that Ms. Heinrich was stable on her medications and that her

lumbar spine showed a solid fusion.139 The ALJ also pointed out that Dr. Earman showed few

objective findings to support Ms. Heinrich’s allegations of disabling pain,140 a point the

133 20 C.F.R. § 404.1527 (c)(2). 134 Hofslien v. Barnahrt, 439 F.3d 375, 377 (7th Cir. 2006). 135 Richardson v. Perales, 402 U.S. 389, 401 (1971). 136 Id. (quoting R. at 397-399, 423). 137 R. at 26 (quoting R. at 484-487). 138 R. at 486. 139 R. at 25 (referring to R. at 512). 140 R. at 25

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Commissioner highlighted in his motion for summary judgment.141 Thus, the inconsistencies between

Dr. Earman’s treatment notes and the RFC questionnaire lead the ALJ, in part, to discount Dr.

Earman’s opinion.142

Ms. Heinrich also argues that the ALJ’s evaluation of Dr. Earman’s opinion was inconsistent

with social security regulations granting the treating physician’s opinion controlling weight143 and

the Seventh Circuit’s decision in Elder v. Astrue.

144 It is odd that Ms. Heinrich proffers Elder to

support her position because in that case the appellate court found that the ALJ had correctly given

little weight to the treating physician’s opinion.145 Much like this case, in fact, the court found that

a decision to deny a treating physician controlling weight does not prevent the ALJ from considering

it, or affording it less evidentiary weight.146 The ALJ is to simply discuss factors, such as the extent

of the relationship, whether the physician’s opinions included sufficient explanations, and the

physician’s specialization.147

Here, the ALJ reviewed Dr. Earman’s treatment notes, which appeared inconsistent with the

level of limitations he ultimately described in his April 2011 report,148 and inconsistent with other

substantial evidence in the record; for example, Dr. Verenna’s notes regarding her recovery149 and

Dr. Vincent’s assessment.150 The only doctor notes that reflected the level of limitations Ms. Heinrich

claims are those written “based on her requests” and within the residual functional capacity

141 D.’s M. Summ. J. at 6 (referring to R. at 395-409, 422-424, 510-545). 142 R. at 25. 143 20 C.F.R. § 404.1527 (c)(2). 144529 F.3d 408, 415 (7th Cir. 2008). 145Elder, 529 F.3d at 415. 146Id. 147Id. 148 R. at 25 (referring to R. at 512-535). 149 Id. (referring to R. at 502). 150 Id. (referring to R. at 411-413).

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questionnaire.151 The ALJ, therefore, explained why he found Dr. Earman’s ultimate opinion on Ms.

Heinrich’s abilities to be inconsistent. As noted in Elder, if the ALJ discounts a physician after

considering these issues, “we must allow that decision to stand,” which is “‘a very deferential

standard that we have, in fact, deemed ‘lax.’”152

Moving to the second inconsistency the ALJ referenced, we must address the three work

limitation notes. Ms. Heinrich argues that the ALJ inappropriately determined that Dr. Earman only

wrote the work limitation notes because of Ms. Heinrich’s requests, “not his medical opinion.”153 She

relies on Ratto v. Secretary, a Ninth Circuit case, for the proposition that the Commissioner cannot

assume that a doctor will routinely lie in order to help patients collect disability benefits.154 In Ratto,

the court found that the ALJ had incorrectly rejected the findings of a doctor because the examination

was procured by the claimant and incorrectly assumed that the doctor’s findings were tainted because

he knew the claimant was applying for benefits.155 The court held that such knowledge does not

automatically make the doctor biased, finding that the Commissioner may only “introduce evidence

of actual improprieties.”156

But here Dr. Earman wrote three conflicting notes in three months, the last note within three

weeks of the second note, each at the request of Ms. Heinrich or her attorney. Even if we apply the

court’s reasoning in Ratto, which is not binding here, Ms. Heinrich’s argument fails because there

is no medical evidence or explanation provided for Dr. Earman’s conflicting notes within a four

151R. at 25. 152Elder, 529 F.3d at 415(quoting Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)). 153 Pl.’s M. Summ. J. at 13. 154 839 F. Supp. 1415, 1426 (D. Or. 1993). 155 Id.; see Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996)(holding the ALJ’s suspect opinion of the 

 claimant’s psychologist inappropriate because his opinion was obtained in anticipation of litigation). 156 Id. 

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month period of time. Pursuant to our standard of review, the ALJ’s reliance on this kind of

inconsistency is sufficient, and allows the ALJ to afford Dr. Earman less weight. 

2. The ALJ’s Assessment of Ms. Heinrich’s Credibility

Ms. Heinrich alleges that the ALJ incorrectly discounted her statements because the ALJ did

not list all the statutorily relevant factors in his credibility section: Ms. Heinrich’s daily activities;

location, duration, and frequency of pain; factors that precipitate and aggravate symptoms; side

effects of any medication Ms. Heinrich takes, and any other factors concerning Ms. Heinrich’s

limitations due to pain.157

When assessing credibility, SSR 96-7P states that the ALJ’s written decision must “contain

specific reasons for the finding on credibility, supported by the evidence in the case record, and must

be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight

the adjudicator gave to the individual's statements and the reasons for that weight.”153 Where

conflicting evidence allows for different reasonable findings as to whether a claimant is disabled, the

ALJ’s opinion is controlling if supported by substantial evidence.154 Additionally, the claimant must

show that the ALJ’s credibility determination was “patently wrong” for this court to overturn it.155

However, the ALJ must still build a “logical bridge”156 between the evidence and his conclusion.

Lastly, the ALJ’s opinion cannot stand if it is “so poorly articulated as to prevent meaningful

review.”157 

157 See 20 C.F.R. § 404.1529 (c) (providing factors necessary to evaluate a claimant’s credibility). 153 SSR 96-7p; see also Brindisi ex. Rel. Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003). 154 42 U.S.C. § 405(g); Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). 155 See Powers v.Apfel, 207 F.3d 431,435 (7th Cir .2000). 156 Craft v. Astrue, 539 F.3d 668,673 (7th Circ. 2008). 157 Id.

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All of the factors Ms. Heinrich believes the ALJ did not consider are, in fact, given

consideration in different sections of the ALJ’s opinion. First, the ALJ discussed Ms. Heinrich’s

daily activities.158 Specifically, the ALJ noted that Ms. Heinrich alleges that she sleeps three to four

hours per day159 and takes care of her three year old granddaughter, occasionally goes grocery

shopping, and uses the computer to stay in touch with friends.160 However, the ALJ determined that,

as of the June 2011 ALJ hearing, Ms. Heinrich had recovered to the extent that she could perform

sedentary work because of the lack of objective findings to the contrary, the omission in the record

of significant complaints of fatigue, and due to a work history report that indicated she would stand

for six hours out of a twelve-hour shift.161 Ms. Heinrich offers no case law or citations from the record

to support her argument that the ALJ’s assessment was incorrect. 

Second, the ALJ wrote at great length about the location, duration, intensity, and frequency

of Ms. Heinrich pain, the multiple doctors she visited, and the treatments she underwent.162 The ALJ

summarized Ms. Heinrich’s office visits, medical notes and procedures from 2008 until June 9, 2011,

and her testimony.163 The ALJ specifically noted Ms. Heinrich’s claim that she had daily muscle

spasms that could last all day.164 The ALJ determined after review of Ms. Heinrich’s testimony, and

the testimony of the VE, that Ms. Heinrich’s ailments had improved between February 2010 and the

ALJ hearing because of Dr. Verenna’s office notes from July 2010, which stated that Ms. Heinrich

displayed mild tenderness and exhibited a full range of motion without pain165 and Dr. Vincent’s

158 R. at 21. 159 R. at 26. 160 R. at 21. 161R. at 26. 162 R. at 22-25. 163 R. at 21-25. 164 R. at 21. 165 R. at 23 (referring to R. at 502).

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assessment from May 2010, which stated that Ms. Heinrich would be able to perform sedentary work

as of February 2011.166 Therefore, the ALJ provided a logical bridge between his findings and the

record when he made his determination.

Third, the ALJ mentioned factors that aggravated and precipitated Ms. Heinrich’s symptoms.

In the medical history section of his report, the ALJ noted that Ms. Heinrich has difficulty “walking,

lifting, bending, and sitting” as of January 2010, referring to Ms. Heinrich’s back injury.167

Additionally, the ALJ highlighted that Ms. Heinrich’s ability to perform these actions without

aggravating her symptoms had improved; Dr. Verenna’s notes from a June 2010 visit indicate that

Ms. Heinrich exhibited a full range of motion without pain.168

Fourth, the ALJ discussed the alleged effects of Ms. Heinrich’s medications, but found them

to be less than credible. First, the ALJ noted that Ms. Heinrich alleged that she experiences sleepiness

and nausea due to her medications.169 The ALJ concluded, however, that “the medical record does

not indicate the claimant ever complained of nausea or dizziness.”170 Second, the ALJ noted that Ms.

Heinrich alleged that she experiences fatigue due to her medications. However, the record only

indicated that she told Dr. Ciechna once about her fatigue.171 Dr. Ciechna specified that Ms.

Heinrich’s blood had been tested six months prior to her complaint of fatigue with completely normal

results.172 Additionally, the ALJ accurately pointed out that, with the exception of this visit, there was

no evidence in the record that Ms. Heinrich ever complained of fatigue again to any of her doctors.173

166 R. at 23 (referring to R. at 421). 167 Id. 168 R. at 23 (referring to R. at 502). 169 R. at 26. 170 Id. 171 R. at 26 (referencing R. at 507-508). 172 Id. 173 R. at 26.

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Ms. Heinrich also fails to provide case law, or cite any evidence from the record, that would discount

the ALJ’s determination regarding the alleged effects of her medications. 

Fifth, Ms. Heinrich also argues that the ALJ improperly considered the extent to which her

pain limits her ability to stay on task. Ms. Heinrich accurately points out that once there is a

medically determinable impairment that reasonably could produce the pain, but the intensity of the

pain is unsubstantiated by the record, the ALJ must consider the observation of all physicians, third

party testimony, and her activities and restrictions.174 However, Ms. Heinrich does not explain why

the ALJ’s thorough consideration of all these factors does not satisfy the standard in Herron v.

Shalala,

175 a case she cites to support her argument. In Herron, the ALJ failed to make any

assessment of the medical evidence and testimony regarding one of the claimant’s injuries.176 But

here, the ALJ discussed his assessment of all relevant medical evidence and Ms. Heinrich’s

testimony. Specifically, the ALJ highlighted the weight given to the assessments produced by Dr.

Vincent and Dr. Gonzalez,177 and Dr. Earman, and Ms. Heinrich’s credibility assessment.178 While

the ALJ’s opinion does not contain a separate section where he considers the opinions of Dr.

Ciechna, Dr. Varma, or Dr. Verenna, the ALJ mentioned their findings throughout the opinion; the

ALJ cited Ms. Heinrich’s June 2010 office visit with Dr. Verenna where she exhibited a full range

of motion without pain,179 summarized Dr. Varma’s findings from visits in June 2009 and August

2009,180 and listed Dr. Patel’s notes the from examinations in November and December of 2009.181

174 20 C.F.R. § 404.1529; Herron v. Shalala, 19 F.3d. 329, 334 (7th Cir. 1994). 175 Herron, 19 F.3d at 333-337. 176 Id. 177 R. at 25. 178 R. at 25-26. 179R. 23 (referring to R. at 502). 180 R. at 21-22 (referring to R. at 280, 296-297). 181 R. at 22 (referring to R. at 343-350).

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Finally, Ms. Heinrich argues that the ALJ did not consider her work history.182 Ms. Heinrich

makes numerous accusations about the ALJ’s incorrect consideration of her work history,183 despite

providing only a single citation to the ALJ’s decision to support her argument. Contrary to her

contention, however, the ALJ analyzed Ms. Heinrich’s work history at great length.184 The ALJ

supported his conclusion that Ms. Heinrich is capable of “performing past relevant work”185 by

providing a detailed analysis of Ms. Heinrich’s work history, Dr. Vincent’s residual functional

capacity assessment, and a summary of the VE’s answers.186 

3. Ms. Heinrich’s Residual Functional Capacity

Ms. Heinrich’s final argument is that the ALJ failed to consider that, due to her job history

and physical limitations, she is unable to perform the full range of sedentary work.187 As noted, she

principally relies on support from her orthopedist, Dr. Earman, who found that she is unable to work

more than four hours per day and requires one day off per week. We have already determined that

the ALJ was not in error when he discounted this particular assessment by Dr. Earman. Sedentary

work is defined by social secuirty regulations as requiring primarily sitting, some walking and

standing, and minimal lifting.188 The Seventh Circuit has also noted that a claimant is capable of

performing sedentary work if she can (1) sit up, (2) do occasional lifting of objects up to ten pounds,

and (3) occasionally walk or stand.189

While it is true that Ms. Heinrich’s medical record demonstrates a history of multiple back

problems with degenerative disc disease, Dr. Earman’s notes from Ms. Heinrich’s office visits

182 Pl’s. M. Summ. J. at 19. 183 Id. 184 R. at 26-27. 185 R. at 27. 186 R. at 26-27. 187 See 20 C.F.R. §§ 404.1520, 416.920; Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993). 188 See 20 C.F.R. §§ 404.1567 (a), 416.967 (a). 189 Edwards v. Sullivan, 985 F.2d 334, 338 (7th Cir. 1993).

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between her February 2010 surgery and the June 2011 ALJ hearing indicate that Ms. Heinrich was

steadily improving, gradually increasing her daily activities, and her pain levels were slowly

decreasing.190 As previously noted, little weight was given to Dr. Earman’s medical opinion in

regards to the April 2011 questionnaire, but his notes prior to that date were relied on by the ALJ.191

The ALJ also referenced the fact that Dr. Earman noted that he planned to cut back her

medications.192 Additionally, Dr. Verenna’s notes indicate that as early as June 2010 Ms. Heinrich

had no joint pain or stiffness, dizziness, numbness, and displayed a full range of motion while

exhibiting only mild tenderness. 193

Ms. Heinrich, however, contends that the ALJ incorrectly dismissed her documented

complaints due to insufficient evidence of neurological deficits after her surgery. She argues that the

court in Montgomery v. Barnhart required the ALJ to consider problems that ensued when an

individual was “off task” for as long as fifteen minutes twice per month.194 However, Ms. Heinrich

fails to appreciate that the complainant in Montgomery had suffered head trauma, routinely

experienced seizures, and that the ALJ had independently determined the complainant’s limitations

without articulating the basis for his findings.195 In contrast, here the ALJ articulated that his

determination regarding Ms. Heinrich’s RFC was based upon the opinions of Dr. Vincent and Dr.

Gonzalez, Dr. Earman’s notes, and Ms. Heinrich’s testimony.196 

VI. Conclusion

190 R. at 25-26 (referencing R. at 520-531). 191 R. at 25. 192 R. at 25-26 (referencing R. at 399). 193 R. at 23 (referencing R. at 502). 194 No. 02 C 7564, 2004 U.S. Dist. LEXIS 14287, at *16-18 (July 26, 2004, N.D. Ill.). 195 Id. 196 R. at 25-26.

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For the reasons outlined, Ms. Heinrich’s motion for summary judgment is denied [dkt. 12]

and the Commissioner’s motion is granted [dkt. 15].

IT IS SO ORDERED. 

__________________

Date: August 23, 2013 Susan E. Cox

U.S. Magistrate Judge 

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