Are Social Security benefits available in Montana for limitations in sitting and standing?

In our work as Montana Social Security attorneys, we often help claimants who have postural limitations. Postural limitations include limitations in sitting, standing and walking. Another postural limitation is the inability to stoop. If your medical condition causes postural limitations, Social Security disability benefits may be available.

The Social Security Administration first considers whether your disability is severe enough to meet or equal a listing at Step 3 of the sequential evaluation process. If you meet or equal a Listing because of your condition, you are considered disabled. If your disabling condition is not severe enough to equal or meet a listing, the Social Security Administration will assess your residual functional capacity (the work you can still do, despite your limitations), to determine whether you qualify for benefits at Step 4 and Step 5 of the sequential evaluation process.

Residual functional capacity is your ability to perform work-related activities. In other words, it is what you can still do despite your limitations.  A residual functional capacity for physical impairments is expressed in terms of whether the Social Security Administration believes you can do heavy, medium, light, or sedentary work in spite of your impairments. The lower your residual functional capacity, the less the Social Security Administration believes you can do.

Sitting limitations

In order to do a full range of sedentary work, a person must have the capacity for prolonged sitting. Sitting “should generally total approximately six hours of an eight-hour workday.” Social Security Ruling 83-10. In some situations, a person’s residual functional capacity may be compatible with either sedentary or light work except that the person must alternate sitting and standing. Most jobs “have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will.” Social Security Ruling 83-12.

Regarding a person’s need to alternate between sitting and standing, Social Security Ruling 96-9p states:

An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time needed to stand. The residual functional capacity assessment must be specific as to the frequency of the individual’s need to alternate sitting and standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether the individual is able to make an adjustment to other work.

In our experience as Social Security lawyers in Montana, in nearly every case in which the claimant needs to alternate between sitting and standing, the administrative law judge will call a vocational expert to testify.

If you have a postural limitation, the government’s vocational expert may offer the opinion that a number of jobs can be done while you alternate between sitting and standing. In those situations, in order to win your case, it is essential that your attorney conduct a vigorous cross examination of the vocational expert . For examples of questions that we might ask a vocational expert on this issue, see questioning the government’s vocational expert about the residual functional capacity for alternate sitting and standing.

Standing and walking limitations

Generally, a person is expected to be capable of being on his or her feet, standing and walking, intermittently for a total of about two hours out of an eight hour workday. Any significant reduction of standing and walking capacity below this limited amount will reduce the sedentary occupational base. See, e.g., Johnson v. Bowen, 687 F. Supp. 1284, 1301 (W.D. Wis. 1988). Under Social Security Ruling 96-9p, the occupational base of one who can stand and walk for only a few minutes out of the workday would be significantly eroded. For those who can stand and walk more than a few minutes out of the workday, it is appropriate to consult a vocational resource to determine if standing and walking limitations preclude an adjustment to sedentary work.

Use of a cane

Under the Social Security Rulings, sedentary work requires one to be able to obtain and return objects, being on one’s feet, standing and walking, for approximately two hours out of an eight hour working day. Therefore, it follows that use of a cane would limit capacity for a full range of sedentary work because one sometimes needs two free hands to carry some objects encountered on sedentary jobs.

Depending on how a person uses a cane (which the Social Security Rulings refer to as a “medically required hand-held assistive device”), the person may still be able to perform sedentary work that exists in significant numbers. On the other hand, if a person must use a cane for balance, because of significant involvement of both lower extremities (e.g., because of a neurological impairment), the occupational base for that person may be significantly eroded. If there is significant involvement of both lower extremities because of a neurological impairment, that significantly erodes the sedentary occupational base, the impairment probably meets or equals §11.04B of the Listing of Impairments, under Step 3 of the Sequential Evaluation Process.

The need to use a cane would preclude work at exertional levels higher than sedentary work.

Need to walk around

If you need to periodically walk around (as many with back problems do), it is likely that this is a disabling limitation, depending on the frequency and duration of the need to walk around, because it takes you away from your work station.

Need to elevate leg

A limitation caused by the need to elevate one or both legs when sitting is not discussed in the Social Security regulations or rulings. However, depending on how high the leg needs to be elevated and for how long during a working day, such a requirement may significantly limit the full range of sedentary work.

Need to lie down during the day

Obviously a need to lie down during the day will be accommodated in few unskilled sedentary jobs.

The residual functional capacity of alternate sitting and standing

The residual functional capacity for alternate sitting and standing is an issue that appears frequently in Social Security disability cases. Many government vocational experts treat the RFC of alternate sitting and standing as falling between a residual functional capacity for sedentary and a residual functional capacity for light work. However, Social Security Ruling 83-12 indicates that this residual functional capacity presents a special situation:

In some disability claims, the medical facts lead to an assessment of residual functional capacity which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work. (Persons who can adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., would still be able to perform a defined range of work.)

There are some jobs in the national economy—typically professional and managerial ones—in which a person can sit or stand with a degree of choice. If an individual had such a job and is still capable of performing it, or is capable of transferring work skills to such jobs, he or she would not be found disabled. However, most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will.

In some cases, we will submit to the administrative law judge a report on the issue of alternate sitting and standing prepared by a vocational expert we have hired on behalf of our client, to refute the conclusions of the government’s vocational expert.

Questioning the government’s vocational expert about the residual functional capacity for alternate sitting and standing

The questions we might ask the government’s vocational expert about alternate sitting and standing include the following:

  • Are the jobs that you have identified as allowing alternate sitting and standing classified as light or sedentary jobs by The Dictionary of Occupational Titles?
  • For the jobs that are classified as light, can’t we assume that they require standing and walking for approximately six hours out of an eight-hour working day?
  • If you contend that the DOT is wrong in classifying these jobs as light, how many of these jobs have you personally observed? When? Where? Did you observe these jobs in different parts of the country? How long did you observe them?
  • The DOT doesn’t address the question of opportunity to alternately sit or stand, does it?
  • So, the only evidence we have about the existence of jobs which allow alternate sitting and standing is your observations of jobs?
  • The opportunity to sit on a light job depends on the availability of chairs or stools provided by employers, doesn’t it?
  • Employees usually cannot provide their own chairs, can they?
  • You’re not contending, are you, that all employers provide chairs for the jobs you’ve identified but which the DOT classifies as light?
  • Thus, we’re dealing with some percentage of these jobs where stools or chairs are provided, aren’t we?
  • Tell us for what percentage of these jobs the employers provide stools or chairs; and tell us how you know this.
  • Isn’t it a fact that some of these jobs that we’ve been talking about are performed at desk height? If so, tell us what percentage of these jobs are performed at desk height versus bench height; and tell us how you know this.
  • And isn’t it also true that if the work station is at desk height, approximately 29 inches, most people are going to find it very uncomfortable to stand and work while bent over the desk?
  • It is true, isn’t it, that one normally has more opportunity to stand up when doing a job which is classified as sedentary than one has to sit down when doing a light job?
  • But if one is doing a job which is classified as sedentary, it is most likely done at a work station which is at desk height, isn’t it?
  • If one is doing a job at bench height, what kind of chair is usually provided?
  • Do most of these chairs have lumbar support? Is the lumbar support adjustable? Are the chairs adjustable in height? If not, how high is the seat from the floor? Do most of these chairs have hard seats or cushioned seats? Do these chairs have arm rests?
  • What height is a bench placed at? Are benches at standard height?
  • The height of most benches is not adjustable, is it?
  • The benches are set at a height for an average person, aren’t they?
  • To work while standing at a bench of standard height, a person taller than average must bend over more, musn’t he? A person shorter than average must reach more?
  • For the job where there is an opportunity to sit or stand, that opportunity is for the most part dictated by the work process, isn’t it?
  • Don’t you agree with Social Security Ruling 83-12 that “most jobs have ongoing work processes which demand that a worker be in a certain . . . posture for a certain length of time to accomplish a certain task”?
  • Reading SSR 83-12 is part of a vocational expert’s training, isn’t it?
  • Aren’t you told as part of your training to be a vocational expert that you are “expected to testify only on vocational issues and only on those vocational issues which are relevant to the requirements of the statute, regulations and rulings”?
  • Do you agree with the statement in Social Security Ruling 83-12 that “unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will”?
  • You do agree, don’t you, with the statement from SSR 83-12 that “most jobs have ongoing work processes that require a worker to be in a certain place . . . for at least a certain length of time to accomplish a certain task”?
  • This means simply that a worker has to spend a certain length of time at the work station in order to do his work, doesn’t it?
  • The jobs you have identified as allowing alternate sitting and standing don’t allow a worker to walk around whenever he feels the need, do they?
  • For the jobs you have identified, what is the maximum amount of time out of every hour that a worker could be away from the work station that would be acceptable and would still allow a worker to meet normal production standards?
  • Some jobs do, in fact, require walking, don’t they? This is also dictated by the work process, isn’t it? If the worker is required by the work process to walk but his impairment dictates that he must sit, he won’t be fulfilling his job duties, will he?
  • If the work process requires that a worker either stand or sit, but his impairment requires that he do the opposite, he won’t be able to fulfill his job duties, will he?
  • From your work with impaired workers, you understand, don’t you, that shifting positions isn’t dictated by the clock?
  • It is dictated by the way the person feels, isn’t it?
  • You interpreted the ALJ’s question literally as involving x number of minutes sitting followed by x number of minutes standing, etc., didn’t you?
  • So if we change the hypothetical question to emphasize the unpredictable nature of the length of time the claimant may sit or stand, does that change your answer?
  • What is the minimum amount of time a worker must remain in a certain posture (either standing or sitting) to accomplish the job tasks?
  • If we change the hypothetical question to include the requirement for significant walking at unpredicable intervals during a working day, how would that affect your opinion about the number of jobs the claimant can do?
  • From your experience dealing with impaired workers, it is most common, isn’t it, that the requirement to shift positions comes unpredictably?
  • In fact, it is unusual that someone’s impairment would allow a shift of position by the clock, isn’t it?

An experienced Montana Social Security lawyer is needed for these cases

Postural limitations, including problems sitting and standing, are among the most common limitations afflicting Social Security disability claimants.  But questioning a vocational expert is not for the inexperienced.  If you are not already represented by a Montana Social Security disability lawyer, and you would like my evaluation of your Montana Social Security disability benefits case, please complete the Claim Evaluation Form to your right or contact us at:

Bulman Law Associates
Montana Social Security disability attorneys

E-mail us
Phone: 406-721-7744
Toll-free: 800-272-7744
Fax: 406-728-9362

416 East Pine Street
Missoula, Montana 59802