MICHELLE ENGEL v. FRANK BISIGNANO (2026)

DECISION AND ORDER

Plaintiff Michelle Engel seeks judicial review of the denial of her application for social security disability benefits. The Social Security Administration (SSA) has adopted a five-step test for deciding whether a claimant is disabled. Under this test, the Administrative Law Judge (ALJ) determines: (1) whether the claimant is employed; (2) if not, whether she has a severe medically determinable impairment or impairments; (3) if so, whether any of those impairments qualify as presumptively disabling under agency regulations (“the Listings”); (4) if not, whether the claimant can, given her impairment-related limitations, perform her past relevant work; and (5) if not, whether she is capable of performing any other work in the national economy. Swiecichowski v. Dudek, 133 F.4th 751, 755 (7th Cir. 2025) (citing 20 C.F.R. § 404.1520(a)(4)). “The burden of proof is on the [claimant] at steps one through four, but the burden shifts to the Commissioner at step five.” Wilder v. Kijakazi, 22 F.4th 644, 651 (7th Cir. 2022). In determining whether, at steps four and five, the claimant can perform her past work or other jobs in light of her limitations, ALJs often rely on the testimony of a vocational expert (VE). Chavez v. O'Malley, 96 F.4th 1016, 1021 (7th Cir. 2024).

In the present case, the ALJ denied plaintiff's claim at step four, finding—based on a VE's testimony—that she could perform her past relevant work as a cashier, a job she held from 2021-2023. “Past relevant work” is work that (1) the claimant has done within the past 15 years, (2) was “substantial gainful activity” (SGA), and (3) lasted long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1).¹ SGA is work activity that involves doing significant physical or mental activities, for pay or profit. 20 C.F.R. § 404.1572. The regulations set forth earnings levels ordinarily indicative of SGA. See 20 C.F.R. § 404.1574. As is pertinent here, the presumptive SGA level for 2022 was $1350 per month (or $4050 for a quarter). See https://www.ssa.gov/oact/cola/sga.html (last visited Mar. 10, 2026).²

In this action, plaintiff argues that the ALJ erred in determining she performed the cashier job at the SGA level in the fourth quarter of 2022. She further contends that the ALJ erred by failing to address VE testimony favorable to her claim. I agree with the first contention and thus remand for further proceedings.

I. FACTS AND BACKGROUND

A. Plaintiff's Application and Agency Decisions

Plaintiff filed the instant application for benefits in February 2020, alleging a disability onset date of May 10, 2019. (Tr. at 278, 318, 331.) She listed impairments of schizoaffective disorder, anxiety, depression, bipolar disorder, hypothyroidism, a left foot injury, diverticulitis, and esophagus issues. (Tr. at 310.) She also reported standing 5′4″ and weighing 290 pounds. (Tr. at 310.)

The agency denied the application initially in May 2020 (Tr. at 134, 183) and on reconsideration in July 2020 (Tr. at 166, 196). Plaintiff requested a hearing (Tr. at 223), and in January 2021 she appeared with counsel before the ALJ. The ALJ also called a VE. (Tr. at 47.) At this hearing, plaintiff testified that she was then working in customer service for Bed Bath & Beyond, about 22 hours per week. (Tr. at 56-57.)

In March 2021, the ALJ issued an unfavorable decision. (Tr. at 21.) In this decision, the ALJ found that plaintiff had no past relevant work and denied the claim at step five based on the VE's identification of other jobs existing in significant numbers plaintiff could still do. (Tr. at 39-40.) In July 2021, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. at 11.) Plaintiff filed an action for review in federal court (Tr. at 1342-43), and in October 2022 the court remanded, finding that the ALJ failed to ensure the VE's job number estimates were the product of a reliable method (Tr. at 1337-41). In March 2023, the Appeals Council remanded the case to the ALJ, directing the ALJ to consolidate the claim with a subsequent application plaintiff filed in September 2021. (Tr. at 1349, 1351-52.) The agency had denied that application as well. (Tr. at 1390-98.)

B. Hearing on Remand

On April 11, 2024, plaintiff appeared with counsel for her hearing on remand. The ALJ also summoned a VE to the hearing. (Tr. at 1309.)

At the outset of the hearing, counsel noted “that there is some earnings that need to be discussed.” (Tr. at 1314.) He continued: “There are significant earnings in ‘22 and ‘23 that need to be discussed.” (Tr. at 1315.) The ALJ responded: “I don't think they reach SGA levels, at least from my research.” (Tr. at 1315.) Counsel replied: “No, they, well, the one quarter where it spills over.” (Tr. at 1315.) The ALJ agreed: “SGA in 2022 is $4,050 per quarter. Actually right, it was. The fourth quarter of 2022 earnings exceeded that. The others, it was close, but not over. So yes, we can certainly discuss those.” (Tr. at 1315.) The record confirms that plaintiff earned $4209 working for “Gnome Games” in the fourth quarter of 2022. (Tr. at 1582.)

The ALJ then questioned plaintiff, who testified that she had a master's degree and lived alone in an apartment. (Tr. at 1315-16.) The ALJ asked plaintiff about her work for Gnome Games in 2022, and plaintiff indicated she was responsible for customer service, making suggestions for purchases, ringing sales transactions at the register, and assisting in promoting products. The promotion involved conversations with customers and creating social media posts. (Tr. at 1316.) Plaintiff testified that she typically worked four days per week, five or six hours per day. (Tr. at 1317.) She indicated that she left that job due to an “increase in responsibility [that] was just a little bit more than what [she] was comfortable performing.” (Tr. at 1317.) This job required her to be on her feet all day and to lift up to 20 pounds. (Tr. at 1319.) After leaving Gnome Games in 2023, plaintiff started working for Goodwill, where she cashiered, put merchandise on the floor, ticketed new merchandise, and generally assisted keeping the store tidy. (Tr. at 1318.) She worked four days a week, 6-1//21/2 hours per shift. (Tr. at 1318-19.) This job also had her on her feet the whole shift, but the required lifting was five pounds or less. (Tr. at 1318.)

Plaintiff testified that since the last hearing her depression and anxiety had been worse, with an increase in suicidal thoughts. (Tr. at 1322.) She had also been using a CPAP for sleep apnea, but the machine triggered some of her white noise related auditory hallucinations. (Tr. at 1322-23.) Plaintiff testified that she could not sustain a full-time work schedule, indicating she could not handle more than 22-24 hours per week. (Tr. at 1322.)

The ALJ then turned to the VE, and counsel indicated he had no objection to the VE serving as an expert. (Tr. at 1326.) The VE classified plaintiff's past work at Gnome Games as cashier/checker, which was light and semi-skilled (SVP 3). (Tr. at 1327.) The ALJ then asked a hypothetical question assuming a person of plaintiff's age, education, and experience, limited to light work, with limited climbing and postural movements, and avoiding use of dangerous moving machinery and exposure to unprotected heights; capable of understanding, remembering, and carrying out no more than simple instructions; limited to simple, routine tasks, in jobs that have only occasional simple work-related decision-making and occasional changes in the work setting; and work where there is no production rate or pace work or hourly production quotas. (Tr. at 1327-28.) The VE testified the hypothetical person could not perform plaintiff's past work. (Tr. at 1328.)

The ALJ amended the hypothetical to change “simple instructions to include simple and detailed instructions.” (Tr. at 1328.) The VE testified the answer was the same. Asked to explain why, the VE testified that “I don't see it meeting SVP: 3 because of the word detail.” (Tr. at 1328.) The ALJ asked what precluded the work “if the person can perform simple and detailed? Is it the decision-making? What is it?” (Tr. at 1329.) The VE responded: “It's just the definition that I'm interpreting the word detailed. As far as her being able to perform tasks in the SVP: 3 level as she's doing now, I would agree that if it's SVP: 3 I would indicate, yes she can do that.” (Tr. at 1329.) The ALJ continued: “So now I'm even more confused. If you believe that she is capable of performing SVP: 3 work, why is the cashier, checker job precluded?” (Tr. at 1329.) The VE responded: “Judge, it's the difference between the term detailed and your description related to the activity, you know the, what is she, what she's doing currently.” (Tr. at 1329. The ALJ asked: “What is the difference?” (Tr. at 1329.) The VE responded: “My difficulty is the word detailed. Detailed to me would be more skilled work activities.” (Tr. at 1329.) The ALJ asked: “So if she can perform skilled work why is the semiskilled work precluded? That's where I'm having a difficulty.” (Tr. at 1329-30.) After some further back and forth, the ALJ asked the VE to give simple yes or no answer. “A person who can perform, if I'm understanding your testimony so far, a person who can perform simple and detailed instructions and simple routine tasks is capable of performing skilled work? ․ Tell me if I got that right.” (Tr. at 1330.) The VE responded: “That is correct, Judge.” (Tr. at 1330.)

Q Okay. So if a person can perform skilled work, why can't they perform SVP: 3 work which is semi-skilled?

A They could.

Q Then why did you say that that was still preclude [sic] the past work?

A Judge, I am so sorry. I've been misunderstanding this. The past work would be, would remain viable. I apologize. I was confused. I apologize.

Q I was confused also. And I think you can sense where if a person can perform skilled work, why wouldn't they be able to do semiskilled. And I think we were going around and around there. So past work, if a person can perform simple and detailed instructions, even though they are limited to simple routine tasks, simple work-related decision[s], occasional changes, and no production or rate of pace work, the past work would not be precluded or would be?

A The past work would not be precluded given that hypothetical, Judge.

(Tr. at 1330-31.)

The ALJ then asked the VE to consider a person who, approximately once per year, may require up to one week off on short notice for medical reasons. (Tr. at 1331.) The VE testified that employees are able to get approximately one day off per month; they may also acquire vacation time and personal days; given those days, the added limitation would have no impact. (Tr. at 1331-32.) Plaintiff's counsel asked if, in the final hypothetical, the person needed to have acquired paid time off ahead of time. (Tr. at 1332.) The VE responded that, unless the person was in the middle of disciplinary action, missing time off work due to medical problems would not lead to termination. (Tr. at 1332-33.)

C. ALJ's Decision

On May 3, 2024, the ALJ issued an unfavorable decision. (Tr. at 1276.) At step one, the ALJ found that plaintiff worked for Bed Bath & Beyond from prior to the alleged onset date (May 10, 2019) through the second quarter of 2021, but there was no evidence of SGA-level earnings at that job. (Tr. at 1281-82.) Plaintiff then worked for Gnome Games from the second quarter of 2021 until around October 2023. Her earnings in that job largely fell just under the SGA level. However, she posted earnings of $4209 in the fourth quarter of 2022, which calculates to $1403/month that quarter, exceeding the SGA threshold of $1350 in 2022. The record contained no evidence of special work conditions or accommodations that would negate a finding of substantial gainful activity for that period. Therefore, the ALJ found that plaintiff engaged in disqualifying substantial gainful activity-level work in the fourth quarter of 2022. She subsequently began working for Goodwill in October 2023, continuing through the date of the hearing. However, she did not earn SGA-level amounts at this job. Accordingly, the ALJ concluded, the only disqualifying SGA-level earnings were from October to December 2022. (Tr. at 1282.)

At step two, the ALJ found that plaintiff had the severe impairments of obesity, bipolar disorder, schizoaffective disorder, anxiety, and depression. (Tr. at 1282.) He found her other impairments non-severe. (Tr. at 1282-83.) At step three, the ALJ found that none of plaintiff's impairments met or equaled a Listing. (Tr. at 1283.)

Prior to step four, the ALJ found that plaintiff had the residual functional capacity (RFC) to perform light work, with limited climbing and postural movements, and avoiding use of dangerous moving machinery and exposure to unprotected heights. Mentally, she was limited to understanding, remembering, and carrying out simple and detailed instructions; simple, routine tasks; work where there is no production rate or pace work or hourly production quotas; and employment where only occasional simple work-related decision-making is required, and that involves only occasional changes in the work setting. In making this determination, the ALJ considered plaintiff's statements regarding her symptoms and the medical opinions. (Tr. at 1286.)

Plaintiff alleged disability due to a combination of physical and mental impairments, which limited her ability to understand information, remember things, concentrate, complete tasks, get along with people, handle stress, adapt to changes in routine, squat, bend, stand, kneel, and climb stairs. At the previous hearing in January 2021, plaintiff testified that she was working 22 hours per week at Bed Bath & Beyond's customer service desk. She also testified that she had published some short literary works, including two poetry books, a novella, and a memoir. She indicated that a typical day involved making a simple breakfast, reading, writing in her journal, shopping or cooking meals, spending time on social media, creative writing, watching a movie, taking a walk, and caring for her cats. (Tr. at 1287.)

At the hearing on April 11, 2024, plaintiff testified that, after working for Bed Bath & Beyond, she began working part-time in customer service at Gnome Games, where she would engage in tasks such as making sales and promoting products. She testified that she left that job in October 2023 due to a change in her job duties that would have involved increased responsibility. Plaintiff stated that she then began working part-time at Goodwill, where she continued to work. She testified that she did not believe that she could sustain a 40-hour per week job due to the fluctuating nature of her mental health symptoms. (Tr. at 1287.)

The ALJ found that plaintiff's claims regarding the limiting effects of her symptoms could not reasonably be accepted as sufficiently consistent with the medical and other evidence of record. (Tr. at 1287.) In support of this conclusion, the ALJ noted that while the medical records documented fluctuations in mood and emotional control, these episodes typically occurred after medication adjustments. (Tr. at 1288.) The ALJ also noted mental status exam findings showing largely intact functioning. (Tr. at 1290.) The ALJ concluded:

A review of the overall record establishes that the claimant has a history of mental health struggles, with flare-ups of symptoms, including hallucinations and suicidal ideation at times. However, while the claimant has had a few hospitalizations, they were all on a voluntary basis and were relatively brief, with the claimant demonstrating the ability to engage in crisis intervention when she recognized increased symptoms, and she has consistently engaged in medication management and outpatient therapy. It appears that the claimant knows when to seek more intensive treatment for her symptoms and has relatively good insight into her conditions. Moreover, the record reveals that the claimant's flare-ups were often in the context of a medication adjustment or precipitated by significant stress, and she would quickly stabilize with treatment. Also, progress notes indicate that many of the claimant's mental health struggles have been tied to stress related to the relocation of her daughter, as well as difficulty setting boundaries with friends and family, with evidence of stress at work at times as well.

(Tr. at 1290-91, record citations omitted.)

The ALJ further noted the evidence of ongoing work activity, with no evidence of significant difficulties in the workplace. (Tr. at 1291.) Specifically, plaintiff continued to work customer-service type jobs, including at the SGA-level at times, as opposed to seeking work involving less frequent interaction with others. (Tr. at 1292-93.) The record also demonstrated that plaintiff had been able to reside independently in the community; engage in creative endeavors, such as writing and submitting art projects to an art show; spend time with others in social situations; and engage in activities such as cooking, shopping, and managing her finances. (Tr. at 1291.)

This overall level of activity is not consistent with the debilitating limitations alleged by the claimant. Overall, the totality of the evidence demonstrates that the claimant's alleged symptoms are not sufficiently consistent with the evidence of record, and she has not been as limited from a mental health perspective as she has alleged to SSA.

(Tr. at 1291-92.)

Regarding plaintiff's physical condition, the ALJ noted that while the record reflected a history of morbid obesity, exams frequently failed to reveal any significant abnormalities related to her weight. She also maintained part-time employment and engaged in various daily activities. Nevertheless, the ALJ recognized that plaintiff's obesity had likely reduced her overall physical capacity. She also had a history of non-severe impairments, including degenerative changes to the right foot, mild lumbar spine degenerative disc disease, a thyroid condition, reflux, and diverticulitis, likely exacerbated by her obesity. The ALJ accordingly found plaintiff limited to a reduced range of light-exertion work. (Tr. at 1292.)

The undersigned has also limited the claimant to jobs involving simple/detailed instructions and simple, routine tasks, as well as no production rate/pace work or hourly production quotas. These limitations will help address the effects of the claimant's mood fluctuations and hallucinations on her ability to concentrate on more complex tasks or perform more fast-paced work. The undersigned has further limited the claimant to jobs involving only occasional, simple, work-related decision-making and only occasional changes in the work setting. The undersigned finds that these limitations will in effect limit the claimant to lower stress work, which will help reduce exacerbations of the claimant's symptoms, given the evidence of her difficulties dealing with stress at times. The undersigned finds that these limitations sufficiently address the effects of the claimant's impairments, and the objective evidence of record does not support inclusion of more restrictive limitations during the period at issue.

(Tr. at 1292, record citations omitted.)

The ALJ then turned to the medical opinions, finding persuasive the report of the initial level agency medical consultant, Jeffrey Nesta, M.D., that plaintiff was limited to light-exertion work, with no climbing of ladders, ropes, or scaffolds. (Tr. at 1293.) The ALJ included additional postural and environmental limitations out of an abundance of caution, in order to more fully address any mobility deficits caused by plaintiff's obesity, as well as to further address the effects of her non-severe impairments, including mild lumbar spine degeneration and right foot degenerative changes. (Tr. at 1293-94.) The ALJ found unpersuasive the opinion of the reconsideration level consultant, Usama Khayyal, M.D., who found plaintiff limited to the full range of sedentary work, as the limitation to sedentary work was not supported by specific medical evidence or specific examples of the claimant's activities being so limited and was inconsistent with the overall evidence, including exams frequently failing to show any significant abnormalities beyond an elevated BMI, as well as evidence of plaintiff's activities, including her own report of being able to walk a couple miles before needing to rest and stand for three to four hours at a time. (Tr. at 1293.) The ALJ also found unpersuasive the opinion of the medical consultant on the new and consolidated application, Gerard Chrabaszcz, M.D., that plaintiff could perform the full range of medium-exertion work, as this was inconsistent with the evidence of plaintiff's morbid obesity and its effect on her physical capacity. (Tr. at 1293.)

The ALJ next considered the April 2018 and January 2021 reports from plaintiff's treating provider, Pamela Page, APNP, finding those assessments unpersuasive. The ALJ first noted that the reports were different and inconsistent with each other, as the second assessment suggested much greater mental health limitations and was remarkably inconsistent with the first assessment, despite both indicating that they applied going back to the same date. The ALJ also noted that the first assessment was provided over a year prior to the alleged onset date and was therefore not overly helpful in evaluating plaintiff's functioning during the period at issue. The ALJ further found the January 2021 report's estimate of excessive absenteeism not well-supported or consistent with the overall record, including plaintiff's demonstrated ability to maintain part-time employment throughout the period at issue. (Tr. at 1294.) The other significant limitations set forth in the second assessment were also not well-supported and were inconsistent with the overall record, which showed largely intact mental status exam findings and only brief voluntary hospitalizations, often due to symptom flare-ups following medication adjustments or significant stress, and largely intact daily functioning overall. (Tr. at 1294-95.)

The ALJ found better supported the opinions of the agency psychological consultants. At the initial level, in May 2020, Jason Kocina, Psy.D., opined that plaintiff would have breaks in concentration but should be able to reorient to complete her assigned simple tasks within acceptable standards. He also opined that she would be suited for work that had minimal interaction with the public and would benefit from work that had a fairly set routine with minimal deviations. Upon reconsideration in July 2020, Deborah Pape, Ph.D., opined that plaintiff was capable of unskilled work with limited public contact. She further opined that plaintiff could understand, remember, and carry out simple instructions of up to three steps; could maintain attention and concentration for an eight hour workday with customary breaks; and could perform activities within a schedule, maintain regular attendance, be punctual, adapt to occasional changes, and tolerate basic work stress. At the initial level on the new and consolidated application, in January 2023, Robert Barthell, Psy.D. opined that plaintiff would be suitable for work that did not require changing tasks from day-to-day but rather had a fairly regular set of job duties and expectations, and that she may encounter difficulties with independent travel, particularly in unfamiliar areas. (Tr. at 1295.) The ALJ explained:

All three of these assessments support the general conclusion that the claimant does not have any disabling psychological impairments, a finding that is well-supported and consistent with the overall record, including evidence of the claimant's occasional flare-ups and hospitalizations, but otherwise largely stable and intact functioning during the period at issue. However, the undersigned does not find the specific residual functional capacity assessments to be overly persuasive, as they are, for the most part, inconsistent with the great weight of evidence. Drs. Kocina and Pape both identified social interaction restrictions, but they did not define what exactly they meant by “minimal” and “limited” public interaction. Moreover, such findings are inconsistent with the evidence of the claimant's demonstrated ability to maintain customer service-type jobs over the past several years that involve a dynamic public environment and regular contact with customers. In addition, Dr. Kocina's conclusion that the claimant “should” be able to reorient herself to complete tasks is vague and does not provide a statement of the most that the claimant can do, contrary to Agency regulations. In addition, Dr. Pape's limitation to three-step tasks is not well-supported or consistent with any specific clinical findings indicating that the claimant can tolerate tasks of up to three steps, but not more. This limitation is also ill-defined, as the definition of “step” can vary by person and job. Moreover, such a limitation is inconsistent with the claimant's demonstrated ability to work for over two years at Gnome Games, which the vocational expert testified was a semi-skilled job. As for Dr. Barthell's assessment, his failure to identify any concentration/pace-related limitations is inconsistent with the evidence of the claimant's mood fluctuations and intermittent hallucinations, the cumulative effect of which would affect the claimant's ability to tolerate more complex or higher-paced tasks. Also, his narrative regarding difficulties with travel is not explained or well-supported, as well as not consistent with the great weight of evidence, which reveals the claimant to work part-time, manage basic daily activities on her own, and live independently, and does not show any specific travel-related difficulties.

Accordingly, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), but she can never climb ladders, ropes, or scaffolds, and she is limited to frequent climbing ramps or stairs, stooping, kneeling, crouching, and crawling. She must avoid all use of dangerous moving machinery and avoid all exposure to unprotected heights. She is limited to understanding, remembering and carrying out simple and detailed instructions, and she is limited to simple, routine tasks. She is limited to work where there is no production rate or pace work (such as an assembly line) or hourly production quotas. Variably paced tasks and end-of-the-day quotas are permissible. She is also limited to employment where only occasional, simple, work-related decision-making is required and that involves only occasional changes in the work setting.

(Tr. at 1295-96.)

At step four, the ALJ determined that plaintiff was capable of performing her past relevant work as a cashier/checker, which did require the performance of work-related activities precluded by the RFC. The ALJ noted that the term “past relevant work” means work performed within the last 15 years, that lasted long enough for the claimant to learn to do the job, and that was performed at the substantial gainful activity level. The ALJ then stated:

The record demonstrates that the claimant worked for Gnome Games from the second quarter of 2021 until around October 2023. Her earnings there largely fell just under the substantial gainful activity level. However, she posted earnings of $4,209 in the fourth quarter of 2022, which calculates to monthly earnings of $1,403 that quarter. This exceeds the substantial gainful activity threshold of $1,350 in 2022. There is no evidence of special work conditions or accommodations that would negate a finding of substantial gainful activity for that period, or of evidence indicating that her earnings fell below substantial gainful activity due to the effects of her impairments or the removal of any special conditions. The undersigned finds that this work qualifies as past relevant work, as it was performed within the last 15 years, it lasted long enough for the claimant to learn to do the job, and it was performed at the substantial gainful activity level.

At the hearing, the vocational expert testified that this job corresponds with cashier, checker, DOT # 211.462-014, a semi-skilled (SVP 3), light-exertion job. In comparing the claimant's residual functional capacity with the physical and mental demands of this work, the undersigned finds that the claimant is able to perform it as actually and generally performed. The vocational expert testified that a hypothetical individual with the claimant's age, education, work experience, and residual functional capacity could perform the above-noted job, both as actually performed by the claimant and generally performed in the national economy.

The undersigned finds that the vocational expert's testimony regarding any limitations that are not specifically covered by the Dictionary of Occupational Titles (DOT), such as different types of climbing, occasional decision-making and changes, and production work pace/rate, is based on the vocational expert's education, training, and experience in the field of vocational rehabilitation. Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert's testimony is otherwise consistent with the information contained in the DOT. The undersigned notes that the claimant's representative did not object to the vocational expert's qualifications to testify as an expert in this matter or to the substance of the vocational expert's testimony. The undersigned finds that the vocational expert does have the requisite experience to testify knowledgeably on vocational matters, including the relevant expertise to assess the impact of non-exertional limitations on the ability to perform jobs at the light-exertion level, and the undersigned finds the vocational expert's testimony to be reliable in accordance with SSR 00-4p.

The undersigned notes that the vocational expert testified that, even if the claimant would require up to one week off of work on short notice for medical reasons approximately once per year, the claimant's past relevant work would not be precluded. The undersigned does not find that such a provision needs to be included in the claimant's residual functional capacity, based on a review of the overall record, including evidence of the claimant's largely stable and intact exam findings and her demonstrated daily/work activities throughout the period at issue. However, even if such a finding were included in the claimant's residual functional capacity, the vocational expert's testimony supports the conclusion that her past relevant work could still be performed.

Accordingly, the undersigned finds that the claimant has remained capable of performing her past relevant work, both as actually and generally performed, throughout the period at issue.

(Tr. at 1296-97, record citations omitted.)

Based on this determination, the ALJ found plaintiff not disabled from May 10, 2019, through the date of decision. (Tr. at 1297.) On March 10, 2025, the Appeals Council denied plaintiff's request for review. (Tr. at 1269.) This action followed.

II. DISCUSSION

A. Standard of Review

The court will reverse an ALJ's decision if it is unsupported by “substantial evidence” or if it is the result of an error of law. Rabdeau v. Bisignano, 155 F.4th 908, 912 (7th Cir. 2025). The substantial evidence threshold is not high and requires only such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Biestek v. Berryhill, 587 U.S. 97, 103 (2019). As such, the court's role is limited; if substantial evidence supports the disability determination, the court must affirm the decision even if reasonable minds could differ over whether the claimant is disabled. Chrisman v. Bisignano, 137 F.4th 618, 624 (7th Cir. 2025). The court may not in applying this standard re-weigh evidence, make credibility determinations, or substitute its judgment for the ALJ's determination. Cain v. Bisignano, 148 F.4th 490, 496 (7th Cir. 2025). “Put most simply, [the court] will reverse an ALJ's decision only if the record compels a contrary result.” Thorlton v. King, 127 F.4th 1078, 1081 (7th Cir. 2025) (internal quote marks omitted).

This does not mean the court will simply “rubber-stamp” the ALJ's decision. Padua v. Bisignano, 145 F.4th 784, 789 (7th Cir. 2025). The ALJ must build a logical bridge from the evidence to his conclusions, one sufficient to allow the reviewing court to assess the validity of the agency's ultimate findings and afford the claimant meaningful judicial review. Warnell v. O'Malley, 97 F.4th 1050, 1054 (7th Cir. 2024). Nevertheless, the Seventh Circuit has “emphasized that social-security adjudicators are subject to only the most minimal of articulation requirements. An ALJ need not address every piece or category of evidence identified by a claimant, fully summarize the record, or cite support for every proposition or chain of reasoning.” Id. at 1053.

In contrast, the court reviews the ALJ's legal conclusions de novo. Poole v. Kijakazi, 28 F.4th 792, 794 (7th Cir. 2022). If “the ALJ commits an error of law, the court ‘may reverse without regard to the volume of evidence in support of the factual findings.’ ” Neave v. Astrue, 507 F. Supp. 2d 948, 952 (E.D. Wis. 2007) (quoting White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999)). “The ALJ commits such an error if he fails to comply with the SSA's regulations and rulings for evaluating disability claims.” Id. (citing Prince v. Sullivan, 933 F.2d 598, 602 (7th Cir. 1991)).

B. Plaintiff's Arguments

1. Past Relevant Work

As indicated above, the ALJ found that plaintiff worked at the SGA level in the fourth quarter of 2022. Plaintiff concedes that her earnings for this quarter exceeded the SGA level, but she argues the ALJ impermissibly focused on one quarter rather than considering the entire period of employment. She further argues that the ALJ erred by failing to subtract from those earnings her impairment-related work expenses. (Pl.’s Br. at 10.) I consider each contention in turn.

a. Average Earnings

Plaintiff worked at Gnome Games from the second quarter of 2021 until the fourth quarter of 2023. (Tr. at 1582-83, 1590-91, 1618-19.) Her earnings fell below the SGA level in all but one of those quarters. Plaintiff argues that the ALJ should have averaged her earnings from the entire period of work, rather than relying on one quarter.³ (Pl.’s Br. at 11-14; Pl.’s Rep. Br. at 4.) The pertinent regulation states:

(a) If your work as an employee or as a self-employed person was continuous without significant change in work patterns or earnings, and there has been no change in the substantial gainful activity earnings levels, we will average your earnings over the entire period of work requiring evaluation to determine if you have done substantial gainful activity․

(b) If you work over a period of time during which the substantial gainful activity earnings levels change, we will average your earnings separately for each period in which a different substantial gainful activity earnings level applies.

(c) If there is a significant change in your work pattern or earnings during the period of work requiring evaluation, we will average your earnings over each separate period of work to determine if any of your work efforts were substantial gainful activity.

20 C.F.R. § 404.1574a. Plaintiff relies on Martinez v. Colvin, No. C13-1552-JLR-JPD, 2014 U.S. Dist. LEXIS 58147 (W.D. Wash. Apr. 4, 2014), adopted, 2014 U.S. Dist. LEXIS 58143 (W.D. Wash. Apr. 25, 2014), a case where, as here, the claimant worked for a particular employer for several years, with the earnings from just one quarter exceeding SGA level. The court found:

that the ALJ erred by utilizing an improper method to calculate plaintiff's SGA. Specifically, the ALJ improperly averaged one quarter of earnings separately from plaintiff's entire period of work (a quarter in which plaintiff happened to make somewhat more money than in other quarters) and concluded that he had engaged in SGA during that quarter, without providing a legally adequate reason for separately averaging the earnings for that quarter. As discussed above, the applicable regulations provide that an ALJ is only allowed to average a period of earnings separately from other periods if there was a “significant change in work patterns or earnings,” or the SGA level changed. There is no evidence establishing that plaintiff's duties or salary were any different in the fourth quarter of 2010 than they were at any other time, and the SGA level did not change until 2012.

Accordingly, this case must be remanded for further administrative proceedings. On remand, the ALJ shall reevaluate whether plaintiff has performed substantial gainful activity as a security guard pursuant to the applicable regulations and SSA policy. If the ALJ believes that plaintiff can engage in SGA even though his earnings did not meet presumptive SGA levels, or if there is a good reason for extracting the fourth quarter of 2010 because there was a significant change in plaintiff's earnings or pattern of work, the ALJ should explain this in his decision.

Id. at *19-20.

Plaintiff notes that, over the course of 2022, her average monthly income was $1214.18, below the threshold of $1350. (Pl.’s Br. at 15-16.) See Andry v. Colvin, No. 2:12-cv-00746-KJN, 2013 U.S. Dist. LEXIS 134383, at *19 (E.D. Cal. Sept. 18, 2013) (“When plaintiff's annual incomes from childcare work are averaged into monthly totals during the work periods of these relevant years, the monthly totals are all too low to qualify as SGA.”).

The Commissioner responds that averaging is not done when there is a significant change in the claimant's work pattern or earnings. The Commissioner asserts that in this case there was a significant difference between plaintiff's 2022 fourth quarter earnings and the surrounding periods. (Def.’s Br. at 6.) Plaintiff made $3626 in the first quarter of 2023 and $3547 in the third quarter of 2022, but significantly more ($4209) in the fourth quarter of 2022. (Tr. at 1582.) The Commissioner contends that, consistent with the regulation, the ALJ did not average plaintiff's earnings. Rather, (like plaintiff's counsel at the hearing) the ALJ considered the fourth quarter of 2022 as a stand-alone period. (Def.’s Br. at 6.) The Commissioner concludes that, because plaintiff's past work was substantial gainful activity, and she could perform that work, the ALJ appropriately found her not disabled. (Def.’s Br. at 6-7.)

The problem with the Commissioner's argument is that the ALJ made no finding that the fourth quarter of 2022 coincided with a significant change in plaintiff's work pattern or earnings. The Commissioner is generally forbidden to defend an ALJ's decision on grounds not used by the ALJ. Poole, 28 F.4th at 797 (citing SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)); see also Martinez, 2014 U.S. Dist. LEXIS 58147, at *20 (“If the ALJ believes that plaintiff can engage in SGA even though his earnings did not meet presumptive SGA levels, or if there is a good reason for extracting the fourth quarter of 2010 because there was a significant change in plaintiff's earnings or pattern of work, the ALJ should explain this in his decision.”). Nor is it obvious from the record that this quarter is plainly exempt from the general rule that wages are averaged. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (“[W]e will not remand a case to the ALJ for further specification where we are convinced that the ALJ will reach the same result. That would be a waste of time and resources for both the Commissioner and the claimant. Thus, we look at the evidence in the record to see if we can predict with great confidence what the result on remand will be.”) (internal citation omitted).⁴

The Commissioner also suggests that at the hearing plaintiff's counsel acknowledged the past work was SGA. (Def.’s Br. at 1, 4-5.) As indicated above, counsel initially raised the issue of plaintiff's fourth quarter 2022 earnings, and he did not object when the ALJ questioned the VE about this job as past relevant work. (Def.’s Br. at 5-6.) The Commissioner accuses plaintiff of now reversing her position.⁵ (Def.’s Br. at 6.) Essentially, the claim is one of waiver/forfeiture.⁶

The Supreme Court has twice spoken on waiver/forfeiture in the social security context. In Sims v. Apfel, 530 U.S. 103 (2000), the Court declined to impose an issue exhaustion requirement before the Appeals Council. Id. at 112 (plurality op.); id. at 113-14 (O'Connor, J., concurring). The Court left open whether a claimant must exhaust issues before the ALJ to preserve them for judicial review. Id. at 107.

In Carr v. Saul, 593 U.S. 83, 85 (2021), the Court held that the claimants there did not forfeit their claims that the ALJs who decided their cases were improperly appointed by failing to first raise the claim before their respective ALJs. The Court relied on the inquisitorial nature of SSA proceedings, the constitutional character of the claim at issue, and the unavailability of an administrative remedy. Id. at 95-96. However, the Court acknowledged that the scales might tip differently in the context of routine objections to individual benefits determinations. Id. at 92 n.5.

Lower federal courts have differed over how to apply the doctrines of waiver and forfeiture regarding vocational issues. For instance, in Mills v. Apfel, 244 F.3d 1 (1st Cir. 2001), after the ALJ denied her claim at step four, in seeking judicial review the claimant argued for the first time that her previous jobs were too brief to qualify as past relevant work. Id. at 8. While the court agreed that failure to raise an issue at the Appeals Council level does not result in waiver under Sims, the court declined to extend this rule to the failure of a claimant to raise an issue at the ALJ level. The court explained that the impact of a no-waiver approach at the Appeals Council level is relatively mild; “at the ALJ level it could cause havoc, severely undermining the administrative process.” 244 F.3d at 8.

This case is a perfect illustration. If the ALJ had heard the objection now made and agreed with it, he could easily have considered and expressly found that there were other jobs in the economy available to Mills. Here, the ALJ stopped at step four of the five-step process when he found that Mills could return to her old jobs; but if the prior jobs had been removed from the picture he would have proceeded to step five to consider whether there were other jobs in the economy available to her.

Id.; see also Olivia S. v. O'Malley, No. 1:23CV422, 2024 U.S. Dist. LEXIS 107618, at *22-24 (M.D.N.C. June 18, 2024) (collecting cases finding waiver based on failure to raise an issue before the ALJ, but holding that the claimant did not waive her argument about past relevant work in that case). In Kepple v. Massanari, 268 F.3d 513, 516-17 (7th Cir. 2001), the Seventh Circuit reserved the issue raised in Mills, although it has since applied a forfeiture rule to a claimant's failure to object to a VE's methodology, e.g., Fetting v. Kijakazi, 62 F.4th 332, 337 (7th Cir. 2023); see also Schmitz v. Colvin, 124 F.4th 1029, 1033 (7th Cir. 2024).

In reply, plaintiff relies on Metoxen v. Dudek, 785 F. Supp. 3d 420, 427 (E.D. Wis. 2025), where the Commissioner argued the claimant waived or forfeited her argument that the VE improperly classified her past relevant work. (Pl.’s Rep. Br. at 3.) The court acknowledged that the claimant's lawyer did not at the hearing question the basis for the VE's testimony about the past work or suggest that the position was a composite job. Id. at 427-28. Nevertheless, the court held:

Metoxen has not forfeited her objection to the vocational expert's testimony (and the ALJ's reliance on it). In Sevec [v. Kijakazi, 59 F.4th 293 (7th Cir. 2023)], the Seventh Circuit rejected the Social Security Administration's argument that a plaintiff waived her objection to a vocational expert's testimony about her past work by not questioning the expert during the administrative hearing (and while represented by counsel). Sevec, 59 F.4th at 296, 300 n.35. The court acknowledged that claimants have the burden of proof at step four. Nevertheless, the court determined that the ALJ's step-four finding was “without any support in the record,” as the vocational expert's testimony was “both the only support” for that finding and was “substantively inadequate.” Id. at 300 n.35. The same is true here. The only support for the ALJ's finding that Metoxen's work with the elderly was as a senior service aide was the vocational expert's testimony. That testimony is substantively inadequate—the vocational expert failed to explain why she believed a senior service aide was a good match for Metoxen's job duties, which appear to exceed those of an aide. Consequently, the ALJ's step-four finding lacks support in the record. See Biestek, 587 U.S. at 104 (“[A]n applicant cannot waive the substantial evidence standard.”) (citation and internal quotation marks omitted).

Id. at 428.

Plaintiff argues that in the present case the presumption that a claimant represented by counsel is making her best case is overcome by the inadequacy of the record's development and the vocational testimony. (Pl.’s Rep. Br. at 3.) She further argues that her prior lawyer did not misstate the earnings regulation at the hearing or advise the ALJ to apply it improperly. (Pl.’s Rep. Br. at 4, 10.) Nor, she contends, should her lawyer's innocuous remark about one quarter of her earnings spilling over the SGA level be seen as a concession that this job qualified as past relevant work. (Pl.’s Rep. Br. at 10.)

Under the circumstances here, I decline to find waiver or forfeiture. This is not a case where the claimant failed to challenge the factual basis for the VE's testimony regarding the numbers of other jobs she could do, the evidence of her earnings in her past jobs, or whether as a factual matter she did those jobs long enough to learn how to do them. Rather, the claim is one of legal error in failing to properly apply the earnings regulation to the undisputed facts. See Carr, 593 U.S. at 89 n.3 (“Where claimants are not expected to develop certain issues in ALJ proceedings, it is generally inappropriate to treat those issues as forfeited.”). Plaintiff's earnings figures are “in the record, and the Plaintiff and her attorney were in no better position than the ALJ to read them and apply the regulations.” U.L.M., 2025 U.S. Dist. LEXIS 163304, at *22. And if the cashier position did not satisfy the regulatory standards for past relevant work, the ALJ's step four finding would not be supported by substantial evidence. See id. at *22-23; see also Obrien, 142 F.4th at 699 (finding no waiver where the claim did not rely on the claimant's presentation of evidence but rather was based on the ALJ's application of regulatory standards regarding past relevant work); Sevec, 59 F.4th at 300 n.35 (acknowledging that the burden of proof rests on the claimant to establish that she is not capable of performing her past work, but reversing where “the VE's testimony is both the only support for the ALJ's decision and is substantively inadequate”). The matter must be remanded so the ALJ can determine whether, under the regulations, plaintiff's job at Gnome Games qualified as SGA/past relevant work.

b. Expenses

Plaintiff argues the ALJ made another mistake of law when he did not consider excluding her reasonable costs for impairment-related work expenses from her earnings. (Pl.’s Br. at 11, 12, 16.) The pertinent regulation on this issue states:

When we figure your earnings in deciding if you have done substantial gainful activity, we will subtract the reasonable costs to you of certain items and services which, because of your impairment(s), you need and use to enable you to work. The costs are deductible even though you also need or use the items and services to carry out daily living functions unrelated to your work. Paragraph (b) of this section explains the conditions for deducting work expenses. Paragraph (c) of this section describes the expenses we will deduct. Paragraph (d) of this section explains when expenses may be deducted. Paragraph (e) of this section describes how expenses may be allocated. Paragraph (f) of this section explains the limitations on deducting expenses. Paragraph (g) of this section explains our verification procedures.

20 C.F.R. § 404.1576(a). The regulation lists items such as medical devices, prosthetic devices, work-related equipment, and drugs. Id. § 404.1576(c). Plaintiff notes that her earnings exceeded the monthly threshold by just $53 in the fourth quarter of 2022, and that her costs could have taken her well below the SGA level. (Pl.’s Br. at 16-17.) Perhaps anticipating the response that the record contains no evidence of such expenses, plaintiff argues the ALJ was required to raise the issue sua sponte before rendering his decision. (Pl.’s Br. at 11, 17-18.) She cites Novak v. Barnhart, 180 F. Supp. 2d 990, 1001 (E.D. Wis. 2001), for the proposition that even when a claimant “appears to have received enough income for his work to be considered SGA, the income guidelines provided in the regulations create only a presumption of SGA and do not relieve an ALJ of the duty to fully develop the record.” Plaintiff contends that the cost of the multiple medications she was taking in the fourth quarter of 2022 may alone have taken her below the SGA level. (Pl.’s Br. at 18.)

The Commissioner responds that this argument relies on facts not in evidence. Plaintiff has not set forth any record evidence that she had qualifying medical expenses that would reduce her past earnings below the SGA level. Further, contrary to this post-hoc argument, plaintiff's counsel told the ALJ at the hearing that her earnings did meet the SGA level. Nor did counsel object when the ALJ questioned the VE about whether plaintiff could return to that work, with the implication that plaintiff would not be disabled if she could do so. (Def.’s Br. at 7.) The Commissioner notes that the claimant bears the burden of supplying adequate records and evidence to prove her claim of disability, Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004), and that when a claimant is represented by counsel the ALJ is entitled to assume that the claimant is making her strongest case for benefits, Bertaud, 88 F.4th at 1245; here, plaintiff presented no evidence that her past work was not SGA. (Def.’s Br. at 7-8.)

In reply, plaintiff notes that while her prior representative could have provided evidence of employment-related expenses, the deduction of such expenses is mandatory. She argues that since her earnings for the quarter at issue exceeded the SGA level by just $53/month, the ALJ erred by failing to exclude reasonable costs. (Pl.’s Rep. Br. at 11.)

Because I remand the matter for application of the SGA earnings regulation, I need not decide whether the ALJ also erred on this basis. Plaintiff will be free to present evidence of her expenses on remand.

2. VE's Testimony

Plaintiff contends that the ALJ failed to address the entirety of the VE's testimony. (Pl.’s Br. at 10, 19-20, 24.) As indicated above, in the first hypothetical the ALJ asked the VE if plaintiff's past work could be performed with a limitation to “simple instructions.” The VE said it could not. (Tr. at 1327-28.) The ALJ then modified the hypothetical to change “simple instructions” to “simple and detailed instructions.” (Tr. at 1328.) The VE initially said the answer to this second hypothetical was the same but after some further back and forth with the ALJ said the past work could be done with such a limitation. (Tr. at 1330-31.)

Plaintiff first argues that it was improper for the ALJ to remove a limitation supported by the record in order to obtain testimony supporting an unfavorable decision. (Pl.’s Br. at 20.) ALJs possess considerable discretion in how they conduct hearings and question witnesses. See, e.g., Matthiscyk v. Bisignano, No. 24-2488, 2025 U.S. App. LEXIS 26343, at *6 (7th Cir. Oct. 7, 2025); Carey v. Berryhill, No. 17-cv-581-wmc, 2018 U.S. Dist. LEXIS 251573, at *11 (W.D. Wis. Aug. 31, 2018). While the “ALJ possesses no interest in denying benefits and must act neutrally in developing the record,” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004), plaintiff cites no authority for the proposition that hypothetical questions must always become increasingly more—rather than less—restrictive. More importantly, plaintiff develops no argument that the record compels a limitation to “simple instructions,” as indicated in the first hypothetical. See Delong v. Saul, 844 Fed. Appx. 894, 900 (7th Cir. 2021) (“[E]ven if the record could support such limitations, there is nothing that compels them.”).

Plaintiff next argues that the ALJ should have accepted the VE's initial response to the second hypothetical that a person capable of “simple and detailed instructions” could not perform the past work. She contends that, by further questioning the VE until he changed his answer, the ALJ became too “adversarial.” (Pl.’s Br. at 20; see also Pl.’s Br. at 2-3, 9.) I see nothing improper in the ALJ asking the VE to clarify testimony the ALJ found confusing. Plaintiff cites no authority and develops no argument that the ALJ reversibly erred by asking these follow-up questions.⁷ Indeed, given the number of cases seen by the federal courts in which claimants argue the ALJ erroneously accepted insufficiently explained VE testimony, a rule limiting follow-up questioning would be unwarranted. See, e.g., Brace v. Saul, 970 F.3d 818, 823 (7th Cir. 2020); see also Ruenger v. Kijakazi, 23 F.4th 760, 765 (7th Cir. 2022) (Scudder, J., concurring) (“At the very least, the record would benefit from everyone slowing down when VEs take the stand.”).

Plaintiff further argues that the ALJ was required to address the VE testimony unfavorable to the step four finding in his decision. (Pl.’s Br. at 20.) She cites authority for the general proposition that an ALJ must consider all of the evidence and explain why significant probative evidence has been rejected. (Pl.’s Br. at 20-21.) Under the circumstances here, the ALJ did not err by failing to discuss the VE's response to the first hypothetical. As the Commissioner notes, courts in this circuit have regularly rejected the contention that an ALJ is required to discuss VE testimony given in response to a hypothetical question that does not match the final RFC. (Def.’s Br. at 8-9.) For instance, in Gribben v. Kijakazi, the Seventh Circuit held that:

the ALJ did not impermissibly ignore the vocational expert's opinion that no jobs were available to Gribben if she required daily, hourlong naps. True, Gribben asserted that she needed to nap daily for at least an hour. But the ALJ did not find that Gribben faced this daily restriction—and her medical records and daily activities did not require the ALJ to find that she needed daily, hourlong naps. Thus, the vocational expert's statement (that a person of Gribben's background who required a daily rest hour could not work) was not relevant to whether Gribben was disabled.

No. 21-1987, 2022 U.S. App. LEXIS 421, at *6 (7th Cir. Jan. 6, 2022) (internal citations omitted); see also Ryan M. v. Bisignano, No. 24 cv 50307, 2025 U.S. Dist. LEXIS 171360, at *18 (N.D. Ill. Sept. 3, 2025) (holding that failure to consider the VE's testimony about tolerated absences is not error when the ALJ does not find the claimant's absenteeism to be a limiting effect of his impairments); Heather S. v. O'Malley, No. 22 CV 1432, 2024 U.S. Dist. LEXIS 84483, at *11-12 (N.D. Ill. May 9, 2024) (collecting cases rejecting similar arguments); Scott v. Comm'r of Soc. Sec., No. 2:22-CV-386 JD, 2024 U.S. Dist. LEXIS 22214, at *14-15 (N.D. Ind. Feb. 8, 2024) (noting that, when posing various hypotheticals to the VE, the ALJ may not yet know what a claimant's RFC is, and collecting cases holding that an ALJ is not obligated to discuss the VE's response to a hypothetical question that does not match the ALJ's ultimate RFC finding); Schaefer v. Kijakazi, No. 21-C-1446, 2022 U.S. Dist. LEXIS 163494, at *28 (E.D. Wis. Aug. 15, 2022) (“Because the ALJ did not adopt the restrictions set forth in the second hypothetical, the VE's response to that question was irrelevant.”).

In reply, plaintiff contends that she does not claim the ALJ was required to adopt the first hypothetical but rather erred by failing to accept the VE's initial response to the second hypothetical. (Pl.’s Rep. Br. at 12, 13.) She reiterates her contention that the ALJ became too adversarial when he continued to question the VE about the second hypothetical until he obtained testimony supporting denial. (Pl.’s Rep. Br. at 12; see also Pl.’s Br. at 10, 21-22.)⁸ As indicated above, ALJs have considerable discretion in how they conduct hearings. Moreover, plaintiff develops no argument that a person capable of “simple and detailed instructions” could not, in fact, perform the past work. Absent some indication that the VE's ultimate answer was wrong or otherwise flawed, I cannot find reversible error in the ALJ's continued questioning or in his decision to accept the VE's final response. Nor, under these circumstances, where the VE admitted his initial response to the second hypothetical was based on a misunderstanding, can I find the ALJ erred by not discussing the initial response in his decision. See Warnell, 97 F.4th at 1054 (“An ALJ need not address every piece or category of evidence[.]”). Plaintiff contends the ALJ erred by rooting his determination in a VE opinion that was wholly equivocal. (Pl.’s Br. at 22; Pl.’s Rep. Br. at 12-13.) But the whole point of the ALJ's additional questioning was to clear up the uncertainty and confusion created by the VE's initial response to the second hypothetical.

Finally, plaintiff argues the adopted limitation of “simple and detailed instructions” lacks support in the record. She states that the agency psychological consultants limited her to unskilled work, findings the ALJ did not address. (Pl.’s Br. at 22; Pl.’s Rep. Br. at 13.) The ALJ considered the consultants’ opinions, stating that “such a limitation is inconsistent with the claimant's demonstrated ability to work for over two years at Gnome Games, which the vocational expert testified was a semi-skilled job.” (Tr. at 1295-96.) Plaintiff develops no argument that the ALJ erred in his assessment of the medical opinions or that the record otherwise compels a finding that she is limited to unskilled work. And as the Commissioner correctly notes, the ALJ need not rely entirely on any particular medical opinion in determining RFC. (Def.’s Br. at 9, citing Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007).)

In sum, plaintiff's arguments regarding the VE's testimony lack merit. However, the matter must be remanded for reconsideration of whether plaintiff's job at Gnome Games qualified as SGA/past relevant work. If not, the ALJ must complete the sequential evaluation process.

III. CONCLUSION

THEREFORE, IT IS ORDERED that the ALJ's decision is reversed, and the matter is remanded for further proceedings consistent with this decision pursuant to 42 U.S.C. § 405(g), sentence four. The clerk is directed to enter judgment accordingly.

Dated at Milwaukee, Wisconsin this 11th day of March, 2026.

FOOTNOTES

1.   The SSA recently amended the regulations to shorten the 15-year period to five years. See Obrien v. Bisignano, 142 F.4th 687, 701 n.8 (9th Cir. 2025); SSR 24-2p, 2024 SSR LEXIS 1, at *3-4. However, this amendment does not apply to the instant application, filed in 2020.

2.   To be more precise, SGA is presumed if a claimant earned more than the specified monthly minimum. Conversely, a rebuttable presumption that work was not SGA arises where the claimant's earnings are below the monthly minimum. Janet R. v. Saul, No. 19 C 562, 2021 U.S. Dist. LEXIS 70231, at *20 (N.D. Ill. Apr.12, 2021).

3.   Plaintiff cites the ALJ's statement at the outset of the hearing that he did not think plaintiff's earnings reached SGA levels. (Pl.’s Br. at 10, 13, citing Tr. at 1315.) Plaintiff's counsel quickly corrected the ALJ, noting “the one quarter where it spills over.” (Tr. at 1315.) The ALJ responded: “Actually right, it was. The fourth quarter of 2022 earnings exceeded that.” (Tr. at 1315.) It is hard to see how this preliminary statement, quickly corrected, bound the ALJ to find this work did not rise to SGA level.

4.   As plaintiff notes in reply, the Commissioner makes no attempt to distinguish Martinez, nor does he otherwise develop an argument that picking out one quarter (rather than averaging) was actually the correct approach in this case. (Pl.’s Rep. Br. at 4, 7-9.) Plaintiff notes that her 2023 earnings at Gnome Games fell back below the SGA-level; this is not a case where, for instance, an employee was promoted and saw her salary double. (Pl.’s Rep. Br. at 9.) Plaintiff testified that Gnome Games attempted to increase her responsibilities, prompting her to leave, but this occurred in late 2023, not in 2022. (Pl.’s Rep. Br. at 11.) Plaintiff also cites U.L.M. v. Comm'r of Soc. Sec., No. 4:24-cv-110-AGH, 2025 U.S. Dist. LEXIS 163304, at *13 (M.D. Ga. Aug. 22, 2025), where the court found error in the ALJ's reliance on one quarter of earnings rather than averaging. (Pl.’s Rep. Br. at 5-6.) The U.L.M. court also rejected as impermissibly post-hoc the Commissioner's argument that there had been a significant change in the claimant's earnings, as the ALJ made no such finding. Id. at *16.

5.   The Commissioner also notes that where, as here, a claimant is represented by counsel the ALJ is entitled to assume she is making her strongest case for benefits. (Def.’s Br. at 7, citing Bertaud v. O'Malley, 88 F.4th 1242, 1245 (7th Cir. 2023); Summers v. Berryhill, 864 F.3d 523, 527 (7th Cir. 2017).)

6.   Though often used interchangeably by lawyers and judges alike, the terms “waiver” and “forfeiture” are not synonymous. Waiver is the intentional relinquishment or abandonment of a known right; forfeiture is the mere failure to raise a timely argument. Crothersville Lighthouse Tabernacle Church, Inc. v. Church Mut. Ins. Co., No. 22-1082, 2026 U.S. App. LEXIS 6049, at *10-11 (7th Cir. Mar. 2, 2026).

7.   Plaintiff cites Piotrowski v. Berryhill, No. 17-CV-1286, 2018 U.S. Dist. LEXIS 165233 (E.D. Wis. Sept. 26, 2018), but that case is distinguishable. (Pl.’s Br. at 10, 20; Pl.’s Rep. Br. at 13.) In Piotrowski, the court found that the record failed to support the ALJ's conclusion that the claimant could frequently use his left arm for handling. Id. at *14-26. At the end of the decision, in addressing remedy, the court noted that the ALJ changed the limitation from occasional to frequent after the VE testified the former would preclude work. The court criticized the ALJ for “removing limitations supported by the record, until she elicited testimony to support an unfavorable decision. A desire to deny benefits is not substantial evidence in support of a decision.” Id. at 27-28 (record citation omitted). As discussed above, the record in this case does not compel a finding that plaintiff is limited to simple instructions. Nor can I discern from the ALJ's questioning of the VE the same result-driven motivation that troubled the Piotrowski court. Rather, the ALJ sought clarification of testimony he found confusing.

8.   Plaintiff also notes in reply that, in practice, ALJs start with the least restrictive hypothetical RFC and add restrictions as they go along. She contends that removing restrictions until work is available is a far more adversarial approach. (Pl.’s Rep. Br. at 13.) While this may be the way hearings often progress, plaintiff cites no authority that it is required. And as indicated, plaintiff develops no argument that the record compels a limitation to “simple instructions.”

LYNN ADELMAN District Judge