You know the Ninth Circuit has taken the position 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.’” Armani v. NW Mut. Life Ins. Co., 840 F.3d 1159, 1163 (9^th Cir. 2016) (Emp. added.)

But what if there is evidence in the record (like a job analysis) that the claimant’s job “could be performed by alternating sitting and standing”?

This evidence may be sufficient for the court to sustain a conclusion that the job was not sedentary.  And if the job is not sedentary, then—the claimant could perform her job even though she could not sit for more than four hours in an eight hour workday.

This new case shows that an effective job analysis can help work around the Armani decision…

Perez v. Lincoln National Life Ins. Co., __ Fed. Appx. __ , 2021 WL 195022 (9^th Cir. January 20, 2021) (claimant’s payroll specialist position was not sedentary because job analysis showed position “could be performed by alternating sitting and standing.”)

FACTS: Perez was a payroll analyst and sought ERISA-governed disability benefits. She apparently was unable to sit for more than four hours in an eight hour workday. But a job analysis showed she could perform her position by “alternating sitting and standing.”

Lincoln National argued her position was not sedentary and discontinued payment of benefits concluding she could perform this job. Perez sought judicial review contending the district court erred in concluding her payroll analyst job was “not [a] sedentary occupation” and that (2) the court improperly considered credibility evidence in the social security decision.

NINTH CIRCUIT HELD: District Court’s decision denying claim for disability benefits AFFIRMED.

1. “Where…the district court reviews de novo the denial of benefits, that review must be limited to the administrative record unless ‘circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’”  Op. at 4.
2. A district court’s decision to admit evidence that was not before the administrator is reviewed for abuse of discretion.  Op. at 4.
3. The Court did not abuse its discretion when it admitted adverse credibility determinations from Perez’s social security decision because…such a decision ‘could not have [been] presented in the administrative process’ and could be ‘particularly important in ERISA cases.’”.  Op. at 4.
4. “‘Factual findings in one case ordinarily are not admissible for their truth in another case through judicial notice.’” Op. at 5, citing Nagy v. Group Long Term Disability Plan for Employees of Oracle Am., Inc., 739 F. Appx. 366, 367 (7th Cir. 2018).
5. “Perez’s failure to oppose admission of the social security decision before the district court amounts to waiver of the argument on appeal.” Op. at 5.