Deana Coyier v. Andrew Saul ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 27, 2021
Decided May 27, 2021
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-1899
DEANA COYIER, Appeal from the
Plaintiff-Appellant, United States District Court for the
Western District of Wisconsin.
v.
No. 19-cv-393-bbc
ANDREW M. SAUL,
Commissioner of Social Security, Barbara B. Crabb,
Defendant-Appellee. Judge.
ORDER
Deana Coyier appealed the denial of her application for Social Security disability
benefits. She argues that the administrative law judge failed to assess the reliability of
the vocational expert’s estimate of suitable jobs available for her in the national
economy. The ALJ gave Coyier’s counsel an opportunity to develop his argument about
the reliability of the estimates in a posthearing brief and held the record open
specifically for that purpose. Counsel submitted nothing. Counsel’s failure to avail
himself of the opportunity to develop an argument about the expert’s estimates is a
waiver, so we affirm.
No. 20-1899 Page 2
In 2017 Coyier, then 38, applied for benefits, asserting that she could no longer
work because of several psychological conditions that make it difficult for her to
interact with people and cope with change. 1 Coyier has been in and out of therapy
throughout her adult life. She has been treated for suicidal ideations, self-harm,
debilitating panic attacks, aggression, and social phobia, and takes numerous
psychotropic and anxiolytic medications. The Social Security Administration denied
Coyier’s claims initially and on reconsideration.
At an August 2018 hearing, a vocational expert (“VE”) testified that someone
with Coyier’s education and impairments would be capable of medium-exertion work
and that a significant number of suitable jobs existed in the national economy, including
industrial cleaner (469,000 jobs), laundry laborer (79,600 jobs), and stuffer (42,800 jobs).
20 C.F.R. § 404.1566(b). Coyier objected generally to the VE’s methodology for
calculating the number of available jobs, known as the “equal distribution method,”
which assumes that all job titles within a particular job group listed in the Dictionary of
Occupational Titles exist in equal numbers in the national economy. In support Coyier
cited our decision in Chavez v. Berryhill, 895 F.3d 962, 970 (7th Cir. 2018)—published two
weeks before the hearing—and asserted that according to Chavez, the equal-distribution
method “does not necessarily qualify as a recognized or appropriate source of [job]
numbers.” The ALJ deferred ruling on the objection, invited supplemental briefing, and
offered to hold a second hearing. She kept the record open for an additional week, but
Coyier’s attorney did not submit anything further.
In September the ALJ ruled that Coyier was not disabled. Applying the five-step
analysis set forth in 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), the ALJ determined that
Coyier had not worked within the claim period (step one); that her psychological
impairments were severe (step two) but did not presumptively establish a disability
(step three); and that she retained the residual functional capacity to perform work at all
exertional levels with limitations on task complexity and social contact (step four). For
the fifth and decisive step, the ALJ relied on the VE’s testimony and determined that
Coyier could perform the work of industrial cleaner, laundry laborer, or stuffer, and
that hundreds of thousands of these jobs exist in the national economy. The ALJ also
concluded that Chavez had not invalidated the equal-distribution method and that the
VE’s job numbers were both “reliable” and “uncontested by any specific objections.”
1
She also cited several physical conditions but they are not relevant to her
appeal.
No. 20-1899 Page 3
The Appeals Council denied Coyier’s request for review, so she sought judicial
review. Coyier does not dispute the ALJ’s determination that she has the residual
functional capacity to perform a full range of work at all exertional levels if she is
limited to occasional interactions with workplace supervisors and the general public.
She argues only that the ALJ “made no attempt to determine the basis for the [VE’s]
numbers or the reliability of the numbers.” The district court affirmed the ALJ’s
decision and concluded that the ALJ properly relied on the VE’s testimony about job
numbers, which Coyier’s “blanket objection” and limited cross-examination had not
called into question.
On appeal Coyier argues that at step five a claimant needs to object only to some
aspect of the expert’s method used to arrive at his job-number estimate to trigger the
ALJ’s duty to ensure the reliability of the VE’s methodology. She claims that the ALJ
erred by not scrutinizing the VE’s methodology. However, Coyier waived any
challenge to the VE’s testimony by failing to ask any questions to reveal shortcomings
in the job-number estimates or to submit a supplemental brief on the issue despite
assuring the court prior to and at the hearing that he would do so. These omissions
effectively conceded the reliability of the VE’s job numbers. Biestek v. Berryhill, 139 S. Ct.
1148, 1156–57 (2019); see also Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002)
(“When no one questions the [VE’s] foundation or reasoning, an ALJ is entitled to
accept the [VE’s] conclusion … .”).
In Chavez the claimant made repeated objections to the VE’s job-number
estimates and “asked the VE how he had arrived at [those] figures.” 895 F.3d at 966; see
also Brace v. Saul, 970 F.3d 818, 820–21 (7th Cir. 2020) (The claimant objected to the VE’s
job numbers based on Alaura v. Colvin, 797 F.3d 503, 507–08 (7th Cir. 2015), and then
“asked the [VE] to explain his methodology.”). Here, in contrast, Coyier’s counsel made
no additional arguments beyond the general objection and asked no specific questions
of the VE concerning the job-number estimates. Because counsel failed to develop an
argument or question the VE any further about his methodology, the ALJ was entitled
to rely on the job-number estimates. Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir.
2004).
We note for completeness that Chavez did not enjoin the use of the equal-
distribution method and created “no new obligations” at step five; the substantial-
evidence standard still governs. 895 F.3d at 970. Based on that standard, which “is not
high,” Biestek, 139 S. Ct. at 1154, the ALJ was entitled to accept an expert’s testimony
that was uncontradicted and “otherwise proper,” Liskowitz v. Astrue, 559 F.3d 736, 745–
No. 20-1899 Page 4
46 (7th Cir. 2009); see Surprise v. Saul, 968 F.3d 658, 662 (7th Cir. 2020) (explaining that an
ALJ may properly accept a VE’s uncontradicted testimony absent obvious internal
conflicts).
AFFIRMED