UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHERLYN K. GARDENER,

Plaintiff,

v.

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security,

Defendant.

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Case No. 3:16-CV-118 JD

OPINION AND ORDER

Plaintiff Cherlyn K. Gardener is appealing the denial of her claim for supplemental 

security income benefits. She argues that she has been unable to work since 2010, and that the 

Commissioner of Social Security’s decision to the contrary is not supported by substantial 

evidence. For the following reasons, the Court finds that reversal is required. The administrative 

law judge relied on testimony from a vocational expert to find that other jobs existed that Ms. 

Gardener could perform despite her limitations, but the administrative law judge’s questions to 

the vocational expert did not accurately reflect all of the limitations he ultimately found Ms. 

Gardener to have. The ALJ also failed to address apparent contradictions between Ms. 

Gardener’s limitations and some of the jobs the vocational expert identified. The Court therefore 

remands for further proceedings.

I. FACTUAL BACKGROUND

Cherlyn Gardener filed a claim for supplemental security insurance benefits in August 

2010, contending that she was unable to work primarily due to fibromyalgia and chronic 

obstructive pulmonary disease. At the administrative hearing, she testified to limitations that 

were quite severe, including that she was unable to lift even a pound, could not walk more than
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100 feet, and could not sit or stand more than ten minutes. The ALJ found that these extreme 

limitations were not supported by the medical records or by the opinions of the doctors, so he 

found that Ms. Gardener was capable of performing medium work with the following 

limitations: “only occasional climbing, balancing, stooping, kneeling, crouching, crawling; no 

concentrated exposure to temperature extremes, humidity, fumes, dusts, odors, gases, and other 

pulmonary irritants; no work at unprotected heights; and she cannot operate hazardous moving 

machinery.” (R. 18).

After a previous hearing on Ms. Gardener’s claim, the ALJ had found that Ms. Gardener

was still capable of performing her past work, but the Appeals Council remanded that decision 

for further consideration. On remand, the ALJ adopted the same residual functional capacity 

assessment, but proceeded to step five to determine whether Ms. Gardener could perform other 

jobs. Based on a hypothetical provided by the ALJ, the vocational expert identified three jobs 

that a person with the stated limitations could perform: dining room attendant, conveyor tender, 

and prep cook. The ALJ accepted that testimony, and thus found that Ms. Gardener was not 

disabled and denied her claim for benefits. The Appeals Council denied Ms. Gardener’s request 

for review, so Ms. Gardener filed this suit seeking review of that decision.

II. STANDARD OF REVIEW

Because the Appeals Council denied review, the Court evaluates the ALJ’s decision as 

the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707 

(7th Cir. 2013). 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). This evidence must be “more than a scintilla but may be less than a preponderance.” 
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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).

It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make 

independent findings of fact, and dispose of the case accordingly. Perales, 402 U.S. at 399–400. 

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 his or her findings. Zurawski v. Halter, 245 F.3d 

881, 887 (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 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 
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evaluation process to be used in determining whether the claimant 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, in between steps three and four, the ALJ must then assess the claimant’s Residual 

Functional Capacity (“RFC”), which 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.

The ALJ then uses the RFC to determine whether the claimant can perform his or her past work 

under step four and whether the claimant can perform other work in society at step five. 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).

Ms. Gardener makes four arguments in support of reversal. First, she argues that the ALJ 

failed to acknowledge and account for a functional limitation given by an agency physician. 

Second, she argues that the ALJ did not adequately address her complaints of chronic fatigue. 
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Third, and relatedly, she argues that the ALJ did not properly account for the drowsiness she 

experiences as a side effect of her medication. Fourth, she argues that the ALJ erred in relying on 

the vocational expert’s testimony about which jobs she could perform, and argues that the ALJ

should have addressed apparent contradictions between her limitations and the requirements of 

those jobs.

The Court begins with the fourth argument, as it is dispositive. Before discussing the 

argument Ms. Gardener raises directly, though, there is a related problem with the ALJ’s reliance 

on the vocational expert’s testimony, in that the ALJ failed to provide the vocational expert with 

a hypothetical that accurately encompassed all of the limitations in her RFC. To determine what 

jobs would be available to a person with Ms. Gardener’s limitations, the ALJ described a 

hypothetical person with a set of limitations, and then asked the vocational expert if jobs existed 

that such a person could perform. In pertinent part, the ALJ directed the vocational expert to 

assume that the hypothetical person “is limited to occupations which do not require lifting more 

than 50 pounds; do not require more than occasional climbing; [or] frequent balancing, stooping, 

kneeling, crouching or crawling . . . .” (R. 45–46 (emphasis added)). Those limitations were 

consistent with an RFC assessment performed by an agency physician. However, the ALJ did not 

actually adopt those same limitations as part of Ms. Gardener’s RFC—after discussing the 

agency physician’s opinion, the ALJ’s decision “added occasional [as opposed to frequent] 

postural maneuvers due to pain complaints . . . .” (R. 21 (emphasis added)). Thus, the ALJ 

concluded that Ms. Gardener’s RFC included the ability to perform “only occasional . . . 

balancing, stooping, kneeling, crouching, [or] crawling.” (R. 18). As just noted, however, the 

hypothetical the ALJ posed to the vocational expert was that the person could perform those 
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activities frequently, meaning the ALJ did not accurately convey Ms. Gardener’s limitations to 

the vocational expert.

This is a critical error. At step five, the Commissioner has the burden of proof of 

establishing “that the claimant can perform other work that ‘exists in significant numbers in the 

national economy.’” Overman v. Astrue, 546 F.3d 456, 464 (7th Cir. 2008) (quoting 20 C.F.R. 

§ 404.1560(c)(2)). Having posed a hypothetical to the vocational expert that did not account for 

all of Ms. Gardener’s limitations, the ALJ did not carry his burden of showing that a person with 

all of Ms. Gardener’s limitations could perform the jobs in question. Young v. Barnhart, 362 

F.3d 995, 1003 (7th Cir. 2004) (“Ordinarily, a hypothetical question to the vocational expert 

must include all limitations supported by medical evidence in the record.”). Courts sometimes 

find incomplete hypotheticals to be harmless where there is evidence that the vocational expert 

was aware of and would have independently accounted for any limitations absent from the 

hypothetical, but that is not the case here. Yurt v. Colvin, 758 F.3d 850, 857–58 (7th Cir. 2014); 

Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). There is no evidence that the vocational 

expert reviewed the medical records,1 nor are these particular limitations so apparent from the 

records that the vocational expert could be presumed to account for them. The vocational expert 

did not base her testimony on the limitations Ms. Gardener testified to at the hearing, either—

after posing the first hypothetical, the ALJ asked if a person with the limitations Ms. Gardener 

had testified to could perform any work, and the vocational expert said no.

Although, as the Commissioner notes, Ms. Gardener did not expressly argue in her 

opening brief that the ALJ’s hypothetical was inaccurate, she did contest the ALJ’s reliance on 

 1 The ALJ stated at the hearing that the vocational expert had “reviewed the records in the file 

relevant to Ms. Gardener’s past employment,” (R. 45), but there is no indication the vocational 

expert reviewed any medical records.
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the vocational expert’s testimony and his conclusion that a person with Mr. Gardener’s RFC 

would be able to perform the jobs the vocational expert identified, albeit on slightly different 

grounds. Under those circumstances, the Court need not overlook even a patent error of this sort. 

Moreover, the arguments Ms. Gardener did make serve to reinforce the conclusion that the 

inaccurate hypothetical requires a remand.

In particular, Ms. Gardener argues that the Dictionary of Occupational Titles (“DOT”)

contradicts the vocational expert’s testimony that a person with her limitations could perform the 

jobs the vocational expert identified. The social security regulations require ALJs “to ask 

whether a vocational expert’s evidence ‘conflicts with information provided in the DOT’ before 

relying on that evidence to support a determination of nondisability.” Overman v. Astrue, 546 

F.3d 456, 463 (7th Cir. 2008) (quoting SSR 00-4p). Even if a vocational expert denies any 

conflicts, as she did here, an ALJ must still inquire into and obtain a reasonable explanation for 

any apparent conflicts between the vocational expert’s testimony and the DOT. Id.; Prochaska v. 

Barnhart, 454 F.3d 731, 735 (7th Cir. 2006). Because Ms. Gardener’s counsel did not raise this 

issue at the administrative hearing, she must show that any conflicts “were obvious enough that 

the ALJ should have picked up on them without any assistance.” Overman, 546 F.3d at 464.

Ms. Gardener has likely met that burden as to two of the three jobs in question. One of 

those jobs is a conveyor tender. According to the DOT, a person performing that job “tends [a] 

conveyor or conveyor system that moves materials or products by belt.” It further states that the 

person: “Moves levers or pushes buttons to start conveyor. Loads conveyor by hand, lift, or 

hoist, or by opening gates, chutes, or hoppers. Observes movement of materials or products on 

conveyor and dislodges jams, using pole, bar, handtools, or by hand.” These activities involve 

interacting with and operating moving machinery, and appear to conflict with the limitation that 
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Ms. Gardener “cannot operate hazardous moving machinery.” (R. 18). Another job the ALJ 

found Ms. Gardener could perform is a prep cook. The DOT describes that this job requires 

working in a kitchen, including working at and around stoves. However, the ALJ found that Ms. 

Gardener should have “no concentrated exposure to temperature extremes,” (R. 18), which 

appears inconsistent with her ability to work in a kitchen. The Commissioner does not attempt to 

reconcile or defend these seeming contradictions, but argues that Ms. Gardener should have 

raised them at the hearing, and that an ALJ is entitled to rely on a “vocational expert’s testimony 

in response to a hypothetical question that accurately describes the claimant in all significant 

respects.” [DE 19 p. 13]. But as discussed above, the hypothetical here did not accurately 

describe each of Ms. Gardener’s limitations, and as also just noted, an ALJ has an affirmative 

obligation to address any apparent conflicts even if neither the vocational expert nor the claimant 

raises them. Overman, 546 F.3d at 463.

The third job the ALJ found Ms. Gardener could perform was a dining room attendant, 

also known as a bus person. Ms. Gardener’s argument as to a conflict with the DOT gets less 

traction as to this job, as she contends that a dining room attendant would often come into 

contact with people wearing strong perfume or cologne, which would violate the limitation that 

she have no concentrated exposure to fumes, odors, or pulmonary irritants. The Court doubts that 

incidental encounters with perfume or cologne constitute the sort of “concentrated exposure” to 

fumes, odors, or pulmonary irritants that the ALJ was referring to, and any contradiction on this 

point is not so apparent that the ALJ had a duty to independently raise it. However, the 

incomplete hypothetical discussed earlier could affect the suitability of this job for Ms. Gardener. 

A dining room attendant has to perform a variety of physical tasks, as described in the DOT, and 

it is possible that such a job would require more than occasional balancing, stooping, kneeling, 
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crouching, or crawling. The vocational expert testified that a person who could perform those 

movements “frequently” could do this job, but gave no opinion as to whether a person who can 

perform those movements only “occasionally”—like Ms. Gardener—could still do so. Thus,

without a vocational expert’s testimony on that point or an explanation from the ALJ, the Court 

cannot find that the Commissioner has satisfied her burden of showing that a person with Ms. 

Gardener’s limitations would be able to perform that job. Accordingly, a remand is required.

Having found that remand is required on that basis, the Court will only briefly address 

Ms. Gardener’s remaining arguments. Ms. Gardener first argues that the ALJ erred by failing to 

account for or acknowledge an agency physician’s opinion as to her functional limitations. She 

points to language in a report stating, “She can walk a few feet. She can lift one pound and has 

severe pain.” (R. 430). However, the Court agrees with the Commissioner that, when read in 

context, this language is reasonably understood as referring to Ms. Gardener’s self-reported 

limitations (which the ALJ found to be incredible), not the physician’s own opinion as to her 

limitations. Thus, the ALJ did not err in stating that this physician did not give a medical opinion 

as to Ms. Gardener’s functioning. Ms. Gardener’s last arguments are that the ALJ should have 

included additional limitations to reflect reports of chronic fatigue and drowsiness. The ALJ 

addressed these conditions by adding a limitation against operating hazardous moving 

machinery, but Ms. Gardener now argues the ALJ should have also included limitations as to her 

ability to focus, concentrate, sustain fast-paced work, and make quotas. Because this matter is 

being remanded for the reasons discussed above, the Court need not determine whether the ALJ 

committed any error in this respect. The Court would simply note that, since Ms. Gardener has 

now raised the issue, it would be helpful for the ALJ to discuss on remand why these limitations 

are not warranted, should the ALJ adopt the same RFC on remand.
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IV. 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: May 12, 2017

 /s/ JON E. DEGUILIO 

Judge

United States District Court