completely deals with past relevant work when whole sees issue is that she has a cervical spine bulging and she can't use her left raise her left arm or she doesn't have full movement she also has carpal tunnel in both hands the also has a mental impairment can you hear me or she has a burden but overall in the whole concept this is a non adversarial hearing process to bring out the truth of whether someone can work or not now  unusual situation she's a very presentable person she's had thirteen jobs in the last ten years but she's never been able to work any of them more than a couple months so her the problem here is that she's got a mental condition and she has a physical one so just on the physical alone there she cannot return to her past relevant work the only job that is really that we contend that she that is eligible under the past relevant work  commission has regulations could be considered her work as a casino cashier now we've or that this court has already determined that practical just reasonable it's not appropriate for to say that someone can work as a cashier if they can only use their right arm the new regulations a department of labor are going to come into play later they're not part of this case the all the dictionary of occupational titles because probably because of fingering keyboards being propped predominant you are qualified for any of those so here we have someone who worked what happened was she worked at a cashier in a casino and she left the job because she couldn't keep up her condition did get worse she tried to become a polygamist which she went to training for this and then she took a job but only for two months she couldn't work that it's sort of reasonable to assume that you do need both hands to draw blood it's a very practical situation now we're arguing very finely over whether past relevant work you have to have worked at to qualify as pastoral of the work in six months and you have to have made significant gain full activity we have an ambiguous problem here because she made literally one dollar fifty cents over per month which could state that that is significant gainful activity we contend it's not but just in the overall the overall argument is that she can't work her past relevant and then we have the mental situation where she's she's on has a whole she's been treated consistently for her mental illness she has inability to sustain work she's she least job she tries to work but her condition of extreme anxiety and unable to sustain work her that has been ongoing and it got worse now when you have mental and physical  re required to address both and in this case they decided that her mental condition was not severe so he would not address it and he did go through the reg rules and say well you know she washes dishes and she does a couple things but this court's already ruled you have to be able to do it eight hours a day five days a week and we don't have we don't have any sign of that you're allowed to do some work but you have to show you can do it five days a week six hours a day so i would ask this court to really look at this past relevant work because this is an example where it's not being applied properly if it can be applied if it's so  vague that we can't use it i'm sorry no no no not at all yes i'm trying to figure out the structure of your argument a part of it of course is that the cashier job and the phlebotomist job in your view are have the argument if that if those two jobs are past relevant work you can argue that she's not disabled even she's disabled even asked of those two and you're making both arguments i am because i think overall it's it's within this court's and the commissioner's philosophy that if you can't sustain if you can't do that work and we don't take into work with accommodations she has to assess mental and physical but say you could  somehow work i have a hard time even imagining how you could you could draw blood with one hand but if you could have a cashier maybe could have a special commendations but social security commissioner doesn't take into account for accommodations because that worker would have to maybe take longer and we're just doing the straight social security regulations under the federal rule help me help me understand the nature of her disability with respect to the one hand and help me understand the nature of a disability with respect to mental disability ok as to the hand i understand in the record i have the right record that i think is that she's wearing upper left arm she can't reach she can't raise the did not take did not even discuss her left hand he discusses her right hand but she's got some we have doctors reports that she can't  no it's because she has a neck problem she has a bulging disk on her serene she's got cervical radiata thing and she's had an operation on it but it's still gotten worse so she has spine it's not a matter of she could just keep her hands down and she's had epidural treatments in her neck yes yes yes yes and because she's also on psycho psycho tropic medication she also has a problem of being very slow so we've got a lot of limitations here and if she she's if she had not worked these two jobs she would apply she would be eligible under th owever i have to agree well i'm in pain or when one is in pain it can increase the problem and the social security rules they just they're trying to streamline this because we have so many cases going through and i feel that it's very important that if we have literally i want to credit is true because the medical vocational profiles would you know would streamline her she took that job she's someone who likes to work she keeps trying to get she gets thirty she's gotten thirteen jobs in the last ten years and none of them has she been able to continue sustain now i think she left because your job and the job suggesting that that should be taken into account but the commissioners rule saying no it's we're talking about on the job training you can't just go to school and that counts for you know time on the job you have but you voluntarily move from the cashier position yes she tried to get what she thought she could get an easier job that would be part time because she couldn't you know it's in the casino and you know they're i'm i'm envisioning chips and and money and  practical that's what it says in the regulations and that there's no variation in the job but we also have a mental problem because she hasn't been able to sustain work so that's just on the on the board of it and the only other little argument is is that in order to dismiss a mental condition and not apply it you have to basically if you have a colorful claim you have to show or talk about or address it the commissioner does whether that affects the job and that because he said oh it's not severe so i'm i'm not going to discuss it that doesn't take you out of the medical requirements because of the  the mental impairment because mental impairment is a problem here because you really do need a professional to talk about that and there was a consultant just on the medical on the mental but the can and the consultant said because her physical  problems were a condition but she couldn't lift or carry fifteen pounds that doesn't have anything to do with her mental ability to sustain work she hasn't sustained work so it's sort of good morning your honor may i please the court daniel talbert for the commissioner of social security had some opening remarks i was going to make but i think looks like i have a lot to talk about so i'm just going to get to some responsive comments had to say on that of course i'm happy to answer any questions at the panel house the st thing i want to point out is that mr art's characterization this morning is actually largely inaccurate not an accurate characterization of the record of the algaes findings or of the evidence here one of the major points that she was making was that the claimant ms whole sea was not able to use her left hand the evidence doesn't support that and certainly substantial evidence occasionally reach overhead bilaterally so that she could reach overhead up to a rd of the day with either arm she has unlimited reaching in other directions and she is able to perform frequent handling and fingering with her non dominant left upper extremity so that's up to two thirds of the day she could use her left hand and she has unlimited with using the right hand so the issue here it's not that she can never use her left hand it's just that she can't constantly use her left hand and for the demands of her past relevant work as a flat bottom ist and as a casino cashier both of them require only that she frequently use her hands but you know i don't think there's going to be divided follow we're really talking about it i think the primary source of information about jobs is the dictionary of occupational titles and the dictionary of occupational title says that for those two occupations phlebotomist and gambling cashier they require frequent use of the hands frequent handling reaching fingering etc right so that's that means two thirds of the day and as your honor said it is not all of one when you say that means two there's the day what are you talking about  essentially means up to about six hours of an eight hour day it doesn't mean that you're at all times you're not constantly at all times doing those activities you might be doing certain they may be doing certain other things during different and different points but the dictionary of occupational titles which yes you're on is it does it mean well you have to be able to use your hands for five minutes providing you stop for ten minutes or does it mean the st six hours of the day you have to be  use your hands in the remaining hours you don't i would think that necessarily the st six hours but it's just and again this is what the dictionary says nobody's challenge that i don't think mr artist challenge it certainly wasn't challenge at the hearing the dictionary says that for those occupations you need to use your hands for six hours of the day and there are as i said there are many challengers at us there's literally for six hours a day well what it says literally is frequent excuse me and then in the definitional part of the dictionary frequent is defined as up to two thirds of the day and if we take eight hours we take two thirds of that it's like five and a half hours and i put in of we're talking sort of ordinary work unless unless you're going to nonstop typos in pretty much any job two thirds of the one rd of the time you're not actually using that hand i can imagine a job or you're using a full eight hours nonstop and the medical evidence of record here is consistent with saying that she could do those jobs because you don't need to constantly as you say like you're typing or something all day you don't need to use your hands all day long so that's that's essentially what we have on that point i'm happy to address any other questions about the positions but i feel like we might have come to an understanding on that you know i've been seeing judge ward and i've been seems to create a disability cases for over twenty years now and i'm always distressed when we get a sort of security case where you look at the evidence and the person can do certain things the terms are just physical evaluation but then you also look at the evidence and it's clear that you've got somebody who's been trying to work and they have been unable to sustain work for a long time and everybody in his dog knows that this person is actually not employable what do we do with them so what we do with that and i think the leading case on that is probably gatlin st as commissioner it's one thousand nine hundred and ninety nine case i don't think it's cited in the briefs but that was a case about an individual who had a personality disorder and he had an hour one hundred hundred and fifty jobs over his lifetime and he lost more than half of them just because he couldn't get along with people couldn't deal with people constantly fired so that's if it's a case like that then yes that's someone who their past work shows that they just can't work   holsey is not that person the opposing counsel argued that she had to think thirteen jobs or something over the last ten years and she could only do them for a few months that's that's inaccurate if we actually look at the record and i'm going to refer to the exact page because i think it's important that we look at what what the record specifically shows if we look at her work history report it's on page two hundred and thirty one dollars of the administrative record she worked as she worked as a phlebotomist for two or three months she worked as a casino cashier for five or six months but she also worked as a bank teller for over a year at a time she worked as a cashier at a grocery store for a little bit over a year so she's not someone who's had long term careers or anything like that but honor i'm going to have a disagree with that doesn't penalize someone for trying to work because if she is worried because we could well so the idea at step four is that if you've done a certain job in the past you're more likely to be able is continually getting worse so even though she's had this prior work zabel to do it she can't do it now so let's talk about that your honor let's talk about the medical evidence and i think this is this is pretty important here the the medical consensus from all the doctors that give opinions is that she's able to perform at least the range of work that the administrative law judge said we don't have any treating source opinion that says that she is more limited than the l g a said there's just there's just nothing in the record to support her claims nobody's indorse to those assertions those claims of limitations what we do have is that we have on the physical side of a since that's what you're talking about right now we have two doctors i think doctor i'm not sure how to say the name but i think with a z h said that she didn't have a severe physical impairment and then we had another doctor named dr ammon who said i think in june two thousand and fourteen well yes she does have severe physical impairments and she's able to reform this range of light work that's consistent with what the found and that's consistent with those jobs she did in the past so again substantial evidence fully supports the elegies finding that she remains capable of performing those jobs now i want to briefly touch on some other comments that mr art has made about the claim and constantly losing work and being unable to sustain work that's an inference perhaps from the record or speculation about the record but that's not plainly what the record shows as i think what one of the one of your honor said i don't remember now which one but i think one of your honor stated that she left to the gambling cashier position to be a phlebotomist it wasn't that she lost the cashier job because she couldn't do it anymore she had been training to well be your honor and there's any number of reasons why someone could be terminated could be fired from a job is it possible that it's for impairment related things pop perhaps but it's not clearly the case and certainly here where the claimant represented by an attorney at the hearing told the l j in the pre hearing brief her past work is as a phlebotomist and she can't do it anymore and when the vocational expert looked at this record and said yes she has passed relevant work as a  here's what she's able to do based on the limitations that you've presented to me the algae quite reasonably concluded that she was able to do those jobs now the fact that the claimant didn't challenge any of that at the administrative level and then comes into district court and comes up with new theories about disability and new ways to challenge things you know that's that's not the way these cases are supposed to work the l j is the fact finder that's sort of like the trial level of this where the evidence is presented where the arguments are made where witnesses  questioned at cetera and at that level of it there's nobody that's saying well wait a minute there's testimony of this person could be a phlebotomist discoursing be a cashier she never really successfully did those jobs so there's no development of that below there's  no issue with that we'd say that's essentially forfeited or waived because of it but there's really nothing in the record that she's even pointing to now that supports that she can't do those jobs given the limitations that she has that the found based on substantial evidence records you know instead of doing surgery they'll do conservative treatment but the important thing is how effective is the treatment right what is the claimant has recommended to do a certain thing and if the claimant has the treatment does that help here the claim and how that one injection at the end of the relevant period it did provide her with some relief and the notable thing that i want to point out and this is what the l g a focuses on and i'm turning i apologise for flipping pages here but i want to turn to the page where the  because on page twenty three dollars yes sort of middle of page twenty three dollars she was recommended to have possibly have a cervical epidural steroid injection in may of two thousand and fourteen she didn't schedule a follow up visit and then she didn't have the injection for over a year and it's recommended again about a year later and then she says ok i will have it she has it and it's helpful so the algae could reasonably infer well for most of this period you know medication is fine she's doing ok with things that aren't this particular injection now towards the end of the period the algae is looking at she says ok we'll have this injection it does end up helping her and if it happens that her pain is getting worse and if she needs more significant or aggressive treatment later on she is entirely free to file a new application and say look my condition worsened you know i started taking this more aggressive treatment i started having these injections maybe this would be the period here ends in december th maybe this is early tw sixteen onward and if the record shows that you know it's escalating she's needing these more severe therapies than that could support a finding of disability on a later period but in this record i want to emphasize and i think we note in the in the again no medical opinion that supports any significant limitations beyond what they found this treatment record is fairly minimal there's not a lot going on here and there is one injection at the very end of the period  the garrison doesn't stand for the proposition that if there is one epidural injection that's automatically mean someone's disabled in this case they are properly took in the context of the record as a whole said it's recommend it was recommended you know she didn't particularly need it for a while she eventually had it and then it was helpful the elegy was free to rely on that as evidence to support his finding l j also made a number of well supported findings that we know in the brief i see that i'm over my time so unless there's further questions i will urge the court to review the brief to look at the paucity of evidence in this record on the lack of medical source opinions and to affirm the algae is well supported and very detailed off findings all right thank you can't thank you your honor here i am i have to disagree with the commissioner on that st let's just try the dictionary of occupational titles on cashier and turn the page to  left it there and it turned sorry there i am ok it's we're talking cashier check checker in gambling care sheer dictionary occupational titles to eleven it's on my brief opening page fifteen i cite to it a constant extending hand or arm in any direction constant pink picking pinching or otherwise working with primary fingers rather than with the whole hand or arm constantly seizing holding grasping or turning otherwise working with the hands the ability to move the fingers and manipulate small objects rapidly that's under a cashier that's dictionary titles to eleven dollars to dash  says he doesn't really know and he thought that this is what it was so that you know that what he states has to be affirmed by the l j so that is the that is the dictionary occupational titles we contend for cashier gambling ca having to put the chips in i think they now probably do it with little cards but that's that is that's the what the dictionary states so that it is frequent handling and then the other situation is that we have to remember she's not getting medical care because she didn't get disability so epidurals cost her everything costs are and she's doing the best she can but i'm going to the nd point which commissioner brought up is that there were no doctors opinions outside of the nine treating opinions that said she was limited and that that is not true dr aguilar states grip has gotten worse washing her hair is a tedious task for her because of the pain and discomfort she's been dropping things a lot because of her numbness her left hand pain and paralysis is more intense that's forced for seven to then we also have whether  jobs were whether we can even talk about the phlebotomist it has to be you have to have worked the job enough time to say that you could and she did leave it because she didn't get along with people and she also m don't know we can only imagine but perhaps because she couldn't keep up with the physical work she wasn't and she wasn't but that job is that discussion is not there i think the as you mention and i think this is relevant is that past relevant work is supposed to be someone who's i don't i think it's duplicate and i don't see the point of it i think we should just look at the dictionary occupational titles but if somebody has been working a job for so long they could do it i automate it i mean i'm imagine a just know how to do something but if they've only worked for a short period of time it doesn't qualify as pass relevant work and we are using the department of labor standards she doesn't meet th standards she can't do constant fingering and she can't even do frequent fingering and the reason that her pain is that you can't have an epidural as a constant treatment that's not something that's here and if it's if it's an ability to to sidestep the medical vocational profiles then there's a conflict however i'm going to rely on the me or that we have to have just common sense and common sense