### In the 

# United States Court of Appeals For the Seventh Circuit

____________________

No. 15

- 2 333
R I L EY F ORSYTHE , Plaintiff

- Appell ant ,

v.

C AROLYN W. C OLVIN , Acting Commissioner of Social

Sec u rity, Defendant

- Appell ee

.

____________________ Appeal from t he Un ited States District Court for the Western District of Wisconsin

. No. 3: 14

- CV

- 509

- bbc

— Barbara B. Crabb , Judge

.

____________________
A RGUED J ANUARY 27, 2016

— D ECIDED F EBRUARY 17, 2016

____________________

Before P OSNER , K ANNE , and H AMILTON , Circuit Judges

. P OSNER , Circuit Judge

. The plaintiff applied to the Social Security Administration for disability benefits and was turned down by the administrative law judge who heard his

case , and who ruled that although the injuries that the plai ntiff claimed had ren dered him totally disabled from gainful employment were severe, he was not totally disabled b e-2 No. 15

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cause he could, the administ r ative law judge decided, pe rform certain unskilled sedentary jobs. The district court a ffirmed the d e cision, and the plaintiff now ap peals to us.

He has a long history of injuries . They include a 1998 di slocation of a kne e cap that required implantation of a steel plate, and a year later a shattered femur that required i mplantation of a steel rod from hip to knee. In 2011 he fra ctured an ankle, and a podiatrist named Eckerman i n serted a bar with pins in the ankle to stabilize the fracture

. Eckerman repeated the procedure, with better r e sults , three months later

. But after several months , during which the plaintiff “picked up his activity level significantly,” his ankle pain returned and he was prescribed V i codin and Percocet , strong drug s , which however gave him only brief, limited relief

. W hile in January and February 2012 he said he was 60 to 70 percent better and his ankle was “not givi ng him a si gnificant amount of difficulty right now,” severe pain and swelling in the af fected ankle returned and in April Ecke rman reported that “persisting pain” was keeping the plai ntiff from walking “more than 10 min utes at a time ” or stan ding for “lon g pe riods of time. ” He listed the plai n tiff’s ankle problem s as “painful impacted hardware,” te n dinitis (i nflammation of a tendon) , paresthesias (a burning or pric k ling sensation), and possibly neuralgia (sharp nerve pain)

. In May and June Eckerman along w ith another doctor who had treated the plaintiff , named Logan, reported that the plaintiff could sit, stand, and wal k for only 15 mi n utes at a time and for no more than one hou r in an eight

- hour work day; that he could lift a weight of 10 pounds (a c cording to Logan) and 20 pounds (according to Eckerman) only occ a sionally ; and that he could not reach up with his right arm at all.No. 15

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Several months later Logan reported that the plaintiff was “fully and completely disabled” because he had co nstant and worsening p ain in his back, left knee, left hip, left ankle, and right shoulder, that his pain medication had caused him to experience constipation, slow bowels, drowsiness, and upset stomach , and that his prognosis was “poor.” The administrative law judge denied the plaintiff’s claim for disability benefits mainly on the ground that the doctors’ medical r e cords were at variance with their reports. A n x
- ray taken in May 2012 showed that t he plaintiff’s ankle fracture had healed, and Eckerman reported in the summer of that year that the ank le injury was “certainly better” and had a “good/fair” prognosis, and that the plaintiff was “on [the ankle] quite a bit.” Yet the plaintiff still had pain, which Ec kerman attributed to the ankle hardware and to tendinitis

. And Logan reported in September that the plaintiff had “d ecreased mobility, joint te n derness, popping and swelling , ” and “crepitus” (a sound produced by the rubbing together of bone )

. Now it’s true that by February 2013 t he plaintiff was walking and even lifting wei ghts

— though we’re not told how heavy the weights were. And later that month the hardware was removed from the plaintiff’s ankle

— the third

su r gery on the ankle

— and Eckerman reported that the plaintiff was im proving and managing pain well . Yet in a letter th at he sent shortly after the third surgery we read that the plaintiff “may not return to work at this time. Activity is restricted as fo l lows: off work due to foot surgery and being

non

- weight bearing.” Weeks later, it is true, Eckerman r eported that a ltho ugh the plaintiff was “ using an assistive device [not defined] ” for activity, he was “impro v ing,” had4 No. 15

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“very little pain and swelling” and a “full active range of motion , ” and was “not taking any pain medication

. ” And ther e fore (Eckerman added) his “work st atus is light work/activity

. ” A s the administrative law judge said, the plaintiff was “less symptomatic” after the third surgery. But at his hearing before the administrative law judge the plai ntiff testified that he still had severe pain. His doctors pr es cribe d pain relief ; h e was taking H ydrocodone, a po w erful narcotic pain reliever. In addition to testimony by the two doctors and the me dical records we’ve been quoting from, the plaintiff test i fied that he had “constant” knee pain that “ never goes away , ” that his pain averaged 6 on a scale of 10 where 10 would r equire that he be taken to a hospital emerge n cy room , that he could not walk a full block, could not stand for more than eight minutes at a time or sit for more than twenty mi n utes, couldn’t climb a flight of stairs, and did very li t tle at home other than wake his son for school, wash dishes, sweep the floor, vacuum , and do lau n dry. Regarding the plaintiff’s complaints of continued pain, the administrative law judge noted that his ankle fra c ture had improved and his pain had lessened , and gave little weight to the two doctors’ assessments of the plaintiff’s abi lity to work, again emphasizing the improvement in his co ndition

. He also deemed the two doctors’ assessments inco nsistent with the plaintiff’s descri p tion of his activities of daily living. There he clearly was mistaken; there was no i n consis tency. The plaintiff testified without contradiction, or r ejection by the administrative law judge, that he does “very little” at home other than the chores listed above. Moreover,

e xtrapolating from what people do at home, often out of n e-No. 15

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cessity, to what they c ould do in a 40

- hour

- a

- week job is pe rilous. At home one has much greater flexibility about when and how hard and how continuously to wo rk; one can re st during the day (which one can’t do in a 9

- to

- 5 job); and sheer necessity may compel one to perform tasks at home no ma tter how painful, such as taking care of one’s child. See En gstrand v. Colvin , 788 F.3d 655, 661

– 62 (7th Cir. 2015); Scrogham v. Colvin , 765 F.3d 685, 700 (7th Cir. 2014) ; Beardsley v. Colvin , 758 F.3d 834, 838 (7th Cir. 2014); Roddy v. Astrue , 705 F.3d 631, 639 (7th Cir. 2013) ; Moss v. A s true , 555 F.3d 556, 562 (7th Cir. 2009). The plaintiff testified that “I currently am restricted ... be cause [ ] all the metal and stuff in my body is restraining me from b e ing on my feet for eight hours or sitting for eight hours. And I cu r rently cannot find a job that suits where I would be able to accommodate to sit or stand for long per iods of time.” A l though the administrative law judge ruled that the plaintiff is not totally disabled, he gave no reason for thin k ing that the plaintiff could actually work for eight hours a day, forty hours a week, missing no more than a couple of days a month

— yet without such capacities he would be deemed totally disabled from gainful employment and therefore e n titled to social security disability benefits. The administrative law judge seemed not to understand that the question he had to answer was not whether the plainti ff

was less disabled than he had been four years ago , but whether he was sufficiently reco v ered to be able to hold down a 40

- hour

- a

- week job outside the home.
Evidence that he was able may seem to have been co ntained in Eckerman’s final report , quoted earl ier, which
states that the plaintiff was “improving,” had “very little6 No. 15

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pain and swel l ing” and a “full active range of motion , ” and was “not ta k ing any pain medication , ” and so his “work status is light work/activity.” But the administrative law judge did n ot mention that r e port. He also ignored two medical reports from 2012 (the year before the disability hearing) which said that the plaintiff suffered from “persi s tent pain,” difficulty wal k ing “more than 10 minutes at a time, ” tendinitis, nerve pain, and “ painful impacted har d ware

. ” This was some months before the op eration to r e move the hardware in his ankle , and so may not cast much light on his current cond i tion. But the administrative law judge did not say that, b e cause, as we just said, he ignored the r e ports completely. We have said enough to show that the administrative law judge’s decision did not deal adequately with the evidence, and the district judge’s affirmance of the decision must therefore be reversed with directions to remand the case to the Social Security Administration. But there is more that is problematic in the decision, and though it has not been made an issue by the plaintiff’s lawyer we think it deserves brief mention for future re f erence. The administrative law judge dete r mined (tho ugh as we’ve seen with out adequate basis in the record) that the plaintiff’s femur fracture, ankle fracture, knee arthr o scopy (a surgical procedure), and the injury to his shoulder that pr evented him from raising his arm , did not disable him from performin g certain sedentary jobs. In so conclu d ing he relied on the testimony of a vocational expert that someone with the plaintiff’s impairments could nevertheless work full time

as a sedentary unskilled production worker, a sedentary u nskilled information clerk , or a sedentary u n skilled cashier, and that in Wi s consin, where the plaintiff lives, there areNo. 15

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1000 sedentary unskilled production worker jobs , 1000 se dentary unskilled inform a tion clerk jobs , and 2000 sedentary semiskilled (which he equated to unskilled ) cas h ier jobs

. But

n o effort was made by the vocational expert or the admini strative law judge to explain what kind of work a sedentary unskilled production worker or inform a tion clerk does, or where the vocational expert had obtained the susp i ciously

roun d nu m bers of 1000, 1000, and 2000 of each type of job in Wisconsin . They sound like guesses. He did not e x plain what an “information clerk” does , or give any exa m ples of production jobs he thought the plaintiff could pe r form. That the administrative law ju dge gave no real consider ation to the question what jobs the plaintiff can perform is shown by the fact that right after noting that the voc a tional expert had said that although the Dictionary of Occ u pational Titles classifi es cashier jobs as semi

- skilled the Di c tionary is out of date and that he was reclassifying those jobs as u nskilled, the administrative law judge said : “the vocational expert’s testimony is consistent with the information co ntained in the Dictionary of Occupational Titles.” So the a dmini strative law judge wasn’t paying a t tention. The inadequacy of vocational expert testimony has been remarked in a number of dec i sions by this and other courts , and by informed commentators. See Herrmann v. Colvin , 772 F.3d 1110, 1112

– 14 (7th Cir. 2014) ; Br owning v. Colvin , 766 F.3d 702 , 708

– 09 (7th Cir. 2014); Brault v. Social Security A dministration , 683 F.3d 443, 446

– 47 , 447 n. 4 (2d Cir. 2012) (per curiam); Gu i ton v. Colvin , 546 F. App’x 137, 143

– 45 (4th Cir. 2013) ( Davis, J., co n curring); Coppernoll v. Astrue , No. 08

- CV

382

- BBC, 2009 WL 1773132, at *8 , *12

– 13 (W.D. Wis. June 23, 2009); Jon C. Dubin, “Overcoming Gri d lock: Campbell After a8 No. 15

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Quarter

- Century and Bureaucratically Rational Gap

- Fillingin Mass Justice Adjudication in the Social Security Admini st ration’s Disability Programs,” 62 Admini s trative Law Review 937, 964

– 71 (2010); Peter J. Lemoine, “Crisis of Confidence: The Inadequacies of Vocational Ev i dence Presented at Social Sec u rity Disability Hearings (Part II),” Social Security Forum , Sept. 2012, p. 1. The basic problem a p pears to be that the only reliable statistics concerning the number of jobs inthe American economy and in regions thereof are census data of broad categories of jobs, rather than data on the number of jobs within the much narrow er categories of jobs that the applicant for benefits could actually perform. Often the

v o cational expert simply divides the census data on the

nu m ber of jobs in the broad category that i n cludes the narrow category of jobs that the applicant can perform by the total number of narrow categories in the broad category, thus a s suming that each narrow cat e gory has the same number of jobs

— an unwarranted a s sumption. The vocational experts and administrative law judges can’t be blamed for the poverty of the data co ncerning jobs that applicants for social security disability benefits are c apable of performing. I t is high time that the Social Security Administration turned its attention to obtaining the needed data

. R EVERSED AND R EMANDED , WITH I NSTRUCTIONS