The effect of “less than sedentary” work capacity in social security disability
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The effect of a “less than sedentary” work capacity in a social security disability case

by Melvin Cook

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Social Security Ruling (SSR) 96-9p sets forth detailed guidelines for decision making when a disability claimant cannot perform a full range of sedentary work.

Sedentary work is defined in social security’s regulations as work that requires lifting and carrying up to 10 lbs., with occasional lifting and carrying of items weighing less than 10 lbs., such as docket files, ledgers, and small tools. In addition, sedentary work involves working in a seated position the majority of the workday; i.e., for about six out of eight hours, with normal breaks. It typically requires some occasional standing and walking as well. “Occasional” is defined as up to one-third of the work day. Most sedentary jobs require standing and walking for about two hours out of an eight-hour workday.

Residual functional capacity (RFC) is defined as the most a person can do despite his or her limitations caused by a medically determined impairment. More specifically, it refers to the maximum amount of work-like activity a medically-impaired person can do on a sustained basis, meaning eight hours a day, five days a week, or an equivalent work schedule. Limitations caused by a person’s age or body habitus are not taken into account in assessing a person’s RFC, because they are not caused by a medical impairment.

RFC is assessed by adjudicators at each level of the disability determination process, based on all of the evidence in the case file at the time of adjudication.

A factfinder must assess a person’s RFC by doing a function-by-function analysis of the person’s maximum work capabilities. This analysis requires consideration of the entire record, including any medical sources statements in the file. Medical source statements (MSS) are opinions about the person’s limitations by a medical professional.

This function-by-function assessment is first compared with the demands of the person’s prior relevant work (PRW), which is defined as any substantial gainful work for profit the person has done in the past fifteen years prior to their alleged onset date of disability. Work that is more remote than fifteen years old may have become obsolete, or any skills acquired from such work may have decayed over time, so it is not considered.

If this analysis reveals that the person could not do his or her PRW, either as it was actually performed, or as it is generally performed in the national economy, a determination must then be made as to whether or not the person could adjust to other work in the national economy.

Such other work must exist in significant numbers in the national economy. it cannot be just any exotic job, such as a bit part actor in a reenactment of the Gun Fight at OK Corral in Tombstone, Arizona (no offense to any such actors, who provide wonderful entertainment, nor to any permanent residents of Tombstone, which is no doubt a wonderful town).

A “less than sedentary” RFC entails serious limitations, and is relatively rare.

In fact, individuals over age 50 who are limited to a sedentary work capacity or less, cannot do their prior work, and do not possess skills that are readily transferable to sedentary work, are found disabled pursuant to social security’s Medical/Vocational Guidelines.

For individuals under age 50, the effect of a “less than sedentary” work capacity must be especially carefully considered. However, such an eroded work capacity does not automatically result in a decision of disabled.

Social Security rules take administrative notice of some 200 unskilled sedentary occupations in the national economy. Each occupation represents a significant number of jobs in the national economy. This is referred to as the “sedentary occupational base.”

Whether or not a person under age 50 with a “less than sedentary” RFC is disabled depends on the extent of the erosion of the occupational based caused by their medically determinable impairments. A small, or insignificant erosion of the sedentary occupational basis would typically result in a decision of “not disabled.” However, a significant erosion of the sedentary occupational base will often warrant a decision of “disabled”, even for individuals under age 50.

Restrictions on work-like activities are broadly categorized as either exertional or nonexertional limitations. Exertional limitations affect the seven strength demands of a job, which are the activities of sitting, standing, walking, lifting, carrying, pushing and pullings. Nonexertional limitations are all other demands of a job, and may include such things as postural limitations, manipulative limitations, speech and communicative limitations, visual and auditory limitations, environmental limitations, and mental limitations.

The above mentioned SSR gives guidance for each type of limitation.

Lifting and carrying/pushing and pulling

Typically, an ability to lift only slightly less than 10 lbs. will not significantly erode the sedentary occupational base. However, a person who can only lift 1-2 lbs. would have a difficult time persevering even in sedentary work. For a person whose lifting capacity is somewhere in between these two extremes, it may be useful for the adjudicator to consult a vocational resource.

Restricted ability to do pushing and pulling, even if severe, would not typically impact the sedentary occupational base significantly. This is because most sedentary occupations do not require a significant amount of pushing and pulling.

Standing and Walking

Most sedentary jobs require some standing and walking, usually for up to two hours out of an eight-hour workday. Individuals who are limited to standing and walking for only slightly less than two hours can typically adjust to some type of sedentary work. However, individuals who can only be on their feet for a few minutes in an eight-hour period would not have many vocational opportunities, even in sedentary jobs. For those with limitations in between these two extremes, consultation of a vocational resource may be helpful.

Sitting

Sedentary work by its very definition is work that requires being seated for most of the day. Most sedentary occupations are jobs that require sitting for six hours out of an eight-hour workday, with normal breaks every two hours – one in the morning for fifteen minutes, an hour-long lunch break, and a fifteen-minute break in the afternoon. The extent of a person’s inability to tolerate sitting for six of eight hours will be taken into consideration in determining the erosion of the sedentary occupational base. In unusual circumstances, however, an individual may be able to tolerate standing and walking better than sitting. In such circumstances, it is necessary to consider whether the person is capable of “light” work, even if they cannot perform sedentary work. “Light” work is defined as work with a maximum lifting requirement of 20 lbs., that typically requires standing and walking for up to six hours out of an eight-hour workday.

Alternate sitting and standing

Some individuals will need to shift positions from sitting to standing, or from sitting to walking. Some work will accommodate this postural shift by what is known in social security parlance as the “sit/stand option.” The effect of this sit/stand option, along with the frequency with which the person must alternate postural positions, must be taken into account in assessing the person’s RFC. This RFC must then be used to determine the extent of erosion of the occupational base. This typically requires the use of a vocational expert. In my experience, the sit/stand option, even its frequency is limited only by the person’s perceived needs to shift positions, will not by itself rule out all competitive sedentary occupations. However, combined with other significant impairments, it may substantially erode even the sedentary occupational base.

Medically required handheld assistive devices

Because the maximum lifting requirement of sedentary work is relatively light (i.e., up to 10 lbs., with occasional lifting and carrying of items such as files, ledgers and small tools), a person who requires the use of a handheld assistive device, such as a cane (or a monogrammed golf club, such as one of my clients creatively used, but which was probably not medically prescribed and so was not considered), can often perform these jobs if they do not have other significant limitations. However, individual circumstances vary, and a person with two impaired lower extremities may have significant difficulties doing even sedentary work because of the occasional standing and walking requirement. Depending on the circumstances of the case, a factfinder may need to consult a vocational resource to determine the erosion of the sedentary occupational base caused by the medically required handheld device.

Nonexertional limitations and restrictions

Postural limitations

Limitations on activities such as climbing ladders, ropes, and scaffolds, balancing, crouching, kneeling and crawling would not typically erode the sedentary occupational base significantly because these activities are generally not a large part of sedentary work. However, if a person has difficulty balancing even on level terrain, there may be a significant erosion of the sedentary occupational base. In such cases, consultation with a vocational resource may be needed.

Stooping

I find this postural limitation most interesting. Why? Because if a person can do no stooping whatsoever, and this is medically documented, they will win their disability case. This is because occasional stooping is required in almost all sedentary jobs. Stooping is defined as bending the spine forward at the waist. It is distinct from crouching, which is defined as bending both the legs and the spine at the waist. However, a limitation to only occasional stooping would not significantly erode the occupational base.

Manipulative limitations

Bilateral manual dexterity is typically required in most unskilled sedentary work. Substantial limitations of a person’s ability to use their fingers and hands for fine manipulation will significantly erode the sedentary occupational base. Less significant limitations, particularly of the non-dominant hand, will not typically result in a substantial erosion of the sedentary occupational base. For cases somewhere in between the extremes, consultation with a vocational resource may be necessary.

It should be noted that the ability to feel the size, shape, texture, and temperature of objects is usually not a necessary skill for sedentary work.

Visual limitations

The inability to see well enough (usually because of severely diminished visual fields) to avoid ordinary hazards in the workplace, such as boxes strewn haphazardly on the floor, doors left carelessly ajar, or people approaching with eyes glued to their handheld electronic devices, may significantly erode the sedentary occupational base.

Communicative limitations

The ability to hear and understand simple oral instructions is usually all that is requires of unskilled sedentary work.

Environmental limitations

Few unskilled, sedentary jobs require working in environments with extreme cold or heat, humidity, wetness, vibrations, toxins, hazardous machinery, explosives, or caustic chemicals.

All work environments have a certain level of noise, so the ability to tolerate noise is a restriction that must be assessed on an individual, case-by-case basis.
Likewise, the restriction to avoid dust or odors must be evaluated on an individual basis. The RFC must specify which environments are restricted and the extent of the restriction.

Mental limitations

Certain mental functions are deemed essential, even to sedentary work. These are:

1) Understanding, remembering, and carrying out simple instructions,

2) Making judgments that are commensurate with the functions of unskilled work; i.e., simple work-related decisions,

3) Responding appropriately to supervision, co-workers, and unusual work situations, and

4) Dealing with changes in a routine work setting.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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