### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3624

M ICHELE A. H ERRMANN , Plaintiff

- Appell ant ,

v.

C AROLYN W. C OLVIN , Acting Commi s sioner of Social

Security , Defendant

- Appell ee

.

____________________ Appeal from t h e United States District Court for the Northern District of Indiana
, Fort Wayne Division

. No. 1:12

- cv

- 00229

- JEM

— John E

. Martin
, Magistrate Judge

.

____________________
A RGUED O CTOBER 28, 2014

— D ECIDED D ECEMBER 4, 2014

____________________

Before B AUER , P OSNER , and T INDER , Circuit Judges

. P OSNER , Circuit Judge

. The plaintiff (we’ll call her the a pplicant) applied f o r Supplemental Security Income, which is

a benefit for which low

- income people who are aged, blind, or disabled are eligible. She was turned down by an admi nist rative law judge of the Social Security Administration for the benefit she sought for years before she turned 55 . But b ecause of the less demanding showing of disability required2 No. 13

- 3624

of appli cants that age and older
, she was deemed to have become disabled when she reached 55 . She appealed the pa rtial denial unsuccessfu lly , first to the appeals council of the Social Sec u rity Administration and then to the district court, and she now a p peals to us. The applicant’s treating physician s , together with three consulta tive physicians selected by the Social Security A dministration who examined the applicant and studied her med i cal records
, advised the administrative law judge that she suffers from fibromyalgia, spinal disk disease, “phot ophobia” (abnormal sensitivity to light), and other ailments unnecessary to discuss
, and that as a result she walks hal tingly , has difficulty gripping objects , experiences difficulty in ri s ing from a sitting position, has trouble concentrating in a bright room or when looking at a co m puter screen, and as a result of this assemblage of impai r ments cannot do even light work on a full

- time basis

. If this is right she was di s abled before she turned 55 and is ther e fore entitled to a back payment of Supplemental Security I n come. “Light work” is d efined by the Social Security Admi ni stration as work that “involves lifting no more than 20 pounds at a time with frequent lifting or carr y ing of objects weighing up to 10 pounds. Even though the weight lifted may be very li t tle, a job is in this category when it requires a good deal of walking or standing , or when it i n volves sitt i ng most of the time with so me pushing and pul l in g of arm o r leg c ontrols. To be considered c apable of pe r forming a full or wide range of light work, you must have the ability to do substantially all of these activiti e s. If someone can do light work, we d e termine that he or she can also do sedentary work, unless there are additional limiting factors such as lossNo. 13

- 3624 3

of fine de x terity or inability to sit for long periods of time.” 20 C. F.R. § 404.1567. This is a pre t ty precise description of the type of work that, according to the findings by the do ctors regar d ing the applicant’s physical limitations, she can’t pe r form.

But t he administrative law judge brushed aside the ph ysicians’ findi ngs

. Typical was his statement that the opinion of Dr. Dauscher , one of the applicant’s treating ph y sicians, would be “given no significant weight, because the fun ctional limitations are not supported by Dr. Dausc h er’s sparse treatment statement notes or b y examination findings made by other physicians.” The administrative law judge seems to have thought that a physician’s evidence can be disregarded unless he has detailed notes to back it up and other phys icians provide identical evidence even if they don’ t contradict him

— in other words no cred i bility without corroboration

. These are insufficient grounds for disbelieving the evidence of a qualified profe s sional. The administrative law judge discussed at greatest length the evidence of Dr. Michael Holton, on e of the consultative physicians , saying that Ho l ton had diagnosed fibromyalgia and lumbar dege n erative disk di sease. No sensory deficits were noted, and manipulative abilities were normal . Dr. Holton ... opined that the clai mant can lift and carry up to 20 pounds occasionally but would be “unlikely” to be able to work eight hours a day. He also indicated that the claimant would be able to do o nly occasional reaching, handling, and fingering. This opi nion is [to be] given little weight, except as to the lifti ng li mitations, because Dr. Holton’s examination findings of 5/5 muscle strength, normal sensation and normal manipul at ive abilities are not consistent with his assessment that the4 No. 13

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claimant cannot sustain sitting, standing and walking for eight hours and h a s limitations regarding reaching, ha ndling and fingering. ... [Another consultative physician, a Dr. Sands] commented that the opinion of consultative e xaminer Dr. Holton was not [that is, should not be] given weight because the deficits Dr. Holton noted up on exam ination were not consistent with fibromyalgia. Furthe rmore, [ Dr. Holton] failed to recognize the likelihood of symptom magnification and interpreted subjective fin dings as objective manifestations of disease [citations to e xhibits omitted].
This is garbled

. Consider first the criticisms by Dr. Sands. Sands could not have been talking about Dr. Holton , because Sands’ s report preceded Holton’s

. The government’s lawyer adm itted this at the oral argument but speculated that it was a “scrivener’s error”

— t hat the admini s trative law judge had meant Dr. Ksionski when he said Dr. Holton. This is poss ible, but we can’t assume it to be true on the basis of the la wyer’s speculation.
Consider next the statement attributed by the admini strative law judge to Holton that “manipulative abilities were

no r mal.” In fact Holton noted “ grip strength ” measurements of 31 pounds for the appl i cant’s right hand and 11 pounds for her left, which are well below the normal range for wo men of the applicant’s age. See, e.g., V irgil Mathiowetz et al., “Grip and Pinch Strength: Normative Data for Adults
, ” 66 Archives of Physical Medicine and Rehabilitation 69, 71 ( 1985 ), www.fcesoftware. com/ i m ages/5_Grip_and_Pinch_ N o rms. p d f ( visited Dec. 4 , 2014). The applicant in our case may have areas of strength and be able to feel things (“normal sens ation”) without having the grip strength that she’d need at work. The administrative law judge failed to co m pare X

- rayNo. 13

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and MRI evidence presented by Holton that r e vealed spinal disease of sufficient gravity to engender the limit a tions on gait, gripping (an important manipulative ability) , and rising ( for example , getting up from a chair one i s sitting in or straightening up after lif t ing something) that he found she had

. It’s true that Holton reported that the applicant’s “fine finger manipulative abilities appear normal

. ” “ ’ Fingering ’ involves picking, pinching, or otherwise wor k ing primarily with the fingers. It is needed to perform most unskilled se dentary jobs and to perform ce r tain skilled and semiskilled jobs at all levels of exertion .” Social Security Ru l ing 85

- 15:2

. B ut Holton had also opined that the applicant would have trouble “handl ing , ” a finding that is co n sistent with reduced grip strength (indeed, gripping is a form of handling) and is

a n essential manipulative activity in a great many jobs

. The Social Security ruling that we’ve just been quoting from e xplains that “ handling (sei z ing, holding, grasping, turning or otherwise working pr i marily with the whole hand or hands) are activities required in almost all jobs. Significant limit ations of reaching or handling, ther e fore, may eliminate a large number of occupations a person could ot h erwise do. ” The district court’s statement that “the ALJ’s evalu a tion of Dr. Holton’s opinion may not be perfect” is a considerable understatement. Coupled with the administrative law judge’s unreasoned brush off of the evidence offered by the other c onsulting physicians, his confused rejection of Dr. Holton’s evidence should have pe r suaded the district judge to reverse the denial of relief to the applicant and remand the matter to the Social Security Admin i stration.6 No. 13

- 3624

There is more that is wrong with t he administrative law judge’s opinion. The more involves an issue we discussed in Browning v. Colvin , 766 F.3d 702, 708

– 12 (7th Cir. 2014), co ncerning testimony by vocational experts regarding the nu mber of jobs in the local, state, and national economy th at an

a p plicant for social security disability benefits is capable of performing. The Social Security Administration does not try to determine whether an applicant would have any real chance of landing a job, even if physically and mentally c apable of perf orming the work required by it, but it does r equire a determination of whether work that the applicant is capable of doing “ exists in significant numbers” in the eco nomy. 42 U.S.C. § 423(d)(2)(A); 2 0 C.F.R. § 416.966(a)

. If the only jobs that the applicant is physically and mentally cap able of doing no longer exist in the American economy (such as pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreoty p ist), the applicant is disabled from working, and likewise, as a realistic matter , if there is an insignificant number of such jobs. Asked at oral argument, the government lawyers in both social s e curity disability cases argued before us on October 28 confessed ignorance of the source and a c curacy of such statistics, about which we had expressed pr o found doubt in the Browning case. We are not alone in ha r boring such doubts. See Brault v. Social Security Administr a tion , 683 F.3d 443, 446

– 47 ( 2d Cir. 2012) (per curiam); Gu i ton v. Colvin , 546 F. App’x 137, 143

– 45 (4th Cir. 2013) (co ncu r ring opinion); Jon C. Dubin, “Overcoming Gridlock: Campbell After a Qua r ter

Century and Bureaucratically Rational Gap

- Filling in Mass Justice Adjudication in the Social Security Administr a tion’s Disability Programs,” 62 Administrative L. Rev . 937, 964

– 71 (2010 ) ; Peter J. Lemoine, “Crisis of Confidence: The Inad e-No. 13

- 3624 7

quacies of Vocational Evidence Presented at Social S e curity Disability Hea r ings , Part II,” Social Security Forum
, Sept. 2012 , p. 4

. T he administrative law judge found that the applicant was capab le of performing “a restricted range of light work.” On the basis of that finding a vocational expert test ified that the applicant “would be able to perform the r equirements of representative unskilled light occupations such as: cashier, with 1,000 such jo bs existing in the Fort Wayne region [where the applicant lives] and 10,000 such jobs existing in Indiana; shipping and receiving weigher, with 200 jobs in the region and 2,000 jobs in Indiana; and production inspe c tor, with 500 jobs in the region and 5,00 0 jobs in Indiana” (citations omitted)

. For une x plained reasons he didn’t estimate the number of jobs in these cat e go ries in the nation as a whole

. The only public source that the vocational expert cited for the numbers we’ve just quoted was the Dictionary of O ccup a tional Titles (4th ed. 1 991) (the “ DOT ” as it is called) . He did testify that he had also relied on his “knowledge of the industry ”

— “ my past experience, knowledge of these pos itions, emplo y ers that do accommodate for individuals with varying degr ees of limitations or impairments, hence pe rsonal exper i ence and labor market surveys [] account for a portion of my testimony.” But he didn’t explain how i mpressions from unspecified past experience and “know l edge” could enable him to determine numbers of pa r ticular jobs . Nor did he reveal what su r veys he had relied up on and what they had shown.
As for his reference to the DOT , not only is that an obs olete cata log of jobs ( most of the entries in it date back to8 No. 13

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1977) but it contains no st a tistics regarding the number of jobs in a given job category that exist in the local, state, or national economy

. For the numbers
, vocational experts no rmally rely on a journal called the Occupational Employment Quarterly , pu b lished by a company called U.S. Publishing
, alt hough the vocational expert in this case did not mention the jou r nal . The source of the journal’s statistics is census d ata, and the Census Bureau reports not the nu m ber of jobs in each job category in the DOT but instead the number of jobs in a broader jo b category that includes some of the DOT ’s narrower categories. The vocational expert divides the nu mber of jobs in the broad category by the number of finer cat egories within the broad category , and the result is his est imate of the number of jobs in the finer category, that is, the number of jobs the administrative law judge believes the a ppl i cant for benefits is capable of perform ing

. So if the broad category contains 10,000 jobs, and there are 20 finer categories within it, one of which co n sists of the jobs the applicant can perform, the vocational e x pert would estimate, and the administrative law judge a c cept, that there were 500 jobs in that category. That would be an arbitrary
est i mate , since there would be no basis for thinking that all the finer cat egories include the same number of jobs

— namely, in our example, 10,000 divided by 500

. ( For this u nderstan d ing of how the vocational experts arrive at their conclusions, see, besides the sources cited earlier
, David F. Traver, “Cross

- Examination of Vocatio nal Expert on U.S. Publishing Data,” Attorney Educ a tion Center , www. jam esedu

ca tion center. com/articles/cross

- exam ination

- pub li c

- da ta / ( vi s ited Dec. 4 , 2014) , reporting an admission by a vocational expert that this is indeed how vocational experts arrive at their nu m bers. )No. 13

- 3624 9

W e do not know how the vocational ex pert in this case calculated the numbers to which he testified. Nothing in the record enables us to verify th os e numbers, which the admi nistrative law judge accepted

. While we’re trying to solve or at least identify puzzles, we’ll take a crack at one more

— why it is that the vocational expert is required to estimate the number of jobs in the a pplicant’s locality and region, as well as in the nation as a whole , that the applicant for benefits can perform. For if there is a su b stantial number of such jobs in the nation, the applicant’s claim fails , no matter how few there are in his locality or region . We are guessing that the reason for requi ring estimates of local and r e gional job availability as well as national is that the n umber of jobs of a particular type in the nation as a whole might be very small, yet if they were co ncentrated in the applicant’s area he might have a significant opportunity for obtaining work that he was capable of pe rforming even though people living el sewhere would not have that oppo r tunity

. R EVERSED AND R EMANDED

.