52 F.4th 688
7th Cir.2022Background
- Milhem applied for Social Security disability insurance and SSI, alleging multiple impairments beginning November 19, 2018; claims were denied and she requested a hearing.
- At the ALJ hearing a vocational expert (VE) classified Milhem’s prior work and responded to hypotheticals limiting her to simple, routine tasks, two-hour on-task increments, occasional interaction, and either light or sedentary exertion.
- The VE identified alternative national jobs: three light occupations (≈53,000; 307,000; 63,000) and three sedentary occupations (≈19,000; 23,000; 47,000); the sedentary trio aggregated to 89,000 jobs nationwide.
- The ALJ probed on-task tolerance, scheduled breaks, break/accommodation flexibility, and absenteeism rules before finding, at step five, that 89,000 national jobs constituted a "significant number" and denying benefits.
- The Appeals Council denied review; the magistrate judge affirmed. Milhem appealed to the Seventh Circuit, arguing (among other things) that the ALJ lacked a regulatory standard for "significant" and that 89,000 jobs (0.0567% of national jobs) is not significant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of procedural/regulatory challenge | Milhem argued the Commissioner must promulgate a regulation defining "significant" before an ALJ may decide step five. | Commissioner: Milhem failed to raise that argument below, so it is waived. | Court: Milhem waived the novel regulatory-demand argument because she did not raise it in the district court. |
| Must a formal standard for "significant" be presented/required? | Milhem: ALJ/Commissioner must present a standard by which to assess "significant." | Commissioner: No textual or regulatory requirement; ALJ has discretion to apply case-by-case substantial-evidence review. | Court: No categorical regulatory/metric requirement; ALJs have discretion to determine "significant" using substantial evidence and case-by-case analysis (Biestek/regs support informality). |
| Whether 89,000 national jobs is a "significant number" | Milhem: 89,000 (0.0567% of jobs) is too small; precedent (some district courts) shows similar percentages were inadequate. | Commissioner/ALJ: VE testimony established 89,000 jobs nationwide; ALJ weighed VE testimony and claimant characteristics and reasonably found significance. | Court: AFFIRMED — 89,000 national jobs is supported by substantial evidence as a "significant number" in the circumstances. |
Key Cases Cited
- Weatherbee v. Astrue, 649 F.3d 565 (7th Cir.) (national 140,000 jobs deemed well above threshold for significance)
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (Supreme Court: Social Security hearings are informal and substantial-evidence review is case-by-case; no categorical rules required)
- Liskowitz v. Astrue, 559 F.3d 736 (7th Cir.) (discussed regional job-count precedents and the 1,000-job regional rule of thumb)
- Lee v. Sullivan, 988 F.2d 789 (7th Cir.) (earlier regional-job-number discussion relied on by later cases)
- Kastner v. Astrue, 697 F.3d 642 (7th Cir.) (definition and application of substantial-evidence standard)
- Moats v. Comm'r of Soc. Sec., 42 F.4th 558 (6th Cir.) (found 32,000 national jobs significant)
- Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519 (9th Cir.) (found 25,000 national jobs significant)