It Is the Percentage of the Day, Not the Hours of the Day that Matters

In a NOSSCR CLE and in hearings before SSA, I heard presenters, vocational witnesses, and ALJs express reliance on the hours of the day for sitting and standing (including walking) relying on the Occupational Requirements Survey. In Social Security disability hearings, reliance on hours in a day is a mistake.  

We use packers and packagers, hand (SOC 53-7064) as our example of the day. The ORS reports:

Occupational Requirements – sitting, standing (including walking)	2018	2023	2024
choice of sitting or standing is allowed	4.3	2.3	<0.5
choice of sitting or standing is not allowed	95.7	97.7	>99.5
Percent of Day standing is required (10th percentile)	90	90	100
Percent of Day standing is required (25th percentile)	100	100	100
Percent of Day standing is required (50th percentile - median)	100	100	100
Percent of Day standing is required (75th percentile)	100	100	100
Percent of Day standing is required (90th percentile)	100	100	100
Percent of Day standing is required, mean	95.5	95.9	98
hours of standing (10th percentile)	4	4	6
hours of standing (25th percentile)	5	5.88	6
hours of standing (50th percentile - median)	8	8	8
hours of standing (75th percentile)	8	8	8
hours of standing (90th percentile)	8	8	12

The amount of standing at the 10th and 25th percentiles falls within the generally used (and wrong) assumption that light and medium work require six hours of standing/walking during a workday. The question is whether those jobs are full-time work. Packers and packagers stand 90 to 100% of the workday at the 10th and 25th percentiles. How can that be? The jobs are part-time. If a job requires four to six hours of standing during the workday and that standing represents at least 90% of the workday, the person is not working and eight-hour workday. Algebraically:

                                Workday x 90% = 4 hours

Divide each side by 90%. 

                                Workday = 4 hours / 90%

                                Workday = 4.44 hours

The O*NET reports that all packers and packagers work at least a 40-hour workweek.  The ORS disagrees. In the special release dataset for "SVP 1-2 and 35-40 weekly hours - reference year 2023," the downloaded XLSX spreadsheet states that 58.2% of packers and packagers work 35-40 hours and requires a high school diploma or less; 44.4% of packers and packagers have no minimum education requirement. The ORS reports  that 18.2% of packers and packagers require a high school diploma and 70.3% have no minimum education requirement. How do we get from 88% and 70% down to 58% and 44%? Some of the jobs require more than 40 hours and some represent part-time work. 

SSR 96-8p is clear that full-time work satisfies the Commissioner's burden at step five - the existence of other work assuming the claimant's medical-vocational profile. (A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.). At step four, part-time work may matter. (The ability to work 8 hours a day for 5 days a week is not always required when evaluating an individual's ability to do past relevant work at step 4 of the sequential evaluation process. Part-time work that was substantial gainful activity, performed within the past 15 years, and lasted long enough for the person to learn to do it constitutes past relevant work, and an individual who retains the RFC to perform such work must be found not disabled.). 

Do not allow vocational witnesses to use "hours" as a substitute for "percentage of the day" when assessing the requirements of work. Part-time work does not count. 

That was not always the case. Prior to 2003, the regulations provided for a step-five finding of the ability to perform other work "on a full-time or reasonably regular part-time basis." 20 CFR 404.1562, 416.962 (2002). SSA deleted that language in 2003. 68 Fed. Reg. 51153 (Aug. 26, 2003). The notice explains:

However, in SSR 96-8p, we explain that at step 5 we consider only full-time work when we consider other work you are able to do. (See 61 FR 34474, 34475 (July 2, 1996).) 

The number of hours that includes consideration of part-time work is not probative at step five. The percentage of the day is the better measure of how much time a worker will spend sitting or standing/walking during a full-time workday. 

___________________________

Suggested Citation:

Lawrence Rohlfing, It Is the Percentage of the Day, Not the Hours of the Day that Matters, California Social Security Attorney (July 25, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

Breaks and Meals in the Context of Aggregate Sitting, Standing, and Walking

Vocational witness testifies at a hearing in response to the question, "if the person were limited to a total of six hours of standing/walking during a workday, could that person perform this occupation?" Vocational witness responds, "no." The ALJ asks for clarification mostly because it is permissible to interrupt cross-examination with a line of questions. 

The vocational witness explains that the occupation of marker is a stand/walk job all day long and that there is not an opportunity to sit during the workday. The witness then offers an absurd caveat to that explanation. 

1.         The worker gets two 15-minute breaks during the day and can sit down.
2.         The worker gets a 30-minute meal break and can sit down.
3.         Those three breaks total an hour a day. 

Point number 1: a person is marking product as part of their job. The time for a 15-minute break has arrived. 

1. When does the break start? 
2. Does it start when the person gets to the place to sit down or does the break start when the person walks away from the workstation? 
3. When does the break end? 
4. Does it end when the person starts to walk back to the duty station or does the break end when the person gets back to the workstation?

It is clear that the break begins and ends when the person stops working and starts to move away from the workstation. I am an expert in this question, I am an employer.

The marker is working diligently through the day and break time arrives. The clock starts running. The worker cannot drop straight down to the floor and sit. More time standing/walking is required. Whether headed to the restroom, the water fountain, or the locker, the worker must engage in more standing/walking. If the break lasts 15 minutes, the person will never get to sit for 15 minutes. 

Lunch break presents a different problem. The marker is scheduled for a full-time, eight-hour workday. The person clocks in at 8:30 am. The meal break arrives. What does the worker do? Certainly, the worker does not reach into a pocket, pull out a meal and drop straight down in the position to eat and rest for 30-minutes. The worker clocks out. The worker walks to the break area, retrieves the meal, and consumes the meal. The worker then clocks back in and walks back to the workstation. Even if the worker managed to sit for the entire 30-minute meal break, which is off-the-clock and not part of the work duties. If the meal break started at 12:30 pm, it ended at 1:00 pm, and the worker still has four hours of standing/walking on the clock. 

A person with a job that stands/walks over six hours in a day cannot accumulate one hour of sitting during two fifteen-minute breaks and a 30-minute meal. The worker must get to the designated area by walking, the person is off-the-clock for lunch, and the person must get back to work. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Breaks and Meals in the Context of Aggregate Sitting, Standing, and Walking, California Social Security Attorney (October 30, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi

In Shawver v. Kijakazi, the claimant litigated the tried-and-true physician opinion evidence, the claimant testimony, the meeting or equaling of the listings, and the non-issue of whether the ALJ propounded a complete hypothetical question based on errors at step three, the assessment of residual functional capacity. 

But step five is always in play when the claimant establishes the inability to perform past relevant work. Misti Jo. S. v. Comm'r of Soc. Sec. gives us the rest of the story. The RFC:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks; occasionally balance, stoop, kneel, crouch, or crawl; occasionally climb ladders, ropes, or scaffolds; avoid exposure to hazardous machinery or equipment; and work in an environment with no more than ordinary office level lighting or noise. The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

And the step five occupations:

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

Standing/walking four hours in an eight-hour day does not represent a wide range of light work. Social Security Ruling 83-10 describes light work as requiring standing/walking six hours in an eight-hour day and sitting intermittently during the remaining time. There exists an apparent conflict between the agency's understanding of light work and the identification of light work that requires not more than four hours of standing/walking. 

Routing clerk (DOT 209.687-026) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Labor places 65 alternate titles including 20 DOT codes in this group. The Occupational Requirements Survey describes shipping clerks. Shipping clerks stand (including walk) half the day at the 25th percentile and 80% of the day at the 50th percentile (median). Shipping clerks engage in sedentary exertion in 7.5% of jobs and light exertion in 21.5% of jobs. Shipping clerks engage in unskilled work (SVP 2) in 46.3% of jobs. 

Mail clerk (DOT 222.687-022) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Labor places 60 alternate titles including 14 DOT codes in this group. The Occupational Requirements Survey describes mail clerks. Mail clerks stand (including walk) half the day at the 50th percentile and 75% of the day at the 75th percentile. Mail clerks lift/carry 20 pounds maximum in at the 25th percentile and 25 pounds at the 50th percentile. Mail clerks engage in unskilled work (SVP 2) in 67.4% of jobs. 

Marker (DOT 209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Labor places 209 alternate titles including 38 DOT codes in this group. The Occupational Requirements Survey describes stockers. Stockers stand (including walk) 80% of the day at the 10th percentile. Stockers lift/carry 25 pounds maximum in at the 10th percentile. Stockers engage in unskilled work (SVP 1 or 2) in 84.3% of jobs. 

To arrive at a reliable estimate of the number of light and unskilled work with standing/walking limited to four hours per day, a witness would have to assume the incidence of work that meets those criteria. The ORS and O*NET OnLine provides governmental data published according to OMB standards. The vocational witness has local (anecdotal) experience without a well-accepted methodology for extrapolating that experience to the national economy. 

In the case of these three occupations, markers are clearly eliminated. The intersection of unskilled and standing/walking four hours or less without crossing into sedentary work requires several assumptions. The expert must either assume that the exertional demands cut across the skill requirements OR must either have data or make assumptions about the requirements of skill and exertion correlation. Labor does not publish that data. 

Contact/interaction with coworkers and supervisors is cued up next. Teasing, none of the jobs make the cut. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi, California Social Security Attorney (October 17, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Common Light Unskilled DOT Codes -- Standing/Walking Exceeds Six Hours

These are the DOT codes that vocational experts commonly cite as light unskilled work.  The data from the Department of Labor (whether O*NET OnLine or Occupational Requirements Survey) do not support a limitation to six hours or less of standing/walking.  

DOT Title	DOT Code	OOH     JOBS	OEWS   JOBS
ASSEMBLER, SMALL PRODUCTS I	706.684-022	203,600	194,360
ASSEMBLER, SMALL PRODUCTS II	739.687-030	203,600	194,360
BAKERY WORKER, CONVEYOR LINE	524.687-022	203,600	194,360
BAKERY WORKER, CONVEYOR LINE *	524.687-022	45,000	41,840
BASKET FILLER	529.687-010	238,000	239,340
CAFETERIA ATTENDANT	311.677-010	389,000	374,900
CASHIER II	211.462-010	3,379,100	3,333,100
CLEANER, HOUSEKEEPING	323.687-014	1,212,800	795,590
CLEANER, LABORATORY EQUIPMENT	381.687-022	2,217,000	1,990,510
ELECTRONICS WORKER	726.687-010	203,600	194,360
FAST-FOODS WORKER	311.472-010	3,455,500	3,450,120
FINAL ASSEMBLER	789.687-046	238,000	239,340
FOLDER	369.687-018	238,000	239,340
FOLDER	789.687-058	238,000	239,340
FOLDER	686.685-030	203,600	194,360
GARMENT SORTER	222.687-014	203,600	194,360
MAGNETIC-TAPE WINDER	726.685-010	203,600	194,360
MARKER	209.587-034	2,223,000	2,210,960
MARKER	781.687-042	203,600	194,360
TABLE WORKER	783.687-030	238,000	239,340
TABLE WORKER	788.687-142	203,600	194,360
TICKET SELLER	211.467-030	3,379,100	3,333,100
TICKET TAKER	344.667-010	81,500	95,600
USHER	344.677-014	81,500	95,600

Always expect pushback from the vocational expert. Naked testimony from the vocational expert is substantial evidence where:

Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology. She answers cogently and thoroughly all questions put to her by the ALJ and the applicant's lawyer.

Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2018).  The question is:

Do you have a well-accepted methodology for extrapolating your local experience that is as or more reliable than the statistical prowess of the Bureau of Labor Statistics and the Employment Training Administration?

Years of experience establishing the foundation but not the methodology.  Don't accept occupations that require more than six hours of standing or walking without examining the vocational expert on methodology.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Common Light Unskilled DOT Codes -- Standing/Walking Exceeds Six Hours, California Social Security Attorney (November 27, 2021)  https://californiasocialsecurityattorney.blogspot.com