In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2333

RILEY FORSYTHE,

Plaintiff-Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner of Social

 Security,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:14-CV-509-bbc — Barbara B. Crabb, Judge.

____________________

ARGUED JANUARY 27, 2016 — DECIDED FEBRUARY 17, 2016

____________________

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

POSNER, 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 plaintiff claimed had rendered him totally disabled from gainful 

employment were severe, he was not totally disabled be-
2 No. 15-2333

cause he could, the administrative law judge decided, perform certain unskilled sedentary jobs. The district court affirmed the decision, and the plaintiff now appeals to us.

He has a long history of injuries. They include a 1998 dislocation of a kneecap that required implantation of a steel 

plate, and a year later a shattered femur that required implantation of a steel rod from hip to knee. In 2011 he fractured an ankle, and a podiatrist named Eckerman inserted a 

bar with pins in the ankle to stabilize the fracture. Eckerman 

repeated the procedure, with better results, 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 Vicodin and Percocet, 

strong drugs, which however gave him only brief, limited 

relief. While in January and February 2012 he said he was 60 

to 70 percent better and his ankle was “not giving him a significant amount of difficulty right now,” severe pain and 

swelling in the affected ankle returned and in April Eckerman reported that “persisting pain” was keeping the plaintiff from walking “more than 10 minutes at a time” or standing for “long periods of time.” He listed the plaintiff’s ankle 

problems as “painful impacted hardware,” tendinitis (inflammation of a tendon), paresthesias (a burning or prickling 

sensation), and possibly neuralgia (sharp nerve pain). In 

May and June Eckerman along with another doctor who had 

treated the plaintiff, named Logan, reported that the plaintiff 

could sit, stand, and walk for only 15 minutes at a time and 

for no more than one hour in an eight-hour work day; that 

he could lift a weight of 10 pounds (according to Logan) and 

20 pounds (according to Eckerman) only occasionally; and 

that he could not reach up with his right arm at all.
No. 15-2333 3

Several months later Logan reported that the plaintiff 

was “fully and completely disabled” because he had constant and worsening pain 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 records were at variance with their reports. An x-ray 

taken in May 2012 showed that the plaintiff’s ankle fracture 

had healed, and Eckerman reported in the summer of that 

year that the ankle 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 Eckerman attributed to the ankle hardware and to tendinitis. 

And Logan reported in September that the plaintiff had “decreased mobility, joint tenderness, popping and swelling,” 

and “crepitus” (a sound produced by the rubbing together of 

bone).

Now it’s true that by February 2013 the plaintiff was 

walking and even lifting weights—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 

surgery on the ankle—and Eckerman reported that the 

plaintiff was improving and managing pain well. Yet in a 

letter that he sent shortly after the third surgery we read that 

the plaintiff “may not return to work at this time. Activity is 

restricted as follows: off work due to foot surgery and being 

non-weight bearing.” Weeks later, it is true, Eckerman reported that although the plaintiff was “using an assistive 

device [not defined]” for activity, he was “improving,” had 
4 No. 15-2333

“very little pain and swelling” and a “full active range of 

motion,” and was “not taking any pain medication.” And

therefore (Eckerman added) his “work status is light 

work/activity.” As the administrative law judge said, the 

plaintiff was “less symptomatic” after the third surgery. But 

at his hearing before the administrative law judge the plaintiff testified that he still had severe pain. His doctors prescribed pain relief; he was taking Hydrocodone, a powerful 

narcotic pain reliever.

In addition to testimony by the two doctors and the medical records we’ve been quoting from, the plaintiff testified 

that he had “constant” knee pain that “never goes away,”

that his pain averaged 6 on a scale of 10 where 10 would require that he be taken to a hospital emergency 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 minutes, 

couldn’t climb a flight of stairs, and did very little at home 

other than wake his son for school, wash dishes, sweep the 

floor, vacuum, and do laundry.

Regarding the plaintiff’s complaints of continued pain, 

the administrative law judge noted that his ankle fracture 

had improved and his pain had lessened, and gave little 

weight to the two doctors’ assessments of the plaintiff’s ability to work, again emphasizing the improvement in his condition. He also deemed the two doctors’ assessments inconsistent with the plaintiff’s description of his activities of daily living. There he clearly was mistaken; there was no inconsistency. The plaintiff testified without contradiction, or rejection by the administrative law judge, that he does “very 

little” at home other than the chores listed above. Moreover, 

extrapolating from what people do at home, often out of ne-
No. 15-2333 5

cessity, to what they could do in a 40-hour-a-week job is perilous. At home one has much greater flexibility about when

and how hard and how continuously to work; one can rest 

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 matter how painful, such as taking care of one’s child. See Engstrand 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. Astrue, 555 F.3d 556, 

562 (7th Cir. 2009).

The plaintiff testified that “I currently am restricted ... 

because [ ] all the metal and stuff in my body is restraining 

me from being on my feet for eight hours or sitting for eight 

hours. And I currently cannot find a job that suits where I 

would be able to accommodate to sit or stand for long periods of time.” Although the administrative law judge ruled 

that the plaintiff is not totally disabled, he gave no reason for 

thinking 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 entitled to social security disability benefits.

The administrative law judge seemed not to understand that 

the question he had to answer was not whether the plaintiff 

was less disabled than he had been four years ago, but

whether he was sufficiently recovered 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 contained in Eckerman’s final report, quoted earlier, which

states that the plaintiff was “improving,” had “very little 
6 No. 15-2333

pain and swelling” and a “full active range of motion,” and 

was “not taking any pain medication,” and so his “work status is light work/activity.” But the administrative law judge 

did not mention that report. He also ignored two medical 

reports from 2012 (the year before the disability hearing) 

which said that the plaintiff suffered from “persistent pain,” 

difficulty walking “more than 10 minutes at a time,” tendinitis, nerve pain, and “painful impacted hardware.” This was 

some months before the operation to remove the hardware 

in his ankle, and so may not cast much light on his current 

condition. But the administrative law judge did not say that, 

because, as we just said, he ignored the reports 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 reference.

The administrative law judge determined (though as 

we’ve seen without adequate basis in the record) that the 

plaintiff’s femur fracture, ankle fracture, knee arthroscopy (a 

surgical procedure), and the injury to his shoulder that prevented him from raising his arm, did not disable him from 

performing certain sedentary jobs. In so concluding 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 unskilled information clerk, or a sedentary unskilled cashier, 

and that in Wisconsin, where the plaintiff lives, there are 
No. 15-2333 7

1000 sedentary unskilled production worker jobs, 1000 sedentary unskilled information clerk jobs, and 2000 sedentary 

semiskilled (which he equated to unskilled) cashier jobs. But 

no effort was made by the vocational expert or the administrative law judge to explain what kind of work a sedentary 

unskilled production worker or information clerk does, or 

where the vocational expert had obtained the suspiciously 

round numbers of 1000, 1000, and 2000 of each type of job in 

Wisconsin. They sound like guesses. He did not explain 

what an “information clerk” does, or give any examples of 

production jobs he thought the plaintiff could perform.

That the administrative law judge gave no real consideration to the question what jobs the plaintiff can perform is 

shown by the fact that right after noting that the vocational 

expert had said that although the Dictionary of Occupational 

Titles classifies cashier jobs as semi-skilled the Dictionary is 

out of date and that he was reclassifying those jobs as unskilled, the administrative law judge said: “the vocational 

expert’s testimony is consistent with the information contained in the Dictionary of Occupational Titles.” So the administrative law judge wasn’t paying attention. 

The inadequacy of vocational expert testimony has been 

remarked in a number of decisions by this and other courts, 

and by informed commentators. See Herrmann v. Colvin, 772 

F.3d 1110, 1112–14 (7th Cir. 2014); Browning v. Colvin, 766 

F.3d 702, 708–09 (7th Cir. 2014); Brault v. Social Security Administration, 683 F.3d 443, 446–47, 447 n. 4 (2d Cir. 2012) (per 

curiam); Guiton v. Colvin, 546 F. App’x 137, 143–45 (4th Cir. 

2013) (Davis, J., concurring); Coppernoll v. Astrue, No. 08-CV382-BBC, 2009 WL 1773132, at *8, *12–13 (W.D. Wis. June 23, 

2009); Jon C. Dubin, “Overcoming Gridlock: Campbell After a 
8 No. 15-2333

Quarter-Century and Bureaucratically Rational Gap-Filling 

in Mass Justice Adjudication in the Social Security Administration’s Disability Programs,” 62 Administrative Law Review 937, 964–71 (2010); Peter J. Lemoine, “Crisis of Confidence: The Inadequacies of Vocational Evidence Presented at 

Social Security Disability Hearings (Part II),” Social Security 

Forum, Sept. 2012, p. 1. The basic problem appears to be that 

the only reliable statistics concerning the number of jobs in 

the 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 narrower categories of jobs that 

the applicant for benefits could actually perform. Often the 

vocational expert simply divides the census data on the

number of jobs in the broad category that includes the narrow category of jobs that the applicant can perform by the 

total number of narrow categories in the broad category, 

thus assuming that each narrow category has the same 

number of jobs—an unwarranted assumption.

The vocational experts and administrative law judges 

can’t be blamed for the poverty of the data concerning jobs 

that applicants for social security disability benefits are capable of performing. It is high time that the Social Security 

Administration turned its attention to obtaining the needed 

data.

REVERSED AND REMANDED, WITH INSTRUCTIONS