Where You Stand May Turn on Whether You Can Sit
A Real Bright Line Rule: “We … hold that an employee who cannot sit for more than four hours in an eight-hour workday cannot perform ‘sedentary’ work that requires ‘sitting most of the time’” said the Ninth Circuit in 2016’s Armani v Northwest Mutual.
Sedentary capacity always matters eventually: Whether a claimant can perform sedentary work is key to assessing eligibility for benefits under the “any occupation” disability standard. Previously-active workers may have skills that translate to alternative sedentary jobs.
Plans usually rely on the Dictionary of Occupational Titles (a Department of Labor publication last updated in 1991) to define and describe job duties and requirements at a “national economy” level. It defines sedentary work as requiring “mostly sitting.”
Get Up, Stand Up!: Claims administrators have responded to Armani in litigation by highlighting vocational evidence to support a conclusion that a particular job can be done by a claimant “alternating sitting or standing.”
You Get Answers to the Questions You Ask: The courts drew a four-hour rule, but the disability administration world thinks in thirds. The forms administrators send to treating doctors and retained experts usually split the frequency of a claimant’s ability to perform a task between “occasionally” (less than 2.5 hours per day), “frequently” (2.5-5.5 hours), and “continuously” (5.5-8 hours). (Social Security uses even 1/3ds.)
When the only medical opinions in a case are given on Plan forms, this ambiguity can work in administrators’ favor.
Except we previously noted Waldrip v. Reliance Life, where the court granted benefits, weighing plaintiff’s and her physicians’ testimony on her ability to sit against the opinion of a consulting doctor who examined her on behalf of the insurer.
There the examining expert’s opinion that the claimant could sit “frequently” was ambiguous on the four-hour point.
The court reasoned the expert “did not conduct any tests that might explain plaintiff's ability to sit for prolonged periods of time, and he did not unambiguously regard plaintiff as capable of sitting for four or more hours (i.e., "constantly" or without limitation) during each workday” so his opinion on capacity to sit did not outweigh claimant’s more restrictive evidence.
So Now What?: This structural tension will not resolve anytime soon, and the space between thirds and halves is one where disability lawyers can work. How and whether to develop the record to address sitting at four hours deserves careful consideration for any claimant who will be assessed against “sedentary” work requirements.