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. 

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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.

Progress and Pushing Vocational Experts to Reasonable Answers

A court remand case with the prior residual functional capacity finding:

After careful consideration of the entire record, I fmd that the claimant has the
residual functional capacity to perform a range of light work as defined in 20 CFR
404.1567(b) and 416.967(b). Specifically the claimant is able to lift pounds occasionally and 10 pounds frequently.  He can stand and/or walk for two hours out of an eight-hour day, with the ability to use a cane when ambulating outside of the work area; he can sit for 6 hours of an 8 hour day, but must have the ability to stand and stretch every hour estimated to take 1 to 3 minutes per hour.  He does not need to leave the work station to do the stretching.  He can occasionally bend, stoop, and crouch, but he cannot crawl or kneel. He cannot work at highly fast-paced work, such as rapid assembly line work, nor work requiring public contact- He can perform low stress jobs which is defined as jobs having occasional decision making or occasional changes in the work setting.

We have a younger individual with a limited education and unable to perform past work and lacks transferable skills.  The vocational expert is testifying today between two different ALJs so we have some time waiting for the VE.  ALJ asks me how I am going to get this claimant below sedentary.  I don't think I have to, this residual functional capacity will not permit work in significant numbers.  

Enter the vocational expert.  ALJ asks the VE to assume a person of any age, with any education, and any work history with the previously assessed residual functional capacity.  Vocational pauses, contemplates, and then answers, "no jobs."  

I have been in hearings with this judge and this witness many times before.  We all know that identifying some production job will focus on work pace; clerical positions will focus on changes and decision-making; all the counter clerk-type jobs are out for no public contact; and we have a total of four breaks totaling 12 minutes in addition to the California-mandated two 10-minute breaks and 30-minute meal break.  The VE focused on the realistic limitation to sedentary work; the elimination of light work because of a cane outside of the work station; the unavailability of production jobs; and the limitation to occasional decisions and changes.  "No jobs."  

This is not a VE that typically testifies "favorably" to claimants, but he isn't hostile to them either.  My post mortem analysis is that the history with this VE nudged him to the testimony and my history with the ALJ made him more likely to accept the testimony and explanation.  

"Any questions, counsel?"

Smile, "no questions, Judge."  

"Hearing adjourned, have a nice day."