In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1846

JEANNINE A. TUMMINARO,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Western Division.

No. 09 C 50116—Philip G. Reinhard, Judge.

ARGUED OCTOBER 4, 2011—DECIDED NOVEMBER 1, 2011

Before CUDAHY, FLAUM, and TINDER, Circuit Judges.

PER CURIAM. An Administrative Law Judge (“ALJ”)

found that Jeannine Tumminaro had been disabled by

chronic back pain but after four years showed “medical

improvement” and returned to full-time work. A period

of disability ends if the claimant shows medical improvement or engages in substantial gainful activity, but

Tumminaro argues that the ALJ’s finding of medical

improvement is not supported by substantial evidence.
2 No. 11-1846

Tumminaro further argues that her renewed employment

(which appears to be ongoing) was not an independent

basis for declaring that her disability had ended because

the ALJ never evaluated whether that work constituted an

authorized (and encouraged) “trial work period” and

thus could not be labeled as substantial gainful activity.

We agree. Accordingly, we reverse the judgment and

remand with instructions that the case be returned to

the Social Security Administration for additional proceedings to address Tumminaro’s trial work period.

I.

Tumminaro underwent three back surgeries after she

was twice hit by cars in unrelated incidents. The first

time, in June 2002, she was struck by a coworker’s

pickup truck while working as a construction flagger.

She continued working the day she was hit but later

reported severe back pain. By January 2004, pain

medicine and physical therapy had not alleviated

Tumminaro’s pain, so she underwent a spinal fusion,

and doctors inserted a metal fusion cage in her lower

back. She sought treatment in September 2004 from

Dr. James Wilson, a pain specialist, who prescribed

four different pain medications. Tumminaro’s back pain

continued, however, and in January 2005 she had

another operation to remove the cage from her back.

She returned to her job as a flagger in April 2005, apparently without complications with her back. But

that July, while en route to work, she was in a second car

accident, which required a third back surgery. A year
No. 11-1846 3

after this surgery, Dr. Wilson began treating Tumminaro’s

back pain with steroid injections. She reported to

Dr. Wilson that the injections provided her “40-50%

relief,” so he continued giving her these injections every

few months.

Tumminaro first applied for Disability Insurance

Benefits and Supplemental Security Income in October 2003, but information about that application is not in

the record. She applied for benefits again in March 2005

and asserted that she had been disabled since being

struck by the pickup in 2002. Her claim was denied, and

she did not seek reconsideration. Tumminaro applied

once more for benefits in September 2006, this time maintaining that she had been disabled since January 2004.

After her initial claim and request for reconsideration

were denied, Tumminaro requested a hearing before

an ALJ.

In the meantime Dr. Wilson continued treating

Tumminaro’s chronic back pain with medicine and

steroid injections, which brought her “significant relief” between 2007 and 2008. For example, she told

Dr. Wilson that an injection in April 2008 had provided

“80% relief.” During an appointment in July 2008, however, Tumminaro complained of constant, sharp back

pain that rated 9 in severity on a scale of 1 to 10. Dr. Wilson

noted that Tumminaro’s medication had improved her

“daily living activities,” refilled her prescriptions, and

asked her to return in a month. At that next visit, in

August 2008, Tumminaro again described her back

pain as “constant, sharp and stabbing,” but Dr. Wilson
4 No. 11-1846

simply continued the medication and prescribed home

exercises. When she returned in September for another

injection, she rated her pain as a 10 and reported no

improvement since her last visit. Dr. Wilson instructed

her to return in a couple weeks, continue “activity as

tolerated,” and perform stretching and strengthening

exercises.

The ALJ conducted a hearing in October 2008.

Tumminaro testified that she still experienced “major

back problems and hip problems” and was taking four

pain medications that occasionally made her tired. The

steroid injections, she acknowledged, helped “to some

extent,” but she insisted that her back pain had not improved since her first surgery in 2004. Tumminaro nonetheless conceded that, although she previously had

needed help taking care of herself and her home, by 2006

she no longer needed assistance. She also had resumed

driving in 2006. And despite her chronic back pain she

had returned to work full time in February 2008, initially

as a forklift driver and then in a clerical position with

the same company. Tumminaro also worked about once

a week in her former position as a construction flagger

and was performing both jobs at the time of hearing.

Working made her back pain worse, she explained, but

she needed the money.

The ALJ concluded that Tumminaro’s chronic back

pain had rendered her disabled from January 2004 until

her return to full-time work in February 2008. The ALJ

asserted that Tumminaro had “testified to, and medical

records show, improvement and her returning to work.”
No. 11-1846 5

The ALJ did not mention the medical evidence or

Tumminaro’s testimony pertaining to the period after

February 2008 but apparently inferred from her return

to work that she had “experienced medical improvement and is engaged in substantial gainful activity and,

therefore, no longer disabled.”

Tumminaro requested review by the Appeals Council.

She argued that the evidence does not support the

ALJ’s finding of medical improvement, and that the ALJ

should have viewed her return to work as a “trial work

period.” Claimants found to be disabled may test their

ability to resume working by accepting employment for

up to nine months without forfeiting their determination

of disability or their benefits. 20 C.F.R. § 404.1592(a).

Tumminaro contended that her award of benefits

should have been ongoing and not limited to a closed

period. The Appeals Council denied Tumminaro’s request

for review, and when she sought review in the district

court, see 42 U.S.C. § 405(g), the case was referred to a

magistrate judge. In moving for summary judgment,

Tumminaro reasserted the same contentions made to

the Appeals Council.

The magistrate judge reasoned, much like the ALJ,

that Tumminaro must have experienced medical improvement by February 2008 because she returned to fulltime work. And once Tumminaro demonstrated medical

improvement, the magistrate judge continued, her trial

work period became irrelevant. Thus the magistrate

judge issued a Report and Recommendation proposing

that the district court uphold the ALJ’s limited award.
6 No. 11-1846

The magistrate judge informed Tumminaro that she had

14 days to file objections to the report, but Tumminaro

did not do so. The district court adopted the magistrate

judge’s recommendation and upheld the ALJ’s award

of benefits for the closed period from January 2004 to

February 2008.

II.

Because the Appeals Council declined review, we

review the ALJ’s decision as the final decision of the

Commissioner. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.

2008). We confine our review to the rationale offered by

the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93-95

(1943); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).

The parties agree that Tumminaro was disabled between January 2004 and February 2008. The issue here is

whether she was disabled for any period after that

point. Tumminaro maintains that the ALJ should have

considered her return to work in February 2008 as part

of a trial work period and argues that the ALJ’s finding

of medical improvement lacks evidentiary support.

The Commissioner first contends that Tumminaro

waived her right to challenge on appeal the issues addressed in the magistrate judge’s Report and Recommendation because she did not file any objections.

We disagree. It is true that a party normally waives the

right to contest a magistrate judge’s conclusions, both

factual and legal, by not presenting an objection to the

district court. 28 U.S.C. § 636(b)(1)(B), (C); Estate of Sims
No. 11-1846 7

ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 516 (7th Cir.

2007); Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).

For waiver to apply, however, a magistrate judge must

inform the party about both the timeframe for filing

objections and that waiver will follow from inaction.

Ashkin v. Time Warner Cable Corp., 52 F.3d 140, 142 (7th

Cir. 1995); Provident Bank v. Manor Steel Corp., 882 F.2d

258, 261 (7th Cir. 1989). In this case the magistrate

judge explained that Tumminaro had 14 days to file

objections but did not warn her explicitly that any objection not made by that deadline would be waived. The

omission of that essential warning means that Tumminaro did not waive her right to challenge on appeal

the magistrate judge’s conclusions.

Tumminaro argues that the ALJ ignored her entitlement

to a trial work period when he limited the award

of benefits to the period before she resumed full-time

employment in February 2008. Before limiting benefits

to a closed period, an ALJ must conclude either that a

claimant experienced “medical improvement” as evidenced by changes in the symptoms, signs, or test

results associated with her impairments, or else that an

exception to this rule applies. See 20 C.F.R. § 404.1594(a),

(b)(1); Veino v. Barnhart, 312 F.3d 578, 586-87 (2d Cir.

2002); Waters v. Barnhart, 276 F.3d 716, 719 (5th Cir. 2002);

Johnson v. Apfel, 191 F.3d 770, 773 (7th Cir. 1999). That

determination is informed by an eight-step evaluation

that begins with a principal exception to the need for

medical improvement: Has the claimant engaged in

substantial gainful activity after the completion of a trial

work period? 20 C.F.R. § 404.1594(f).
8 No. 11-1846

Individuals entitled to receive disability benefits are

entitled, absent certain disqualifying factors not present

here, to a trial work period. 20 C.F.R. § 404.1592(d)(1), (2);

see BARBARA SAMUELS, SOCIAL SECURITY DISABILITY

CLAIMS § 29:11. Social Security regulations authorize

this trial period to encourage benefit recipients to

assess their ability to return to work without the implication that their disability has ended. SOCIAL SECURITY

LAW AND PRACTICE § 44:123; SOCIAL SECURITY AND

MEDICARE ANSWER BOOK 4:75. Work performed after a

claimant becomes entitled to benefits will be characterized as part of a trial period until such time as the

claimant has tallied 9 months of “service” (whether

consecutive or not) over a 60-month period. 20 C.F.R.

§ 404.1592(e). During this “rolling” trial period, an ALJ

cannot consider the work being performed as evidence

that the claimant is no longer disabled but may rely on

other evidence to reach that conclusion. 20 C.F.R.

§ 404.1592(a), (e); see POMS DI 13010.035(D)(2). Once the

trial period is over, however, the ALJ may look back at

the work performed during that time in assessing

whether the disability ended at some point “after the trial

work period.” 20 C.F.R. § 404.1592(a) (emphasis added);

see Lingenfelter v. Astrue, 504 F.3d 1028, 1039 (9th Cir.

2007); Newton v. Chater, 92 F.3d 688, 692-93 (8th Cir. 1996).

Completion of nine months of service does not by itself

mark the end of a claimant’s disability. Rather, a

claimant’s disability ceases the first month she engages

in substantial gainful activity after the end of a trial

period. 20 C.F.R. § 404.1592a(a)(1). Disability benefits

continue, however, for that month and the two that

follow. 20 C.F.R. § 404.1592a(a)(2)(i).
No. 11-1846 9

Tumminaro’s trial work period began in January 2004,

when she became entitled to disability insurance benefits. She should have been allowed nine months of “service” without jeopardizing her entitlement to benefits.

The ALJ never mentioned the possibility of a trial

work period, however, and instead concluded that

Tumminaro’s entitlement to benefits ended in February 2008 when she returned to work.

But as of February 2008 Tumminaro’s trial period could

not have ended. Work qualifies as “service” under a trial

period based on a claimant’s monthly earnings. 20 C.F.R.

§ 404.1594(b)(1)(ii). In 2005 through 2007, a claimant

had to earn monthly wages of at least $590, $620, and

$640 before work could constitute “service” countable

against a trial period. 20 C.F.R. § 404.1594(b)(1)(ii)(B).

Tumminaro did not provide a monthly breakdown of

her earnings for that time period, but we can readily see

from her annual earnings that she did not complete

nine months of service during that time. Tumminaro

earned $2,765 in 2005, $1,687 in 2006, and $622 in 2007. She

may have earned more than the qualifying wage during

her four-month return to work in 2005, but her annual

income in 2006 supports, at most, two months of service,

and her income in 2007 cannot count as even one month.

In February 2008, therefore, Tumminaro could have

completed a maximum of six months of service, so her

trial period had not ended. Thus, the ALJ improperly

considered her return to work as evidence that her disability had ended. See 20 C.F.R. § 404.1592(a); Lingenfelter,

504 F.3d at 1039; Newton, 92 F.3d at 692-93.
10 No. 11-1846

It is impossible to discern from the record exactly

when Tumminaro completed her ninth month of service.

She testified at the hearing in October 2008 that she had

been working continuously in the eight months since

February. It is thus possible that Tumminaro had exhausted her trial period at some point before the

hearing, but without seeing her monthly wages for

2008 that conclusion cannot be fairly drawn. And if

Tumminaro continued to work after her trial period

ended (and thus she could be said to have resumed

substantial gainful activity), she still would be entitled

to benefits for the three months following her return

to work. 20 C.F.R. § 404.1592a(a)(2)(i). More information and analysis was necessary before the ALJ could

properly decide if—and when—Tumminaro’s ability to

work rendered her no longer disabled, so a remand is

necessary.

The Commissioner asserts that even if Tumminaro’s

trial work period had not ended, a remand is unnecessary because substantial evidence supports the ALJ’s

conclusion that she had experienced medical improvement by February 2008 and thus was no longer disabled.

An ALJ may rely on medical or other evidence during

a trial period to conclude that a disability ended. 20

C.F.R. § 404.1592(e)(3). But the ALJ in this case inferred

medical improvement solely from Tumminaro’s return to

work, not her medical records. The ALJ provided no

analysis of the medical evidence after February 2008 and

simply remarked that Tumminaro “testified to, and her

medical records show, improvement.” Tumminaro testified, however, that her back pain had not improved since
No. 11-1846 11

2004 and that her return to work had aggravated her

condition. The ALJ’s conclusory statement to the contrary

does not support a finding of medical improvement.

See Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008);

Dixon v. Barnhart, 324 F.3d 997, 1001-02 (8th Cir. 2003).

On remand the ALJ must address Tumminaro’s entitlement to a trial work period. The ALJ should determine,

based on Tumminaro’s monthly wages, whether—and

when—she exhausted all nine months of her trial work

period. If she completed the trial period, the ALJ must

assess whether she is capable of substantial gainful

activity before terminating her benefits. If Tumminaro

regained that ability, she still is entitled to benefits

for three months after the end of her trial period. In

the alternative, the ALJ may terminate Tumminaro’s

benefits if he concludes, relying on evidence other than

Tumminaro’s work during her trial period, that she

experienced medical improvement.

We VACATE the judgment of the district court and

REMAND with instructions that the case be returned to

the Social Security Administration for additional proceedings consistent with this opinion.

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