UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF INDIANA 

 FORT WAYNE DIVISION 

STEVEN GASS, ) 

 ) 

PLAINTIFF ) 

 ) 

VS. ) CAUSE NO. 1:16-CV-292 RLM-SLC 

 ) 

NANCY A. BERRYHILL,1 ACTING ) 

COMMISSIONER OF SOCIAL SECURITY, ) 

 ) 

DEFENDANT ) 

 OPINION AND ORDER 

Steven Gass seeks judicial review of a final decision by the Commissioner 

of Social Security denying his applications for disability insurance benefits under 

the Social Security Act, 42 U.S.C. § 423. The court has jurisdiction over this 

action pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the court 

vacates the Commissioner's decision and remands this case for further 

proceedings consistent with this opinion. 

I. BACKGROUND

Mr. Gass’s application for Disability Insurance Benefits was denied 

initially, on reconsideration, and following an administrative hearing at which he 

and a vocational expert testified. Based on the record before her, the ALJ found 

 

1 Nancy A. Berryhill was automatically substituted as the defendant in this case when 

she replaced Carolyn W. Colvin as the Acting Commissioner of Social Security pursuant 

to Federal Rule of Civil Procedure 25(d). 
2 

that Mr. Gass had severe impairments, degenerative disc disease, obesity, and 

diabetes, but concluded that none of Mr. Gass’s impairments met or medically 

equaled any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App’x 1. 

The ALJ decided that Mr. Gass had the residual functional capacity to 

perform light work, as defined in 20 C.F.R. §§ 404.1567(b), with limitations;2

and that he couldn’t perform his past relevant work, but could do other jobs 

available in significant numbers. The ALJ concluded that Mr. Gass wasn’t 

disabled within the meaning of the Social Security Act and wasn’t entitled to 

benefits. 

When the Appeals Council denied Mr. Gass’s request for review, the ALJ’s 

decision became the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 

103, 107 (2000); Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). This 

appeal followed. 

 II. STANDARD OF REVIEW 

The issue before the court isn’t whether Mr. Gass is disabled, but whether 

substantial evidence supports the ALJ’s decision that he wasn’t disabled. Scott 

 

2 The ALJ concluded that Mr. Gass was limited to lifting and carrying 20 pounds 

occasionally and ten pounds frequently, standing and walking for two hours in an eight 

hour workday, and sitting for up to six hours during an eight hour workday. The ALJ 

indicated that Mr. Gass couldn’t climb ladders, ropes, or scaffolds, and limited him to 

only occasional stooping, kneeling, crouching, crawling, and climbing stairs and ramps. 

The ALJ also determined that Mr. Gass “must avoid concentrated exposure to hazards 

such as unprotected heights or slippery terrain.” 
3 

v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Nelms v. Astrue, 553 F.3d 1093, 

1097 (7th Cir. 2009). Substantial evidence means “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Richardson 

v. Perales, 402 U.S. 389, 401 (1971); Jones v. Astrue, 623 F.3d 1155, 1160 (7th 

Cir. 2010). In reviewing the ALJ’s decision, the court can’t reweigh the evidence, 

make independent findings of fact, decide credibility, or substitute its own 

judgment for that of the Commissioner, Simila v. Astrue, 573 F.3d 503, 513 (7th 

Cir. 2009); Powers v. Apfel, 207 F.3d 431, 434–435 (7th Cir. 2000), but instead 

must conduct “a critical review of the evidence, considering both the evidence 

that supports, as well as the evidence that detracts from, the Commissioner’s 

decision.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). While the ALJ 

isn’t required “to address every piece of evidence or testimony presented, he must 

provide a ‘logical bridge’ between the evidence and the conclusions so that [the 

court] can assess the validity of the agency’s ultimate findings and afford the 

claimant meaningful judicial review.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th 

Cir. 2010). ALJs must “sufficiently articulate their assessment of the evidence to 

assure [the court] that they considered the important evidence and to enable [the 

court] to trace the path of their reasoning.” Scott v. Barnhart, 297 F.3d 589, 595 

(7th Cir. 2002) (internal quotations omitted). 

 III. DISCUSSION
4 

Mr. Gass argues that the ALJ made several errors requiring remand: (1) 

the ALJ improperly determined that Mr. Gass didn’t meet Listing 11.14 for 

peripheral neuropathy; (2) the ALJ didn’t properly consider Mr. Gass’s mental 

capacity (3) the ALJ didn’t proper consider the combined effects of Mr. Gass’s 

impairments, including the effect of his obesity; (4) the ALJ didn’t provide a 

proper hypothetical to the vocational expert; (5) the ALJ improperly accepted 

unreliable information from the vocational expert; and (6) the ALJ’s credibility 

determination was flawed. Mr. Gass asks the court to either reverse the 

Commissioner's decision and award benefits or remand the case for further 

proceedings. 

A. Listing 11.14

Mr. Gass first argues that the ALJ erred in finding that his impairments 

didn't meet or equal Listing 11.14. A claimant meets Listing 11.14 if he or she 

has “disorganization of motor function in two extremities” that results “in an 

extreme limitation . . . in the ability to stand up from a seated position, balance 

while standing or walking, or use the upper extremities.” 20 C.F.R. Pt. 404, 

Subpt. P, App. 1. 

Mr. Gass argues that the use of both a brace and cane, combined with his 

difficulties standing, equals Listing 11.14, which, in its relevant part, requires 

that the claimant be “unable to maintain an upright position while standing or 

walking without the assistance of another person or an assistive device, such as 
5 

a walker, two crutches, or two canes.” 20 C.F.R. Pt. 404, Subpt. P, App. 1. The 

Commissioner responds that the ALJ fully explained why Mr. Gass’s condition 

didn’t meet or equal this listing, her opinion is supported by the opinions of state 

agency medical consultants Joshua Eskonen and Jonathon Sands, and Mr. 

Gass offered no authority for his contention that the use of both a cane and a 

foot brace should equal Listings 11.14. 

Under the Social Security regulations, a claimant is automatically 

considered disabled if his or her impairment meets or equals one of the specific 

listed impairments in the appendix to the regulations. 20 C.F.R. § 

404.1520(a)(4)(iii). Mr. Gass “has the burden of showing that his impairments 

meet a listing, and he must show that his impairments satisfy all of the various 

criteria specified in the listing.” Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 

2006). A listing determination should be upheld if the ALJ mentions the specific 

listing under consideration and the analysis isn’t perfunctory. Id. 

The ALJ determined that Mr. Gass’s “diabetic neuropathy does not meet 

the criteria of listing 11.14 for peripheral neuropathy because the claimant does 

not have sufficient sustained disturbance of gait and station (locomotion) or 

sufficient disturbance of gross and dexterous movements (use of fingers, hands, 

and arms) despite treatment as defined in listing 11.04B and as defined in 

11.00C.” The ALJ also noted that he was “able to ambulate effectively without 

using assistive devices in both upper extremities; he testified that he uses one 

cane primarily for balance while walking[ and he was] able to use at least one 
6 

upper extremity effectively for gross and fine movements.” Mr. Gass doesn’t claim 

he requires a walker, two crutches, or two canes. 

The ALJ’s listing determination wasn’t improper. She mentioned the 

applicable listing, discussed relevant evidence, and her analysis wasn’t 

perfunctory. See Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). 

Further, her determination was supported by the opinions of two state agency 

medical consultants who opined that Mr. Gass didn’t meet a listing. See Scheck 

v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004) (recognizing that an ALJ may rely 

on the opinions of state agency physicians to support a listing determination). 

B. The ALJ’s Consideration of Mr. Gass’s Mental Capacity 

Mr. Gass contends that the ALJ improperly discounted the opinion of 

psychological examiner Paula Neuman, Psy.D., who found that his global 

assessment of functioning (GAF) score was 30 3 and diagnosed him with 

Asperger’s disorder, attention deficit hyperactivity disorder, and major 

depressive disorder. The Commissioner responds that the ALJ properly gave Dr. 

Neuman’s opinion little weight because it was inconsistent with the record as a 

 

3 A GAF score represents the clinician's judgment of the patient's psychological, social, 

and occupational functioning. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STATISTICAL 

MANUAL OF MENTAL DISORDERS 32 (4th ed. 2000). The Diagnostic and Statistical 

Manual of Mental Disorders no longer includes the GAF metric, but ALJ's may still 

consider GAF scores as opinion evidence, see Williams v. Colvin, 757 F.3d 610, 613 (7th 

Cir. 2014), but “a low GAF score alone is insufficient to overturn an ALJ's finding of no 

disability.” Bates v. Colvin, 736 F.3d 1093, 1099 n. 3 (7th Cir.2013). 
7 

whole. 

Dr. Neuman wasn’t a treating source; she only examined Mr. Gass once. 

See Simila v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009) (recognizing that a 

nontreating source is one who doesn’t have an “ongoing treatment relationship” 

with the patient). Under the regulations, the ALJ must decide the weight to give 

a nontreating physician's opinion by considering whether the expert is a 

specialist and whether the opinion is consistent with the record as a whole, 

among other factors. Id. at 515. 

The ALJ properly addressed these factors when determining that Dr. 

Neuman’s opinion was entitled to little weight. The ALJ recognized that Dr. 

Neuman was a consultative psychological examiner but found that her opinion 

was inconsistent with the record. She discussed the medical evidence, indicating 

that Mr. Gass had no past history of Asperger’s or attention deficit hyperactivity 

disorder and other “notes about mental status elsewhere show normal 

functioning.” The ALJ also recognized that Dr. Neuman found Mr. Gass’s GAF 

score was 30, which suggests “[b]ehavior is considerably influenced by delusions 

or hallucinations [or] serious impairment in communication or judgment. . . [or] 

inability to function in almost all areas. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC 

& STATISTICAL MANUAL OF MENTAL DISORDERS 34 (4th ed. 2000). The ALJ 

found that this GAF score was anomalous because the symptoms that might 

lead to such a score weren’t reported elsewhere in the record and suggested this 

score could have been due to sleep-deprivation or “idiosyncratic scoring by Dr. 
8 

Neuman.” She indicated that no other examining or treating physicians found 

such extreme symptoms or gave such a diagnosis.4 The ALJ also noted that no 

other medical source reported that Mr. Gass displayed “questionable contact 

with reality or [an] inability to sustain a conversation without constant 

redirection.” 

Mr. Gass suggests that because Dr. Neuman was the only psychologist 

who examined him, it was improper for the ALJ to discount her opinion. But 

neither the regulations nor the court of appeals require that the ALJ have an 

examining psychological expert opinion to rely on when discounting the opinion 

of another expert in the field. See Simila v. Astrue, 573 F.3d 503, 515 (7th Cir. 

2009). And while the ALJ gave little weight to Dr. Neuman’s opinion, she gave 

great weight to the opinion of the state agency psychological consultant, Benetta 

Johnson Ph.D., who found Mr. Gass’s mental impairments weren’t severe. The 

ALJ could properly rely Dr. Johnson’s opinion; she reviewed the entire record 

and is “highly qualified and [an] expert[ ] in Social Security disability evaluation.” 

20 C.F.R. § 404.1513a(b)(2); Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 

447–448 (7th Cir.2004). 

C. Combined Effects of Impairments, Including Obesity 

Mr. Gass next contends that the ALJ erred by not giving full consideration 

 

4 Dr. Svetlana Hagan, Mr. Gass’s treating primary care physician, did diagnose him 

with depressive disorder. 
9 

to the combined effect of his impairments in making her residual functional 

capacity assessment, including the effect of his obesity on other impairments.5

The Commissioner responds that the ALJ properly considered the combined 

effects of Mr. Gass’s impairments, including his obesity. 

The ALJ must “consider the aggregate effect of th[e claimant’s] entire 

constellation of ailments–including those impairments that in isolation are not 

severe.” Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (emphasis 

in original); 20 C.F.R. §§ 404.1523. See also Williams v. Colvin, 757 F.3d 610, 

613 (7th Cir. 2014); Browning v. Colvin, 766 F.3d 702, 706 (7th Cir. 2014). Social 

Security Ruling 02–1p requires that an ALJ “consider the effects of obesity 

together with the underlying impairments, even if the individual does not claim 

obesity as an impairment.” Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 

2006). 

The record shows that the ALJ considered the combined effect of Mr. 

Gass’s impairments. For example, she indicated that her determination was 

based on “the combined effects of all the claimant’s medically determinable 

impairments.” It was especially important for her to consider the combined effect 

of Mr. Gass’s degenerative disc disease and his obesity were severe impairments 

 

5 Mr. Gass also complains that the ALJ never cited 20 C.F.R. §§ 404.1523, the 

regulation requiring that the ALJ consider the combined effect of a claimant’s 

impairments but doesn’t cite authority for the proposition that the ALJ must cite this 

regulation to satisfy her obligation to consider the claimant’s impairments in the 

aggregate. 
10 

because obesity can aggravate the disabling effect of degenerative disc disease. 

See Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005). See also Goins v. 

Colvin, 764 F.3d 677, 681 (7th Cir. 2014); SSR 02–1p, 2002 WL 34686281 (Sept. 

12, 2002). She recognized that Mr. Gass’s body mass index was 42.22, which 

qualifies as morbidly obese, Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014), 

noted that his obesity made certain postural movements more difficult, and 

considered “the effects of the claimant's obesity on other body systems.” This 

demonstrates that she properly considered the combined effects of Mr. Gass’s 

impairments, including his obesity. 

D. ALJ’s Hypothetical to the Vocational Expert

Mr. Gass next asserts that remand is required because the ALJ’s 

hypothetical to the vocational expert didn’t properly address his use of a cane; a 

foot brace; his manipulation and grasping problems; or Dr. Hagan’s opinion that 

he would likely miss four days of work per month, be off task 25 percent of the 

workday, and need regular work breaks. The Commissioner responds that the 

ALJ appropriately declined to include these limitations in the hypothetical 

provided to the vocational expert because she found them to be unsupported. 

“ALJs must provide [vocational experts] with a complete picture of a 

claimant's residual functional capacity.” Murphy v. Colvin, 759 F.3d 811, 820 

(7th Cir. 2014), as amended (Aug. 20, 2014). “Hypothetical questions posed to 

vocational experts ordinarily must include all limitations supported by medical 
11 

evidence in the record.” Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). 

A hand-held assistive device can be considered a limitation and is 

medically required if there is “medical documentation establishing the need for 

a hand-held assistive device to aid in walking or standing, and describing the 

circumstances for which it is needed.” Thomas v. Colvin, 534 F. App'x 546, 550 

(7th Cir. 2013) (quoting SSR 96-9P, 1996 WL 374185, at *7); Jones v. Astrue, 

310 F. App'x 286, 290 (10th Cir. 2009). See also Tripp v. Astrue, 489 F. App'x 

951, 955 (7th Cir. 2012) (requiring “an unambiguous opinion from a physician 

stating the circumstances in which an assistive device is medically necessary”). 

Mr. Gass’s treating physician, Dr. Hagan, reported that his use of a cane 

was medically necessary and that he required it for standing or walking. 

Occupational Therapist Shannon Mills reported that Mr. Gass was a fall risk, 

has balance problems, and uses a cane to assist with these issues. The ALJ 

didn’t discuss whether she believed Mr. Gass’s cane was medically necessary or 

address the medical opinion evidence from Dr. Hagan or Ms. Mills regarding Mr. 

Gass’s use of a cane. 

The Commissioner argues that Mr. Gass’s cane wasn’t medically 

necessary, noting that consultative examining physician B.T. Onamusi, M.D. 

opined that Mr. Gass “did not require an assistive device for ambulation or 

transfer.” But the ALJ didn’t refer to Dr. Onamusi’s opinion in her decision, so 

the Commissioner can’t rely on that to support her decision. See Mendez v. 

Barnhart, 439 F.3d 360, 362 (7th Cir. 2006) (the Commissioner violates the 
12 

Chenery doctrine if it defends an ALJ decision “on a ground that he himself did 

not mention”). 

While remand can be appropriate where the ALJ doesn’t properly address 

a claimant’s need for a cane, Thomas v. Colvin, 534 F. App'x 546, 550 (7th Cir. 

2013), the Commissioner contends that remand isn’t appropriate in this case 

because the use of a cane didn’t affect Mr. Gass’s ability to perform the sedentary 

level occupations identified by the vocational expert. The Commissioner cites 

Social Security Ruling 96-6P for support, which states that “if a medically 

required hand-held assistive device is needed only for prolonged ambulation, 

walking on uneven terrain, or ascending or descending slopes, the unskilled 

sedentary occupational base will not ordinarily be significantly eroded.” SSR 96-

9P, 1996 WL 374185 (July 2, 1996). 

But Dr. Hagan’s opinion that Mr. Gass’s cane was medically necessary 

doesn’t limit his use of the cane to “prolonged ambulation, walking on uneven 

terrain, or ascending or descending slopes.” She said Mr. Gass needs the cane 

even for occasional standing or walking. Furthermore, the Social Security 

Administration ruling states that the “occupational base for an individual who 

must use [a hand-held assistive] device for balance because of significant 

involvement of both lower extremities (e.g., because of a neurological 

impairment) may be significantly eroded.” Id. Mr. Gass testified that he used the 

cane for balance. Ms. Mills indicated that Mr. Gass lost his balance, tripped, or 

nearly fell daily and used a cane for balance. Multiple medical sources diagnosed 
13 

Mr. Gass with peripheral neuropathy, which the ALJ found affected both of his 

lower extremities, limiting his ability to walk and stand for extended periods. 

Based on this medical evidence, SSR 96-9P suggests that Mr. Gass’s ability to 

perform even sedentary occupations may be significantly eroded. Remand is 

required for the ALJ to appropriately address Mr. Gass’s use of a cane. 

Mr. Gass also complains that the ALJ’s hypothetical to the vocational 

expert didn’t reference his use of a foot brace due to right foot drop or address 

any limitations Mr. Gass might have in operating foot controls, although Dr. 

Hagan’s opinion included foot controls limitations. The ALJ’s opinion recognized 

that “[r]epeated physical examinations have shown the right foot drop” and that 

Mr. Gass wore a brace on his right foot, but didn’t explain the ALJ’s rationale for 

excluding the foot brace or foot control limitations in her decision. On remand, 

the ALJ should properly address Mr. Gass’s use of a foot brace and determine 

whether to include foot controls limitations. 

Next, Mr. Gass argues that the ALJ’s improperly omitted manipulative 

limitations from the hypothetical. But the ALJ thoroughly discussed why she 

found that Mr. Gass’s carpal tunnel syndrome didn’t cause more than minimal 

limitations so she didn’t include manipulative limitations in her residual 

functional capacity determination. 

Mr. Gass also asserts that the ALJ erred by not including Dr. Hagan’s 

limitations regarding his ability to work regularly and stay on task while at work 

in her hypothetical to the vocational expert. Dr. Hagan reported that Mr. Gass 
14 

would miss more than four days per month as a result of his impairments or 

treatment and would be off task at least 25 percent of his time at work. The 

vocational expert testified that an employer would tolerate an individual missing 

no more than one day of work per month and that an individual could only be 

off task up to 14 percent of the work day. 

The Commissioner argues that the ALJ properly considered Dr. Hagan’s 

opinion, giving it little weight and declining to include the work limitations in her 

hypothetical. Dr. Hagan was Mr. Gass’s treating physician and a treating 

physician's opinion deserves controlling weight if the ALJ finds that a treating 

source's opinion on the nature and severity of impairments “is well-supported by 

medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence” in the record. Allord v. Astrue, 

631 F.3d 411, 416–417 (7th Cir. 2011); Larson v. Astrue, 615 F.3d 744, 749 (7th 

Cir. 2010). “An ALJ who does not give controlling weight to the opinion of the 

claimant's treating physician must offer good reasons for declining to do so.” 

Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (internal quotation omitted). 

The applicable regulations “guide that decision by identifying several factors that 

an ALJ must consider: ‘the length, nature, and extent of the treatment 

relationship; frequency of examination; the physician's specialty; the types of 

tests performed; and the consistency and support for the physician's opinion.’ ” 

Campbell v. Astrue, 627 F.3d at 308 (quoting Larson v. Astrue, 615 F.3d at 751). 

The ALJ noted that Dr. Hagan was Mr. Gass’s treating physician but isn’t 
15 

a specialist, acknowledged the length of the treating relationship, and frequency 

of examinations, some of the testing performed, and recognized that her opinion 

conflicted with evidence in the record, including the opinions of the state agency 

experts and so afforded Dr. Hagan’s opinion little weight. The ALJ’s opinion 

demonstrates that she properly considered Dr. Hagan’s opinion, offered good 

reasons for the weight she assigned it, and didn’t err when she declined to 

include Dr. Hagan’s limitations in the hypothetical provided to the vocational 

expert. 

E. The ALJ’s Consideration of the Vocational Expert’s Testimony 

Mr. Gass asserts that the ALJ erroneously accepted testimony inconsistent 

with the DOT, namely inaccurate Dictionary of Occupational Titles (DOT) 

numbers associated with two of the three occupations identified. 6 The 

Commissioner acknowledges that the vocational expert gave the ALJ inaccurate 

DOT-identifying numbers for two of the three jobs he identified. The vocational 

expert gave DOT number 715.687-010 for the job of “assembler” while that DOT 

number actually corresponds with the job of band attacher and DOT number 

559.687-014 for the job of “packager” while that DOT number corresponds with 

 

6 Mr. Gass also contends that the ALJ erred by not asking the vocational expert if his 

testimony was consistent with the DOT in contravention of SSR 00-4p, but she did ask 

if his testimony would be consistent with the DOT before giving him the hypothetical. 

This satisfies the ALJ’s obligation under SSR 00-4p, which requires that the ALJ inquire 

about any conflict between a vocational expert’s testimony and the DOT before the ALJ 

relies on that testimony. Weatherbee v. Astrue, 649 F.3d 565, 570 (7th Cir. 2011). 
16 

the job of ampoule sealer. The ALJ didn’t acknowledge this discrepancy either at 

the hearing or in her opinion, which cites the erroneous DOT numbers and relies 

on them. 

SSR 00–4p places an affirmative duty on an ALJ to “investigate and resolve 

any apparent conflict between the [vocational expert’s] testimony and the DOT.” 

Weatherbee v. Astrue, 649 F.3d 565, 570 (7th Cir. 2011); SSR 00–4p, 2000 WL 

1898704, at *2. “A conflict is apparent if it is so obvious that the ALJ should 

have picked up on [it] without any assistance.” Weatherbee v. Astrue, 649 F.3d 

565, 570 (7th Cir. 2011) (internal quotation omitted). A conflict need not be 

apparent at the time of the hearing, but it must be apparent “at least by the time 

the ALJ produced his ruling.” Overman v. Astrue, 546 F.3d 456, 464 (7th Cir. 

2008). 

The ALJ didn’t need assistance to recognize that the DOT number were 

inaccurate and should have discovered the error when she wrote her opinion 

relying on the occupational data, so the conflict was apparent. Despite this 

apparent conflict, the ALJ didn’t investigate and resolve the conflict as required 

by the court of appeals. Instead, she relied on the inaccurate vocational expert’s 

testimony in her opinion. An ALJ’s ruling isn’t based on substantial evidence if 

it is premised on unreliable testimony from a vocational expert because the 

Commissioner bears the burden of demonstrating that jobs the claimant can 

perform exist in significant numbers in the economy. Overman v. Astrue, 546 

F.3d 456, 464 (7th Cir. 2008); Britton v. Astrue, 521 F.3d 799, 803 (7th Cir. 
17 

2008). 

The Commissioner argues that even if the ALJ erred in relying on the 

vocational expert’s testimony about the jobs of assembler and packager, the error 

was harmless because the third job identified by the vocational expert, order 

clerk, was correctly identified and exists in significant numbers. See Coleman v. 

Astrue, 269 F. App'x 596, 602 (7th Cir. 2008) (an ALJ’s error in not probing and 

resolving a conflict between a vocational expert’s testimony and the DOT is 

harmless if “a significant number of jobs cited by the ALJ and not inconsistent 

with the DOT remained available” to the claimant). 

The vocational expert estimated that there were about 400 order clerk jobs 

in Indiana and 20,000 nationally. Because “the vocational experts who testify in 

social security disability cases concerning the availability of jobs . . . almost 

always confine their testimony to indicating the number of such jobs that exist 

in the applicant's state, or an even smaller area” and few cases rely on national 

job numbers, the court of appeals focuses more attention on the availability of 

jobs regionally rather than nationally. Barrett v. Barnhart, 368 F.3d 691, 692 

(7th Cir. 2004). The vocational expert’s estimate that 400 order clerk jobs were 

available in Indiana is substantially less than the 1,000 that the court of appeals 

typically considers a significant number.7 Liskowitz v. Astrue, 559 F.3d 736, 743 

 

7 The jobs the vocational examiner identified also give rise to a concern that the 

Dictionary of Occupational Titles in use in today’s social security disability hearings 

might not reflect the job market in 2017, in an age of globalization and digitization of 

tasks. See, e.g., Alaura v. Colvin, 797 F.3d 503, 508 (7th Cir. 2015) (“And does anyone 
18 

(7th Cir. 2009). The court, therefore, declines to hold that the ALJ’s error was 

harmless and remand on this issue is required. 

F. The ALJ’s Credibility Determination 

Mr. Gass asserts two errors regarding the ALJ’s credibility determination: 

(1) she didn’t fully credit his pain allegations and (2) she improperly relied on his 

lack of treatment to undermine his pain allegations. The Commissioner responds 

that the ALJ properly considered both Mr. Gass’s pain allegations, crediting some 

and discounting others, and his decisions not to pursue recommended 

treatment. 

An ALJ's credibility determinations “are entitled to special deference 

because the ALJ is in a better position than the reviewing court to observe a 

witness,” but those determinations “are not immune from review.” Briscoe ex rel. 

Taylor v. Barnhart, 425 F.3d 345, 354 (7th Cir. 2005); see also Schmidt v. 

Astrue, 496 F.3d 833, 843 (7th Cir. 2007) (“[b]ecause the ALJ is in the best 

position to observe witnesses, [the court] will not disturb [his] credibility 

determinations as long as they find some support in the record”). The reviewing 

court must determine whether the ALJ's determination “was reasoned and 

 

use a typewriter any more?”); Voight v. Colvin, 781 F.3d 871, 878 (7th Cir. 2015). Given 

the software available to today’s businesses, one might wonder whether 400 order clerks 

are to be found in Indiana today; given the past decade’s rise in use of smartphones to 

tell time, one must wonder whether there are any remaining jobs in which people in the 

United States attach watchbands to wristwatches. The parties haven’t raised such 

issues, so the court says no more about the Dictionary of Occupational Titles. 
19 

supported,” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008), and shouldn't 

“overturn an ALJ's credibility determination unless it is patently wrong.” Shideler 

v. Astrue, 688 F.3d 306, 311 (7th Cir. 2012) (internal quotations omitted). 

To the extent that Mr. Gass argues that the ALJ simply disregarded his 

pain allegations because they weren’t supported by objective medical evidence, 

his argument isn’t persuasive. The ALJ properly considered whether objective 

medical evidence supported Mr. Gass’s pain allegations, noting that x-ray 

evidence and medical reports didn’t support his allegations of severe arthritis in 

his hands, for example. See Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). 

But the gravamen of the ALJ’s credibility determination is her opinion that 

Mr. Gass’s noncompliance with treatment undermined his pain allegations. She 

opined that “various medical exhibits and his testimony show [a] lack of followthrough,” noted that Mr. Gass didn’t see the surgeon he was referred to to 

determine whether back surgery was required, opted against epidural injections 

in his back, and declined both surgery on and injections for his shoulder. The 

ALJ also discussed his withdrawal from physical therapy and his decision not to 

complete a recommended home exercise program. 

An ALJ can consider noncompliance with treatment when making a 

credibility determination, but shouldn’t if there are good reasons for 

noncompliance. Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014). Good 

reasons for noncompliance include the inability “to afford the treatment, further 

treatment would have been ineffective, or the treatment created intolerable side 
20 

effects.” Id. “[A]n ALJ may need to question the individual at the administrative 

proceeding to determine whether there are good reasons the individual did not 

seek medical treatment or fully comply with prescribed treatment.” Id. 

The ALJ’s reliance on noncompliance for her adverse credibility 

determination doesn’t comply with the court of appeals’ requirements. At the 

hearing, the ALJ didn’t ask Mr. Gass about her concerns regarding his 

noncompliance with treatment recommendations, although he did testify that 

physical therapy didn’t seem to help and caused him pain. There is evidence in 

the record suggesting that had the ALJ inquired, she would have found that Mr. 

Gass’s treatment decisions were influenced by his inability to pay for treatment, 

in addition to the pain associated with his physical therapy. Dr. Hagan reported 

that Mr. Gass “currently doesn’t have any health insurance[,] which limits his 

access to medical treatment” and held off on laboratory testing because he didn’t 

have health insurance. His occupational therapist noted that Mr. Gass requested 

less frequent treatment “due to finances and gas to drive to therapy.” Dr. Hagan, 

Dr. Neuman, and Dr. Michael Arata each noted that Mr. Gass didn’t have health 

insurance. Dr. Neuman reported that Mr. Gass told her that he “pays cash for 

all of his medical services and medications.” 

But “the ALJ did not ask important questions to determine if [Mr. Gass’s] 

actions were justifiable” so this court “cannot assess the validity of the ALJ's 

credibility determination,” Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014), 

as amended (Aug. 20, 2014), or determine whether the ALJ's credibility 
21 

determination was reasoned and supported, so remand is required. Elder v. 

Astrue, 529 F.3d 408, 413 (7th Cir. 2008). 

 IV. CONCLUSION

The court VACATES the Commissioner's decision and REMANDS this case 

for further proceeding consistent with this opinion. 

SO ORDERED. 

 ENTERED: August 28, 2017 

 /s/ Robert L. Miller, Jr. 

 Judge, United States District Court