The Strict Forfeiture Rule for Vocational-Expert Testimony: Commentary on Thorpe v. Bisignano (7th Cir. 2025)

1. Introduction

Thorpe v. Bisignano, No. 24-2214, decided by the United States Court of Appeals for the Seventh Circuit on 31 July 2025, revisits the perennial problem of vocational-expert (“VE”) testimony in Social Security disability adjudications. Plaintiff-appellant Donald Thorpe, a former trucking dispatcher, sought Disability Insurance Benefits (DIB) after asserting a constellation of cognitive, physical, and psychological impairments. The Administrative Law Judge (ALJ) denied benefits at Step Five, leaning heavily on VE Pamela Nelligan’s testimony about alternative jobs available in the national economy. Thorpe lost in the district court and again on appeal, chiefly because—despite minimal cross-examination—he never objected to the VE’s methodology or job-number estimates during the administrative hearing. The Seventh Circuit consequently applied its growing body of forfeiture precedents to conclude that any methodological challenge was waived. At its core, the decision cements a “speak-now-or-forever-hold-your-peace” rule: a Social Security claimant who fails to contemporaneously challenge the foundations of VE testimony cannot obtain judicial relief later, absent exceptional circumstances.

2. Summary of the Judgment

Holding: The ALJ’s Step-Five finding was supported by substantial evidence, and Thorpe forfeited any reliability challenge to the VE’s testimony by not timely objecting.
Disposition: District court’s judgment affirmed.
Key Points:
- Failure to object to VE testimony before the ALJ constitutes forfeiture, even if the claimant later raises generic “lack-of-methodology” arguments.
- “Indic ia of reliability” existed—stipulated qualifications, consistency with the Dictionary of Occupational Titles (DOT), and the expert’s reliance on experience.”
- The substantial-evidence threshold is “not high” (quoting Biestek), and the ALJ met it here.

3. Analysis

3.1 Precedents Cited

The panel—Judges Easterbrook, Jackson-Akiwumi (author), and Pryor—relied on, distinguished, or reinforced several prior decisions:

Leisgang v. Kijakazi, 72 F.4th 216 (7th Cir. 2023): First articulated that lack of contemporaneous objection to VE testimony results in forfeiture.
Fetting v. Kijakazi, 62 F.4th 332 (7th Cir. 2023): Found forfeiture even where minimal cross-examination occurred; Thorpe’s case tracks Fetting.
Schmitz v. Colvin, 124 F.4th 1029 (7th Cir. 2024): Rejected post-hearing, post-hoc objections similar to Thorpe’s, stressing the need for timely agency-level challenge.
Ruenger v. Kijakazi, 23 F.4th 760 (7th Cir. 2022): Held ALJs must probe reliability once an objection is lodged. Thorpe tried to rely on this, but the court emphasized that no objection was ever lodged.
Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018): Requires a “modicum of confidence” in job-number evidence; referenced by Thorpe but found satisfied here.
Biestek v. Berryhill, 587 U.S. 97 (2019): Supreme Court case setting the “indicia of reliability” standard for VE testimony; underpins the panel’s substantial-evidence analysis.

3.2 Legal Reasoning

Standard of Review. Reviewing courts examine the ALJ directly, overturning only for legal error or lack of substantial evidence. The standard is “very deferential.”
Forfeiture Doctrine. a. A claimant must lodge specific objections to VE testimony during the administrative process (hearing or post-hearing brief). b. Absent such action, any methodological challenge on judicial review is barred. c. The court connected this rule to administrative-law principles encouraging issue-exhaustion, efficiency, and fairness to the agency.
Substantial-Evidence Review. Even assuming no forfeiture, the panel found enough “reliable” scaffolding: (i) career VE with stipulated qualifications; (ii) DOT consistency; (iii) consultation of experience and training. Together, these satisfied Biestek’s “not high” evidentiary bar.
No Improper Burden-Shifting. Thorpe argued that the ALJ abdicated her duty by relying on unchallenged expert testimony. The court replied that once the record contains minimally reliable VE evidence and no contrary objection, the ALJ may rely on it without sua sponte policing every methodological gap.

3.3 Impact and Prospective Influence

Heightened Practice Obligations. Claimant representatives in the Seventh Circuit must treat VE testimony as “live fire”: silence equals forfeiture. Expect greater on-the-record methodological probing (requests for underlying data, alternative sources, cross-examination).
Litigation Strategy Shift. Federal-court challenges will increasingly hinge on whether objections were made below. Motion practice may focus on “good-cause” exceptions to forfeiture.
Agency Hearing Dynamics. ALJs may see more robust objections and might need to expand explanations under Ruenger when such objections arise.
Consistency with National Trend. Although circuits vary, Thorpe pushes the Seventh Circuit toward the stricter end of the spectrum, paralleling forfeiture rules in the Fifth and Eleventh Circuits.
Potential Supreme Court Interest. Divergence among circuits on the exact contours of VE-objection forfeiture could attract further review; Thorpe deepens that divergence.

4. Complex Concepts Simplified

Vocational Expert (VE): An individual with specialized knowledge about job requirements and labor-market statistics who assists ALJs in identifying other work a claimant can perform.
Dictionary of Occupational Titles (DOT): A Department of Labor publication listing job characteristics; though dated, it remains the SSA’s primary reference.
Step Five: Final stage in the SSA’s five-step disability framework where the burden shifts to the agency to show that the claimant can perform “other work” in significant numbers.
Substantial Evidence: Not “beyond a reasonable doubt,” but just enough relevant evidence that a reasonable mind might accept as adequate—often called a “low hurdle.”
Forfeiture vs. Waiver: “Forfeiture” is the inadvertent loss of a right through inaction; “waiver” is the intentional relinquishment. Thorpe involves forfeiture.

5. Conclusion

Thorpe v. Bisignano reinforces a strict procedural doctrine: Social Security claimants must contemporaneously object to perceived flaws in vocational-expert testimony or forever lose the point on appeal. The decision harmonizes prior Seventh Circuit cases, underscores the deferential substantial-evidence standard after Biestek, and signals to the bar that “gotcha” arguments raised for the first time in federal court will rarely succeed. In the broader legal landscape, Thorpe pushes administrative-exhaustion principles further into Social Security practice, promoting efficiency but also placing a premium on diligent, well-informed representation at the hearing level.