Labor Classifies the Sit-Stand Option as Sitting

The Occupational Requirements Survey is the intended replacement for the Dictionary of Occupational Titles.  Question 2 of the General Questions and Answers states:

SSA uses five steps of Sequential Evaluation to determine whether disability applicants qualify for benefits. At steps 4 and 5 of this process, adjudicators need information about a representative sample of occupations in the national economy to determine whether people with functional limitations resulting from severe impairments can still perform work. Currently, SSA uses the Dictionary of Occupational Titles (DOT) at steps 4 and 5, and it has not been updated in more than 20 years. SSA is developing an Occupational Information System to replace the DOT which will incorporate the data collected through ORS. This information is crucial to the equitable and efficient operation of SSA‘s disability programs.

The ORS gathers data according to Labor's understanding of SSA needs.   The Collection Manual, Third Edition, describes the data and defines the terms.  Chapter 7 describes the physical demands of work to perform the critical tasks.  Sitting vs. standing/walking at will exists when:

• Workers typically have the flexibility to choose between sitting and standing throughout the day.  
• There is no assigned time during the day to sit or stand/walk. 
• No external factors determine whether workers must sit or stand/walk.

Collection Manual, page 78.  Examples of sitting vs. standing/walking at will include:

1. An office clerk can choose when to file and typically stands while filing invoices. 
2. A pharmaceutical sales rep driving to clients can choose when to make trips and additional stops.
3. An elementary teacher may sit or stand to instruct students and while monitoring them on duties.

Id.  Examples of work that is not classified as sitting vs. standing/walking at will include:

1. An over-the-road truck driver must meet a delivery schedule. He stops to refuel and for weigh stations.
2. An event parking lot attendant must stand when cars are entering the parking lot to accept payment and direct cars.
3. A security guard chooses to sit or stand, except when she walks to investigate suspicious situations.

Id.  The SSO envisions the worker performing the same tasks while either sitting or standing.  If that option exists for all workers, it is not an accommodation.  Id., page 9.  

The phrasing of a sit/stand option (SSO) represents a different problem than sitting v. standing/walking at will.  The ORS defines sitting as the function critical to performing work:

• Workers remain in a seated position. This includes active sitting. For instance, bicyclists sit but pushes/pulls with their feet/legs.
• Workers are inactive and seated or prone. For instance, a medical resident on call for a thirty-hour shift taking a strategic nap is sitting.
• Workers may choose between sitting and standing for a given task. For example, office workers can choose a standing desk.

Id., page 73.  An occupation that permits the worker to choose between sitting and standing at will throughout the day to perform the sames tasks carries the descriptor of sitting, not standing/walking.

The broad classification of production occupations (SOC 51-0000.00) would not permit an SSO throughout the day:

Series ID: ORUP1000047P00001002

Not seasonally adjusted

Series Title: production occupations; % of day sitting is required (90th percentile)

Requirement: Physical Demands

Occupation: Production Occupations

Estimate: % of day sitting is required (90th percentile)

Year	Period	Estimate
2018	Annual	66.7

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000047P00001002

A significant range of production occupations do have the ability to change tasks during the workday:

Series ID: ORUP1000047P00000139

Not seasonally adjusted

Series Title: % of workers in production occupations; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: Production Occupations

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2018	Annual	15.1

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000047P00000139

Production occupations represent 9.4 million jobs in the economy and 6.5 million jobs in the manufacturing sector.  This includes every line item SOC group with the first two digits of 51.  Production occupations (SOC 51-0000.00) is summary designation that includes smaller summary designations and line items (specific SOC designations).  

The broad classification of transportation and material moving occupations (SOC 53-0000.00) warrants individual occupational group investigation on the question of SSO:

Series ID: ORUP1000048P00001002

Not seasonally adjusted

Series Title: transportation and material moving occupations; % of day sitting is required (90th percentile)

Requirement: Physical Demands

Occupation: Transportation and Material Moving Occupations

Estimate: % of day sitting is required (90th percentile)

Year	Period	Estimate
2018	Annual	90

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000048P00001002

A less significant range of transportation and material moving occupations do have the ability to change tasks during the workday:

Series ID: ORUP1000048P00000139

Not seasonally adjusted

Series Title: % of workers in transportation and material moving occupations; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: Transportation and Material Moving Occupations

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2018	Annual	9.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000048P00000139

Transportation and material moving occupations represent 10.8 million jobs in the economy and just under 1 million jobs in the manufacturing sector.  This includes every line item SOC group with the first two digits of 53.  Transportation and material moving occupations (SOC 53-0000.00) is summary designation that includes smaller summary designations and line items (specific SOC designations).  

The cross-examination path when a vocational expert identifies work permitting an SSO focuses first on the availability of the SSO to all workers.  If the SSO is not available to all workers, it is an accommodation.  

Second, cross-examination must establish whether the worker has more than one critical work function that requires different positions (sitting or standing/walking).  Those occupations do not have an SSO, they have the ability to choose when to perform other tasks as long as all the sitting and standing/walking tasks are done during the workday.  

Third, cross-examination or post-hearing development must establish whether the ORS classifies the critical work functions as performed sitting or standing/walking.  If the ORS classifies the work functions as standing/walking, the work does not permit an SSO.  If the ORS classifies the work functions as sitting, then the work might permit an SSO.  That might require further exploration of the first question.  

An SSO is a devastating work limitation as described in SSR 83-12.  

Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will.

An SSO for unskilled jobs should be the exception, not the rule  -- unless the Commissioner intends to rescind the statement of binding agency policy. 

I Object to the Vocational Expert's Testimony -- Overruled

The vocational expert responds to a hypothetical question that assumes a limited education, unskilled work experience, limited to sedentary work with occasional superficial contact with coworkers and supervisors.  The vocational expert trots out the usual suspects of occupations aggregating to a million jobs because if you don't want to have to think, well 300,000 here, 200,000 there, and 500,000 in the last one just makes it easy and what the hell, the ALJ doesn't care and 95% of the representatives out there don't know enough to make a peep.  A million jobs  The 48-year old claimant loses.  But you happen to be in the 5%.

1.  Objection, the vocational expert doesn't have training in numbers of jobs.

That objection belongs before the vocational expert testified, not after.  And the truth of the matter is that vocational experts perform labor market surveys and look at employment numbers.  They know more than the public about work.  Their opinion is probative even under the inapplicable strict standards of evidence in court.  Objection overruled.

2.  Objection, the vocational expert testimony lacks foundation, has no support, is unreliable, and pulled out of thin air.

None of those are objections to the admissibility of evidence.  Those are arguments as to weight.  If the vocational expert's testimony is a feather and no evidence exists to counter the vocational expert testimony, the feather outweighs the vacuum by a factor of infinite progression.  That doesn't mean that the ALJ will accept uncontradicted evidence from an agency selected expert.   But the ALJ probably will.  Objection overruled.

3.  Objection, the vocational expert's testimony identifies work that is no longer unskilled or no longer exists.

This is a variation of objection #2.  It does not go to admissibility, it goes to weight.  Present some evidence that weighs more.

4.  Objection, the vocational expert's testimony assumes an accommodation with a sit-stand option.

Now that is an objection because agency policy does not permit consideration of an accommodation in making the assessment at step five of the sequential evaluation process.  SSR 00-1c.  The truth of the matter is that some work permits a sit-stand option as the work exists in the national economy.  Security guards is an example:

Series ID: ORUP1000000000000139

Not seasonally adjusted

Series Title: % of all workers; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: all workers

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2017	Annual	37.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000000000000139

But the ORS does not list any discernible group that contains unskilled work as having that sitting versus standing/walking at will data field.  The absence of data should be read as not allowed not license to make things up.  SSA recognizes that unskilled work requires maintaining body posture to maintain productivity.  SSR 83-12. 

These examples make clear that there is generally not an objection to the vocational expert testimony.  Admissibility is a low bar.  Weight is the correct focus.  Arguing weight requires that the claimant present additional evidence.  Setting that stage requires a set of preliminary questions:

1.  Is your testimony with the data published by the Department of Labor?

a. The Occupational Outlook Handbook
b. The Occupational Information Network
c. The employment projections
d. The occupational employment statistics
e. The current population survey 

2.  Is your testimony consistent with the the data published by the Census Bureau?

a. County Business Patterns

3.  Is your testimony consistent with the DOT industry designations?

4.  Is your testimony consistent with the data fields not contained in the printed SCO but published in the electronic versions of the DOT/SCO (Job Browser Pro, West Law, etc.)?

The response from the ALJ or the vocational expert that the witness relies on experience is this:

5.  How does your experience as a rehabilitation consultant compare to the data gathering capacity and reporting of the Department of Labor or the Census Bureau?

The best tactic is to avoid the use of the "objection."  It is not the right procedure.  The only procedure that has a chance of winning is the introduction of new evidence and then the demand tha that the ALJ resolve the conflict in the evidence.  See question 5:  how does the VE's local and anecdotal experience compare to the statistical prowess of the Department of Labor and the Bureau of Labor Statistics?  They are not in the same league.