Past Relevant Work as a Sewing Machine Operator -- Over 55

A claimant is limited to sedentary exertion.  She is over 55; a limited education; marginally capable of speaking, reading, and writing in English.  This claimant has past relevant work as a sack repairer, DOT 782.687-046.  The ALJ defines and the opinion evidence supports a version of sedentary work that limits sitting to six hours in an eight-hour day.  The vocational expert testified that such a person could perform her past relevant work.

Capable counsel asks the vocational expert the quickest path to prevailing on the claim -- can a person perform the sustained requirements of sack repairer while sitting just six hours a day as opposed to seven or more hours per day.  The vocational concedes the obvious -- these jobs require prolonged sitting beyond six hours in a day.  The ALJ interrupts that if the claimant can sit for six hours, she can perform sedentary work, period and end of story.  The ALJ is wrong.

The DOT definition describes the range of work:

Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

 /The regulatory definition is substantially the same:

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

The critical part of both definitions is "if walking and standing are required only occasionally."   Per the DOT, occasionally means up to 1/3 of the time.  Up to does not mean always, it means not more than.  We turn to SSR 83-10 to chase down the definition:

"Occasionally" means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.

The ruling uses the phrase not more than about two hours, imprinting the concept that a singular gloss of how sedentary work gets performed does not apply.  There is a ceiling for the amount of standing/walking required but the ceiling is not a floor.  The confusion intensifies when the ruling states that sedentary work requires six hours of sitting in a workday.  But that is not what the ruling says.  The ruling describes "sitting should generally total approximately six hours in an eight-hour workday."  Generally points to the typical, average, or median occupation -- generally does not mean all or almost all. Even if the latter almost all applied, the proof would need to exclude the exception.

We are looking at sack repairer and return to reliable governmental published data.  We start with the O*NET OnLine:

51-6031.00 - Sewing Machine Operators

Exertional	%	Response
Spend Time Sitting — How much does this job require sitting?	70	Continually or almost continually
	14	More than half the time
	8	About half the time
	9	Less than half the time
	0	Never

The group of sewing machine operators has some variation but the majority require continual or almost continual sitting (70% of the jobs).  We should have the suspicion that sewing machine operators sit more than six hours per day.  That data confirms the vocational expert's testimony in this test case -- sewing machine operators sit more than six hours in a day.  We search for statistical confirmation of that suspicion in the Occupational Requirements Survey:

51-6031.00 - sewing machine operators

Sitting, Standing, Walking Report

Hours Sitting Calculations
Hours	Percentile	Jobs	Calculation
5.56	Mean	153,900	Not Applicable
0	10%	153,900	15,390
<= 7	50%	153,900	76,950
<= 7.83	75%	153,900	115,425
<= 8	90%	153,900	138,510

We see that 10% of the jobs have negligible or no sitting but median requires 7 hours of sitting in a workday. The percentages of the day shed more light on the question:

Sitting is Required Calculations
% Of Day	Percentile	Jobs	Calculation
<= 69%	Mean	153,900	Not Applicable
<= -%	10%	153,900	15,390
<= 87.5%	50%	153,900	76,950
<= 95%	75%	153,900	115,425
<= 100%	90%	153,900	138,510

The BLS statistics confirm the ETA conclusions that the majority of jobs require sitting more than six hours in a workday.  If the claimant describes past relevant work as sitting all day, a limitation to sitting six hours in a day eliminates the ability to perform past work as actually performed.  The Department of Labor takes care of the occupation as generally performed.  This claimant cannot perform past relevant work either as actually performed or as generally performed.  She takes advantage of the sedentary grid table and is irrebuttably presumed disabled.

Let us assume that the Commissioner takes administrative notice that sedentary work requires about six hours of sitting in a workday.  That notice is not part of rulemaking with notice and comment.  Therefore, the claimant has the right to notice and an opportunity to show the contrary under Heckler v. Campbell.  Even if SSR 83-10 stated that sedentary work required six hours of sitting and two hours of standing/walking as invariable facts, which the ruling does not imply when read completely, we can and must prove the contrary in appropriate cases.