category in a borderline age situation the commissioner has in this case has conceded that it is a borderline issue meaning that there was a date last insured and miss show field changed age categories within the provided guideline timeframe actually four months after the date lasted sureties to a higher age category and using the medical vocational rules that there was a different result when you change those age categories at the lower age category she would not be disabled at the higher age category she would be disabled and so in this situation the judge made no findings about how you said they conceded that it was a borderline a situation correct did they also can see that if she'd been deemed fifty five then she would have been eligible for benefit yes based on the medical vocational rule two of six because the judge found that she was limited to light work at step five you have to decide which grid rule applies so you match of age education work experience and the r f c in this situation she is at the light light exertional category advanced age and then you compare that and in this situation she had passed work that was deemed to six and when you have to a tool six she has similar skilled work that does not allow her to perform semi skilled work so sixty she's classified as unskilled and so at light unskilled at fifty five she would be found  that the l t a would have reached a different result if he applied to a different age category and that's the primary problem with this is that there aren't judicially reviewable findings that he made to get to that point if you say we don't know but instead judge crimes question now that she would have had a different outcome if she was in the other higher age we don't know that yes we actually do how do we know that if they did the court did not i mean they all she did not do that did not use  yes we do know that it would have resulted in a finding of disabled were guarded lists of what the judge put in the decision on the other factors because you believe the expert should not have been allowed to testify that is correct because it is  based on their age education and work experience they cannot be expected to vocationally adjust in fact the three jobs the ve identified would fall within the category that the so security administration has recognized she can't vocational in the appeals council determination that it couldn't that it said that it did not believe that it would result in a different conclusion but it actually made no finding us on the borderline age said that we determined that it makes no difference correct it is considering it well but the problem with that is that if you look to the hallux itself that was in place this is a strange situation after the at six and in there it gives the example where you should find somebody disabled which is an individual who is closely approaching advanced age limited to light work with only occasional overhead reaching michaud filled was found to have bilateral occasional reaching and frequent reaching with her dominant hand and occasional or handling with her dominant hand and only occasional handling with her with her non dominant hand when we have to disregard the appeals council statement no i think what it does is there's still this goes back to the sun vs call of in case where the appeals council made no additional findings there is an important set of facts here that she had limitations in overhead reaching that was similar to the example given that would normally result in a finding of disabled and yet they said nothing about that they said nothing about the factors they said nothing about the additional reaching or handling limitations at that time i know you want finding but the regulation to not require the a l j to state the reasons from prying the age category that is applied in a board situation it does in the sense that while the commissioner if a size is the word consider the actual senate's includes the transitive verb evaluate and the only evaluation that can be done is with factors the only way to this particular or applies in this situation was issued in november of one thousand nine hundred and ninety three that is prior to the two thousand and member of the regulation when the regular when the prior the last minutes that we are discussing was not in the regulation at the time the original hallux was issued once the new hallux was issued they included it in there not because it was a substantial change but because there was the expectation that i think you do have to take i think it take to have to take i don't think there's really much circuit split it's a matter of how they approach the issue and i think in terms of adopting rules of the best explained rule is going to be in daniel which indicates that findings are necessary and even in the philips case which was decided you know after even after the rd circuit issued a buoy was that they come down on this particular line and then also the commissioners and current halleck's emphasises that explanation is what we need within that within the decision and i think the most and i'm back to a spot where i'm prepared to accept that an explanation is required to guard to this that the age category but i just don't understand why what the appeals council deed is in this fission explanation clearly they considered the appeals council did because they referenced it you agree with it they yes they referenced it the difficulty here is substantial evidence if we were looking to substantial evidence wouldn't necessarily support that finding because there is a direct example in the in the materials they would have used to make that evaluation that runs contrary to it because i mean the other question has to do with vocational expert usage of occasional experts testimony should have been excluded but not necessarily not excluded i'm just saying that the it cannot be evidence to rebut a a directed conclusion that's what the medical vocational guidelines set out is that if you reach the finding of disabled that is conclusive and it is incorrect for the judge to solicit v e testimony that would rebut that because like in this particular case yes there's going to be a few jobs out there that somebody with this limitation could potentially perform it's just that the commissioner has taken it well it's more than just a futile with thousands of court up in the expert right but the administration has taken administrative notice that even though there may be jobs out there that such an individual can perform they have made a finding under the regulations that they cannot vocationally adjust of those sets of jobs all three of these fit within that  category it's not saying it always makes it so i'm just saying that that is what the rules are in the rules are conclusive in that particular situation i am very puzzled by your statement that we don't have to that there's really not a differen requirement that the l j explain in her written decision why she did not use an earlier age category and you are asking us to graft just that sort of requirement here on to the reg correct but also in the night circuit the th circuit takes a lesser view of the sub regulatory material so in terms of rulings hallett's palms the night circuit takes a rule that they are not allowed to look at those procedures is different of that then making factual findings to support your determination that you're not going to in the borderline which way you go correct that's two different things but but in terms of compliance with the act under forty five b they are instructed up by congress to make findings of fact when they are making any type of decision will you know in types of decisions and so in terms of administrative law in general i'm sure there's lots of agencies that would not like to explain how they reached a particular conclusion will this particular good or bad does not require that this be explained the th circuit has which doesn't have the same issues that you say the th circuit has also has stated the exact same role that they don't have to explain their thought processes but what do you do with dot but in buoy there was also the sentence that said that even though they don't make that as a p t rule that there are circumstances in which findings were going to assist the court in order for them to make such a conclusion it could have gone either way here and so you could probably justif evidence on either side perhaps i don't know what the vocational expert i think you have a if we do include that you have a tougher road but what so why isn't this just a judgment call that we should fire on there's there must be something for you to defer to and then they consider the borderline rag and they've rejected it but they rejected it when their own procedures that they would say you know presumptively be following would indicate that it should have been awarded if the example is to be followed in the how acts then the case would have been awarded and there must have been some other factor that they can say that they did not set out in the appeals council determination that swayed them one way or the other and i don't think that this court can you know put a finger on one side or the other to say that it was or was not well that was part of it as to money the expert testimony was very much a part of the decision but the expert testimony runs contrary to the the medical vocational rules point that says the court the day l j was wrong and proceed really erred in considering that expert testimony and therefore you should review you should send it back for that reason is  opposed to judgment call why wasn't that a point right the point was i think where this gets confusing is because of the court's acceptance and i am out of time and you may answer the question the because the court got focused on the trevino case and if my point on the trevino case is that they misunderstood the use of the grid rules as a framework and they got and so by accepting the trevino case have been in the trevino case i would have made the same point that it was inappropriate to rely on the ve testimony to rebut the directed conclusion and i think you can see that in both footnote ten and thirteen that the court is a mentally confused over can you address that st please that there was just an error right out of the gate and that the court that the expert testimony should never have been considered and that we that's a big problem in this case y and having done so under the grid rules then would have been foreclosed from soliciting vocational expert testimony but that's not how stuff i've works at step five when you have not exertional impairments which is undisputed that the ball has in this case that's not an issue the l j cannot simply rely on a grid rule and must instead solicit vocational expert testimony unless the l j were to decide to go ahead and just apply that older age category rather than the age that the the appellant actually is but the regulations do not require automatic use of an older age category whenever a borderline situation exists even if the claimant is within only a few days not even a few months of that old age category so it's certainly appropriate for the basic solicit testimony of a vocational expert to determine whether substantial evidence supports a step five finding of not disabled which is exactly what the l j did in this case me go back to judge graves question at the very beginning to your friend on the other side the question was does the commissioner of social security concede that a finding of disability would obtain if we applied the grid rule for someone who's fifty five or older yes you are if if the opponent was five hundred and fifty five thousand six hundred and fifty seven however much older at the time of the date last insured the medical vocational guidelines would dictate a finding of disabled that's not an issue in this case so one grid rule says not disabled another great tool says disabled and it's undisputed that she's within a few months of the border between those two crude rules your regulations the commission regulations say that in these borderline situations quote we will not apply the age categories mechanically so then the question in the case is what does it mean to not apply the grid rules mechanically simply saying well she's not fifty five that obviously doesn't count which is what the l j said well i would say not quite your honor that's an important question what does it mean to not apply the mechanically as you pointed out the regulations state that an l j has to consider whether to use the older age category after evaluating the overall impact of all the factors in the case to not apply the griddles mechanically means that takes a holistic approach to a case and after evaluating the overall factors of the case as per the regulation make  makes a decision on disability on a case by case basis that is exactly what the l g did in this case by soliciting the vocational expert testimony they didn't simply apply a grid rule mechanically in fact the l j did not rely on a grid rule  went beyond the framework of the grids to solicit uncontroverted vocational expert testimony at the administrative hearing that took into account the very limitations that appellant now says constitute additional vocational  merit using a higher age category than the actual age would dictate so i understand their argument on substantial evidence to be largely if we're playing the great will that applies to folks under the age of fifty five dollars was the holistic approach that the  h applied appropriate that's one argument but i think their primary argument to be what about the grid rule that applies to people who are fifty five or older and she's very close by the terms of the regulation she's within a few days to a few months of the fifty five dollars or over and so as judge grace pointed out that sure seems to suggest that when you are in this borderline situation where you need to be you know where the the grid rule that applies is outcome determinative to the claimants that you have to do something more than simply say well for fifty five and above doesn't apply therefore we don't have to do and think beyond what we would ordinarily do except five for people who are under the age of fifty five right i take  your share my previous question was all of the stuff that the they did for people under the age of fifty five my question slightly different which is since she so close to fifty five doesn't this regulation require more than simply saying but she's not fifty five regulation requires a j to consider whether to use the over the older age category after evaluating the overall factors in the case that the regulation certainly does not require any explicit finding in the relevant hallux certainly does not require any explicit finding in fact the relevant alex in this required no explanation and a borderline age stated that the mere presence of occasional adversities does not require using it over a higher age category and adopted a sliding scale approach we're going to talk about the hell it's an end and i may be getting all this confused  doesn't that palm say it's required because an explanation is required about what the decision is going to be you know with the palm saying well the palms are the program operations manual system what it is it provides instructions and guidance to d officials at the initial and reconsideration levels of the state agency levels not at the hearing level that's where the hallux comes into play so it's more guidance at the at the initial levels not the a level where you might have an opportunity to solicit vocational expert testimony or to cross examine a vocational expert so you saying it doesn't apply to the a i'm saying it's not where the th circuit should look the fisher should look if you're talking about internal agency guidance to the  decision writers and the l j need to do it so they are in homs is not the social security administration's internal procedure it is with respect to the instruction and guidance to the d d s officials at the initial and reconsideration levels in fact if you go down to that same palms not the commissioner does not concede that d four was actually in effect at that time additionally do we review that at all do we have jurisdiction to review whether or not someone at the initial eqn initial stage follow their internal operating procedures i don't think that was part of what we could review you're correct your honor the review has to do with the the final agency purposes of judicial review is the appeal is the excuse me the elegies decision that's not the idea that the appeals council's decision would be the final agency decision for purposes of judicial review has not been a point raised by helen that's not been a point actually briefed by anyone in this case in the instant case what happened was the appeals council declined or denied appellants request to review the l j suspicion and did so in a form letter it's a notice and it's obviously it's in the record and your honor have been referring to it and what that does part of what these notices do is they they recite the reasons that the appellant or the claimant wanted the review in the st place but the appeals counsel does not open the record to review cited to the regulation just like in the the th circuit limits in the us or is the is the appeals council decision a part of the final decision that we appropriately consider on appeal in this case it's a because it didn't find anything out of the ordinary about the borderline situation and it was well aware that that was the issue isn't an end of the folk ational experts specifically consider her  and that's there's testimony about that in the vocational expert yes well you know if we are allowed to consider that locational expert there certainly information in the record that could support the determination of certainly your honor and not only  where there are where there are as here a non exertional limitations unless they o j were to go ahead and apply that older age category but there's nothing in any hallux and there's certainly nothing in the lot of discretion it could it could have just started with the higher level if it says it's possible but it's certainly not required it's part of deciding cases on a case by case basis in this instance it's part of not applying the age categories mechanically that the l j would go ahead and solicit vocational expert and do we know though when the when the ale j chooses to do that and when the l j instead does this more rigorous analysis we know in this case because they l j did was approaching the next age category additionally the th circuit there's a presumption of regularity and a long standing view that implicit findings are ok in this quote is consistently assume that an l g has performed his regulatory duties despite minimal articulation of its findings and reason close to she go back the next year and do it again or and start over and get the finding she needed because you'll get it automatically how does it work in the real world will your hon this is a case where the appellant filed for a period of disability in disability insurance benefits under title two and under title two there's additional issue of whether the insurance status requirements of the actor matt and that basically what we're talking about is the fact that the earnings records show that appellant had acquired sufficient quarters of coverage to be insured through december st two thousand and thirteen this is the date last insured this is not in dispute it's not an issue in th of the commissioners and the only way to have a new earnings record is they have more earned is that right and she'd have to get another job too to reinstitute some earnings period for us last issue in the us in case the vocational expertise to but  father four hundred and seventy five thousand jobs a national commie that that the public could perform it's sometimes agencies have to draw lines and one might argue might argue that a line would be arbitrary but that doesn't even if that were so that doesn't make the line improper in the instant case the date last insured is a line in this case in to solve the issue of borderline age situation instead of my family and that's important in this case right that's very important in the l j w experience professional it was uncontroverted testimony there is no question as to what the vocational expert testified there's no vote there is no question that the vocational experts testimony included those limitations that appellant says are additional vocational adversities and there no question that there was no cross examination of the vocational expert that testimony when uncontroverted that is all and undisputed in the testimony could not be more clear with respect to the availability of jobs the plaintiff could form and this brings us to a point distinction between the facts of the instant case and that again the th circuit daniel's case now for the st to begin with there is no explicit requirement of the regulation or the applicable hallux that there be an explicit finding and so we urge this court not to adopt the usually created rule from the daniels case but secondly daniel's case was not a case where there was an evocation expert testimony in daniels the l j applied directly applied the grid rule in a borderline age situation to find that the claimant was not to say by contrast here in the instant case we have that substantial evidence we have not applying a grid rule mechanically but instead deciding this issue on a case by case basis by soliciting uncontroverted vocational expert testimony that is a key distinction between daniels and the instant case dollars she was fifty four dollars so they l j but he could have determined that she was fifty five dollars that would have been within the l j subscription because it was a borderline age situation but of course there was no requirement that the l g had a whatever he says the money which you're saying is once you heard the vocational expert he was bound by it couldn't ignore it had to accept all of it and would not have been allowed to determine that she was fifty five as well and hale j can choose to ignore vocational expert testimony where such testimony is unsupported by the record but this testimony reflected the limitations contained in the r of c which are not in dispute by either party and this testimony included the limitations from the r of c such as the limitations now described as additional vocational adversities in that they were considered so substantial evidence supports the l g s testimony in many circuits as admit magistrate judge noted many courts within there's no dispute as to what those specific limitations are this is not a case where we're arguing over how far someone can reach or how much someone can lift i understood in the substantial evidence argument my question is i want to go back to something you said about arbitrary lines so obviously all lines are arbitrary and so i'm not asking about one versus critical two and how they separate five hundred and four thousand and fifty five there is a proposition background all in the history of law and all ministry of agencies that agency decision makers have to explain their decision making otherwise it's arbitrary capricious and so if the agency commits itself as it appears to do that we will not apply these age categories mechanically that's a different arbitrary problem isn't it that is you have to explain why one age category would apply as opposed to another well you have to i would say you're out of the the l g has to consider it but there actually isn't a requirement that an explanation or fun to be given and that that's consistent with longstanding for a circuit case law of a presumption of regularity i understand the presumption regularly but i took the st thing at your mouth and i want to make sure i understand how do we know that he considered it we can follow the th  circuit case we can we know that he knows her date of birth and we know that we know that he knows the date last assured we know that he knows the regular appropriate regulation we have a nd to finish answer your question or thank you  we know that the o j knows the appropriate regulation because it was specifically cited and we know that the l g knows again the date of birth and the data that last insured and the regulation and those facts were communicated to the vocational expert with respect to how old the person was at the administrative hearing were controverted vocational expert testimony was solicited which again is the biggest distinction between the facts of the instant case and the daniel have agencies with just unfettered discretion even though they seem to have a lot of discretion in in kind of their insulated from review ability if there isn't a recent given  and it seems that as i understand what you said and tell me if this is wrong that the day they could have the l j could have said you're in the higher category therefore she went the  could have said i'm not sure whether you're in the higher category or not so i'm going to listen testimony from the from the folk a small expert the vocational expert could have said she should be in the higher category and the a l j could probably still say no i'm putting her where she actually yes or the there are the vocational expert could say she should be in the latter category and i'm keeping them in the lower category in the field so the l j could have disk ruled any which a way be the relying upon the vocational expert or not and it would be insulated from me review and is that a problem will at the end of the day substantial evidence has to support the l g s decision and that's where the court comes  to make that determination to make that determination to to rule whether substantial evidence supports again that's more than a scintilla but it's not even a preponderance of the evidence that's a long established interview in the circuit across the country in the instant case of all those options with a l j specifically did was ask a hypothetical question to the vocational expert of an individual with the same age and the same limitations and the same transfer ability or not transfer ability of skills and the same past relevant work could that person perform jobs in existence in the national economy the answer could have been no the answer could have been yes the answer in this case was yes four hundred and seventy five thousand so it so the ail jay did not say ok i have determined that a fifty four should apply what jobs to the person do to l j said considering a hypothetical of a person with this age is it can jobs be performed relying on the experts the uncontroverted testimony the answer was yes jobs can and that was how the l j went through the borderline age situation process and relied upon substantial evidence  and to make one point clear michelle has received nothing in the last five and a half years she could not reapply because the only benefits she would apply be eligible for our s s i needs based benefits and because her husband continues to work and support the family is resources that income exclude her from any of the disability benefits whatsoever not getting back to the stuff five problem here i think we've been a bit unclear there are two periods of adjudication that we're discussing she originally alleged that her disability began in august of two thousand and thirteen so for that months between august and december she was a person closely approaching which mechanic not mechanically but applying the string through us results in a finding of not disabled but if you read the judge's determination he finds that the additional limitations in reaching in handling substantially  the non exertional basis meaning that they can't direct a finding that's why you use them as a framework for those months he had to solicit testimony from the ve that's not what we're arguing about so in order to support a step five finding which we haven't disputed we're saying that prior to fifty five dollars are part of the deal yes she would have been found not disabled using the grid rule is a framework supported by the ve testimony it's when you go to determine whether or not you go to the higher age category and once you get to the age or higher age category that's where vocational testimony is necessary because it directs the conclusion and that's what's that's what's an appropriate to  o in terms of soliciting at that point all right with regards to the palms neither one of us are really sure in terms of when the palms was in effect but it makes no sense to have two different rules if the d d s had to make an explanation why is it wouldn't be incumbent upon the dail j of which this court is responsible for reviewing even be more important for them to make those findings so to have to internal rules doesn't make sense the more appropriate rule is the instance that they probably did expect the ail day to make some sort of determination also when you get to the finalization of the decision in higginbotham this court said that the decision is not final until the a c review or issues their den in this case when the language the ac uses is from hallux i dash three desk three desk twenty five but doesn't higginbotham also say that the appeals council decision is a part and make solicit decision to the mary v yes no no no the way the regulations are defined the denial of review is not a decision if the ac intended to make a decision yes there you can  regulations say and they make a distinction between a denial of review and a decision now obviously in this case they they put language in there the thing about it is the language that they decided to include comes from it's not the old power it's so to the extent that the ac made the determination they made the determination in terms of applying the new rules and once you get to the new rules the factor aspect of this that we're talking about is not vocational factor but age education and work experience so it's a person so when we talk about factors that favor going to the higher age category let's say she only had an th grade education that's an additional factor if she worked in an industry that was unique or something along those lines i can't fathom us concept but it would that would be it but in this case it's the r f c factors the additional reaching  handling limitations that favor going to the higher higher age category you don't have time thank you very much thank you counsel we have the argument in this case