# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued April 27 , 2021
Decided May 27, 2021

Before

DIANE S. SYKES

, C hief Judge

FRANK H. EASTERBROOK

, Circuit Judge

MICHAEL Y. SCUDDER

, Circuit Judge

No. 20-1899

DEANA COYIER

, Plaintiff -Appel lant

,

v

.

ANDREW M. SAUL

, Commissioner of Social Security, Defendan t

- Appell ee

. Appeal from the
United States District Court for the

Western District of Wisconsin.

No. 19- cv -393- bbc

Barbara B. Crabb, Judge

.

O R D E R

Deana Coyier appeal ed the denial of her application for S ocial S ecurity disability
benefits. S he 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. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 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 a n August 2018 hearing, a vocational expert (“VE”) testified that someone with Coyier’s educati on and impairments would be capable of medium

- exertion work
and that a significant number of su itable jobs exist ed 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 l isted 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 assert ed that according to Chavez

, the equal- distribution
method “ does not necessarily qualify as a recognized or appropriate source of [job]
numbers .” T he 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 d id 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). F or the fifth and decisive step, the ALJ relied on the VE’s testimony and deter mined 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. T he 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 disp ute 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 conclud ed that the ALJ properly relied on the VE ’s testimony about job numbers, which Coyier’s “blanket ob jection” 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 c laimant 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 fail ed 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 n ote 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 t hat 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