Swaiss o/b/o Hazem A. Swaiss (deceased) v. Colvin

Filing 27

MEMORANDUM Opinion and Order: For the foregoing reasons, the Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion, and the Commissioner's motion 24 is denied. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 7/10/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VENERA SWAISS ex rel. HAZEM
SWAISS (deceased husband),
Plaintiff,

No. 16 C 2536

v.

Judge Thomas M. Durkin

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Venera Swaiss (“Plaintiff”) brings this action on behalf of her deceased
husband, Hazem Swaiss (“Swaiss”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
for judicial review of the final decision of the Commissioner of Social Security
denying Swaiss’s claim for disability benefits and supplemental security income.
Plaintiff seeks an award of benefits, or in the alternative, remand to the
Commissioner. The Commissioner also seeks summary judgment in her favor. R.
24. For the following reasons, the Commissioner’s decision is reversed and
remanded for further proceedings consistent with this opinion and order.
Legal Standard
Judicial review of a final decision of the Social Security Administration is
generally deferential. The Social Security Act requires the court to sustain the
administrative law judge’s (“ALJ”) findings if they are supported by substantial

evidence. See 42 U.S.C. § 405(g). 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). The court should review the entire
administrative record, but must “not reweigh the evidence, resolve conflicts, decide
questions of credibility, or substitute [its] own judgment for that of the [ALJ].”
Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). “However, this does not mean
that [the court] will simply rubber-stamp the [ALJ’s] decision without a critical
review of the evidence.” Id. A decision may be reversed if the ALJ’s findings “are not
supported by substantial evidence or if the ALJ applied an erroneous legal
standard.” Id. In addition, the court will reverse if the ALJ does not “explain his
analysis of the evidence with enough detail and clarity to permit meaningful
appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir.
2005). “Although a written evaluation of each piece of evidence or testimony is not
required, neither may the ALJ select and discuss only that evidence that favors his
ultimate conclusion.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994); see
Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This ‘sound-bite’ approach
to record evaluation is an impermissible methodology for evaluating the evidence.”).
Additionally, the ALJ “has a duty to fully develop the record before drawing any
conclusions,” Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007), and deference in
review is “lessened . . . where the ALJ’s findings rest on an error of fact or logic.”
Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). In oft-quoted words, the
Seventh Circuit has said that the ALJ “must build an accurate and logical bridge

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from the evidence to his conclusion.” Clifford, 227 F.3d at 872. When the ALJ has
satisfied these requirements, the responsibility for deciding whether the claimant is
disabled falls on the Social Security Administration, and, if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is disabled,” the ALJ’s
decision must be affirmed. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
Background
I.

Procedural History
On January 19, 2010, Swaiss filed applications for Disability Insurance

Benefits and Supplemental Security Income. R. 14 at 2. The Commissioner of Social
Security denied these applications. Id. The Administrative Law Judge (ALJ)
subsequently upheld this decision. Id. Swaiss passed away on Feburary 13, 2013.
Plaintiff subsequently filed a complaint in this district. Id. Magistrate Judge
Brown reversed the ALJ’s decision and remanded the case to the Commissioner of
Social Security. See Swaiss v. Colvin, 2015 WL 231473 (N.D. Ill. Jan. 16, 2015).
Upon remand, the ALJ denied Plaintiff’s claims on November 12, 2015. R. 713 at 2. On February 24, 2016, Plaintiff filed the instant complaint. R. 1.
II.

Factual History
Until his death on February 13, 2013, plaintiff Swaiss allegedly suffered from

a variety of health issues including, but not limited to, chest pain, peripheral
vascular disease, leg pain and spasms, sinus tacychardia, diabetes, neuropathy, and
edema. R. 14 at 3-5. The ALJ found that Swaiss had severe impairments of
hypertension,

diabetes

mellitus,

peripheral

3

vascular

disease,

generalized

osteoarthritis, restless leg syndrome, and peripheral neuropathy. R. 7-13 at 8.
Swaiss testified that, starting in 2008, he became unable to work. R. 14 at 5. Swaiss
underwent heart surgeries in May and June 2009. R. 7-13 at 11. Swaiss testified
that his medical condition prevented him from sitting for more than 45 minutes,
standing for more than 20 minutes, walking for more than one block, repeatedly
lifting more than ten pounds, participating in activities with his children, and
completing household chores. R. 14 at 5. Over the years, Swaiss’s condition
fluctuated. R. 7-13 at 753. For example, Swaiss denied having chest pain at his
September 2011 doctor’s appointment. Id. at 754. However, he reported non-cardiac
chest pain at his February 2012 appointment. Id. Other records from that
appointment indicate that Swaiss’s arteriosclerotic heart disease and peripheral
vascular disease were also stable. Id. In November 2012, professionals at a
cardiovascular clinic noted that Swaiss’s condition was stable. On February 13,
2013, Swaiss was admitted into the emergency room and died not long after. As per
the death certificate, the causes of death were hypertensive arteriosclerotic
cardiovascular disease, quetiapine toxicity, and diabetes mellitus. Id.
Analysis
In order to determine whether an individual is disabled, an ALJ must follow
the five-step analysis provided by 20 C.F.R. § 404.1520(a)(4). At step one, if the ALJ
determines that the claimant is “doing substantial gainful activity,” then the
claimant is not disabled and no further analysis is necessary. If the claimant is not
engaged in gainful activity, at step two, the ALJ must determine whether the

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claimant has a “severe” impairment or combination of impairments. If the ALJ finds
that the claimant has such a severe impairment, and the impairment is one
provided for in the Social Security regulation listings, then at step three, the ALJ
must find that the claimant is disabled. If the ALJ finds that the impairment is not
in the listings, then at step four, the ALJ must assess the “residual functional
capacity” (“RFC”) the claimant continues to possess despite the claimant’s
impairment. If the claimant’s RFC enables the claimant to continue his or her “past
relevant work,” then the ALJ must find that the claimant is not disabled. But if the
claimant cannot perform past relevant work, at step five, the ALJ must determine
whether the claimant “can make an adjustment to other work.” If the claimant
cannot make such an adjustment, then the claimant is disabled.
Here, Swaiss does not challenge the ALJ’s decision at steps one, two, or three.
Rather, Swaiss argues that the ALJ erred at steps four and five.
I.

Step Four: Swaiss’s RFC
Plaintiff asserts that the ALJ improperly assessed Swaiss’s residual

functional capacity by (1) rejecting her testimony, (2) failing to properly account for
Swaiss’s chest pain, and (3) failing to account for Swaiss’s alleged need to
periodically elevate his legs. R. 14 at 8.
A.

ALJ’s Rejection of Plaintiff’s Testimony

Plaintiff asserts that the ALJ erred by rejecting her testimony regarding
Swaiss’s condition. R. 14 at 13. The ALJ perceived Plaintiff’s testimony as
inconsistent and accordingly rejected it.

5

An ALJ is entitled to determine whether a witness’s testimony is credible.
See Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). A court should “uphold
an ALJ’s credibility determination if the ALJ gave specific reasons for the finding
that are supported by substantial evidence.” Moss v. Astrue, 555 F.3d 556, 561 (7th
Cir. 2009).
The ALJ’s rejection of Plaintiff’s testimony was sufficiently supported. The
ALJ fully detailed why she did not find Plaintiff’s testimony to be credible,
identifying a number of inconsistences between her testimony and the evidence. R.
7-13 at 756. For example, Plaintiff testified that pain medication did not improve
her husband’s condition. Id. This testimony is contradicted by medical records,
which demonstrate that the medication generally caused her husband’s condition to
improve. Id. In addition, Plaintiff testified that Swaiss did not work, but that
testimony is contrary to evidence in the record that Swaiss worked up to 72 hours
per week in a restaurant after the alleged onset date of his disability. Id.
Furthermore, Plaintiff testified that her husband never worked as a cook, but
Swaiss himself told healthcare providers that he did. Id. In light of these
inconsistencies, the ALJ’s rationale for discrediting Plaintiff’s testimony is
apparent. Consequently, the ALJ appropriately used her discretion in finding
Plaintiff’s testimony not credible, and that credibility determination is not a basis to
reverse the ALJ’s decision. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)
(“[W]e reverse credibility determinations only if they are patently wrong.”).

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B.

ALJ’s Assessment of Swaiss’s Chest Pain

Plaintiff also argues that the ALJ erred in her calculation of Swaiss’s RFC by
failing to account for certain physical restrictions. Specifically, Plaintiff argues that
the ALJ failed to consider the following facts:
Swaiss testified that he could lift ten pounds at one time
but that he could not continuously lift that amount of
weight without suffering chest pain. He had difficulty
even pushing a grocery cart due to chest pain. Chest pain
restricted his ability to lift overhead. In the Adult
Function Report that he completed, Mr. Swaiss averred
that he was unable to perform yard work due to chest
pain and that he had difficulty carrying items such as a
bag of groceries. At the 2015 hearing, [Plaintiff] testified
that Mr. Swaiss frequently suffered chest pains and that
he avoided lifting as a result. He had trouble lifting even
a gallon of milk.
R. 14 at 11 (internal record citations omitted). But the ALJ acknowledged all of
these facts. R. 7-13 at 752, 755. As Plaintiff concedes, the ALJ’s decision was not a
result of ignoring these facts, but rather weighing them against the other anecdotal
and medical evidence in the record. As Plaintiff herself explains in her brief, the
ALJ relied on
evidence . . . that Mr. Swaiss’[s] chest pain improved with
the placement of stents and that Mr. Swaiss’[s] chest pain
was “generally” stable until the date of his death. The
ALJ further found that [Plaintiff’s] descriptions of Mr.
Swaiss’[s] chest pain were belied by evidence that
reflected that Mr. Swaiss worked up to 72 hours a week
subsequent to the alleged disability onset date.
R. 14 at 11-12. Clearly, the ALJ decided that the medical reports of Swaiss’s lifting
ability and the general stability of his heart condition were more credible and
persuasive than the Swaisses’ testimony. Plaintiff’s testimony undermined her
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credibility for the reasons already explained. And Swaiss’s own testimony was
undermined by evidence that he was able to work 72 hours per week, evidence that
his initial claim that he stopped working due to his disability was false, and that he
actually stopped working because he was not being paid. R. 7-13 at 755-56. These
inconsistencies in the Swaisses’ testimony make it reasonable for the ALJ to have
relied on the contrary medical reports in determining Swaiss’s RFC.
Plaintiff also argues that the ALJ failed to address that fact that Swaiss’s
heart condition contributed to his death in determining his RFC. It is true that
hypertensive arteriosclerotic cardiovascular disease contributed to Swaiss’s death.
R. 7-13 at 12. But as the ALJ noted, quetiapine toxicity and diabetes mellitus also
contributed to his death. Id. In fact, the death certificate describes Swaiss’s death as
a case of a “person with heart disease [who] took too many pills.” Id. at 754. Plaintiff
also cites an abnormal electrocardiogram from the day of Swaiss’s death as evidence
that his heart condition was more serious than is reflected in the ALJ’s RFC. But of
course the result of the electrocardiogram from that day was at least partially the
result of the fact that Swaiss overdosed on his medication. In light of the overdose,
Swaiss’s condition on the day he died cannot be taken as evidence of the general
condition of his health at that time. Thus, Swaiss’s cause of death and the
electrocardiogram from the day he died, are not bases to conclude that the ALJ
underestimated the severity of Swaiss’s chest pain condition.

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C.

ALJ’s Assessment of Swaiss’s Need to Elevate His Legs

Swaiss also argues that the ALJ’s decision should be reversed because the
ALJ failed to articulate why she did not include Swaiss’s alleged need to
periodically elevate his legs as a functional limitation in assessing his RFC. R. 14 at
9. But the only evidence in the record that Swaiss needed to elevate his legs was
Plaintiff’s testimony. As discussed, the ALJ’s decision to discount Plaintiff’s
testimony was justified by multiple inconsistencies between her testimony and the
record.
Plaintiff also argues that Swaiss suffered from edema (or swelling) in his
legs, and that leg elevation is frequently a treatment for that condition. Plaintiff,
however, cites only two places in the record that mention edema. A record from
June 2012 notes that Swaiss “complain[ed] of one month of lower leg swelling . . .
which was somewhat better in the [morning].” R. 7-18 at 1032. The June 2012
record does not prescribe any treatment for that complaint specifically. Id. at 1033.
A record from October 2012 also noted “trace,” or minimal, edema. Id. at 1030.
Again, no treatment was prescribed for this condition. Id. at 1031. Some evidence of
minimal edema is not a basis to find that the ALJ was required to consider whether
Swaiss had a need to elevate his legs in determining his RFC.
To the extent that there is evidence that Swaiss needed to elevate his legs
and suffered from edema, the ALJ’s assessment of the condition of Swaiss’s legs
generally sufficed to account for these symptoms. It was entirely reasonable for the
ALJ to discuss Swaiss’s leg conditions in the same manner as the medical reports;

9

namely by focusing on the other—apparently more serious—conditions affecting his
legs such as peripheral vascular disease, generalized osteoarthritis, restless leg
syndrome, and peripheral neuropathy. Plaintiff does not argue that the ALJ failed
to sufficiently address these conditions. Nor could she, as the ALJ’s decision
contains a detailed assessment of these conditions and their effect on Swaiss’s RFC.
As the Seventh Circuit has held, “the expression of a claimant’s RFC need not be
articulated function-by-function; a narrative discussion of a claimant’s symptoms
and medical source opinions is sufficient.” Knox v. Astrue, 327 Fed. App’x 652, 657
(7th Cir. 2009). As in Knox, the ALJ here “satisfied the discussion requirements by
analyzing the objective medical evidence, [relevant] testimony (and credibility), and
other evidence. . . . The ALJ need not provide a written evaluation of every piece of
evidence, but need only ‘minimally articulate his reasoning so as to connect the
evidence to his conclusions.” Id. at 657-58. The ALJ did that with respect to
Swaiss’s leg conditions, so that aspect of the ALJ’s decision is not a basis for
reversal.
II.

Step Four continued: Past Work
The ALJ determined that Swaiss retained a RFC to perform “light work” (as

defined in the Social Security regulations), with certain added restrictions. The ALJ
was then required to determine whether Swaiss’s RFC allowed him to continue
performing to the level of his past work as the owner of a cell phone store and later
a White Hen convenience store. In order to make this determination, the ALJ
required evidence of the duties Swaiss performed in his past work. The ALJ

10

considered Swaiss’s testimony on this topic, as well as that of a vocational expert.
The vocational expert, however, did not testify about the “duties” required to
perform the job of “store owner,” but rather testified about the “exertional level”
(i.e., light, medium, sedentary) required to perform the job of a “store manager.” The
vocational expert’s testimony on this issue proceeded as follows:
ALJ: Okay. And have you looked at the work documents
in the file?
VE: Yes.
ALJ: Okay. Now getting to my question. In your opinion
did the claimant have past work as assistant retail
manager?
VE: Well, I’ve assigned was [sic] the retail manager but
when you said assistant, the – I’m looking at exhibit 7E,
which is [Swaiss’s] work history report. And all of the jobs
listed there are owner. . . . I don’t know where the
assistant part comes [from]. I was going to rate it as
something else in the [Dictionary of Occupational Titles
(“DOT”)].
ALJ: Okay. So could you give us your opinion as to what
the claimant’s past work is?
VE: Well, for owner, the DOT doesn’t talk about
ownership so the closest I could get would be store
manager. . . . And that’s 185.167-046, light in the DOT,
skilled work, SVP 7. Now the various jobs listed [in
Swaiss’s work history], the five of them, one from May,
’06, to March, ’08, was rated at medium. The rest were
rated at light.
ALJ: So all of them are store manager with the same
DOT code?
VE: Yeah.
ALJ: And they’re all per the DOT light, SVP 7, is that
what you’re saying?
VE: Yes, that’s what I’m saying. That’s what store
owner would –
ALJ: Okay. And so then what is – could you clarify your
testimony as rated as medium, what do you mean by
that?
VE: Well, no, in the description of the work that the
claimant provided on page 5, of exhibit 7E. This is the job
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at, I guess, White Hen, and he said he had to lift 50
pounds occasionally, and 25 pounds frequently which puts
it at the medium exertional level.
ALJ: Okay. And so what you’re saying it’s light according
to the DOT but medium as performed, is that what you’re
saying?
VE: For that particular job.
ALJ: For that one – from ’06, to ’08?
VE: Yes.
ALJ: All right. And the other ones?
VE: The next one listed [is] he sold cell phones. . . . That
was at light.
ALJ: Performed at light?
VE: Performed at light, yes.
ALJ: And it was at this – also a store manager, 185.167046?
VE: All of them, yes ma’am.
ALJ: All performed at light, okay. Okay.
*
*
*
ALJ: Okay. So – all right. So let's assume that we have
an individual who can occasionally who can perform work
at the light exertional level, in other words, if the
individual can lift and carry 20 pounds occasionally, 10
pounds frequently.
The individual can stand and or walk about six
hours in an eight hour workday, and sit about six hours in
an eight hour workday. The individual can push and pull
to the same extent as they can lift and carry.
Now the individual can occasionally climb ramps
and stairs, never climb ladders, ropes or scaffolds. The
individual can occasionally balance, occasionally stoop,
occasionally kneel, occasionally crouch, and occasionally
crawl. The individual should – excuse me.
The individual cannot work directly with hazardous
machines with moving mechanical parts, and cannot work
in high exposed places. Could an individual with this
functional capacity perform any of claimant’s past work?
VE: Just checking on the posturals [sic], Your Honor.
Yes, the cell phone store.
ALJ: And the -- would that be performed – could – you
say that the individual with this functional capacity
would be able to perform the cell phone store job?
VE: Yes.

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ALJ: And would that be as generally performed, or as
actually performed, or –
VE: Well, according to how he described it. He didn’t
have to – he didn’t rate climbing or stooping at all. One
hour for kneeling, two hours for crouching, two hours for
crawling, so that would be within occasional.
ALJ: Okay. So in terms of my question, could then – the
individual perform the cell phone –
VE: Per DOT, yes.
ALJ: Per DOT, and as performed?
VE: Yes.
ALJ: The cell phone store manager job?
VE: Yes.
R. 7-13 at 823-26. On the basis of this testimony, the ALJ found that Swaiss was
capable of performing past relevant work because:
[t]he vocation expert testified that work as a store
manager (DOT 185.167-046) is skilled work generally
performed at the light exertional level and performed by
[Swaiss] at the light and medium exertional levels. The
vocational expert testified that the claimant performed
the job of store manager of a convenience store at the
medium exertional level and the job of store manager of a
cell phone store at the light exertional level. The
vocational expert also testified that an individual with the
above residual functional capacity could perform the
claimant’s past work as a store manager as generally
performed and as he actually performed it at the phone
store.
R. 7-13 at 757.
The Commissioner argues that it was permissible for the ALJ to rely on the
vocational expert’s testimony to determine whether Swaiss could still perform his
past work because the vocational expert “testified that she reviewed the work
documents in the file and found that [Swaiss’s] work was equivalent to that of a
store manager.” R. 25 at 8. But the ALJ failed to elicit the details of the analysis

13

underlying the vocational expert’s testimony. Rather, the vocational expert’s
testimony, and the ALJ’s questions, focused on the fact that both “store managers”
and “store owners” are can perform work at the “light” exertional level. The ALJ
expressly relied on the vocational expert’s determination that the work of “store
owner” and “store manager” were equivalent. This reliance was impermissible
because the ALJ failed to elicit testimony or make findings concerning the specific
duties of either job. See Smith v. Barnhart, 388 F.3d 251, 252 (7th Cir. 2004).
(holding that analysis of whether a claimant can perform past relevant work must
rest on “whether [the claimant] could perform the duties of the specific jobs that she
had held”). The vocational expert did not testify as to the “duties” of a “store
manager” and whether they matched the “duties” of a “store owner.” Absent this
analysis, the ALJ’s decision rests on the fact that Swaiss worked at medium and
light exertional levels in his “store owner” positions, and “store managers” are
required to perform at the light exertional level. But the Seventh Circuit has held
that an ALJ must consider the particular duties required by a claimant’s past work
when determining whether a claimant can still perform that work. The ALJ may
not simply compare the claimant’s RFC exertional level to the exertional level
associated with the claimant’s past work (i.e., “medium,” “light,” or “sedentary). See
id. (“The administrative law judge’s error, which requires us to remand the case to
the Social Security Administration, lay in equating [the claimant’s] past relevant
work to sedentary work in general. [The ALJ] should have considered not whether
[the claimant] could perform some type of sedentary work but whether [the

14

claimant] could perform the duties of the specific jobs that [the claimant] had
held.”). Since the ALJ’s decision regarding Swaiss’s ability to accomplish past work
did not rest on an analysis of the specific duties of the relevant jobs, it must be
reversed.
II.

Step Five: Other Work
As an alternative to her finding that Swaiss could continue to perform his

past work, the ALJ also found that Swaiss could perform other work in the national
economy, namely the jobs of “office helper,” “information clerk,” or “counter clerk.”
R. 7-13 at 758. Plaintiff argues that this finding was erroneous because the ALJ
failed to properly determine that these jobs “exist in significant numbers in the
national economy,” as is required by 20 C.F.R. § 404.1560(c)(1).
As was the case here, ALJs often rely on the testimony of vocational experts
to determine whether other jobs exist in the national economy that could be
performed by the claimant. The social security regulations require ALJs “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.”
Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir. 2008) (quoting SSR 00-4p). Even
if a vocational expert denies any conflicts, as she did here, an ALJ must still inquire
into and obtain a reasonable explanation for any apparent conflicts between the
vocational expert’s testimony and the DOT. Id.; Prochaska v. Barnhart, 454 F.3d
731, 735 (7th Cir. 2006).

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The ALJ failed to obtain a reasonable explanation for the vocational expert’s
testimony in this case. After hearing the vocational expert’s testimony concerning
the jobs Swaiss could perform, the ALJ and the vocational expert had the following
exchange concerning the expert’s analysis:
ALJ: And is your testimony consistent with the
Dictionary of Occupational Titles?
VE: Yes, Judge.
ALJ: And in terms of the number of these jobs that you
cited, where do you obtain your information from to [sic]
give this – these – this opinion?
VE: I go to the U.S. Department of Labor, Bureau of
Labor Statistics, Occupational Employment Statistics. I
get U.S. general statistics first, and then I go to the
various states. The information that’s provided on those –
on that website also includes SOC numbers which is
standard occupational classification numbers.
I look for specific SOC codes because of specific jobs
that I used very much over the course of my work, and so
that I know [sic] the DOT numbers, and I know the SOC
codes. And so I compare what the SOC codes are for the
U.S. economy, and I look at state economy [sic].
And then based on my best experience, I’ve been
doing this for over 30 years as a vocational rehabilitation
consultant. I take my best estimate of what I think the job
numbers might be for the region.
R. 7-13 at 826-27. Notably, the vocational expert did not provide, and the ALJ did
not ask for, the SOC numbers the vocational expert used to reach her determination
regarding the availability of the jobs Swaiss could perform. Nor did the vocational
expert explain how her analysis was consistent with the DOT. Her conclusory
assertion that her analysis was consistent with the DOT is not a reasonable
explanation of the basis for her conclusion.

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After the ALJ had questioned the vocational expert, Swaiss’s counsel sought
more specific data supporting for the vocational expert’s analysis, but none was
forthcoming. The vocational expert’s testimony continued as follows:
Atty: How do we know that the DOT numbers and the
SOC numbers conform to the same requirements, the
same job?
VE: That’s based on my experience. I’ve used the same
jobs or tend to use the same jobs and DOT numbers a lot
and that’s because I know them. That, and they’re very
standard kinds of jobs.
They’re not esoteric to a specific region like the
northwest, or the south or anything like that. These are
standard jobs that I’ll find all over.
Atty: And when you say that you’ve used the jobs in the
past, can you . . . . use them in . . . . testimony, in placing
clients, or –
A:
Both.
Atty: Okay. And the SOC numbers, because they don’t
conform with the DOT numbers, can you just talk about
your methodology about how you get to a job number from
the SOC numbers?
A:
It’s my experience again. I mentioned that. I –
Atty: Okay. Is there a particular methodology that you
use, or –
A:
My – well, my methodology is this whole list that I
gave you from the U.S. Department of Labor, and then
into the specific employment market. I’ve been . . . . I’m
out in the field a lot. . . . And I see what jobs exist, and I
know what are common jobs. And so again it’s based on
my best experience of – and my best estimate of what the
jobs might be. . . . There is . . . . no specific step from the
SOC to the DOT, if that’s what you’re trying to get at.
*
*
*
Atty: Can you provide me any sort of labor studies or
materials that you relied on in transferring the SOC
numbers to DOT –
VE: No.
Atty: – job numbers? Is – can you tell me why you can’t
provide me anything with it?
VE: I don’t have a labor market study.

17

Atty: Okay. Did you rely on any sort of formula, or
anything like that?
VE: No, it’s my best experience and my best estimate.
R. 7-13 at 829-31. While a vocational expert is entitled to rely on her expertise, she
must explain her reasoning, or else an ALJ’s decision based on her testimony cannot
be said to be supported by “substantial evidence,” as is required by the regulations.
See Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (“Evidence is not
‘substantial’ if vital testimony has been conjured out of whole cloth.”); see also Hill
v. Colvin, 807 F.3d 862, 870 (7th Cir. 2015) (Posner, J. concurring) (noting “a
persistent, serious, and often ignored deficiency in opinions by the administrative
law judges of the Social Security Administration denying social security disability
benefits . . . . concern[ing] testimony by vocational experts employed by the
Administration concerning the number and types of jobs that an applicant deemed
not to be totally disabled could perform, and the evaluation of that testimony by
administrative law judges.”). Without citing the specific SOC numbers she relied
upon, and without testifying as why she matched certain SOC numbers to certain
DOT numbers, there is no way for the ALJ (let alone this Court or the claimant’s
counsel) to determine whether the vocational expert’s opinion was reasonable. This
failure is all the more mysterious because as the ALJ herself noted, this information
is readily available on the internet. R. 7-13 at 831 (“Counsel, you can look that up,
that’s easy, Google it. . . . That’s a very well known site.”). But without knowing
what SOC numbers the vocational expert referenced, knowledge of the site itself is
useless. The vocational expert testified that she choose specific SOC numbers that

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she believed correlated to the relevant DOT numbers, based on her own experience.
That information is not available on any website; rather, it is locked in the
vocational expert’s head. Swaiss’s counsel asked for it, and was stonewalled by both
the vocational expert and the ALJ. The ALJ’s decision also must be reversed for this
reason.
Conclusion
For the foregoing reasons, the Commissioner’s decision is reversed and
remanded for further proceedings consistent with this opinion, and the
Commissioner’s motion, R. 24, is denied.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: July 10, 2017

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