1 Pursuant to Circuit Rule 53, this opinion was originally issued

as an unpublished order on May 1, 2003. The court, upon request,

now issues this decision as a published opinion.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2287

FESTUS M. McKINNIE,

Plaintiff-Appellant,

v.

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 00 C 521—Andrew P. Rodovich, Magistrate Judge.

____________

ARGUED APRIL 22, 2003—DECIDED MAY 1, 2003

OPINION PUBLISHED MAY 24, 20041

____________

Before COFFEY, RIPPLE, and EVANS, Circuit Judges.

PER CURIAM. Festus McKinnie applied for Supplemental Security Income and Disability Insurance Benefits,

claiming that a work-related knee injury rendered him

disabled from January 17, 1992, to August 31, 1995. An

administrative law judge (ALJ), after a hearing, found

McKinnie not disabled, and the district court upheld the

ALJ’s ruling. McKinnie appeals.
2 No. 02-2287

McKinnie began working as a grinder and X-ray technician for Union Tank Car Company in September 1988. In

February 1990, he injured his knee at work and required

arthroscopic surgery. The severity of his pain eventually

forced McKinnie to quit his job on January 17, 1992. Subsequently, two doctors—Dr. Richard Oni of the Spine and

Scoliosis Center of Indiana and Dr. Robert Martino, an

orthopedic surgeon—diagnosed McKinnie with a torn

medial meniscus and internal derangement of the right

knee. Dr. Martino opined that McKinnie suffered “a partial permanent impairment of 35% of [his] right leg as a

whole.”

In November 1993, McKinnie applied for disability

benefits, alleging that severe pain in his knee and limited

mobility precluded him from working as of January 17,

1992. Subsequently, McKinnie was examined by Dr.

Herbert White, a consultative examiner for the Social

Security Administration. Dr. White found no anatomic

abnormalities but noted swelling, “questionable effusion,”

and “severe tenderness” in the right knee. He further

noted that McKinnie could hop on his left leg but not

his right and could squat only with severe difficulty, but

that he had no difficulty getting on and off the examination table and walked without an assistive device.

After protracted litigation, McKinnie was found disabled as of August 31, 1995, when he suffered another leg

injury, rupturing his Achilles tendon. McKinnie requested

a hearing and argued before an ALJ that his disability

began on January 17, 1992, not August 31, 1995.

The ALJ heard testimony from McKinnie and vocational

expert Julie Bose. McKinnie told the court that he suffered depression and that he felt severe pain if he stood

more than 5 minutes, sat more than 15 or 20 minutes, or

walked more than half a block with his cane.

After hearing McKinnie’s testimony, the ALJ asked Bose

several hypothetical questions, all of which assumed an
No. 02-2287 3

individual of McKinnie’s age, having the same education

and work experience, and who was limited to sedentary

work requiring little concentration. Bose responded that

either a complete inability to stoop or bend or an absolute

restriction on standing and walking would rule out all

unskilled sedentary work. But, according to Bose, if the

hypothetical individual could occasionally stand, walk,

and bend, he could work as a telephone quotation clerk,

a telephone marketing clerk, or a bench sorter. Bose told

the ALJ that 1,000 to 1,200 telephone quotation clerk

jobs, 6,000 to 6,500 telemarketing jobs, and 3,000 to 3,500

bench sorter jobs existed in the regional economy.

On cross-examination, McKinnie’s attorney challenged

the foundation of Bose’s testimony, asking her to “show us

how you arrived at [your] figure[s].” Bose responded that

she determined the numbers of jobs available for each

occupation by referring to “regular market studies, Department of Labor Statistics, and Census Bureaus . . . in

combination, to include my personal labor market surveys

in extrapolating the numbers.” Bose had not prepared

a written report for the hearing, nor did she have any

reference materials with her. When McKinnie’s attorney

asked her how she performed this extrapolation, Bose

responded, “Based on our knowledge of the vocational

expert and every day labor market surveys that we do,” but

she could provide no data or citations for the references

she relied upon in forming her opinion. The ALJ told

McKinnie’s attorney that he could ask Bose to supplement the record with the data and references that she

had relied upon, but only if McKinnie compensated Bose

for her time. The ALJ left the record open at the close of

the hearing, but McKinnie never requested a written report from Bose.

After considering the hearing testimony and the rest

of the materials in the record, the ALJ found that McKinnie

was not disabled prior to August 31, 1995. In reaching this
4 No. 02-2287

conclusion, the ALJ applied the familiar five-step analysis outlined in 20 C.F.R. §§ 404.1572 and 416.972. After

making the requisite findings at Steps 1, 2, and 3, the ALJ

proceeded to Step 4 to determine McKinnie’s residual

functional capacity to work (RFC). The ALJ concluded that,

after January 17, 1992, McKinnie could not perform his

past relevant work. But the ALJ further found that he

did have the RFC to perform sedentary work requiring

no more than occasional standing, walking, or bending.

Proceeding to Step 5, the ALJ relied on Bose’s testimony

to conclude that, during the relevant time period, McKinnie could perform a significant number of jobs in the

regional economy. Accordingly, the ALJ denied McKinnie’s request for benefits between January 17, 1992, and

August 31, 1995. The Appeals Council denied review, and

the ALJ’s decision became the final decision of the Commissioner of the Social Security Administration.

McKinnie sought review in district court, claiming that

the ALJ’s decision was not supported by substantial

evidence. The parties consented to the entry of a final

judgment by a magistrate judge, who ultimately decided

the case in favor of the Commissioner.

We will affirm the findings of an ALJ as long as they

are supported by substantial evidence. Johansen v.

Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). Substantial

evidence is evidence sufficient to convince a reasonable

person that the ALJ’s findings are adequate. Id. The ALJ

need not address every single piece of evidence in his

decision, id., but his analysis must build an accurate and

logical bridge between the evidence and his findings,

Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).

McKinnie challenges the ALJ’s findings at Step 4 and

Step 5 that he had the RFC to perform a significant number of jobs in the regional economy from January 17, 1992,

to August 31, 1995. First McKinnie argues that the ALJ
No. 02-2287 5

disregarded medical evidence in the record when he found

at Step 4 that McKinnie could occasionally bend or stoop.

As McKinnie points out, Dr. Martino advised him to

avoid work requiring walking, standing, or bending. But

Dr. Martino also determined that McKinnie’s right leg

was only 35 percent impaired. Furthermore, Dr. Oni noted

that McKinnie was able to move his knee through the

full range of active and passive motion, and Dr. White

observed that McKinnie got on and off an examination table

without difficulty, walked without an assistive device,

and could hop on his left leg. Taken together, these medical findings supported the ALJ’s determination that

McKinnie could perform sedentary work involving only

occasional bending.

McKinnie, however, also challenges the reliability of the

expert testimony given at his hearing. He contends that

the ALJ erred in relying on Bose’s testimony without first

ascertaining that she had an adequate foundation for her

opinions. This argument has merit.

We have recognized that the standards by which an

expert’s reliability is measured may be less stringent at

an administrative hearing than under the Federal Rules

of Evidence. Donahue v. Barnhart, 279 F.3d 441, 446 (7th

Cir. 2002). Nevertheless, because an ALJ’s findings must

be supported by substantial evidence, an ALJ may depend upon expert testimony only if the testimony is reliable. Id. (“Evidence is not ‘substantial’ if vital testimony

has been conjured out of whole cloth.”); see also Consol. Coal

Co. v. Stein, 294 F.3d 885, 893 (7th Cir. 2002) (parties to

an administrative proceeding must salsify the ALJ that

their experts are qualified). A vocational expert is “free to

give a bottom line,” but the data and reasoning underlying that bottom line must be “available on demand” if

the claimant challenges the foundation of the vocational

expert’s opinions. Donahue, 279 F.3d at 446. “If the basis of

the vocational expert’s conclusions is questioned at the
6 No. 02-2287

hearing . . . then the ALJ should make an inquiry . . . to

find out whether the purported expert’s conclusions are

reliable.” Id.

At the hearing, McKinnie contested the reliability of

Bose’s conclusions that an individual with McKinnie’s

impairments could perform 1,000 to 1,200 telephone

quotation clerk jobs, 6,000 to 6,500 telemarketing jobs,

and 3,000 to 3,500 bench sorter jobs in the regional economy. Bose did not substantiate her findings with a written report or other documentation to substantiate her

figures, and her vague responses to McKinnie’s questioning

were insufficient to establish a foundation for her testimony. But the ALJ did not inquire into the reliability of

her conclusions as he was required to do. Donahue, 279

F.3d at 446. Moreover, when McKinnie’s attorney requested that Bose supplement the record with documentation of her research, both the ALJ and Bose insisted that

McKinnie pay for the preparation of these materials.

It is the Commissioner’s burden at Step 5 to establish

the existence of a significant number of jobs that the

claimant can perform. See Knight v. Chater, 55 F.3d 309,

313 (7th Cir. 1995). The claimant should not have to pay

to substantiate the expert testimony relied upon by the

Commissioner in seeking to meet the Step 5 burden.

Presumably a vocational expert establishes the foundation for her opinions before she expresses them at a hearing. It is not apparent why a claimant should pay a vocational expert to do the preparatory research that she

should have completed prior to testifying. The data and

reasoning underlying a vocational expert’s opinions are

not “available on demand” if the claimant must pay for

them. See Donahue, 279 F.3d at 446.

Without first inquiring into the reliability of Bose’s

opinions, the ALJ should not have so unquestioningly

accepted her testimony that a significant number of jobs
No. 02-2287 7

were available to McKinnie. For that reason, we vacate the

ALJ’s decision at Step 5 and remand so that he can undertake this inquiry. We emphasize, however, that we

remand only for the purpose of determining whether

McKinnie could perform a significant number of jobs in the

regional economy between January 17, 1992, and August

31, 1995. Without question, the ALJ’s determination of

McKinnie’s RFC at Step 4 was supported by substantial

evidence. The case is VACATED and REMANDED for further proceedings consistent with this order.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-24-04