UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

REGINA HARDY, 

 Plaintiff, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security, 

 Defendant. 

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Case No. 3:15-CV-433 JD 

OPINION AND ORDER

On September 22, 2015, Plaintiff Regina Hardy filed a complaint in this Court seeking 

review of the final decision of the Defendant Commissioner of Social Security denying her 

application for social security disability benefits [DE 1]. The matter is ripe for decision [DE 16; 

DE 22]. For the reasons stated below, the Court remands this matter to the Commissioner for 

further proceedings. 

I. FACTS 

Hardy filed an application for disability insurance benefits on November 16, 2012, 

alleging an onset date of September 25, 2012. At that time, Hardy was fifty-one years old, had a 

high school education, and for over twenty years performed heavy unskilled work as a custodian. 

Hardy alleges that she became disabled as a result of various physical problems, including postsurgery right shoulder pain, post-surgery right ankle pain, bi-lateral knee pain and total left knee 

replacement, sleep apnea, lower back pain, diabetes, and high blood pressure. Hardy is also 

limited by her extreme obesity and documented body mass index (“BMI”) of 48.1

 R. at 345. Both 

 1

 The social security rulings recognize three levels of obesity. Level I includes BMIs of 

30.0-34.9. Level II includes BMIs of 35.0-39.9. Level III, termed “extreme” obesity and 
2 

bariatric surgery and further right ankle surgery2

 were discussed with Hardy in early 2012. R. at 

36, 38, 208-26, 228-67, 273-75, 375-82. But because Hardy was also experiencing “active 

painful range of motion with limiting factors of pain” in both knees3 and multiple steroid 

injections in the left knee proved ineffective, she first underwent a total left knee replacement in 

September 2012 by treating orthopaedic surgeon, Dr. Jeffrey Yergler. Id. After having the 

surgery and despite progressing with a normal recovery, Hardy continued to experience left knee 

pain. R. at 268-71, 333. On December 3, 2012, Dr. Yergler prescribed four weeks of physical 

therapy and indicated that Hardy could return to work with “no prolonged standing, no kneeling, 

crawling or squatting.” R. at 369. In April 2013, Hardy went for physical therapy on account of 

experiencing left knee pain and it was reported that she had retired because she could not return 

to work with her restrictions. R. at 370, 410. 

With respect to state agent opinions, on January 18, 2013, state agent consultative 

examiner, Dr. Onamusi, completed an internal medicine evaluative report which noted that 

Hardy had minimal discomfort along her lower lumber region, moderate tenderness in her right 

ankle joint, and mild-to-moderate tenderness in her knees. R. at 343-47. Hardy also had a 

reduced range of motion in her knees and right ankle. Dr. Onamusi diagnosed Hardy with 

 

representing the greatest risk for developing obesity-related impairments, includes BMIs greater 

than or equal to 40. SSR 02-1p. 

2

 Hardy underwent an MRI of her right ankle on March 19, 2012, due to complaints of 

pain and swelling when standing and walking. The MRI showed progressive tendinosis and 

partial thickness tear of her tibial tendon, flat feet, early stages of lateral talocalcaneal 

impingement, probable sinus tarsi syndrome, a heel spur, mild tendinosis of the Achilles tendon, 

and partial fatty muscle atrophy of the abductor digit minimi. R. at 196. 

3

 X-rays of Hardy’s knees revealed severe arthritis, bone spurs, subchondral cysts and 

subchondral sclerosis with bilateral osteoarthritis, left bone on bone medial, and right bone on 

bone lateral. R. at 206-08. 
3 

diabetes mellitus and chronic lower back and polyarticular (arthritic) pain status post-surgery in 

multiple joints (right ankle, bilateral knees, and right shoulder). Dr. Onamusi opined that Hardy 

was capable of performing “sedentary to light” physical demand activities. 

After reviewing Dr. Onamusi’s findings and Hardy’s other medical records, in January 

and April 2013, state agency consultants opined that Hardy could actually perform light work 

(which included the ability to stand and/or walk for six hours, as well as sit for six hours, in an 

eight hour workday with normal breaks), with some specified postural and environmental 

limitations, including in relevant part that she must avoid concentrated exposure to wetness and 

hazards, unprotected heights, and slippery uneven surfaces. R. at 46-53, 55-63. The state agents 

anticipated that Hardy would continue to improve with her post-operative recovery. 

Hardy’s application was denied initially on January 29, 2013, and was then denied on 

reconsideration on April 3, 2013. On March 14, 2014, a hearing was held before Administrative 

Law Judge Christa Zamora (“ALJ”). During the hearing, testimony was received from Hardy and 

Mr. Thomas Gusloff (a vocational expert) (“VE”). 

Hardy testified that she continues to suffer from knee and ankle problems, and that she 

still needed to undergo a right knee replacement and ankle reconstruction. Hardy indicated that if 

she stood for too long, then she experienced knee swelling and stabbing pain. Hardy believed 

that she could stand for thirty minutes, sit for one hour, and walk a couple of blocks before 

needing a break. She could also lift ten to twenty pounds. Hardy testified that she used a hospital 

chair for getting dressed and showering, and she sometimes used a motorized cart for shopping. 

In addition, Hardy indicated that she had trouble sleeping on account of experiencing pain. 
4 

The VE testified that based strictly on the (relevant) hypothetical posed to him (which 

offered an assigned residual functional capacity (“RFC”)4

 of light work, limited by no climbing 

of ladders, ropes, and scaffolds, occasional climbing of ramps and stairs, occasional balancing, 

kneeling, stooping, crawling, or crouching, along with frequent overhead reaching and 

“frequent” exposure to unprotected heights, moving mechanical parts, and wetness), Hardy 

would not be able to perform her past work, but she could perform unskilled work as a photo 

copy machine operator, marker-retail, and inserting machine operator. The VE confirmed that a 

person would not be able to perform these particular jobs or other jobs at the light exertional 

level if an at-will sit-stand option was required. 

The ALJ issued a decision on March 21, 2014, denying Hardy disability benefits and 

concluding that Hardy was not disabled under the Social Security Act because she was able to 

perform other work in the national economy (step 5). The Appeals Council then denied Hardy’s 

request for review on July 24, 2015, making the ALJ’s decision the final determination of the 

Commissioner. Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Hardy seeks review of the 

Commissioner’s decision, thereby invoking this Court’s jurisdiction under 42 U.S.C. §§ 405(g) 

and 1383(c)(3). 

II. STANDARD OF REVIEW 

This Court will affirm the Commissioner’s findings of fact and denial of disability 

benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th 

Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). 

 4

 Residual Functional Capacity is defined as the most a person can do despite any 

physical and mental limitations that may affect what can be done in a work setting. 20 C.F.R. § 

404.1545. 
5 

This evidence must be “more than a scintilla but may be less than a preponderance.” Skinner v. 

Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could differ” about 

the disability status of the claimant, the Court must affirm the Commissioner’s decision as long 

as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). 

In this substantial-evidence determination, the Court considers the entire administrative 

record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or 

substitute the Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v. 

Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review 

of the evidence” before affirming the Commissioner’s decision. Id. An ALJ must evaluate both 

the evidence favoring the claimant as well as the evidence favoring the claim’s rejection and may 

not ignore an entire line of evidence that is contrary to the ALJ’s findings. Zurawski v. Halter, 

245 F.3d 881, 888 (7th Cir. 2001). Consequently, an ALJ’s decision cannot stand if it lacks 

evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at 539. Ultimately, 

while the ALJ is not required to address every piece of evidence or testimony presented, the ALJ 

must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580 

F.3d 471, 475 (7th Cir. 2009). 

III. DISCUSSION 

Disability and supplemental insurance benefits are available only to those individuals 

who can establish disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d 

636, 638 (7th Cir. 1998). Specifically, the claimant must be unable “to engage in any substantial 

gainful activity by reason of any medically determinable physical or mental impairment which 

can be expected to result in death or which has lasted or can be expected to last for a continuous 

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations 

create a five-step sequential evaluation process to be used in determining whether the claimant 
6 

has established a disability. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The steps are to be used in the 

following order: 

1. Whether the claimant is currently engaged in substantial gainful activity; 

2. Whether the claimant has a medically severe impairment; 

3. Whether the claimant’s impairment meets or equals one listed in the 

regulations; 

4. Whether the claimant can still perform relevant past work; and 

5. Whether the claimant can perform other work in the community. 

Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). 

At step three, if the ALJ determines that the claimant’s impairment or combination of 

impairments meets or equals an impairment listed in the regulations, disability is acknowledged 

by the Commissioner. 20 C.F.R. § 404.1520(a)(4)(iii). However, if a Listing is not met or 

equaled, then in between steps three and four, the ALJ must assess the claimant’s residual 

functional capacity, which, in turn, is used to determine whether the claimant can perform her 

past work under step four and whether the claimant can perform other work in society at step 

five of the analysis. 20 C.F.R. § 404.1520(e). The claimant has the initial burden of proof in 

steps one through four, while the burden shifts to the Commissioner in step five to show that 

there are a significant number of jobs in the national economy that the claimant is capable of 

performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). 

Hardy appeals the ALJ’s failure to properly consider the restrictions imposed by her 

treating orthopaedic surgeon, Dr. Yergler. She also contends that the ALJ failed to adequately 

articulate how her extreme obesity impacts her ability to work. Because the Court agrees, it need 

not address her third contention relative to the ALJ’s discrediting of Hardy’s claimed limitations. 
7 

Ultimately, until substantial evidence supports the RFC determination, there is no way for this 

Court to affirm the finding that Hardy is capable of performing work. 

IV. ANALYSIS 

A. RFC 

i. Treating Physician Opinion 

Disability cases typically involve three types of physicians: 1) a treating physician who 

regularly provides care to the claimant; 2) an examining physician who conducts a one-time 

physical exam of the claimant; and 3) a reviewing or non-examining physician who has never 

examined the claimant, but read the claimant’s files to provide guidance to an adjudicator. See 

generally 20 C.F.R. § 404.1527(d). The opinion of the first type, a “treating physician,” is 

ordinarily afforded special deference in disability proceedings.5

 The regulations governing social 

security proceedings instruct claimants to that effect: 

Generally, we give more weight to opinions from your treating sources, since 

these sources are likely to be the medical professionals most able to provide a 

detailed, longitudinal picture of your medical impairment(s) and may bring a 

unique perspective to the medical evidence that cannot be obtained from the 

objective medical findings alone or from reports of individual examinations, such 

as consultative examinations or brief hospitalizations. If we find that a treating 

source’s opinion on the issue(s) of the nature and severity of your impairment(s) 

is well-supported by medically acceptable clinical and laboratory diagnostic 

techniques and is not inconsistent with the other substantial evidence in your case 

record, we will give it controlling weight. 

20 C.F.R. § 404.1527(c)(2). 

 

5

 The treating physician rule has been abrogated as to claims filed on or after March 27, 2017. 

See 20 C.F.R. § 404.1520c; see also Revisions to Rules Regarding the Evaluation of Medical 

Evidence, 81 FR 62560 at 62573-62574 (Sept. 9, 2016) (“we would no longer give a specific 

weight to medical opinions . . . this includes giving controlling weight to medical opinions from 

treating sources . . . [and] [w]e would not defer or give any specific evidentiary weight, including 

controlling weight, to any . . . medical opinion, including from an individual’s own healthcare 

providers.”). As Hardy’s application was filed before March 27, 2017, the treating physician rule 

applies. See id. § 404.1527. 
8 

The treating physician’s opinion is not entitled to controlling weight, however, where it is 

not supported by the objective medical evidence, where it is inconsistent with other substantial 

evidence in the record, or where it is internally inconsistent. See Clifford v. Apfel, 227 F.3d 863, 

871 (7th Cir. 2000) (citing Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995)). Ultimately, an 

ALJ’s decision to give lesser weight to a treating physician’s opinion is afforded great deference 

so long as the ALJ minimally articulates her reasons for doing so. Berger v. Astrue, 516 F.3d 

539, 545 (7th Cir. 2008). The Seventh Circuit has deemed this very deferential standard to be 

“lax.” Id. Nevertheless, the ALJ must offer “good reasons” for discounting a treating physician’s 

opinion. Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). 

If the ALJ decides the treating physician’s opinion should not be given controlling 

weight, the ALJ is “required by regulation to consider certain factors in order to decide how 

much weight to give the opinion[.]” Scrogham v. Colvin, 765 F.3d 685, 697 (7th Cir. 2014). 

These factors are set forth in 20 C.F.R. § 404.1527(c)(1)-(5) and include: 1) the “length of the 

treatment relationship and the frequency of examination;” 2) the “[n]ature and extent of the 

treatment relationship;” 3) “[s]upportability;” 4) consistency “with the record as a whole;” and 5) 

whether the treating physician was a specialist in the relevant area. 

 In this case, the ALJ did not identify how much weight she assigned to the treating 

orthopaedic surgeon Dr. Yergler’s December 2012 opinion that any work to be performed by 

Hardy could not include prolonged standing. R. at 369. Despite Dr. Yergler’s opinion, the ALJ 

determined that Hardy had the RFC to stand and/or walk for six hours in a workday without an 

at-will sit-stand option. The Commissioner discounts Dr. Yergler’s December 2012 note as 

nothing but a response to Hardy’s telephone message. But this reason (or any reason) for 

discounting Dr. Yergler’s prescribed limitations was not provided by the ALJ. In other words, 
9 

not only did the ALJ fail to indicate what weight she afforded the work-release limitations 

imposed by Dr. Yergler, but she did not even identify the fact that such limitations existed in the 

record. 

Given the ALJ’s acknowledgement that Hardy continued to report left knee pain into 

2013 and was referred to physical therapy for strengthening, it was imperative for the ALJ to 

indicate whether she agreed or disagreed with Dr. Yergler’s prior opinion and to provide a sound 

explanation for her decision to (presumably) reject it over the state agents’ opinions. Roddy v. 

Astrue, 705 F.3d 631, 636 (7th Cir. 2013); see 20 C.F.R. § 404.1527(c)(1)-(5). Ultimately, it was 

error for the ALJ not to evaluate this evidence and explain its significance. 20 C.F.R. § 404.1527 

(“[r]egardless of its source, we will evaluate every medical opinion we receive.”). 

While the Court is able to infer that Dr. Yergler’s restrictions were not given controlling 

weight, since the state agents were the only doctors who opined that Hardy could perform light 

work (as opposed to sedentary work), consistent with the ALJ’s ultimate RFC determination, the 

ALJ never adequately explained why the non-treating opinions of state agents trumped those of 

Dr. Yergler. Instead, the ALJ has put this Court in the position of providing a treating physician 

analysis, which is not the Court’s role in a substantial-evidence determination. Lopez, 336 F.3d at 

539. Although the ALJ did address other notations by Dr. Yergler demonstrating normal clinical 

examinations, Dr. Yergler’s December 2012 work restrictions directly contradicts the RFC 

finding for light work, and the ALJ was required to provide a “good reason” before discounting 

the opinion. Scott, 647 F.3d at 739. On remand, the ALJ should at least acknowledge Dr. 

Yergler’s opinion in this respect, explain what weight to provide it, and indicate how it impacts 

the RFC determination. 
10 

ii. Obesity 

Hardy further argues that the ALJ erred in her analysis of the limitations caused by 

Hardy’s BMI. Specifically, Hardy contends that the ALJ’s analysis of her obesity was too 

cursory to permit a meaningful review. The Court agrees. Remand is necessary for the ALJ to 

consider, with greater explanation, how Hardy’s extreme obesity impacts her RFC. 

In determining a claimant’s RFC, the ALJ must consider any limitation in function 

caused by obesity. Specifically, SSR 02–1p requires an ALJ to assess the effect obesity has upon 

the individual’s ability “to perform routine movement and necessary physical activity within the 

work environment” because individuals with obesity “may have problems with the ability to 

sustain a function over time.” SSR 02-1p. The Social Security Administration recognizes that 

obesity may limit the person’s exertional abilities (e.g., sitting, standing, walking, lifting, 

carrying, pushing, and pulling), ability to perform postural functions (e.g., climbing, balancing, 

stooping, and crouching), and ability to work on a regular and continuing basis. Id. For instance, 

some people with obesity also have sleep apnea that can lead to drowsiness or have arthritis 

affecting a weight-bearing joint that can cause more pain and limitation than might be expected 

from the arthritis alone. Id.; see Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004) (“Even 

if Barrett’s arthritis was not particularly serious in itself, it would interact with her obesity to 

make standing for two hours at a time more painful than it would be for a person who was either 

as obese as she or as arthritic as she but not both.”); see also Stage v. Colvin, 812 F.3d 1121, 

1125 (7th Cir. 2016) (finding error where the ALJ failed to sufficiently consider the medical 

evidence including failing to account for the exacerbating effect of claimant’s obesity on her 

ability to stand when claimant had to sit while showering and shopping). 
11 

 In the instant case, the ALJ identified Hardy’s obesity as a severe impairment. The ALJ 

then broadly indicated that “the claimant’s obesity was considered in relation to the 

musculoskeletal, respiratory, and cardiovascular body systems listings as required by the Ruling. 

. . [and] [t]he undersigned considered the effects of the claimant’s obesity singly and in 

combination with her other severe and non-severe impairments in reducing the claimant’s 

residual functional capacity pursuant to Social Security Ruling 02-1p.” 

But this conclusion by the ALJ is not an analysis. The cursory conclusion of the ALJ 

does not specify the effect that obesity (either by itself or in combination with Hardy’s other 

impairments) has upon Hardy’s ability to perform routine and necessary work movements or to 

sustain fulltime work. The ALJ was required to “articulate at some minimal level [her] analysis 

of the evidence” with respect to Hardy’s obesity and its believed limiting effects in order to 

permit an informed review. Zurawski, 245 F.3d at 887 (citation omitted). The failure to do so is 

reversible error given that Hardy’s medical records consistently document her obesity, along 

with her suffering from sleeping problems, arthritis, knee pain, and ankle pain. Hardy also 

reported that she had to sit in order to shower, dress, and shop, and that she was limited to 

standing for thirty minutes or walking only a couple of blocks before needing a break. Moreover, 

Hardy reported needing further surgery on her right knee and ankle, and the option of bariatric 

surgery was discussed with her. Thus, it appears unavoidable that Hardy’s weight of almost 300 

pounds has a serious impact on her ability to function and perform light work. See Stage, 812 

F.3d at 1126 (reasoning that it “strains credulity to find that a claimant who needed a hip 

replacement and had to sit while showering and shopping for groceries was capable of standing 

for six hours a day in a workplace.”). Consequently, the ALJ’s decision cannot stand since it 

lacks an adequate discussion of the issue relative to Hardy’s obesity. Lopez, 336 F.3d at 539. On 
12 

remand, the ALJ will need to address the degree to which Hardy is capable of performing light 

work given her extreme obesity. 

iii. Light vs. Sedentary Work

For the reasons stated herein, the ALJ’s errors require remand because the ALJ must 

determine an individual’s RFC, meaning “what an individual can still do despite his or her 

limitations,” based upon all of the relevant evidence in the record, even as to limitations that are 

not severe. SSR 96–8p. In addition, the RFC assessment must “[c]ontain a thorough discussion 

and analysis of the objective medical and other evidence.” Id. However, the ALJ’s opinion in 

this case fails to provide an adequate discussion of the medical evidence with respect to Dr. 

Yergler’s work-release restrictions and the effects of Hardy’s obesity, which then impacted the 

ALJ’s determination that Hardy was capable of performing light work. 

Imperative to this appeal is the fact that at the time of Hardy’s alleged disability onset 

date, she was classified by the regulations as an individual “closely approaching advanced age.” 

20 C.F.R. § 404.1563(d). When a claimant falls within this age category, the Commissioner “will 

consider” that the claimant’s age, along with any severe impairments and limited work 

experience, “may seriously affect [the claimant’s] ability to adjust to other work.” Id. This is so, 

because advancing age is considered to be “an increasingly limiting factor in the person’s ability 

to make such an adjustment.” Id. at § 404.1563(a). Ultimately, if Hardy’s RFC was limited to the 

performance of sedentary work, the Medical-Vocational Guidelines would indicate that given her 

age, education, relevant past work, and lack of transferable skills, then she would ordinarily be 
13 

considered disabled. 20 C.F.R. pt. 404, Subpt. P, Appendix 2, grid rule 201.12.6

 This further 

demonstrates the importance of having an adequately supported RFC finding for Hardy. 

B. Step 5 

Ultimately, without the RFC determination being supported by substantial evidence, the 

Court is unable to rely on the ALJ’s determination that Hardy is capable of performing other 

work in the economy (step 5). More accurately stated, in deciding what work Hardy was capable 

of performing, the ALJ relied on the VE’s testimony, which in turn, relied on the ALJ’s 

hypothetical question that incorporated the inadequately supported RFC determination. 

The law requires the ALJ to incorporate into the hypotheticals those impairments and 

limitations that the ALJ accepts as credible.7 See Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 

2007). Here, the ALJ’s insufficiently supported RFC findings led the ALJ to ask hypotheticals of 

the VE which omitted Hardy’s claimed (and potentially credible) limitations caused by her 

various physical impairments.8 

 6

 The medical vocational guidelines, commonly known as the grids, are tables which 

evaluate a claimant’s ability to work by matching her age, education, and work experience with 

her work capability. 20 C.F.R. pt. 404, Subpt. P, Appendix 2. Hardy was 51 years old as of her 

onset date. As a result, grid rules 201.09-201.16 are relevant here. In particular, grid rule 201.12 

appears most applicable given that Hardy is a high school graduate who could not perform her 

past unskilled work and did not seemingly have transferable skills. Id. 

7

 The ALJ must also correct the inconsistency created when she credited the state agent 

opinions’ indicating that Hardy had to avoid concentrated exposure to wetness, hazards, and 

unprotected heights, but then crafted an RFC which allowed Hardy to have frequent exposure to 

those same environmental conditions. 

8

 In fact, the VE testified that if Hardy needed an at-will sit-stand option, then she could 

not perform light work. 
14 

Ultimately, the VE’s testimony cannot be relied upon as an accurate indicator for the type 

of work that Hardy is capable of performing.9 See Young v. Barnhart, 362 F.3d 995, 1003-05 

(7th Cir. 2004) (the ALJ must determine the claimant's RFC before performing steps 4 and 5 

because a flawed RFC typically skews questions posed to the VE); SSR 96-8p. Thus, until the 

hypotheticals presented to the VE include the functional limits that the ALJ accepts as credible, 

and the ALJ adequately explains the claimant’s actual limitations and resulting RFC based on the 

relevant medical evidence, 20 C.F.R. §§ 404.1545, 404.1546(c), step five cannot be affirmed in 

this appeal. See Young, 362 F.3d at 1003-05. 

The remedy for the shortcomings noted herein is further consideration, not an award of 

benefits. 

V. CONCLUSION 

For the reasons stated above, the Court REVERSES the Commissioner’s decision and 

REMANDS this matter to the Commissioner for further proceedings consistent with this opinion. 

SO ORDERED. 

 ENTERED: September 11, 2017 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court 

 9

 Admittedly, the Seventh Circuit has occasionally concluded that a VE has familiarity 

with the claimant’s limitations, despite any gaps in the hypothetical, when the record shows that 

the VE independently reviewed the medical record or heard testimony directly addressing those 

limitations and the VE considered that evidence when indicating the type of work the claimant is 

capable of performing. O'Connor-Spinner v. Astrue, 627 F.3d 614, n. 5 (7th Cir. 2010) (citing 

Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009); Young, 362 F.3d at 1003; Steele v. Barnhart, 

290 F.3d 936, 942 (7th Cir. 2002); Ragsdale v. Shalala, 53 F.3d 816, 819-21 (7th Cir. 1995); 

Ehrhart v. Sec'y of Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992)). This exception 

does not apply here, since the VE never indicated having reviewed Hardy’s medical records, nor 

did he indicate in his responses having relied on those records or the hearing testimony. Rather, 

the VE’s attention was on the limitations of the hypothetical person posed by the ALJ, and not on 

the record itself or the limitations of the claimant herself. Id. (citing Simila, 573 F.3d at 521; 

Young, 362 F.3d at 1003).