In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2968

GERALD OVERMAN,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Defendant-Appellee.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 06 C 484—Barbara B. Crabb, Chief Judge.

ARGUED JULY 9, 2008—DECIDED OCTOBER 7, 2008

Before POSNER, SYKES, and TINDER, Circuit Judges.

PER CURIAM. Gerald Overman applied for Social Security

disability insurance benefits and supplemental security

income payments, claiming that he was unable to work

due primarily to fatigue related to Graves’ disease, anemia,

and vision problems. After conducting a hearing an

Administrative Law Judge (“ALJ”) denied benefits,

relying on testimony by a vocational expert (“VE”) to find

that, though Overman could not return to his past work,

he could perform a significant number of other available
2 No. 07-2968

jobs. On review by the district court, the court found that

substantial evidence supported the ALJ’s conclusion. In

this appeal, Overman challenges the ALJ’s reliance on the

VE’s testimony. We will discuss the record that was

before the ALJ prior to addressing those contentions.

Overman, currently 58 years old, is a high-school graduate. For fifteen years before the alleged onset of disability,

he worked at a resort. His duties included maintaining

and repairing the golf course irrigation system, setting

up for conventions, and performing other small repairs. In

2003 Overman began to feel overheated, shaky, and

fatigued on a regular basis, and he experienced a rapid,

unexplained weight loss of more than 70 pounds. In

November of that year, Overman—who already suffered

from diabetes, hypertension, glaucoma, cataracts, and

severe myopia—quit his job because he was too fatigued

to continue working.

Overman reported his symptoms to his treating physician, Dr. John McKevett, and was referred to an endocrinologist who diagnosed Overman with Graves’ disease, a

form of hyperthyroidism that may cause weight loss,

tremulousness, and weakness, among other symptoms.

STEDMAN’S MEDICAL DICTIONARY 557, 928 (28th ed. 2006).

Graves’ disease is chronic, but the symptoms are treatable. See MayoClinic.com, Graves’ Disease (July 6,

2007), http://www.mayoclinic.com/health/graves-disease/

DS00181/DSECTION= treatments-and-drugs. He also

was diagnosed with anemia, which frequently causes

fatigue and lethargy in its sufferer. STEDMAN’S MEDICAL

DICTIONARY at 78.
No. 07-2968 3

Overman began radioactive iodine therapy for his

Graves’ disease in late December 2003. He filed his application for benefits shortly thereafter. The therapy

initially alleviated some of Overman’s symptoms, but

then instead of producing too much thyroid hormone,

Overman began producing too little, a condition called

hypothyroidism, which (like hyperthyroidism) often

causes fatigue and muscle weakness. STEDMAN’S MEDICAL

DICTIONARY at 939, 1277. (Roughly 70% of patients treated

with radioactive iodine experience this overcorrection of

thyroid function, after which they usually require lifelong

thyroid hormone replacement therapy.) Endocrinologists

tested Overman’s thyroid function every four to eight

weeks throughout 2004 and sent the results to Dr.

McKevett, who prescribed a thyroid-hormone replacement drug called Synthroid. After taking Synthroid for

two weeks, Overman told Dr. McKevett that he still tired

easily but his energy level was “slowly but surely improving.” At the same visit, the doctor noted “moderate

generalized weakness,” but stated that this was also

“slowly improving.” Dr. McKevett’s records reflect that

Overman’s dosage of Synthroid was adjusted several

times over the next 18 months. But by the end of that

period, Dr. McKevett still had not determined the

correct dosage and attributed Overman’s continued fatigue

to “not being conditioned” to the medication. As for

Overman’s anemia, the records do not mention any

treatment for that ailment, and Overman did not know

at the time of his hearing whether he was still anemic.

Overman also submitted records from his optometrist

and opthalmologist concerning his vision problems. The
4 No. 07-2968

opthalmologist reported that Overman suffered from

“pathologic myopia,” glaucoma, and cataracts. He said that

Overman’s visual acuity of 20/80 made “any visual task

difficult” and his eyesight would continue to deteriorate.

His optometrist reported that Overman had “open angle”

glaucoma and myopic degeneration resulting in “poor

vision in general” and “almost no night vision.” Both

doctors agreed that Overman’s vision would likely

worsen over time. The medical records show that Overman’s diabetes and hypertension were, for the most part,

well-controlled during the alleged period of disability.

At the hearing before the ALJ in November 2005, Overman testified that he was still taking Synthroid for his

thyroid condition but that his doctor had not yet determined the correct dosage. He also testified that he took

medication for his diabetes but was not insulin-dependent.

He said that he was nearsighted, wore glasses, and could

watch TV as long as he was within five feet of the set.

Regarding his daily activities, Overman testified that he

tries to do things around the house but finds it very

tiring and that, during the six months prior to the hearing,

if he sat down in a chair for more than five minutes he

would fall asleep. Overman testified that he could feed

and bathe himself and that his performance of household

chores did not significantly change after the onset of

disability in November 2003. He said that he could drive

during the day but not after dark as he had “no night

vision.” He also said that he could walk a half mile on

flat terrain as long as it was not too cold out, but that in

the cold his extremities go numb due to his diabetes. He

said that the numbness had worsened over time and was
No. 07-2968 5

not always associated with cold temperatures. Finally,

Overman testified that his resort maintenance job had

been unskilled and primarily required making small

repairs to door knobs, light switch covers, and the like. He

left the job in November 2003 after fainting at work. He

said that he would not be able to return to that job because he could not tolerate working outdoors in hot

weather and because he was routinely required to lift

more weight than Dr. McKevett recommended.

Dr. Julianne Koski, a family practitioner and agency

consultant, also testified at the hearing. Having reviewed

Overman’s medical records, Dr. Koski concurred that

Overman suffered from Graves’ disease, severe myopia

with glaucoma, diabetes, and hypertension. She testified

that it was difficult to determine Overman’s corrected

visual acuity from his medical records, but she guessed

that it was no better than 20/100 when corrected with

glasses. She also concurred that he suffered from cataracts,

which, in her opinion, were not yet “visually significant.”

Dr. Koski opined that none of Overman’s impairments

met or equaled Social Security medical listings, so she

analyzed how, in her view, his ailments impacted his

residual functional capacity. She said that Overman could

not perform work requiring fine discrimination or significant reading, should stay away from hazards and extreme

temperatures, should avoid all ropes and scaffolding

and climb ladders only occasionally, should never lift

more than fifty pounds but could lift twenty pounds “on

a more frequent basis,” and should not do any repetitive

over-the-shoulder lifting. She did not recommend any

limitations on Overman’s ability to sit or stand.
6 No. 07-2968

The last witness at the hearing was the vocational expert

(“VE”), Kenneth Ogren. The ALJ asked the VE, hypothetically, whether a person with a residual functional capacity

as described by Dr. Koski—including the limitations on

reading, fine discrimination, and extreme temperatures—could do any of Overman’s past relevant work. The

VE answered that the extreme-temperatures limitation

ruled out Overman’s prior work, much of which was

performed outdoors. The ALJ then asked, hypothetically,

whether there were other jobs in the region that a person

with those same limitations could perform. The VE answered that such a person could perform two occupations:

“hand packager, and that is at DOT 920.587-018. . . . [and]

Rack room worker, 920.665-014.” A “hand packager”

manually packages materials and products, and a “rackroom worker” tends machines that fill metal kegs with beer

in the keg-filling (or racking) room of a brewery; both

positions require a “medium” level of exertion. See DEP’T

OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES 932-33

(4th ed. rev. 1991), available at http://www.oalj.dol.gov/

libdot.htm. According to the VE, there were 1,200 and 800

such jobs, respectively, available in Minnesota. (The district court rejected Overman’s argument that the VE

should have used a Wisconsin rather than a Minnesota

database to evaluate the number of available jobs, but

Overman does not renew that argument on appeal.)

Finally, the ALJ asked the VE whether his testimony was

consistent with the Dictionary of Occupational Titles

(“DOT”), and the VE answered “yes.”

Overman’s counsel then cross-examined the VE as

follows:
No. 07-2968 7

Counsel: And then if you assume a person couldn’t

do, couldn’t do close up work because of finger

problems, hand problems, that sort of thing, would

that change your opinion on this?

VE: Yes.

Counsel: How would it change it?

VE: It would eliminate the two jobs.

Counsel: Pardon me?

VE: It would eliminate both occupations.

Counsel: And why is that?

VE: Basically you have to have at least some vision

to do the packaging I’m talking about and some

vision to hang articles on racks.

Counsel: And as I understand the doctor, she was

saying he could do things with gross discrimination, but he couldn’t do it with the fine discrimination?

VE: Yes. That’s the way I understood it too.

Counsel: And as I understand it, that means, and

correct me if I’m wrong, he can’t work up close

because he can’t really see his hands, is that it?

VE: I guess the way I interpreted that is that he

couldn’t do like small assemblies and things like

that, smaller type work.

Counsel: Uh-huh. But we’re talking about packaging of objects into a box then versus actual fine

manipulation?
8 No. 07-2968

VE: Yes.

Counsel: Then I guess it’s a matter of degree, isn’t

it.

VE: Yes.

Counsel: So those may well be eliminated as well?

VE: The smaller parts, yes.

Counsel: By the fact that he’s sitting there trying to

do things close up, right?

VE: Exactly.

Counsel: All right. And I suppose I would have to,

that would also get in to the issue of what’s on the

labeling and how you would package it and how it

would have to be packaged, that sort of thing.

VE: If he had to read to do it, I would say those

jobs would be eliminated, yes.

Counsel: So then there would be no jobs in the

national economy, if you assume he couldn’t do it

because it was close work?

VE: Yeah, I eliminated those possibilities already.

In determining that Overman was not disabled, the ALJ

performed the usual five-step sequential analysis. See

20 C.F.R. §§ 404.1520, 416.920. According to the ALJ,

Overman had not engaged in substantial work since his

claimed onset date, and he was severely impaired, but

none of his impairments were severe enough to presumptively preclude gainful work. See id. § 404, subpt. P, app. 1.

The ALJ then found that Overman could perform work
No. 07-2968 9

of “medium” exertion with limitations virtually identical

to those described at the hearing by Dr. Koski, including

gross but not fine discrimination, no significant reading

tasks, and no extremes of cold or heat. The ALJ concluded

that these limitations would preclude Overman’s past

relevant work. However, the ALJ found that Overman

was not disabled at step five because he could work as

a hand packager or a rack-room worker. The ALJ stated

that, in reaching this conclusion, he gave “great weight” to

the VE’s testimony, which the ALJ found “credible,

persuasive, and consistent with the record as a whole.” The

ALJ also noted that the VE had confirmed that his testimony was consistent with the DOT. As for the VE’s

testimony on cross-examination, the ALJ did not

interpret his statements to suggest that Overman’s limitations would prevent him from working as a hand packager

or rack-room worker. Rather, under the ALJ’s reading

of the testimony, the VE simply explained that he had

previously eliminated from consideration jobs requiring

the type of small assembly work and reading that

Overman is unable to do before arriving at the conclusion

that there were some 2,000 jobs in Minnesota available

to Overman despite his limitations.

The Appeals Council denied Overman’s request for

review, making the ALJ’s ruling the Commissioner’s final

decision. See, e.g., Schmidt v. Astrue, 496 F.3d 833, 841 (7th

Cir. 2007). Overman sought review in the district court,

see 42 U.S.C. § 405(g), and, as noted, the district court

upheld the ALJ’s decision. And now we address the

claims of error that Overman raises in this appeal.
10 No. 07-2968

We review the ALJ’s decision deferentially, upholding it

if it is supported by substantial evidence. Skinner v. Astrue,

478 F.3d 836, 841 (7th Cir. 2007). “Evidence is ‘substantial’

if it is sufficient for a reasonable person to accept as

adequate to support the decision.” Jens v. Barnhart, 347 F.3d

209, 212 (7th Cir. 2003) (internal quotation marks and

citation omitted). “Although this standard is generous, it

is not entirely uncritical,” and the case must be remanded

if the decision lacks evidentiary support. Steele v. Barnhart,

290 F.3d 936, 940 (7th Cir. 2002). We view the record as a

whole but do not reweigh the evidence or substitute

our judgment for that of the ALJ. Schmidt v. Apfel, 201

F.3d 970, 972 (7th Cir. 2000).

First, the VE’s testimony that Overman could work as a

hand packager or rack-room worker conflicts in several

respects with descriptions of those positions in the DOT.

Overman, according to the ALJ, must avoid extremes

of cold and heat, and his vision problems preclude both

fine discrimination and significant reading. A hand

packager, however, must deal with extreme heat “frequently” (between one-third to two-thirds of the workday), and “near acuity”—clarity of vision at 20 inches or

less—is required “occasionally” (up to one-third of the

workday). See DEP’T OF LABOR, SELECTED CHARACTERISTICS

OF OCCUPATIONS DEFINED IN THE REVISED DICTIONARY

OF OCCUPATIONAL TITLES 316, C-3 to C-4, D-1 (1993). For a

rack-room worker, near acuity is required frequently. See

id. at 316, C-3 to C-4. Both positions require workers to

read at a rate of 95-120 words per minute and to be able to

compare similarities and differences between words

and between series of numbers. See DEP’T OF LABOR,
No. 07-2968 11

DICTIONARY OF OCCUPATIONAL TITLES at 932-33, 1010-11.

The Commissioner concedes on appeal that the VE’s

testimony conflicts with the DOT; the issue is whether

that conflict necessitates remand.

Overman argues that (1) the ALJ violated Social Security

Ruling 00-4p by failing to require the VE to explain the

conflict, and (2) the VE’s flawed testimony cannot satisfy

the Commissioner’s burden at step five to prove that

Overman can perform other jobs despite his limitations.

Under SSR 00-4p, an ALJ has an “affirmative responsibility” 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. SSR 00-4p at 4; see Massachi v. Astrue, 486

F.3d 1149, 1152-53 (9th Cir. 2007); Prochaska v. Barnhart,

454 F.3d 731, 735 (7th Cir. 2006). Here, the ALJ satisfied

this first step by asking the VE if his testimony was consistent with the DOT; the VE answered (wrongly, as it

turns out) that it was. If evidence from a VE “appears to

conflict with the DOT,” SSR 00-4p requires further inquiry:

an ALJ must obtain “a reasonable explanation for the

apparent conflict.” SSR 00-4p at 5. It is here, Overman

argues, that the ALJ failed in his duty. Even though his

counsel never identified any apparent conflicts at the time

of the hearing, Overman argues that the discrepancies

between the DOT definitions and the VE’s testimony were

so obvious that the ALJ’s duty to investigate was triggered.

The Commissioner counters that the conceded conflicts

were not obvious and that Overman forfeited any argument under SSR 00-4p because he did not raise it at the
12 No. 07-2968

hearing. For the latter proposition the Commissioner cites

Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002). But

we held more recently that because SSR 00-4p imposes

an affirmative duty on the ALJ to inquire into and resolve

apparent conflicts, a claimant’s failure to raise a possible

violation of SSR 00-4p at the administrative level does not

forfeit the right to argue later that a violation occurred. See

Prochaska, 454 F.3d at 735 (calling language to the contrary

in Donahue dicta). The Commissioner attempts to distinguish Prochaska by pointing out that in that case the ALJ

violated SSR 00-4p at the first step by never asking the

VE whether his testimony was consistent with the DOT.

But Prochaska makes clear that the ALJ’s affirmative duty

extends beyond merely asking the VE whether his testimony is consistent with the DOT; the ALJ also must “elicit

a reasonable explanation for any discrepancy.” Prochaska,

454 F.3d at 735 (quoting Haddock v. Apfel, 196 F.3d 1084,

1087 (10th Cir. 1999)). Overman was denied the opportunity to appeal at the administrative level, and he raised

the SSR 00-4p issue before the district court, so he has not

forfeited the argument. See Prochaska, 454 F.3d at 735.

Still, the failure of Overman’s counsel to identify the

conflicts at the time of the hearing is not without consequence. Overman now has to argue that the conflicts were

obvious enough that the ALJ should have picked up on

them without any assistance, for SSR 00-4p requires only

that the ALJ investigate and resolve apparent conflicts

between the VE’s evidence and the DOT. SSR 00-4p;

see also, e.g., Prochaska, 454 F.3d at 735 (“If the

VE’s . . . evidence appears to conflict with the Dictionary of

Occupational Titles, the adjudicator will obtain a reason-
No. 07-2968 13

able explanation for the apparent conflict.” (emphasis

added)).

Overman identifies two “apparent conflicts” in the VE’s

testimony that, in his view, the ALJ was required to

investigate further. After testifying on direct that

Overman could perform two occupations listed in the

DOT despite his limited vision and reading ability, the

VE contradicted himself on cross-examination, first by

saying that an inability to do “close up work” would

eliminate both jobs and second by saying that Overman

would be unable to work as a hand packager if that

position required reading. The Commissioner argues

that Overman’s counsel elicited these seemingly contradictory statements by imposing alternate, more restrictive

hypothetical limitations than the ALJ had on direct.

According to the Commissioner, counsel’s question about

“close up work” introduced a limitation that Overman

lacked full use of his hands, which was not included

when the ALJ questioned the VE. But that argument is

undermined by the fact that the VE discussed visual

acuity rather than manipulative ability when he testified

that a limitation on “close up work” would eliminate both

jobs “because you have to have at least some vision.” The

Commissioner likewise attempts to reconcile the VE’s

statement that a reading limitation would preclude work

as a hand packager by suggesting that “the ability to

engage in significant reading was specifically excluded

from the ALJ’s hypothetical,” but that is incorrect. The

ALJ specified “no significant amount of reading tasks” in

his hypothetical questions on direct. The conflicts between

the VE’s supposedly DOT-based testimony on direct and
14 No. 07-2968

his statements on cross-examination, therefore, should

have been apparent to the ALJ. And it appears that perhaps they were apparent, if not at the time of the hearing,

at least by the time the ALJ produced his ruling, in which

he attempts to rescue the testimony by interpreting the

statement that certain jobs would be eliminated as a

description of jobs the VE had previously eliminated

before reaching his conclusion that 2,000 jobs remained.

Whether that is or is not a plausible reading of the testimony, the ALJ’s attempt to explain away the seemingly

contradictory statements is tantamount to an acknowledgment that there were apparent discrepancies. The ALJ’s

reliance upon the VE’s testimony without developing the

record and obtaining a “reasonable explanation” for the

conflicts violated SSR 00-4p.

Even if this was not the case, Overman also persuasively

argues that the ALJ’s ruling is not supported by substantial

evidence because it is premised on the VE’s “flawed”

testimony. The Commissioner bears the step-five burden

of establishing that the claimant can perform other work

that “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); see also Britton v. Astrue,

521 F.3d 799, 803 (7th Cir. 2008); Briscoe ex rel. Taylor v.

Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). A VE’s testimony

can satisfy this burden only if that testimony is reliable.

Britton, 521 F.3d at 803; McKinnie v. Barnhart, 368 F.3d 907,

910 (7th Cir. 2004); Donahue, 279 F.3d at 446. “A finding

based on unreliable VE testimony is equivalent to a

finding that is not supported by substantial evidence

and must be vacated.” Britton, 521 F.3d at 803.
No. 07-2968 15

The Commissioner argues that the ALJ was entitled to

rely on the VE’s testimony in spite of the later-identified

conflict with the DOT because an ALJ is permitted to give

VE testimony precedence over the DOT. In an appropriate

case this proposition would be correct, but it is not well

founded here. An ALJ is free to accept testimony from a

VE that conflicts with the DOT when, for example, the

VE’s experience and knowledge in a given situation

exceeds that of the DOT’s authors, Donahue, 279 F.3d at

446, or when the VE’s contrary testimony is based on

information in “other reliable publications,” SSR 00-4p. But

here the VE said that his testimony was consistent with

the DOT, so the Commissioner’s implicit suggestion

that the VE had some hidden knowledge that would

explain away the conflicts with the DOT is frivolous.

Finally, the Commissioner argues that the ALJ’s reliance

upon the VE’s testimony is not reversible error because

an ALJ may rely on a VE’s “bottom-line” or “purely

conclusional” testimony, so long as the data and reasoning

underlying the opinion are “available on demand.”

Donahue, 279 F.3d at 446; see also Barrett v. Barnhart, 355

F.3d 1065, 1067 (7th Cir. 2004). In both Donahue and

Barrett, we ruled that an ALJ may rely on imperfect VE

testimony if a claimant does not question the basis for

the testimony at the time of the hearing. See Donahue,

279 F.3d at 446 (ruling that ALJ may rely on unchallenged

VE testimony that conflicted with DOT); Barrett, 355

F.3d at 1067 (ruling that ALJ may rely on unchallenged,

perfunctory VE testimony). According to the Commissioner, the ALJ in this case was entitled to rely on the VE’s

“unchallenged” and “uncontradicted” testimony because

Overman never questioned its foundation.
16 No. 07-2968

But Overman did challenge the VE’s testimony. Unlike in

Donahue and Barrett, Overman’s counsel cross-examined

the VE and elicited statements that seriously called into

question the reliability of the VE’s bottom-line conclusions.

Perhaps Overman’s inquiry into the basis for the VE’s

testimony could have been more thorough. But a disability

adjudication is “a hybrid between the adversarial and

inquisitorial models,” Donahue, 279 F.3d at 446, and if the

basis of the VE’s testimony is questioned at the hearing,

“then the ALJ should make an inquiry . . . to find out

whether the purported expert’s conclusions are reliable,”

id.; see also McKinnie, 368 F.3d at 911. No such inquiry was

performed here. Instead, the ALJ unquestioningly relied

on the VE’s bottom line, a bottom line later determined to

be in irreconcilable conflict with the DOT. There may be

additional work of which Overman is capable of performing, but the record does not support the conclusion that

he can perform either of the two positions identified by

the VE.

The ALJ based his finding that Overman could perform

other work entirely on the VE’s erroneous testimony, and

that testimony is not “sufficient for a reasonable person

to accept as adequate to support the decision.” Jens, 347

F.3d at 212. Consequently, the ALJ’s disability determination is not supported by substantial evidence. See Boone v.

Barnhart, 353 F.3d 203, 206, 208-09 (3d Cir. 2003) (ruling

that VE’s testimony does not by itself provide substantial

evidence of claimant’s ability to perform significant

number of other jobs when testimony conflicts with DOT

and neither VE nor ALJ acknowledge or explain conflict);

Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000) (noting
No. 07-2968 17

that VE’s “erroneous characterization of the exertional

level or skills required to perform a particular job calls

into question both the probative value and reliability of

the expert’s testimony” and finding that ALJ may rely

upon such evidence only if “the record reflects an adequate basis for doing so”). Because the ALJ’s ruling was

premised entirely on testimony that conflicted with the

DOT and otherwise was vague and confusing, this case

must be remanded for further proceedings.

Conclusion

For the reasons stated above, the judgment of the

district court is REVERSED and the case is REMANDED for

further consideration by the agency.

10-7-08