good morning may it please the court my name is victoria chugg and i represent john van or stall the appellant in this case the medical evidence in this case limits mr van or stuff to work that involves mostly sitting the administrative law judge claim to accept this evidence but found in his decision that he could perform late work late work typically defined as using involving a good deal of standing and walking in fact six out of eight hours typically the administrate of logic was pretty clear that he meant to limit him to light work and his hypothetical question to the vocational expert he said that it was a light hypothetical he could lift twenty pounds occasionally sit six out of stands walks six out of eight hours because he got weak in the knees and then he needed to sit down briefly because he got weak in the knees excuse me for just a few minutes while remaining on task so this was really a light hypothetical that is what he intended now the importance of this is that a limitation to send terry work in this case given mr van or is dials age of over fifty is that it would likely result in a finding of disability a limitation to light work per se would not now the commissioner argues that there's no harmful error because the administrative law judge identified for jobs that mr van arsdale could do two of the jobs are classified as light by the dictionary of occupational titles and these were that ticket seller and ticket taker jobs however the vocational expert said that these were in fact sedentary jobs if their sedentary jobs according to the regulations arsdale is disabled now the two other jobs are a little bit more tricky this was the electronics a company maybe i misunderstood i thought that light work was on the scale of work was a little more active than but if he was correct in the terminating that the claimant was capable of light work wouldn't that subsume that he was also capable of doing sedentary work well in this case he found that he could perform what he actually found was a limitation to sedentary work he called it light work and maybe i you know maybe i misquoted that the administrative law judge called it light work but it was really he said he accepted medical evidence that affected limited him to sudden terry work so that's the discrepancy in this case the medical evidence says he can he must sit in most of the day and these were the opinions of doctors so if you accept the medical evidence in this case as it stands a limitation to sedentary work he's disabled according to the center i work included in the standing it can include up to two hours of standing by definition it's typically involves and i can read you the definition if you'd like the only reason i'm asking is that as i understand dr he for his treating physician yes looking at standing up to two hours and sitting up to four to six plus the lifting occasionally is that disputed no if that would be consistent with sedentary work so these are all limitations to sudden terry which would be consistent with light work light work would be nice but would be standing walking six out of eight hours now there are couple of ways like that you can be limited to sedentary work one is big based on the walking and standing another is if you're pushing and pulling arm and leg controls and mostly sitting but that's not at issue in this case there's no evidence that he can do that and the judge didn't find so so the real question is if you accept the medical evidence as it stands he can't work the administrative law judge said he accepted it but then made a finding that he could perform light work and the not the vocational experts testimony there was that back and forth about whether or not ticket taker was really seven perry and whether he would consider to be seven terry or light how did you how did you interpret that part of the record with respect to ticket taker and ticket seller the vocational expert said that if he were in charge of the dictionary of occupational titles he would define it as sedentary so if it's sudden terry work then the get the guidelines again mandate a finding of disability can you talk about what it means to frequently balance can talk about that and what i'm specifically interested in is how the hypothetical accounted for that so the hypothetical question in this case well if i understand the question so there is a balancing issue mr van  claims that he has difficulty balancing can't hold on to his right and he's right in and i read the right medical records i understand he's complained of that quite consistently but what the problem for me is under limitation listed frequently balance does that mean he can only balance frequently which is i know frequently separately defined or two thirds but what's it mean to have a limitation frequently balance my understanding and i understand your question apologize  so a limitation to frequent balancing means that an individual can do a job that involves balancing two thirds of the day between one and two thirds of the day that's the definition of frequent so frequent balancing would would mean that there would be so when would that come up to the limitation is the other third of the day he can't balance maintain his balance that with that means and it's you know it's not perfect in this situation because either person can balance or they can't balance they don't have the ability to balance part of the day the social security regulations and maybe my colleague can address this a little bit better don't fit exactly with balancing but what it would mean is that a person would be expected to balance to be able to have the physical capacity to balance in order to do the job would you also address the issue of teeth because that seems to also be one of your challenges in terms of what was taken into account sure mr van arsdale one of the residuals of his stroke is that he has some fatigue now how does fatigue affect one vocationally that's part of the reason his doctors limited him to sedentary work which involves sitting down and taking breaks now sitting down brings us to the sedentary argument that the taking breaks is also vocationally significant because an individual has to be able to work on a regular and sustained basis and to maintain a certain number of hours during the day if they're taking excessive breaks and they can't meet that regulatory requirement now there was also there are a number of arguments relating to mr van our styles testimony regarding fatigue and also to the fact that he was slower pace is another vocational factor if an individual particularly when they're doing manufacturing jobs can't maintain a production pace then that's something that has to be considered and there has to be testimony from the vocational expert about their ability to maintain a production pace if you want to save your remaining time for rebuttal yes i would think you good morning my name's david bridget representing the acting commissioner carolyn colvin have a bit of a cold but i'll try and speak up and be understood the argument that ms jargon is making about the medical vocational evidence the medical vocational family of arguments is assuming the question of whether or not the evidence limits michigan or still only of the jobs that are classed properly classified as center if it if it didn't then he would grid out that is he would be disabled by the medical vocational guidelines so we can see that but it doesn't because there are jobs the there is no rule that all light jobs must involve six or more hours of standing and walking the definition of light includes says that they are mostly standing or walking for six hours and they can include jobs that involve sitting with some use of arm hand or leg controls and that's from social security ruling eighty three dash ten but  addition or exclusion when i classify it of these arm and hand controls that wasn't at issue here correct no i don't think it was soon so the light is basically mostly sitting or mostly standing mostly sitting or standing most of the jobs that are included within the light definition are jobs that involve standing but not all that's the argument that we want to make and the ala jay is entitled to rely on the ve when he gives them a hypothetical that says mr klayman has is limited to light work are there any jobs within the light vocational database that are within but how do you reconcile that with and ability to maintain one's balance only two thirds of the time that's what i'm having trouble with ok so first of all the second is correct the definition of frequent is a person is balance is one third to two thirds of the time right now how does that work because you have to know when he can't balance or i just seems it seems practically speaking you know very difficult to say he can stand six hours a day if he can only maintain his balance quote unquote frequently your hon i don't have a good answer for that that's that is a that is a not a great fit of the two parts of the regulations and how does he stand two hours a day and contrast a doctor i mean substantial parts of a one doctor peepers is two hours a day and then sitting the remainder because even if you parcel out you're standing throughout the day in some way that would seem at odds with the definition and you just gave us on light work but i'm saying that not all light there are light jobs that can be performed by mostly sitting that's that's the point of real concern here is that there are light jobs that can be performed by mostly setting the credibility arguments of the credibility family of arguments i'm not stipulating away but we're not we're not we can we can go on about our business in the same way if the court disagrees with us that the credibility arguments were adequate ok but what we what we are ve later in a colloquy that goes on for four pages with the claimants attorney says you know if i were writing the d o t maybe they'd be sedentary or words to that effect that we have to then identify them as then terry we don't want that because that's a that is a real problem of uncertainty as between what are the said and the jobs in the sedentary base and what are the jobs in the light base and the argument that she's making if i understood it correctly and she'll correct me if i'm wrong but if i understood correctly the argument would compel a rule that notwithstanding however that the answered in the first in the first case in the first instance about whether there are jobs in a light base or in any vocational base if later on in the discussion of the says well my opinion might differ from the d o t and find it in the lower a lesser exertional base for those particular occupations that then the l g a would have to be would be compelled to deviate from the d o t and to inquire further into whether that was really sedentary where there was really light rather than being able to just rely on the d o t and the whole thrust of the regulations and the whole thrust of the course jurisprudence about the d o t has been that it's the d o t and not the ve that is almost the ultimate authority and that when an l j asks a question about vocational bases and gets a explain not why he's deviating from the ves testimony but why is deviating from the deal to use a standard can i see if i can encapsulate what you just said i'm looking at the  at sixty five where the ve was essentially have about these two jobs and he said you know if it were up to me classify him your position is he wasn't testifying based on  determination that he had reclassified them he was acknowledging on cross examination that in a perfect world if he were rewriting the rules that's what he would do but then he went on to apply the d o t as they are currently public as i appreciate your candor and in discussing balancing and what it means to frequently balance and to be able to stand six hours a day i think you've got to be able to stand six hours a day to be called classified as light right i think that no i don't i don't think so well i don't think so lightly john the let me ask you because your time is ticking you know can you point out of the several hypotheticals that were asked can you please point to the one where they failed they accounted for his inability to balance actually the difficulty balancing yes thank you so that's our greatest concern is that we not have a rule to the affect that whatever stray comment of the may make in conversation with a clever claim of attorney overturn the d now i can discuss the credibility findings if the court would like me to but basically the the the nutshell version of that is that the o j gave three lines of reasons three families of reasons why the extent experience whether those jobs were sedentary now maybe the language was a little bit and conventional to say how would you classify these but what he was doing is he was deviating from the dictionary of occupational titles which is why we call or but i  thought the current regulation as it is written contemplates certain light duty jobs that would be accommodated by a stool for example he gave that as a as an illustration of how  an employer might handle a ticket taker who needed to sit while he was taking tickets absolutely so there's a gray area between sedentary and light and when you fall into that area where you might need to sit down a little bit then absolutely a stool for example would be there if you need to just rest your legs and then get back up with that but that does not change the nature of the i guess the problem i'm having with your argument i understand because i understand from an analytical standpoint why you're making the argument you're making but as the rig is currently written and as it's being interpreted doesn't that account for slight differences in the way certain positions are carried a slight difference is that we are way at the other end of the administrative law judge in this case said it was light work that's what he presented to the vocational experts sitting only a little bit that the individual was really limited to light work and the ability to stand and walk most of the day employer provides a stool for the ticket taker that doesn't change the name classification of the work no but if he is required to sit most of the day then that's it becomes a sedentary job and that is as light work but what the vocational expert testified is that in his experience the job is performed sitting with me or later with if what what if it's to find if it's a job that vocational expert says he can do although if he were king of the regs he would classify it as sedentary but if he says it is a job that he may do and under the classification it is considered light work what would be the burden on the a j to basically overturn that and say well despite it being classified as light work i'm going to the the evidence the medical evidence which says that he's limited to sedentary work see this is this is the problem the claim is actually limited to a job which involves sitting most of the day so if the job of ticket taker and ticket seller is truly a light job then you can't do it if it's a sedentary job i mean that's what i'm that's where you're losing me on the argument why can't he perform that job with that i don't know what to call a accommodation i guess although that's a loaded term and in the law because he needs to spend most of his day sitting according to the medical evidence that wasn't  could do it with that accommodation couldn't move we're talking about residual functional capacity what can the claimant do in the light of whatever his diagnosis and restrictions are because go around then then what that is is a way to identify jobs that get around the grids that the commissioner already conceded what isn't your argument really an attack on the way that the current definition is written for classifying these jobs as light work isn't that the sort of a hard argument i'm just asking that the rules be followed that the the rules the definition of light is very clear the vocational expert in this case is not allowed to deviate from the rules that are both in the d o t the definitions i'm social security ruling zero zero dash for a piece says this or agree with his answer that examples of light work under the d o t would include ticket taker and what was the other one of them were but he said he redefined light work and you can't do it that question is a simple one it is it or or is it not within the current definition those two positions while ticket taker are they cite that he redefined light work and you're over your time so can you just complete that thought that would be helpful to me short he indicated that light work is work that can involve two hours of  standing and walking that is clearly in violation of the regulations with said that light work involves a great deal of standing and walking and according to the social security ruling you can't rely on vocational expert testimony that's inconsistent with regulatory policies or definitions if i were to take your argument straight up it would just seem that it's really that these jobs are misclassified well he said right thank you thank you both for your arguments this morning the case of an order stall versus colvin is submitted will have argument next in smith versus the united states