### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 1230

A NNE R. H ILL

, Plaintiff

‐ Appellant,

v.

C AROLYN W. C OLVIN

, 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

.

____________________

A RGUED O CTOBER 6, 2015

— D ECIDED D ECEMBER 3, 2015

____________________

Before W OOD

, Chief Judge

, and P OSNER and W ILLIAMS

,

Circuit Judges

.

W ILLIAMS

, 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

, W EB MD,

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 tendinopathy 2 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)

, W EB MD,

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, atherosclerotic 3 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

, W EB MD, 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 but6 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

light 4 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)

, D ICTIONARY OF O CCUPATIONAL T ITLES

, 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)

, D ICTIONARY

OF O CCUPATIONAL T ITLES

, 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 operator 7

(45,000 jobs in the national economy), a semiconductor

bonder 8 (30,000 jobs in the national economy), and a registra

‐

tion clerk 9 (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)

, D ICTIONARY OF O CCUPATIONAL T ITLES

, 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.)

,

D ICTIONARY OF O CCUPATIONAL T ITLES

, 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.)

,

D ICTIONARY OF O CCUPATIONAL T ITLES

, 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.)

, D ICTIONARY OF O CCUPATIONAL T ITLES

, www.oalj.dol.gov/PUBLIC/

DOT/REFERENCES/DOT02A.HTM, or record identifying information8 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)

,

D ICTIONARY OF O CCUPATIONAL T ITLES

, 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 arm10 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 forNo. 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. Comm ʹ n 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

, 79714 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

P OSNER

, 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 jobs18 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 moreNo. 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 paragraph20 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.