In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1230
ANNE R. HILL,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:13‐cv‐331 — Rudy Lozano, Judge.
____________________
ARGUED OCTOBER 6, 2015 — DECIDED DECEMBER 3, 2015
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. An administrative law judge dis‐
believed Anne Hill’s testimony that she could not sit, stand,
or walk for extended periods of time and denied her applica‐
2 No. 15‐1230
tion for Disability Insurance Benefits and Supplemental Se‐
curity Income. In this action arising under 42 U.S.C. § 405(g),
Hill challenges this adverse credibility finding as well as the
ALJ’s assessment of her residual functional capacity. We
agree with Hill that the ALJ’s credibility analysis was flawed
and remand the case to the agency for further proceedings.
I. BACKGROUND
A. Evidence of Hill’s Disabilities
Hill, who is currently 56 years old, worked for more than
13 years at a steel factory, where her duties included lifting
and carrying steel sheets that weighed up to 100 pounds.
The manual labor took a toll on Hill’s body, and, unable to
keep working at the factory, she applied for disability bene‐
fits in July 2011. She alleged an onset date in June 2011 and
listed eight impairments: a total hip replacement, a recom‐
mended total shoulder replacement, carpal tunnel, a rup‐
tured disc, cervical fusion,1 knee pain, a broken left hand,
and tendinitis.
Hill had cervical‐fusion surgery in 1985, but there is no
mention of neck pain in her available medical records before
1 The parties did not tell us what “cervical fusion” is, but they should
have. This case is not a dispute about the meaning of an uncommon term
or term of art. But parties should define this kind of term even if its
meaning is not in dispute and does not drive the outcome. Doing so
makes the case more understandable and gives clarity to readers. We
have included some definitions to make this opinion more understanda‐
ble; but they were not necessary to the outcome. “Cervical fusion” is a
surgery that joins bones in the neck. See Cervical Spinal Fusion, WEBMD,
www.webmd.com/back‐pain/cervical‐spinal‐fusion (visited October 27,
2015, as were the other websites cited in this opinion).
No. 15‐1230 3
November 2010. In November 2010, she was diagnosed with
neck strain, though she was cleared for work without re‐
strictions. The next month, she saw a doctor for shoulder
pain. Imaging studies revealed a likely hyperextension inju‐
ry; a bone spur; tears of the tendons in her left shoulder, left
bicep, and left hip joint; a possible “loose body” in her left
shoulder; osteoarthritis in her left hip; and tendinopathy2 in
her left shoulder. She was prescribed pain medication and
her arm was placed in a sling. During a follow‐up appoint‐
ment with orthopedic surgeon Dr. Barry Liechty, Hill report‐
ed improvement but also said that she still experienced pain
in her shoulder.
Hill met with Dr. Liechty again in May 2011, complaining
of pain in her left hip, knee, and groin. Dr. Liechty noted se‐
vere osteoarthritis of the left hip and performed a total hip
replacement two months later. A few weeks after that sur‐
gery, Dr. Liechty reported that Hill was limping and taking
one or two Vicodin each week. He recommended that she
not work at a job requiring pulling, pushing, or squatting.
He also recommended that she not lift more than 10 pounds,
but that recommendation was changed a few weeks later to
restrict only “heavy lifting.”
Nearly two months after her hip replacement, in August
2011, Hill met with state‐agency doctor David Ringel, an os‐
teopathic physician, who noted that Hill limped and had
2 “Tendinopathy” is another term that should have been defined for
clarity. It refers to both: (1) inflammation of a tendon; and (2) small tears
in a tendon. See Tendon Injury (Tendinopathy), WEBMD,
www.webmd.com/hw‐popup/tendon‐injuries‐tendinopathy.
4 No. 15‐1230
“quite a bit of stiffness.” Dr. Ringel reported that Hill said
she could lift 10 pounds, do most household chores, and
stand 1 to 2 hours at a time and 4 hours total during an 8‐
hour workday. He described Hill as mildly obese and noted
some limitations in her ability to move her shoulders, neck,
lower back, and left hip.
The next month, in September 2011, another state‐agency
doctor, Dr. J. Sands, reviewed Hill’s medical records and
prepared a Physical Residual Functional Capacity Assess‐
ment. Dr. Sands noted Hill’s history of shoulder and hip os‐
teoarthritis. He opined that her “hip replacement would be
expected to improve with further therapy and time,” but
said that she would be limited to occasional pulling, press‐
ing, and pushing with her left extremities. He estimated that
Hill could lift 20 pounds occasionally and 10 pounds fre‐
quently, and could sit, stand, or walk 6 hours each in an 8‐
hour workday. Dr. Sands further opined that Hill occasional‐
ly could balance, stoop, kneel, crouch, crawl, and climb
ramps and stairs, but could not climb ladders, ropes, or scaf‐
folds.
Two weeks later Hill complained of low back pain, and
an imaging study revealed minimal degenerative disc dis‐
ease, narrowing disc spaces, atherosclerotic3 vascular chang‐
es, and calcification of a portion of the pelvis. Dr. Sands and
two additional state‐agency physicians reviewed this new
3 Atherosclerosis is a hardening and narrowing of the arteries. See
Heart Disease and Atherosclerosis, WEBMD, www.webmd.com/heart‐
disease/guide/atherosclerosis‐faq.
No. 15‐1230 5
information but concluded that it did not change the earlier
assessment of Hill’s impairments.
The Social Security Administration initially denied Hill’s
application in October 2011, and did so again on reconsider‐
ation the next month.
In September 2012, Hill testified before the ALJ. She ex‐
plained that she had to stop working at the factory because,
after her hip‐replacement surgery, she could no longer per‐
form manual labor. Hill said that, despite taking aspirin and
Naproxen, she could “hardly sleep at night” because of
shoulder and neck pain, and she had trouble walking be‐
cause of leg and back pain. But, Hill explained, it was diffi‐
cult for her to determine the source of the pain because “[i]t’s
all connected somehow.” She added that she no longer took
narcotic pain relievers because her doctor was concerned
that she could become addicted. (That concern may have
been caused by Hill’s admission of “heavy” drinking and a
family history of alcoholism.) Hill then explained that she
lacked health insurance and could not afford to go a doctor
“over every little pain,” nor could she afford the total shoul‐
der replacement her doctor had recommended. She de‐
scribed her daily activities, which then included babysitting,
caring for her pets and her roommate (who is an amputee),
going to church, visiting with family members, and doing
chores like loading the dishwasher, vacuuming, taking out
the garbage, and doing laundry. But she added that she
needs to take breaks while performing those chores and that
she is unable to lift the child she babysits. She estimated that
she could sit or stand for about 10 to 15 minutes without a
break, lift between 10 and 15 pounds with her right arm but
much less with her left, squat or kneel with her right leg but
6 No. 15‐1230
not with her left, and slowly crawl. Hill rated her hip pain at
3 out of 10, her shoulder pain at 8, and her leg pain at 5.
A longtime friend, Kim Stamate, testified that she helps
walk Hill’s dogs and carry Hill’s groceries, and that she had
not seen Hill walk without a limp in the past year.
A vocational expert testified that Hill could not perform
her past work if limited to the extent described by the ALJ:
able to lift up to 20 pounds occasionally and 10 pounds fre‐
quently; able to sit, stand, or walk for 6 hours each in an 8‐
hour workday; occasionally able to balance, stoop, kneel,
crouch, crawl, and climb ramps and stairs, but never able to
climb ladders, ropes, or scaffolds; and limited to occasional
pulling, pushing, and reaching with the left extremities. But,
the VE continued, Hill still could work at jobs classified as
light4 and unskilled, such as a dealer account investigator,5 a
furniture rental consultant, and a counter clerk.6 In the na‐
tional economy, the VE said, there were 22,000 jobs as a deal‐
4 Light work requires standing or walking for about 6 hours in an 8‐
hour workday and sitting during the remainder. See SSR 83‐10, 1983 WL
31251, at *5–6; 20 C.F.R. §§ 404.1567(b), 416.967(b).
5 A dealer account investigator is defined in the Dictionary of Occu‐
pational Titles as a person who “[v]isits dealers to verify purchases fi‐
nanced by [a] bank against physical inventory of merchandise.” Investi‐
gator, Dealer Accounts (financial), DICTIONARY OF OCCUPATIONAL TITLES,
www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT02B.HTM.
6 This job is described in the DOT’s last update (in 1991) as pro‐
cessing film for photo printing. Counter Clerk (photofinishing), DICTIONARY
OF OCCUPATIONAL TITLES, www.oalj.dol.gov/PUBLIC/DOT/
REFERENCES/DOT02C.HTM.
No. 15‐1230 7
er account investigator, 40,000 jobs as a furniture rental con‐
sultant, and 50,000 jobs as a counter clerk. Those jobs, the VE
asserted, would be available to a person who was unable to
crouch or to push, reach, or pull with her left extremities. Fi‐
nally, the VE testified that someone with Hill’s limitations, if
also unable to stand or walk more than 2 hours in an 8‐hour
workday or lift more than 10 pounds occasionally, still could
perform sedentary jobs, see SSR 83‐10, 1983 WL 31251, at *5;
20 C.F.R. §§ 404.1567(a), 416.967(a), like a call‐out operator7
(45,000 jobs in the national economy), a semiconductor
bonder8 (30,000 jobs in the national economy), and a registra‐
tion clerk9 (27,000 jobs in the national economy).
7 A call‐out operator “[c]ompiles credit information, such as status of
credit accounts, personal references, and bank accounts to fulfill sub‐
scribers’ requests, using telephone.” Call‐Out Operator (business ser.; retail
trade), DICTIONARY OF OCCUPATIONAL TITLES, www.oalj.dol.gov/PUBLIC/
DOT/REFERENCES/DOT02B.HTM.
8 This job involves operating an “automatic bonding machine that
bonds gold or aluminum wire to integrated circuit dies to connect cir‐
cuitry to package leads.” Bonder, Semiconductor (electron. comp.),
DICTIONARY OF OCCUPATIONAL TITLES, www.oalj.dol.gov/PUBLIC/DOT/
REFERENCES/DOT07C.HTM.
9 The VE gave DOT number 205.367‐030 for “registration clerk.”
That’s the number for an election clerk—someone who performs admin‐
istrative tasks during elections. See Election Clerk (government ser.),
DICTIONARY OF OCCUPATIONAL TITLES, www.oalj.dol.gov/PUBLIC/DOT/
REFERENCES/DOT02A.HTM. There are two jobs in the DOT titled “reg‐
istration clerk.” A registration clerk may conduct interviews “to compile
information for legal or other records,” Registration Clerk (government
ser.), DICTIONARY OF OCCUPATIONAL TITLES, www.oalj.dol.gov/PUBLIC/
DOT/REFERENCES/DOT02A.HTM, or record identifying information
8 No. 15‐1230
B. The Agency’s Decision
The ALJ concluded that Hill is not disabled. The ALJ ap‐
plied the 5‐step analysis for assessing disability, see 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4), and first determined at Step
1 that Hill had not engaged in substantial gainful activity
since her alleged onset in June 2011.
At Step 2 the ALJ identified Hill’s severe impairments as
degenerative joint disease with total replacement of the left
hip and osteoarthritis of the left shoulder. The ALJ also con‐
cluded, however, that Hill’s alleged back and neck pain do
not cause “more than minimal functional limitations” and
“do not further reduce her capacity beyond the limitations
imposed by her left hip and left shoulder impairments.” The
ALJ reasoned that, because Hill had worked at a job involv‐
ing manual labor “for many years” after her neck surgery
and had a full range of motion in her neck in December 2010,
her neck pain likely had resolved before her alleged onset
date in June 2011. As for Hill’s back, the ALJ noted that the
imaging study done in October 2011 had “revealed only
minimal degenerative changes,” which, according to the
ALJ, “would not be expected to cause significant pain with‐
out any nerve root impingement or spinal stenosis.” What’s
more, the ALJ added, Hill had “not had any epidural injec‐
tions, physical therapy, or other treatment for low back
pain,” did not have an abnormal gait, and had “not been
evaluated by a specialist for low back pain.”
from library patrons on cards and microfilm, Registration Clerk (library),
DICTIONARY OF OCCUPATIONAL TITLES, www.oalj.dol.gov/PUBLIC/DOT/
REFERENCES/DOT02C.HTM.
No. 15‐1230 9
At Step 3 the ALJ concluded that none of Hill’s impair‐
ments, individually or in combination, satisfy a listing for
presumptive disability.
At Step 4 the ALJ rejected Hill’s account of the severity of
her disabling limitations. The ALJ started with boilerplate
language reciting that Hill’s “statements concerning the in‐
tensity, persistence and limiting effects of these symptoms
are not entirely credible” even though her “medically de‐
terminable impairments could reasonably be expected to
cause the alleged symptoms.” The ALJ then asserted that
Hill’s hip pain had improved significantly since her surgery:
Hill had decreased her use of pain medication; she did not
use a walker; her doctor had cleared her for work with min‐
imal limitations; she had not complained in her most recent
visits with doctors of hip, leg, or back pain; and her doctor
had reported that Hill’s “gait was not abnormal.” Turning
next to Hill’s alleged back pain, the ALJ repeated that an im‐
aging study had shown “only minimal degenerative changes
in the lumbar spine” and that “[w]ithout any nerve root
compression, loss of disc space height, or spinal stenosis, the
extent of low back pain and inability to sit, stand, and walk
alleged by the claimant is not credible, particularly in light of
the absence of complaints of low back pain to treating physi‐
cians.” And, concerning Hill’s neck pain, the ALJ again as‐
serted that the lack of any complaints of pain to doctors after
November 2010 “suggests that the neck pain resolved quick‐
ly.”
Concerning Hill’s shoulder, however, the ALJ acknowl‐
edged that Hill’s testimony was supported by evidence of
osteoarthritis and tendinopathy in the medical records. But
the ALJ concluded that, although Hill’s use of her left arm
10 No. 15‐1230
was limited, she still could use her right arm to lift and carry
20 pounds occasionally and 10 pounds frequently. Hill’s abil‐
ity to complete some housework, the ALJ insisted, confirmed
that her use of her right arm was not limited. And, the ALJ
added, Hill’s use of only aspirin and Naproxen for pain
“suggests that the pain is not as limiting” as she testified.
The ALJ gave great weight to the medical opinions of
Hill’s treating orthopedist and the state‐agency physicians
who suggested that she could perform a limited range of
light work. But the ALJ discounted the testimony of Hill’s
friend, Stamate, reasoning that she was not a “trained medi‐
cal observer” and had contradicted the observations of Hill’s
doctor. The ALJ noted also that Hill “wanted to work but
could not find someone to hire her.”
Finally, at Step 5 the ALJ concluded that Hill could not
perform her past relevant work but could perform light
work, including as a dealer account investigator, furniture
rental consultant, or counter clerk. Finding those jobs existed
in significant numbers, the ALJ found Hill not disabled.
The Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner. See Pepper v.
Colvin, 712 F.3d 351, 361 (7th Cir. 2013). The district judge
upheld that decision.
II. ANALYSIS
In this court Hill challenges the adverse credibility find‐
ing, arguing that the ALJ improperly discredited her testi‐
mony that back and neck pain limit her ability to stand, sit,
and walk for extended periods of time. We agree. As dis‐
cussed below, the ALJ’s analysis was flawed in several re‐
spects.
No. 15‐1230 11
First, the ALJ reasoned that Hill’s credibility was under‐
mined because she had stopped taking narcotic pain reliev‐
ers and had complained of back pain to doctors only inter‐
mittently. Yet the ALJ ignored explanations for the conserva‐
tive treatment: Hill testified that her doctor was worried
about the addictiveness of narcotic pain relievers and that
her back and neck pain may have been related to her shoul‐
der and hip pain, which she did complain about to doctors
on multiple occasions. See SSR 96‐7P, 1996 WL 374186, at *7
(ALJs must consider “any explanations that the individual
may provide, or other information in the case record, that
may explain infrequent or irregular medical visits or failure
to seek medical treatment”); Beardsley v. Colvin, 758 F.3d 834,
840 (7th Cir. 2014) (remanding to agency where ALJ made no
attempt to determine reason for conservative treatment). The
ALJ acknowledged Hill’s testimony that she could not afford
to visit doctors frequently, but nonetheless found Hill’s tes‐
timony about back pain not credible because Hill “did not
even seek a referral to a back specialist.” How Hill would
have paid for a specialist, the ALJ did not say. See Craft v.
Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (ALJ should have
considered claimant’s “inability to pay for regular treatment
and medicine”).
Second, the ALJ reasoned that Hill was exaggerating her
back pain because she had never been diagnosed with nerve
root compression, loss of disc space height, or spinal steno‐
sis. The ALJ’s conclusion is not supported by any medical
evidence in the record; it amounts to the ALJ improperly
“playing doctor.” See Engstrand v. Colvin, 788 F.3d 655, 660–
61 (7th Cir. 2015); Goins v. Colvin, 764 F.3d 677, 680 (7th Cir.
2014); Pate‐Fires v. Astrue, 564 F.3d 935, 946–47 (8th Cir. 2009).
12 No. 15‐1230
Third, the ALJ reasoned that Hill was stretching the truth
about her neck pain because she still wanted to work, and
because she performed manual labor for many years after
her neck surgery. This logic is backward: a “claimant with a
good work record is entitled to substantial credibility when
claiming an inability to work because of a disability.” Rivera
v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983); see Singletary v.
Sec’y of Health, Educ. & Welfare, 623 F.2d 217, 219 (2d Cir.
1980) (claimant’s history of performing demanding work
over long hours “justifies the inference that when he stopped
working he did so for the reasons he testified to”); Allen v.
Califano, 613 F.2d 139, 147 (6th Cir. 1980). And, as we have
explained, a claimant’s desire to work is not inconsistent with
her inability to work because of a disability. See Voigt v. Col‐
vin, 781 F.3d 871, 876 (7th Cir. 2015) (claimant’s desire to
work, but inability to find work, is “consistent with his want‐
ing to lead a normal life yet being unable to land a job be‐
cause he’s disabled from gainful employment”); Jones v.
Shalala, 21 F.3d 191, 192 (7th Cir. 1994) (explaining that
claimant might be earning a decent wage despite being per‐
manently disabled).
The Commissioner counters that consideration of a
claimant’s work history is “proper when the claimant has
had essentially the same condition for decades, and re‐
mained able to work.” That statement is true enough,
see Orlando v. Heckler, 776 F.2d 209, 213–14 (7th Cir. 1985); Ge‐
nier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); Johnson v. Apfel,
240 F.3d 1145, 1148–49 (8th Cir. 2001), but Hill has never as‐
serted that the severity of her impairments have remained
the same for decades. Hill contends instead that she gradual‐
ly experienced worsening health problems that eventually
became disabling in June 2011, shortly before she applied for
No. 15‐1230 13
benefits. Indeed, the ALJ found that Hill suffers from degen‐
erative joint disease (osteoarthritis), which often grows more
severe with the passage of time. See Roddy v. Astrue, 705 F.3d
631, 637 (7th Cir. 2013) (ALJ’s reasoning flawed because it
ignored the fact that “degenerative” conditions get worse
over time).
At oral argument, counsel for the Commissioner at‐
tempted to liken Hill’s activities of daily living, particularly
babysitting, with working full time. But Hill’s home life was
not a reason given by the ALJ for denying benefits and so
not a proper basis for us to uphold the ALJ’s decision. See
Sec. & Exch. Commʹn v. Chenery Corp., 318 U.S. 80, 87 (1943);
Hanson v. Colvin, 760 F.3d 759, 762 (7th Cir. 2014). (The ALJ
addressed Hill’s home activities only to the extent that they
showed that she had use of her right arm.) Counsel’s reason‐
ing is unsound, in any event, because we have repeatedly
warned against equating the activities of daily living with
those of a full‐time job. See Bjornson, 671 F.3d at 647; Spiva v.
Astrue, 628 F.3d 346, 352 (7th Cir. 2010).10
10 Additionally, we note our serious concerns with the vocational
expert’s testimony (addressed further in the concurring opinion). It was
improper for the vocational expert to rely on his own unspecified “expe‐
rience” in arriving at his conclusions about what work Hill could do
without using her left arm. See Herrmann v. Colvin, 772 F.3d 1110, 1113
(7th Cir. 2014); Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014). And
the vocational expert should have explained the source and accuracy of
his data concerning the number of available jobs. See Alaura v. Colvin, 797
F.3d 503, 507–08 (7th Cir. 2015); Voigt, 781 F.3d at 879; Browning, 766 F.3d
at 709. We are skeptical, for example, about how many jobs exist today
that involve maintaining library records on microfilm. Cf. Alaura, 797
14 No. 15‐1230
It might be argued that these mistakes in evaluating Hill’s
credibility were harmless. As the Commissioner points out,
no doctor has opined that Hill has more limitations than the
ALJ incorporated into her assessment of Hill’s residual func‐
tional capacity. But Hill testified that she is more limited, and
her testimony cannot be disregarded simply because it is not
corroborated by objective medical evidence. See Hall v. Col‐
vin, 778 F.3d 688, 691 (7th Cir. 2015); Pierce, 739 F.3d at 1049–
50; Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.
2006). We are not confident that the ALJ would have reached
the same conclusion about Hill’s credibility had she not in‐
appropriately “played doctor,” ignored possible explana‐
tions for Hill’s conservative treatment, and conflated a desire
to work with the ability to do so. So the ALJ’s errors are not
harmless. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir.
2011) (explaining that error is harmless only if court is “con‐
vinced” that ALJ would reach same result on remand); Spiva,
628 F.3d at 353 (error is not harmless simply because ALJ
might have reached the same result absent the error).
III. CONCLUSION
We REVERSE the district court’s judgment and
REMAND this case to the Commissioner for further pro‐
ceedings.
F.3d at 508 (expressing skepticism that 200,000 people in the United
States work addressing mail by hand or typewriter).
No. 15‐1230 15
POSNER, Circuit Judge, concurring. I join Judge Williams’s
majority opinion without reservations. I write separately on‐
ly to focus attention on what seems to me a persistent, seri‐
ous, and often ignored deficiency in opinions by the admin‐
istrative law judges of the Social Security Administration
denying social security disability benefits (or, what is simi‐
lar, supplemental security income). The deficiency concerns
testimony by vocational experts employed by the Admin‐
istration concerning the number and types of jobs that an
applicant deemed not to be totally disabled could perform,
and the evaluation of that testimony by administrative law
judges. This deficiency has recently been attracting critical
attention. See, e.g., Browning v. Colvin, 766 F.3d 702, 708–09
(7th Cir. 2014); Herrmann v. Colvin, 772 F.3d 1110, 1113–14
(7th Cir 2014); Jon C. Dubin, “Overcoming Gridlock: Camp‐
bell After a Quarter‐Century and Bureaucratically Rational
Gap‐Filling in Mass Justice Adjudication in the Social Securi‐
ty Administration’s Disability Programs,” 62 Administrative
Law Review 937, 964–71 (2010); Peter J. Lemoine, “Crisis of
Confidence: The Inadequacies of Vocational Evidence Pre‐
sented at Social Security Disability Hearings (Part II),” Social
Security Forum, Sept. 2012, p. 1, www.lemoinelawfirm.com/
wp‐content/uploads/2012/seminar_materials.pdf (visited No
vember 25, 2015). Expert opinions must not be “conjured out
of whole cloth.” Brault v. Social Security Administration, 683
F.3d 443, 449–50 (2d Cir. 2012) (per curiam), citing Donahue
v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).
One problem addressed in the cases and academic com‐
mentary that I’ve cited is that the only reliable statistics on
number of jobs are census data of broad job categories, ra‐
ther than data on the number of jobs in the narrower catego‐
ries of jobs that the applicant for benefits could actually per‐
16 No. 15‐1230
form. Typically, it appears, the vocational expert simply di‐
vides the census estimate of the number of jobs in the broad
category that includes the narrow category of jobs that the
applicant can perform, by the total number of narrow cate‐
gories in the broad category. The assumption is thus that
every narrow category has the same number of jobs as every
other narrow category within the broad category—a prepos‐
terous assumption.
Usually the administrative law judge, toward the end of
his or her (in this case her) opinion denying benefits (the
government as a matter of policy never appeals the grant of
benefits), states that the limits to the applicant’s ability to
work are not so severe as to render him or her incapable of
full‐time gainful employment (in which event, with the ex‐
ception noted below, the applicant would be deemed totally
disabled and entitled therefore to benefits). The administra‐
tive law judge then tells the vocational expert what the ap‐
plicant can and cannot do and asks the expert to opine on
the nature and number of jobs the applicant can perform
that exist in the economy. If there is a nontrivial number of
such jobs, the applicant is denied benefits. (Were the non‐
triviality condition not satisfied, it would be plain that the
applicant was incapable of full‐time gainful employment
and so would be entitled to benefits.) The administrative law
judge’s list of what the applicant in this case can and can’t
do is: “can lift up to 20 pounds occasionally, lift and carry up
to 10 pounds frequently, stand or walk for approximately 6
hours per 8 hour day, and sit for approximately 6 hours per
8 hour workday, with normal breaks …, occasionally climb
ramps and stairs, balance, stoop, kneel, and crawl, but never
climb ladders, ropes, or scaffolds, crouch, push or pull with
the left upper and left lower extremities, or reach in all direc‐
No. 15‐1230 17
tions (including overhead) with the left upper extremity.”
The applicant is 56 years old, worked for more than 13 years
at a steel factory where her duties included lifting and carry‐
ing steel sheets that weighed up to 100 pounds, and is
acknowledged to be unable to do such work anymore be‐
cause the manual labor that she performed for so many
years took a toll on her body.
The administrative law judge found that the applicant
has “severe impairments” consisting of “degenerative joint
disease with total replacement of the left hip and osteoarthri‐
tis of the left shoulder.” (She has many subsidiary impair‐
ments as well, mainly on her left side like the severe im‐
pairments.) It seems ridiculous to think she can stand or
walk for six hours in an eight‐hour workday or “balance”
(whatever that means), or do full‐time work that even “occa‐
sionally” involves stooping, kneeling, crouching, crawling,
or climbing ramps (depending on the angle—try climbing a
ramp that is inclined by 45 degrees). Given the impairments
of her left extremities (arm and leg) it is doubtful that she
can pull, push, or reach with them; at least this issue central
to her application required reasoned analysis, not an unex‐
plained conclusion (though I acknowledge the severe time
pressures under which the Social Security Administration’s
administrative law judges labor). Nor was there any reason
for the administrative law judge to say that the applicant
can’t hold down a job that involves climbing ropes, as that is
beyond obvious (and what kind of jobs in today’s economy
involve climbing ropes?).
The limits of the applicant’s ability to use her “left ex‐
tremities” bothered the vocational expert. He testified that
the Dictionary of Occupational Titles does not describe jobs
18 No. 15‐1230
that can be performed with only one fully functioning limb,
and he therefore had to rely on his “own experience” for his
conclusion that the applicant can perform light and un‐
skilled, or sedentary and unskilled work. But he failed to de‐
scribe the experience that formed his opinion, despite our
criticism in Herrmann v. Colvin, supra, 772 F.3d at 1113, of the
vocational expert who failed to explain “how impressions
from unspecified past experience and ‘knowledge’ could en‐
able him to determine numbers of particular jobs” that per‐
sons with specified physical or mental impairments could
perform. The question of how to incorporate a limb re‐
striction into a description of work capability in the Diction‐
ary of Occupational Titles has been a recurring issue, e.g.,
Carey v. Apfel, 230 F.3d 131, 145–47 (5th Cir. 2000), and re‐
mains unresolved.
As examples of jobs that the applicant could perform de‐
spite the “left extremities” problem, the vocational expert
instanced dealer account investigator, furniture rental con‐
sultant, and counter clerk, and opined that in the national
economy there are 22,000 jobs of the first type, 40,000 of the
second, and 50,000 of the third. But having said that, he
quickly hedged his statement that such jobs are within the
capacity of a person unable to crouch or to push, reach, or
pull with her left extremities, by acknowledging that “the
difference between the dominant hand and non‐dominant
hand is not actually specified in the DOT.” He said he was
basing his testimony instead on his “experience on how
those jobs are actually performed,” though, as we said, he
never explained what that experience was.
And finally he said that someone with the applicant’s
limitations who in addition couldn’t stand or walk for more
No. 15‐1230 19
than two hours in an 8‐hour workday or lift more than 10
pounds occasionally could still perform sedentary jobs like a
call‐out operator (45,000 jobs in the national economy), a
semiconductor bonder (30,000), and a registration clerk
(27,000).
His testimony collapses when one considers the nature of
the listed jobs. He had said on the basis of the administrative
law judge’s description of the applicant’s limitations that the
applicant could do only unskilled “light” or “sedentary”
work. Here are how the six jobs he said the applicant can
perform are described in the Dictionary of Occupational Ti‐
tles. A dealer account investigator “visits dealers to verify
purchases financed by [a] bank against physical inventory of
merchandise.” That doesn’t sound like unskilled work. Nor
does “furniture rental consultant.” For his definition of
“counter clerk” the vocational expert cited the paragraph in
the Dictionary of Occupational Titles that defines processing
film: the counter clerk “receives film for processing, loads
film into equipment that automatically processes film for
subsequent photo printing, and collects payment from cus‐
tomers of photofinishing establishment.” (That might actual‐
ly be a job that the applicant in this case could do—the only
one in the list.) A call‐out operator “compiles credit infor‐
mation, such as status of credit accounts, personal refer‐
ences, and bank accounts to fulfill subscribers’ requests, us‐
ing telephone.” Sedentary yes, unskilled no. A semiconduc‐
tor bonder tends an “automatic bonding machine that bonds
gold or aluminum wire to integrated circuit dies to connect
circuitry to package leads.” Again, sedentary but not un‐
skilled—and it could be dangerous for someone with a non‐
functioning left arm. Last is registration clerk, and here the
vocational expert seems to have lit on the wrong paragraph
20 No. 15‐1230
of the Dictionary of Occupational Titles. The paragraph he
cites refers to an election clerk—someone who performs ad‐
ministrative tasks “during elections.” Obviously that is occa‐
sional rather than full‐time employment, because elections
are not held continuously.
In short, the vocational expert’s testimony was worth‐
less—and this apart from the apparent arbitrariness of his
numerology. It is time the Social Security Disability Office
cleaned up its act.