# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 4, 2020

Decided August 19, 2020

Before

D ANIEL A. M ANION

, Circuit Judge

D IANE P. W OOD

, Circuit Judge

A MY C. B ARRETT

, Circuit Judge

No. 20

‐ 1042

P AUL M. R ENNAKER

, Plaintiff

‐ Appellant

,

v

.

A NDREW M. S AUL

,

Commissioner of Social Security,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of

Indiana, Fort Wayne Division.

No. 1:18cv428

Robert L. Miller,

J udge

.

O R D E R

An administrative law judge denied Paul Rennaker’s application for Social

Security disability benefits after finding that Rennaker could perform jobs that exist in

significant numbers in the national economy. The district court upheld the ALJ’s

determination. But because the vocational expert did not provide a basis for the reliability

of the national numbers he posited, substantial evidence does not support the ALJ’s

decision. We therefore vacate the judgment and remand for further proceedings. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 20

‐ 1042 Page 2

I

Rennaker, now 52 years old, applied for Title II disability insurance benefits and

supplemental security income in June 2015. He alleged impairments including diabetes,

neuropathy in his feet, depression, and injuries to both legs and his lower back.

Rennaker worked as a sheriff’s deputy from 1990 until October 21, 2014, when he

injured his back and legs during defensive tactics training, at which point he says he

became disabled and went on administrative leave.

Back in October 2014, six days after his training injury, Rennaker was diagnosed

with contusions (strains) in both thighs by a nurse practitioner. In five visits between

late October and early December, medical professionals told Rennaker he could return

to work with “modified/restricted duties”—specifically, he should limit time spent

lifting anything greater than 25 pounds, squatting, or kneeling. They also told him to

alternate between sitting and standing, apply cold packs to his legs, and begin physical

therapy.

By mid

‐ December, Gregory Kniss, D.O., deemed Rennaker’s injury “functionally

resolved” when Rennaker sought treatment for pain caused by leg cramps. Dr. Kniss

prescribed acetaminophen and told him to continue his home exercises but noted that

he could return to work with “regular duties.”

Four months later, Rennaker began seeing David Reinhard, M.D.; he diagnosed

Rennaker with diabetes, depression, and diabetic neuropathy. But Rennaker’s mood,

judgment, and thoughts were all “normal.” During this series of appointments with Dr.

Reinhard, Rennaker applied for disability benefits and supplemental security income.

In connection with these applications, Rennaker was examined by a physician

and a psychologist in July 2015. H.M. Bacchus, M.D., noted that Rennaker had pain in

his left hip, lower back, and both knees, as well as diabetes, which was “currently diet

and exercise controlled.” Dr. Bacchus reported that Rennaker had limitations with,

among other things, “prolonged sitting, standing and walking.” Psychologist Amanda

Mayle, Psy.D., diagnosed Rennaker with major depression. But his insight and

judgment were “adequate,” his speech was “normal,” and his thoughts were “logical

and coherent.”

A state

‐ agency consulting physician, B. Whitley, M.D., reviewed Dr. Bacchus’s

report along with other medical evidence and opined that Rennaker had the capacity

for “light” work. Dr. Whitley noted that with normal breaks, Rennaker could stand orNo. 20

‐ 1042 Page 3

walk “about 6 hours in an 8

‐ hour workday”; with normal breaks, he could also sit for

the same amount of time. X

‐ rays of his left hip, left knee, and lumbar spine revealed

“minimal” scoliosis and arthritis in his spine and “minimal degenerative changes” in

his hip. Rennaker did not have any manipulative, visual, or communicative limitations.

Dr. Whitley also noted that Rennaker stood 6’4” and weighed 300 pounds. Psychologist

J. Gange, Ph.D., reviewed Dr. Mayle’s report along with the rest of the record evidence

and opined that Rennaker’s depression was “not severe.” He had only “mild”

limitations on his social functioning and concentration, persistence, or pace.

Rennaker’s initial applications for disability benefits and supplemental security

income were unsuccessful; he filed for reconsideration in October 2015. Rennaker also

submitted a function report about his daily activities. He wrote that the only person he

took care of was his grandfather, whom he visited and sat with, and that his wife “helps

with our children and pets.” Although he could prepare simple meals (sandwiches),

fold clothes, and do light repairs, he had difficulty dressing himself. His wife had to

remind him to take his medication. He also had difficulty with a range of actions, such

as lifting, standing, walking, sitting, kneeling, and climbing stairs, and with mental

tasks such as remembering, completing tasks, concentrating, and following instructions.

Finally, in January 2016, Rennaker saw examining consultant Carolyn Greer,

M.D., who noted that Rennaker could walk for 15 minutes, stand for 15 to 20 minutes,

climb one to two flights of stairs, and lift 50 pounds with his left arm and his right arm.

Dr. Greer also noted that Rennaker had normal posture, was able to get on and off the

table without assistance, had normal straight leg

‐ raising, and had normal strength in his

right and left extremities. Dr. Greer’s report was reviewed by state

‐ agency physician

Fernando Montoya, M.D., who opined that Rennaker could perform “light” work. Dr.

Montoya largely incorporated Dr. Whitley’s opinion but added that Rennaker should

“avoid unprotected heights and slippery, uneven walking surfaces due to neuropathy.”

After the agency denied Rennaker’s applications again upon reconsideration in

January 2016, he requested a hearing before an ALJ, which took place on July 31, 2017.

(Seven months before his hearing, he began working full

‐ time; he provides security at a

local hospital, where he is on his feet 30 percent of the time.) At the hearing, Rennaker

was unrepresented by counsel. When the ALJ asked Rennaker if he wished to proceed

without a lawyer, he said “yes” and signed a waiver of his right to representation.

Rennaker testified that he left his job as a sheriff’s deputy because of his “physical

limitations,” chief among them pain in his legs and feet. He took pain medication and

received treatment for his depression.No. 20

‐ 1042 Page 4

The ALJ then examined a vocational expert, who began by explaining his

qualifications, which included 25 years of experience and a master’s degree in

vocational rehabilitation counseling; in this role, he placed people into jobs. Rennaker

did not object to the VE’s qualifications. The ALJ then asked the VE if he planned to use

“national numbers,” which the VE confirmed.

The ALJ asked the VE about the work available to a person of Rennaker’s age,

experience, and physical limitations. At first, the ALJ posed a hypothetical that allowed

for standing or walking for four hours in an eight

‐ hour workday with the option to

alternate positions every hour. The ALJ then paused to ask Rennaker to clarify his

limitations between December 2014 and December 2016. Rennaker testified that during

that period, he could sit for “maybe 15 or 20” minutes at a time; he could not have stood

in one spot “nearly as long as I do now.” The ALJ then modified the hypothetical to

limit standing or walking to two hours in an eight

‐ hour workday, with the option to

alternate positions every 30 minutes. The VE testified that although security guard

work would be ruled out, sedentary jobs would still be available in the national

economy: 44,000 jobs as a food order clerk, 34,000 jobs as a charge account clerk, and

29,000 jobs as a polishing machine operator, for example.

The ALJ only asked one question about the jobs that the VE cited: “[A]re they

consistent with the description in the DOT [Dictionary of Occupational Titles]?” The VE

responded, “For the most part.” He explained that some of the limitations identified by

the ALJ—such as Rennaker’s need to change positions, take absences, and have time

off

‐ task—were not addressed by his sources. As a result, the VE based his opinion of

the work Rennaker could perform on his education, research, training, and experience

in job placement and vocational rehabilitation. Rennaker asked the VE no questions.

Applying the Administration’s five

‐ step analysis, 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4), the ALJ determined that during the applicable time period, Rennaker was

not disabled and could perform light work. The ALJ noted that because Rennaker had

been employed in substantial gainful activity since December 12, 2016, the decision’s

analysis applied to the period from October 21, 2014 through December 11, 2016. 1

Citing the objective medical evidence, medical opinions, and Rennaker’s

symptoms and daily activities, the ALJ found that Rennaker had the residual functional

capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with

1 Rennaker does not contest that this work was substantial gainful activity and that his alleged period of

disability covers October 21, 2014 through December 11, 2016.No. 20

‐ 1042 Page 5

limitations on standing, walking, and sitting, and the option to change positions every

30 minutes. The ALJ gave great weight to the opinion of state

‐ agency psychologist Dr.

Gange, which was supported by Rennaker’s largely “unremarkable” mental status

evaluations. The ALJ also gave great weight to the opinions of state

‐ agency physicians

Dr. Whitley and Dr. Montoya, which were supported by Rennaker’s normal strength in

his arms and legs, normal deep tendon reflexes, and normal straight

‐ leg raises. As for

his daily living activities, the ALJ found that these suggested Rennaker was not as

limited as alleged. The ALJ emphasized that Rennaker was capable of “preparing

meals, performing housework, folding clothes, light repairs, reading, studying,

exercising, caring for children and pets, driving, and shopping.” In particular, the ALJ

deemed childrearing quite demanding both physically and emotionally, suggesting “a

level of functioning and concentration inconsistent with the degree of back pain

alleged.”

Given Rennaker’s RFC, the ALJ found that he could not perform any past

relevant work but could do other jobs existing in significant numbers nationally, such as

a food order clerk, charge account clerk, or polishing machine operator.

The Appeals Council denied review, and the district court upheld the ALJ’s

denial of benefits.

II

We vacate an ALJ’s decision on benefits only when it is not supported by

“substantial evidence,” 42 U.S.C. § 405(g), which is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill

,

139 S. Ct. 1148, 1154 (2019) (citation omitted). That said, we do not “scour the record”

for reasons to uphold the decision. Moon v. Colvin

, 763 F.3d 718, 721 (7th Cir. 2014).

A

Rennaker first argues that the ALJ did not develop a full and fair record because

his examination of the VE was deficient—specifically, the ALJ did not inquire into the

reliability of the nationwide job numbers posited, where the numbers came from, or the

methodology used to determine them.

We agree with Rennaker. At the final step of its five

‐ step analysis, the agency

bore the burden of demonstrating the existence of significant numbers of jobs in the

national economy that Rennaker could perform. See 20 C.F.R. § 416.960(c)(1); Chavez v.No. 20

‐ 1042 Page 6

Berryhill

, 895 F.3d 962, 964 (7th Cir. 2018). A finding based on unreliable VE testimony is

not based on substantial evidence and must be vacated. Chavez

, 895 F.3d at 968. “The

substantial evidence standard requires the ALJ to ensure that the approximation [of job

numbers] is the product of a reliable method.” Id. Further, an ALJ has a duty to develop

a full and fair record; this duty is enhanced when when a disability benefits claimant is

unrepresented, as Rennaker was. Nelms v. Astrue

, 553 F.3d 1093, 1098 (7th Cir. 2009).

When faced with a pro se claimant, the ALJ must “scrupulously and conscientiously

probe into, inquire of, and explore for all the relevant facts.” Id. (citations and internal

quotation marks omitted). Thus, both the substantial evidence standard and Rennaker’s

pro se status demanded more from the ALJ.

First, the VE’s testimony, on its own, did not constitute substantial evidence. He

did not provide any reason for why he had a “reasonable degree of confidence in his

estimates.” Chavez

, 895 F.3d at 969. When asked if he planned to use national numbers

in his testimony, the VE said simply, “Yes.” Although the VE pointed to his own

education, research, training, and experience in job placement and vocational

rehabilitation to explain the kind of work Rennaker could perform, the VE did not

explicitly tie this background to his estimate of nationwide job numbers. In other

words, although a VE may draw from his expertise to provide a reasoned basis for his

job

‐ number estimates, see id. at 969, the VE in this case did not bring any aspect of his

experience to bear on the reliability of those numbers. He did not say why he thought

his numbers were reliable.

Second, given the VE’s sparse testimony, the ALJ did not do enough to develop

the VE’s testimony such that it would constitute substantial evidence. The ALJ asked

only one question about the jobs cited by the VE—whether these jobs were consistent

with the job descriptions listed in the DOT. The manual does not provide job

‐ number

estimates, only job duties and requirements, so consistency with the manual would not

provide a basis for the job

‐ number estimates’ reliability. For that matter, this manual

was last revised in 1991. See S OC

. S EC

. A DMIN

., Occupational Information System Project,

https://www.ssa.gov/disabilityresearc h/occupational_info_systems.html (last visited

August 12, 2020)).

Thus, the ALJ had no reasoned basis to accept the VE’s job

‐ number estimates.

B

Rennaker also argues that in assessing the intensity of his symptoms, the ALJ

“overemphasized” his daily activities to the exclusion (or minimizing) of otherNo. 20

‐ 1042 Page 7

evidence. Rennaker contends that the ALJ should not have drawn inferences from his

daily activities without asking about what they entailed; for example, the ALJ should

have asked about “the parameters of the caregiving and about whether said caregiving

activity increased his pain.” This, Rennaker says, would have revealed that he could not

engage in competitive work. We disagree. As the Commissioner argues, the ALJ did not

“overemphasize” Rennaker’s daily activities because the ALJ relied on other evidence,

such as the objective medical evidence and medical opinions—which constituted

substantial evidence supporting the ALJ’s credibility finding.

As an initial matter, the ALJ possibly misrepresented Rennaker’s daily activities

with respect to caregiving. In his function report, Rennaker wrote that the only person

he took care of was his grandfather, whom he visited and sat with, and that his wife

“helps with our children and pets.” Even if this means that Rennaker spent some time

on childcare—though it is unclear whom his wife “helped”—the ALJ’s reliance on these

duties lacks support. Rennaker did not testify about childcare, and nothing in the

ambiguous statement about his wife explains the ALJ’s belief that Rennaker engaged in

caretaking that was “taxing both emotionally and physically.”

But the ALJ’s mistake was harmless because the ALJ did not rely on Rennaker’s

daily activities to the exclusion of other evidence; nor did he equate these activities with

competitive work. He noted only that these activities suggested that Rennaker was not

as limited as he alleged. As detailed earlier, the ALJ relied on the entirety of the record

to discount Rennaker’s account of the severity of his symptoms. For example, the ALJ

relied on “rather good” diagnostic imagining and Dr. Greer’s physical exams that

showed normal strength in his arms and legs and normal deep tendon reflexes. The ALJ

also relied on mental

‐ health notes by Dr. Reinhard and Dr. Mayle that recorded

Rennaker’s normal thought process and judgment.

Rennaker argues that the ALJ further erred in assessing the intensity of his

symptoms by failing to consider his good work record, through which he had earned

substantial credibility. Again, we disagree. As the Commissioner argues, Rennaker’s

good work record did not contradict the ALJ’s findings or detract from the substantial

evidence supporting the ALJ’s assessment of Rennaker’s allegations of disability.

As Rennaker himself notes, work history is just one factor among many and is

not dispositive. See Loveless v. Colvin

, 810 F.3d 502, 508 (7th Cir. 2016). An ALJ need not

evaluate in writing every piece of evidence, so the failure to explicitly and favorably

discuss Rennaker’s work history when evaluating his credibility is not, by itself,

reversible error. See Summers v. Berryhill

, 864 F.3d 523, 528–29 (7th Cir. 2017). In thisNo. 20

‐ 1042 Page 8

case, substantial evidence supports the ALJ’s assessment of Rennaker’s allegations of

disabling pain. When considering the intensity of a claimant’s symptoms, the agency

examines “the entire case record,” which includes the objective medical evidence, the

claimant’s statements, and statements by other medical sources and persons. Social

Security Ruling 16

‐ 3p Titles II and XVI: Evaluation of Symptoms in Disability Claims,

82 Fed. Reg. 49462, 49464 (October 25, 2017). Here, the ALJ did just that, relying on the

physical exams indicating normal posture and strength, as well as the opinion evidence

indicating the ability to sit and stand (with mild limitations), to conclude that the

intensity of Rennaker’s symptoms did not match his statements.

C

Finally, Rennaker argues that the ALJ failed to address his obesity, so remand is

required for the ALJ to consider its effects on his impairments. The Commissioner, on

the other hand, argues that the ALJ implicitly considered Rennaker’s obesity because he

cited doctors whose records note Rennaker’s height and weight. See Prochaska v.

Barnhart

, 454 F.3d 731, 737 (7th Cir. 2006). Further, the Commissioner contends,

Rennaker failed to identify any limitations caused by his obesity.

The record does not provide confidence that the ALJ considered Rennaker’s

obesity. In Prochaska

, this court determined that the ALJ considered obesity because he

relied on medical reports in which doctors referred to the claimant as “overweight” and

“chronically obese.” 453 F.3d at 737. And other reports listed the claimant’s height and

weight, so this court concluded that “the record relied upon by the ALJ sufficiently

analyzes her obesity.” Id. Here, the reports simply record Rennaker’s height and weight,

which is harder to characterize as “analysis.” No report that the ALJ relied upon

discussed whether obesity contributed to or exacerbated Rennaker’s other impairments.

See Pepper v. Colvin

, 712 F.3d 531, 364–65 (7th Cir. 2013).

But the ALJ’s oversight was harmless. “An ALJ’s failure to explicitly consider an

applicant’s obesity is harmless if the applicant did not explain how her obesity hampers

her ability to work.” Stepp v. Colvin

, 795 F.3d 711, 720 (7th Cir. 2015) (citations and

internal quotation marks omitted). And Rennaker points to nothing in the record to

support his argument that “it would be expected” that his obesity would aggravate his

diabetes and hypertension and diminish his ability to sit, stand, lift, and walk. He did

not seek treatment for obesity or report any limiting effects of obesity; further, he did

not testify that obesity affects him in any way. Thus, any consideration of obesity by the

ALJ would have been speculative.No. 20

‐ 1042 Page 9

III

For these reasons, we VACATE the judgment and REMAND the case for the ALJ

to ensure that there is a reasonable basis to accept the VE’s job

‐ number estimates.