This article was initially published in the Chicago Daily Law Bulletin on December 7, 2016.
By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari, PC P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at firstname.lastname@example.org.
The determination of a claimant’s physical exertional capability is critical in cases involving occupational assessment.
The U.S. Department of Labor has created specific categories — "sedentary," "light," "medium" and "heavy" — to define the physical requirements of various jobs; and the Social Security Administration utilizes the same terminology in its disability insurance program.
But do private disability insurers have to define "sedentary" work in the same way?
That was the question recently answered by the 9th U.S. Circuit Court of Appeals in Armani v. Northwestern Mutual Life Insurance Co., 2016 WL 6543523 (9th Cir., Nov. 4), which found that a disability insurance claimant who can sit for a maximum of only four hours during a work day is incapable of performing sedentary work.
The case involved Avery Armani, the controller of an insurance agency, who injured his back at work. Armani subsequently submitted a claim for long-term disability insurance benefits under his employer’s group insurance plan and initially received benefits under an "own occupation" definition applicable during the first 24 months of disability. However, when the initial 24-month period expired, Armani was required to establish his inability to perform any occupation for which he was qualified by reason of education, training and experience.
Armani’s treating doctors opined that he was limited to sitting for no more than four hours a day, but the insurance company’s consulting physician deemed him capable of performing a sedentary occupation. Based on that opinion, the insurer’s vocational consultant found that even with a four-hour a day sitting limitation, Armani was able to perform his own or three other alternative sedentary occupations that were identified.
The consultant maintained that under the Dictionary of Occupational Titles, published by the Labor Department, "Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time." (Emphasis added.) Based on that opinion, Armani’s benefits were terminated and Northwestern Mutual upheld that determination following Armani’s submission of a prelitigation appeal.
The U.S. District Court agreed with Northwestern, however, the appeals court reversed.
The 9th Circuit pointed out that every doctor who examined Armani concurred that he was unable to sit for more than four hours a day. Although Armani had argued to the district court that "sedentary" work as defined by the Social Security Administration requires the ability to sit for at least six hours during the work day, the district court determined that "the federal criteria for Social Security claims are not transferable to ERISA cases." The 9th Circuit deemed that finding "erroneous."
The appeals court cataloged a number of rulings finding the ability to sit for at least six hours during the work day was necessary to be able to perform sedentary work. The list included Connors v. Connecticut General Life Insurance Co., 272 F.3d 127, 136 n.5 (2d Cir. 2001) ("The ability to sit for a total of four hours does not generally satisfy the standard for sedentary work."), and Robertson v. Standard Insurance Co., 139 F.Supp.3d 1190, 1209 (D. Or. 2015) ("Since sedentary work, as defined by the DOL’s [Department of Labor] Dictionary of Occupational Titles, ‘involves sitting most of the time’ … courts have concluded that even a four-hour sitting tolerance is insufficient to render one capable of performing sedentary work.").
The court also cited other cases from around the country that explicitly found the ability to sit at least six hours a day was a requirement of sedentary work.
The court concluded from those rulings that a definition of "sedentary" work "reflect[s] the logical conclusion that an employee who is unable to sit for more than half of the workday cannot consistently perform an occupation that requires sitting for ‘most of the time.’"
Hence, the court held that an employee "who cannot sit for more than four hours in an eight-hour workday cannot perform ‘sedentary’ work that requires ‘sitting most of the time.’"
The underlying basis for the 9th Circuit’s ruling was Appendix C to the Dictionary of Occupational Titles (4th ed. 1991), which defines "sedentary" work as follows:
"Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to one-third of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from one-third to two-thirds 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 Social Security Administration clarified that definition further in Social Security Ruling 83-10: "[S]edentary 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 sitting is involved, 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…
"‘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 two hours of an eight-hour workday, and sitting should generally total approximately six hours of an eight-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."
Armani did not explicitly determine that the Social Security definition was applicable, although cases such as Halpin v. W.W. Grainger Inc., 962 F.2d 685, 695 n.11 (7th Cir. 1992), have recognized that Social Security concepts are "instructive" in private disability disputes. Nonetheless, Armani is still an important ruling in defining the meaning of sedentary work.