In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1970 MICHAEL A. LEISGANG, Plaintiff-Appellant, v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:21-cv-40 — Barbara B. Crabb, Judge. ____________________
ARGUED APRIL 11, 2023 — DECIDED JUNE 26, 2023 ____________________
Before SCUDDER, ST. EVE, and LEE, Circuit Judges. SCUDDER, Circuit Judge. Michael Leisgang applied for So- cial Security benefits based on a number of conditions that he alleged left him disabled and unable to work. An administra- tive law judge denied his claim following an evidentiary hear- ing where a vocational expert testified that, despite his limi- tations, Leisgang could perform certain widely available jobs. Leisgang now claims that the ALJ should have done more to ensure the soundness of the vocational expert’s methodology. 2 No. 22-1970
But he forfeited the issue by failing to object at the hearing. And because substantial evidence otherwise supports the ALJ’s determination, we affirm. I Michael Leisgang suffers from depression, anxiety, and a personality disorder, among other conditions. He believes these impairments prevent him from working. So he sought supplemental security income as well as disability insurance benefits in 2019. The ALJ held an evidentiary hearing and applied the fa- miliar five-step test to determine whether Leisgang was disa- bled. See 20 C.F.R. § 416.920(a)(4); see also Fetting v. Kijakazi, 62 F.4th 332, 336–37 (7th Cir. 2023) (describing the five steps). The primary focus on appeal concerns the ALJ’s analysis at the fifth and final step. The ALJ had concluded that Leisgang could perform the full range of work subject to several limita- tions. He could undertake only simple, routine, and repetitive work; he could not work at a rapid, production-rate pace; he could tolerate few changes in routine work settings; and he could interact only occasionally with supervisors, coworkers, and the public. Those limitations precluded Leisgang from performing his past work. So, at the fifth and final step of the analysis, the ALJ considered whether Leisgang could perform other jobs available in significant numbers in the national economy. To answer the question, the ALJ sought assistance from a vocational expert. The VE testified that someone with Leis- gang’s limitations could work as a kitchen helper, sweeper/cleaner, or hospital cleaner. The VE estimated that there were meaningful numbers of each job across the No. 22-1970 3
country. By his approximation, there were 309,000 kitchen helper jobs, 1,300,000 sweeper/cleaner jobs, and 453,000 hos- pital cleaner jobs nationwide. If these job titles seem unusual and outdated, that is because they are. The VE identified job titles using a dictionary published by the Department of La- bor in 1977 and not revised since 1991. The Social Security Ad- ministration began working on a new resource in 2008, and the judiciary continues to await its release—indeed, eagerly so. See Chavez v. Berryhill, 895 F.3d 962, 965–66 (7th Cir. 2018) (emphasizing that the Social Security Administration is long overdue to develop a modernized, reliable, and data-driven system for estimating job numbers). On cross-examination, Leisgang’s attorney asked the VE how he came up with his job-number estimates. The VE said the primary data came from the Occupational Employment Quarterly, which applies the equal distribution method to es- timate the distribution of job numbers within a larger group of occupations. See id. at 966 (discussing the equal distribu- tion method). When Leisgang asked if the VE believed the equal distribution method was reliable, the VE reported that it was the only method he had available. Leisgang asked no further questions about the VE’s meth- odology. He never objected to the VE’s methodology, either during the hearing or after. Nor did he offer anything (by way of argument or evidence) to suggest the VE’s methodology might be unreliable. The ALJ determined that Leisgang was not disabled and therefore denied him benefits. She found that Leisgang could—consistent with the VE’s testimony and subject to identical occupational limitations—perform several jobs available in significant numbers across the country. 4 No. 22-1970
The district court affirmed the ALJ’s decision. Leisgang now appeals. II We will affirm an ALJ’s factual findings so long as they are supported by “substantial evidence.” 42 U.S.C. § 405(g). Sub- stantial evidence is not a demanding standard. “It means— and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol- idated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). A Leisgang asks us to consider whether substantial evidence supports the ALJ’s findings that there are meaningful num- bers of jobs he can perform across the country. But Leisgang forfeited this issue by failing to object to the VE’s methodol- ogy. We require parties to object to issues and preserve argu- ments for a reason—first and foremost, to ensure that all sides develop the record they wish to subject to appellate review. See Hacker v. Dart, 62 F.4th 1073, 1082 (7th Cir. 2023). Our case law is clear that this principle holds true in the Social Security context. See Fetting, 62 F.4th at 337–38; see also Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009) (“[The claimant] forfeited this argument by failing to object to the VE’s testimony during the hearing.”). As we explained in Fetting, a claimant must object to the VE’s testimony or other- wise indicate that the testimony is unreliable during the ad- ministrative hearing (or after, in a posthearing brief) to pre- serve his objection. See 62 F.4th at 337. The claimant’s objec- tions, we emphasized, must also be specific enough to “indi- cate that [the claimant] believed the methodology was No. 22-1970 5
unreliable.” Id. at 338. General objections or vague questions about the VE’s methodology are, without more, insufficient. See id. Fetting makes good sense when we consider the nature of Social Security hearings. ALJs are tasked with resolving a large volume of cases, most of which are accompanied by lengthy, factually complex records. ALJs play a significant role developing the record and the facts—including by decid- ing whether to seek assistance from a VE on job-number esti- mates at the fifth step of the inquiry. See Biestek, 139 S. Ct. at 1152; Richardson v. Perales, 402 U.S. 389, 409–10 (1971). What all this means as a practical matter is that the ALJ is better suited than we are to unpack and untangle objections and concerns regarding the VE’s methodology in the first in- stance. And the ALJ is best positioned to do so when the claimant identifies those objections and concerns expressly, allowing the proper development of the evidentiary record in real time. For the same reasons, several other circuits gener- ally require claimants to exhaust their arguments at the ad- ministrative level, with a limited exception for constitutional claims arising out of the Appointments Clause. See Ramsey v. Comm’r of Soc.
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In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1970 MICHAEL A. LEISGANG, Plaintiff-Appellant, v.
KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:21-cv-40 — Barbara B. Crabb, Judge. ____________________
ARGUED APRIL 11, 2023 — DECIDED JUNE 26, 2023 ____________________
Before SCUDDER, ST. EVE, and LEE, Circuit Judges. SCUDDER, Circuit Judge. Michael Leisgang applied for So- cial Security benefits based on a number of conditions that he alleged left him disabled and unable to work. An administra- tive law judge denied his claim following an evidentiary hear- ing where a vocational expert testified that, despite his limi- tations, Leisgang could perform certain widely available jobs. Leisgang now claims that the ALJ should have done more to ensure the soundness of the vocational expert’s methodology. 2 No. 22-1970
But he forfeited the issue by failing to object at the hearing. And because substantial evidence otherwise supports the ALJ’s determination, we affirm. I Michael Leisgang suffers from depression, anxiety, and a personality disorder, among other conditions. He believes these impairments prevent him from working. So he sought supplemental security income as well as disability insurance benefits in 2019. The ALJ held an evidentiary hearing and applied the fa- miliar five-step test to determine whether Leisgang was disa- bled. See 20 C.F.R. § 416.920(a)(4); see also Fetting v. Kijakazi, 62 F.4th 332, 336–37 (7th Cir. 2023) (describing the five steps). The primary focus on appeal concerns the ALJ’s analysis at the fifth and final step. The ALJ had concluded that Leisgang could perform the full range of work subject to several limita- tions. He could undertake only simple, routine, and repetitive work; he could not work at a rapid, production-rate pace; he could tolerate few changes in routine work settings; and he could interact only occasionally with supervisors, coworkers, and the public. Those limitations precluded Leisgang from performing his past work. So, at the fifth and final step of the analysis, the ALJ considered whether Leisgang could perform other jobs available in significant numbers in the national economy. To answer the question, the ALJ sought assistance from a vocational expert. The VE testified that someone with Leis- gang’s limitations could work as a kitchen helper, sweeper/cleaner, or hospital cleaner. The VE estimated that there were meaningful numbers of each job across the No. 22-1970 3
country. By his approximation, there were 309,000 kitchen helper jobs, 1,300,000 sweeper/cleaner jobs, and 453,000 hos- pital cleaner jobs nationwide. If these job titles seem unusual and outdated, that is because they are. The VE identified job titles using a dictionary published by the Department of La- bor in 1977 and not revised since 1991. The Social Security Ad- ministration began working on a new resource in 2008, and the judiciary continues to await its release—indeed, eagerly so. See Chavez v. Berryhill, 895 F.3d 962, 965–66 (7th Cir. 2018) (emphasizing that the Social Security Administration is long overdue to develop a modernized, reliable, and data-driven system for estimating job numbers). On cross-examination, Leisgang’s attorney asked the VE how he came up with his job-number estimates. The VE said the primary data came from the Occupational Employment Quarterly, which applies the equal distribution method to es- timate the distribution of job numbers within a larger group of occupations. See id. at 966 (discussing the equal distribu- tion method). When Leisgang asked if the VE believed the equal distribution method was reliable, the VE reported that it was the only method he had available. Leisgang asked no further questions about the VE’s meth- odology. He never objected to the VE’s methodology, either during the hearing or after. Nor did he offer anything (by way of argument or evidence) to suggest the VE’s methodology might be unreliable. The ALJ determined that Leisgang was not disabled and therefore denied him benefits. She found that Leisgang could—consistent with the VE’s testimony and subject to identical occupational limitations—perform several jobs available in significant numbers across the country. 4 No. 22-1970
The district court affirmed the ALJ’s decision. Leisgang now appeals. II We will affirm an ALJ’s factual findings so long as they are supported by “substantial evidence.” 42 U.S.C. § 405(g). Sub- stantial evidence is not a demanding standard. “It means— and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol- idated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). A Leisgang asks us to consider whether substantial evidence supports the ALJ’s findings that there are meaningful num- bers of jobs he can perform across the country. But Leisgang forfeited this issue by failing to object to the VE’s methodol- ogy. We require parties to object to issues and preserve argu- ments for a reason—first and foremost, to ensure that all sides develop the record they wish to subject to appellate review. See Hacker v. Dart, 62 F.4th 1073, 1082 (7th Cir. 2023). Our case law is clear that this principle holds true in the Social Security context. See Fetting, 62 F.4th at 337–38; see also Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009) (“[The claimant] forfeited this argument by failing to object to the VE’s testimony during the hearing.”). As we explained in Fetting, a claimant must object to the VE’s testimony or other- wise indicate that the testimony is unreliable during the ad- ministrative hearing (or after, in a posthearing brief) to pre- serve his objection. See 62 F.4th at 337. The claimant’s objec- tions, we emphasized, must also be specific enough to “indi- cate that [the claimant] believed the methodology was No. 22-1970 5
unreliable.” Id. at 338. General objections or vague questions about the VE’s methodology are, without more, insufficient. See id. Fetting makes good sense when we consider the nature of Social Security hearings. ALJs are tasked with resolving a large volume of cases, most of which are accompanied by lengthy, factually complex records. ALJs play a significant role developing the record and the facts—including by decid- ing whether to seek assistance from a VE on job-number esti- mates at the fifth step of the inquiry. See Biestek, 139 S. Ct. at 1152; Richardson v. Perales, 402 U.S. 389, 409–10 (1971). What all this means as a practical matter is that the ALJ is better suited than we are to unpack and untangle objections and concerns regarding the VE’s methodology in the first in- stance. And the ALJ is best positioned to do so when the claimant identifies those objections and concerns expressly, allowing the proper development of the evidentiary record in real time. For the same reasons, several other circuits gener- ally require claimants to exhaust their arguments at the ad- ministrative level, with a limited exception for constitutional claims arising out of the Appointments Clause. See Ramsey v. Comm’r of Soc. Sec., 973 F.3d 537, 545–47 (6th Cir. 2020) (col- lecting cases imposing a general exhaustion requirement from the First, Sixth, Eighth, and Ninth Circuits); see also Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (“We now hold that when a claimant fails entirely to challenge a vocational expert’s job numbers during administrative proceedings be- fore the agency, the claimant forfeits such a challenge on ap- peal, at least when that claimant is represented by counsel.”). Be careful not to overread what we are saying. Fetting did not displace the ALJ’s duty at step five to “hold the VE to 6 No. 22-1970
account for the reliability of his job-number estimates,” Chavez, 895 F.3d at 970, or the general rule that a claimant can- not waive the substantial evidence standard, see Biestek, 139 S. Ct. at 1155. Nor did Fetting shift the burden of proof at this stage of the inquiry from the agency—where it belongs—to the claimant. See Chavez, 895 F.3d at 970. Rather, Fetting stands for the limited principle that a claim- ant may not start objecting to unquestioned and uncontra- dicted VE testimony in federal court after the closure of the administrative record. See Fetting, 62 F.4th at 337 (citing Brown v. Colvin, 845 F.3d 247, 254 (7th Cir. 2016)). To be sure, the ALJ still cannot accept testimony from a VE that is facially implausible or incoherent. See Brace v. Saul, 970 F.3d 818, 822– 23 (7th Cir. 2020). But that does not describe Leisgang’s situation. The VE testified that he used the Occupational Employment Quar- terly, which applies the equal distribution method to estimate job numbers. No doubt we have sharply criticized the equal distribution method many times before. See Chavez, 895 F.3d at 966 (identifying the “illogical assumption” underlying the equal distribution method and its “distorting effects”). But nothing about the VE’s testimony in this case indicated, by itself, that the ALJ could not put some “modicum of confi- dence” in the VE’s job-number estimates. Id. at 969. Leisgang therefore had to object or otherwise indicate that the VE’s methodology was unreliable in order to flesh out and preserve the issue for our review. He failed to do so. Instead, he posed only a few general questions to the VE, none of them hinting the VE’s methodology might be problematic. When the ALJ eventually cut off a different line of questioning di- rected to the VE, Leisgang did not register an objection for the No. 22-1970 7
record before moving on. Consistent with Fetting, Leisgang cannot start questioning the VE’s estimates now. B One final issue requires our attention. Leisgang contends that the ALJ gave short shrift to reports submitted by two of his doctors. One of those doctors, Dr. Su- san Donahoo, concluded that Leisgang would have “some difficulty following a schedule, working without being dis- tracted by others and handling a normal workweek without symptoms.” The ALJ found the report persuasive but did not adopt Dr. Donahoo’s precise wording in characterizing Leis- gang’s limitations. As Leisgang sees it, that means that the ALJ “selectively” considered the report, requiring remand. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). Not so. Far from disregarding portions of the report, the ALJ adopted the same essential limitations proposed by Dr. Donahoo. The ALJ credited Dr. Donahoo’s determination that Leisgang would have moderate limitations associated with his mental disorders. More specifically, the ALJ agreed with the thrust of Dr. Donahoo’s findings: that Leisgang could “perform[ ] simple work activity in a routine work setting, with some difficulty interacting with others.” The ALJ then adopted limitations consistent with these findings. That was enough. Nothing required the ALJ to stick to the exact words that Dr. Donahoo used—words the ALJ rightly noted were “vague.” Substantial evidence also supports the ALJ’s treatment of a report submitted by Dr. Wendy Yim, who opined that Leis- gang needed “extreme” limitations and could not handle even low-stress jobs. The ALJ properly concluded that Dr. 8 No. 22-1970
Yim’s own past treatment notes, where she concluded Leis- gang’s mental status examinations were unremarkable, con- tradicted her findings in her subsequent report. See Karr v. Saul, 989 F.3d 508, 512 (7th Cir. 2021) (explaining an ALJ can discount a treating physician’s opinion that is “inconsistent with other objective evidence in the record”). That was not the only evidence undercutting Dr. Yim’s opinion: the ALJ summarized treatment history showing Leisgang’s mental health had markedly improved over time. And Leisgang himself testified at the hearing that his psycho- tropic medications generally controlled his symptoms. On this record, we cannot find fault with the ALJ’s conclusion that Dr. Yim’s opinion was unpersuasive. Seeing no error, we AFFIRM.