biggest problem with it and the one that's really the turning point of the case is the fact that the judge l j found moderate limitations and concentration persistence and pace and then tried to convert that into an element within the hypothetical question under this court's decision in ma c e o concentration persistence and pace must be included and accounted for in the hypothetical question the question is  whether the language used in this case was sufficient now there is a significant split within this circuit on that issue whether fast paced production production rate whatever you want to use it all comes down to bury the basic part i've cited footnote some of the cases south carolina has says that it doesn't most of the courts there are maryland and north carolina have said that it does constitute sufficiently disregard district courts the district works yes looking at this issue across the country for precedent there are only a couple of published the says it's one of which is varga versus colvin out of the seventh circuit where the court specifically addressed whether fast paced production was sufficient to address concentration persistence and pace the court ruled that since there was no definition of fast paced production they could not considering that the burden of proof rests with the commissioner on proposal or propounding a proper pipe with a question a and conclude that now i'm familiar with that because i argued varga before the seventh circuit itself yesterday that they do it wrong it could be harmless where production or production that was not and the judge were still jobs provided by the vocational expert in such a case then from counsel to be arguing that fast paced production is error but be harmless because there's sufficient evidence from the vocational expert who has to establish what the other terms mean and that there are still jobs that can be performed with alternative functioning and the other case that been the commissioner is offered no no evidence to establish it fast pace production equates with limitations and concentration persistence and pace and we're not going to create one without absent or with in the absence of their providing evidence now the only other courts that have a look at this issue are in ohio and it's yet to be addressed there are two unpublished decisions in ohio both some research in the six circuit the small actually it and to suppression of this possible question and the only thing i can tell you about those two cases is that there the court held that fast paced production even if it was a clearly that's what it meant did not adequately address the issue of attention and concentration their sight sure brandon versus berryhill his two thousand and seventeen w l eight nine one seven eight two and d t d a t o n versus commissioner of social security two thousand and thirteen w l two eight nine seven eight eight eight eight as the opposing counsel was also writing down then why did you not advise him this morning of the no i did not i'm sorry the harper here is on to that a function by function basis attention concentration persistence is the he one and in this particular case the judge used the l j used a term that's not defined not clear and is subject to variation as a result and that's not standard that should be applied because of the burden of proof resting on the commissioner right with regard to the second issue and i'll address that now as well we have pearson which or the person however it's actually pronounce we have no question that this court has held that conflicts have to be addressed  the testimony of vocational expert conflicts between the doctor of occupational titles and the vocational testimony in this case we have the a l j making no when corey whatsoever there's step instructions and then to is apply common sense understanding to carry out detailed but an involved written or oral instructions there's enough variation in there as to whether that conflicts with a simple routine and repetitive to have at least triggered to say that my client knows thomas needed to provide more who established the conflict flies in the face of the evidence three standard laid out pearson which is that the burden rests with the commissioner and if there's if it's unclear to reasonable my and standard under the substantial evidence test that should be sufficient for it so if there are any questions about either of properly relied on testimony from the vocational expert at step five in arguing to the contrary on the second point ms thomas asks this court to change course from what it is decided just recently  c under the regulatory framework under which these cases are decide so as your honour's are surely aware each of these cases is based on the facts of those cases and that's not merely a truism that's important because one person's mental impairments may impact person differently than another person's mental impairments but the l j is required to do is is to proceed through a sequence of evaluation and one of the steps is to assess in this functional domain the evaluation that was the finding right then and there be able to explain what this particular plaintiff missed thomas difficulties were and the l j specifically said this is that page twenty specifically said that has reported no problems get excuse me excuse me i was in the wrong place page twenty as reported no problems paying attention finishing what she starts following instructions or handling changes in routines so she what she does have a problem with is in handling stress so the ails they found at that point is that her problems are about stress in the work environment so lo and behold what the a l j did in the residual functional capacity of finding was include limitations that are directly related to this individual plaintiffs this individual claimant's issues so the l j included limitations as to stress that was involved in the work environment so in addition to being excuse me limited to short and simple instructions she was limited to jobs that did not require production rate or demand pace jobs that did not involve crisis situations complex decision making so these are jobs that will eliminate the issues or eliminate the possibility of stress say the a l j noted the evidence on the one side and on the other so so if this is page twenty four the l g has a paragraph discussing sort of the fact that on the one hand miss thomas has received treatment for anxiety and her mood disorder she's been engaged in psychiatric treatment during some of the period issue she had medication so the citing records of her treatment and then the a l j says but she also reported that the medications were effective at minimizing her the symptoms that the treatment was despite the fact that she was within engage in treatment that it was mostly routine and was routine and conservative so that's what the l j page twenty four that doesn't examine the facts and what the a l j actually said about those facts isn't isn't going to be of any use going forward because as you know which has received much attention in this circuit since twenty fifteen says there's no magic words requirement there's no way that there's no specific thing that the a l j has to include and then this court or reviewing court is satisfied the l g has to explain his or her findings messy specifically says perhaps again it's simply it's nothing more nothing less than a question of our of articulation and of explanation and here has done that exceedingly well i would argue sometimes you've got cases where the a l j makes a finding and then the commissioner  s to sort of whole facts from the record to support those find that's not what what the l j did here the l j specifically at step three right then in there told this court told a review in court what this plaintiff's issues were and then found that she was limited in those specific respects i'd say that directly undermines the argument here that there's no evidence to support this particular finding that's the saying this plaintiff has problems with stress and then there's no question there's no allegation that those problems didn't present or that miss thomas difficulties were not with stress so and in fact i'd say that miss thomas herself cited excuse me completed a function report so when she and she's asked you know in this function report how well do you handle written or spoken instructions she responded very well so the question here said turning to the second point which we sort of previewed here with we're talking about the instructions so this is a question about the extent to which the ale jay's finding relying on the vocational experts testimony can be relied on whether the l j can rely on that testimony and stepping back why does this happen this happens because sometimes the l j is not a vocational so sometimes the l g needs to ask a vocational expert what are the specific impacts of this agree there's an apparent conflict here but no you're short simple instructions and detailed instructions no your honor and i would i would not want you to fund simple well there's there's two questions  here the issue of detail aren't the same right quite right your honor but i would i would ask this court to focus not just on the words or in the words the phrase that is used in the reasoning level so detailed but on involved i simple without any other qualification up there is it there's a simple one to two step tasks i'm not so there is one that talks about simple instructions well i'd i'd i'd say i'd argue that there is a difference between all of these things and none of them match perfectly and that's the reason why there's no one to one correlation that's the reason why the a l j asks the vocational expert what does this particular plaintiff in these particular limitations mean you know how do they limit him or her and what are the jobs that can accommodate that so you know when there is a one to one matching as there was in this court held in henderson because that used a specific term one to one to two step instructions then there is an apparent conflict that's what this court held your honor judge king held and the panel but in henderson that there is a conflict in that case there's not a conflict in the same case in this case there's not a one to one correlation because there is a variety of terms there's a detail but an involved is simply not the same thing as as as detail so the way that the dictionary defines things is different than the directly from this court's decision in pearson twenty fifteen the third and i am today world of analysis you don't compare apples to apples there's no wonder what there's no apple that you can look at the apple you you're always also to note so that so we've been talking about is a legal question it's a legal question of what an apparent conflict is and how they these two resort these two things compare it is there's also a factual question here  and that's what we would recommend that this court look to if there were a question in this court's mind about whether there's error here because the factual matter as i noted mr thomas herself indicated that she handles written instructions very well that she handles spoken instructions very well at a psychiatric evaluation it was noted that she had average intelligence and generally average memory she for much of her life she worked in what is called a skilled position so that was that i believe as does do that with respect to opinion so there's a specific definition of what a medical opinion is and that's a statement about the individual's functional abilities and it's cetera so the but a treatment record when they go to the there's not an opinion from the psychiatry is that the a l j failed to consider so the algae fail excuse me the l j considered the treatment notes from from every source and so the answer is not required to say this  i'll address the second issue with that was raised first since that's the one freshest in the court's mind were not taking a stance that there is some sort of per se rule in this particular case except that the per se rule is the one that the commissioner stablished the commissioner stablished but regulations interpreted them under s s r zero zero dash for p and under the our standard they're the ones who can do that and then they when they have a judge who doesn't apply them correctly they then say well that doesn't matter and that's the problem i'm having with this case we're not talking about a real method here l j simply had to say is your testimony consistent and there's an issue that comes up periodically about reasoning level if i said simple routine or repetitive does that encompass reasoning level two and three you have a vocational expert sitting there who can testify to that all right so that's the problem i'm having with this particular case it is not difficult it takes two to three minutes i will tell you that i instruct because i do approximately two hundred fifty hearings a year and i instruct my staff in all of this so since i train we don't use simple routine repetitive we use the specific language in the reasoning level were rule where in the decision does the judge say that he thought around that she was limited to fast pace production because of stress i didn't see it  don't see that that i would even applies because as far as i understand and i'm not a psychiatrist or psychologist but you can having zaya tea without being under stress in fact the testimony is having memory problems while she wasn't working this is that reason a record page three one three having memory problems her thoughts sometimes ra published by the american psychiatric association indicates that there are six criteria for generalized anxiety restlessness or feeling keyed up on edge difficulty concentrating a mind going blank irritability ok if your mind goes blank and there's no and you're doing it and it happens while you're not working are you going to be able to sit and do a job as a marker a marker is a person who puts all of the price tags on the items so if you go to wal mart they're the people with the the gun sometimes that are doing it if you're putting stickers on or a marking the things how accurate are they going to be if their mind goes blank and they're losing stuff because of an occasional anxiety problem they're not going to be there for very long final inspector if you're inspecting something like the brakes on a car is that's a person that you want to have the mind go blank periodically and order caller i'm sure you'll have a lot of sales if in the middle of the call ordering a new sweater the person you're on the phone with can't remember how to input the order so again what we're talking about here is simple and the simple fact is that they the judge could have dealt with this issue by providing a definition for the the term fast pace production he could have asked the vocational expert what the term means or does it apply you were here for the testimony of the claimant if i use that term would that seem to apply to the claimant these people are people who do vocational placement that's what they do and so they're used to dealing with these terms so i