she used to actually perform with whatever skills she had so i'm not sure what english proficiency has to do with that right well that's a that's an important distinction are you stated how does english impact your ability to actually perform or pass relevant work there's a two step analysis that step four as far as pastoral and work one can a person do it as actually performed and as generally perform in the national economy the judge in this case did not find that she could do her past work as a sewing machine operator as actually performed she only found as generally performed that's the whole basis of step four the court's review is limited to what the judges articulate dale j's articulate as the reason so we're focusing on only work source of how to assess work at step four as generally performed in the national economy the d o t says language is important there's six language developments and how a job is generally performed we look at the d o t is said these are how these the job requirements and under our scenario we have a language developmental requirement of oath to which requires a person to speak six five to six thousand words in english fluently read one hundred ninety five to two hundred ten i believe words per minute that is so far beyond what my claim can do it's clearly a conflict with the d o ruling which i think is page forty one of the transcript of fair my page the correct way and in paragraphs make it seem to me that there's a finding as to work actually performed not merely work in the national generally performed there's nothing in there that says as actually performed in that entire six page there is a vocational expert testified so on and so forth that she has passed work well if you if you're on the reviews the actual testimony of the vocational expert the vocational expert does not delineate that and that is a whole new record that should have been clarified by dale jane did not and it should be clarified we have a scenario where the judge is required to issue for clear findings on both actually and generally the only clear finding was as generally perform and you know under a stout before then she loses if if the other factors are found to be the same potentially yes the the record is actually quite unclear on what she actually did actually performing there's no evidence in the record on how much she actually lifted carried you know on her feet she had assistance of her son to go get products to bring home for the the sewing machine i can imagine rolls of material way much more than twenty pounds the records of the void on how much she actually had to lift in and doing the sewing machine operator job well that's another she told the regulars in the record though that she did perform work sewing at home sewing posters earning i cloth way let's get that on the record we don't know if she could do is actually perform because we don't know how much she had to lift so there's holes in the record on both sides of the actually performed and generally performed and need to be clarified to fully support now as far as leading into also a judge graber asses the r c finding i don't believe is adequate either because there's clearly shoulder and hand issues she was recommended to use a splint or splints on her hands she has shoulder issues that the judge only found overhead reaching but if you're a sewing machine operator you're reaching out in front of you you're using your hands all the time they are of c finding has absolutely no finer gross manipulation and no below shoulder reaching limitations that i think is a clear you know in adequacy  let alone you know the types of limitations that the doctor grogan submitted and we argued there that you know there was knots of specific and legitimate reasons to reject his opinions that were much less in light work good morning your honor is may it please the court daniel talbert on behalf of nancy barry hall the acting commissioner of social security and substantial evidence supports the elegies finding that the claimant could perform her past relevant work now the main issue that morning whether we're talking about the as actually performed or as generally performed at step four education which includes language does not apply at stop for that's that's plain on the face of the social security act itself forty two united states code section four twenty three d two a and i could i could quote the language and get into that if the court wants to talk about that so i have that ready if the court wants to address that but i would note that language is fairly plain but the commissioner's regulations interpretating that language are even clearer and that's title twenty of the code of federal regulations for zero four point fifteen sixty three i believe states that if we find meaning the agency is that you claimant can perform your past relevant work we're not going to look into your age your education or your work experience just not going to consider it and for all four point fifteen sixty four i think it's be five in the regulations defines language ability ability to communicate in english as part of education so it's our position that the education which includes the claimant's ability to communicate in english just doesn't apply in this case it just doesn't come into play because it's a step case and this court in silver of versus apple which came i think about a year before pinto versus masson r e stated similarly that education just doesn't apply until step five and in fact even the record in silver mention that in a footnote i would submit that that footnote is essential to the holding in that case of self era about the burden who has the burden to prove or establish education this court said in so vero that the commissioner has the burden to establish the claimants level of education because there's a burden shift at step five and the court and so very sad while we consider that the burden is on the commissioner for that issue because this is just a step five issue this issue of education doesn't come into play security act is that language ability is as part of education just don't come up until stop five so i mean that's that's essentially what our position is that the claimants ability to communicate in english just wasn't relevant here so there is no apparent conflict and there's no expert testimony and stop for a find if the court doesn't have any other questions on that issue i could address briefly the other point the mr cohen has made this morning which is about the claimants residual functional capacity of the claimant argued that the r f c finding was not sufficient because the a l g didn't include certain manipulative limitations issues with the use of her  claimants hands and with her reaching and the claimants argument was well the only limitation ale she found there was a limitation from overhead reaching but she claims that she had other limitations as well the algae consider those allegations but limitations and the reason for that as the l g states in the decision i could if i could find that i think it's on page i think it's on page twenty four of the administrative record might be on page twenty three as well  that the l g notes notes the claimants allegations but says but says that she hasn't reported that frequency to her treatment providers and it's not supported by examination findings just states that that's that there's no medical basis in the record for that alleged limitation when you look through the doctor's notes there are references to this problem well can you can you tell me what can if you're not tell me where because i don't i didn't see anywhere in the record there was a reference to allah will you keep truckin i'll track one down ok but ok i think your honor so much my of my reading of the medical record here is that the claimants in i think it was around november two thousand and ten which was almost a year before her alleged onset of disability she had colon surgery and she had some some pain and some issues in her recovery it seemed like it was a slow difficult recovery over the next six months or so but she she has she recovered from that that surgery and that procedure and subsequent notes that have g i complaints gastrointestinal complaints note the note that she said she had stomach aches she had some abdominal cramping i think there's complaints of heartburn and gas and issues like that but there's just no statement anywhere that the claimant had this loss of control and there's also no statement that i saw and that i saw on the record of judge jones wants to correct me i'll be happy to look at that but there is nothing i saw on the record that indicated that claimants doctors told her well because we did the surgery you're just not going to be able to control your bottles there's no support for that so on  r to eighty one there is a reference that looks like it's a progress report dated december first two thousand and ten as has pain and discharged brown i think we all know what that is six times a day which you know was about i don't know hour and a half every day so i think that there is evidence in the record support which she was saying and i didn't see the dealing with that well your honor i did make a couple of points there the first point is that december two thousand  again is before the claimants alleged onset of disability so based on this claimants application she wasn't even saying that she was disabled when she had this discharge that she's reporting here the other point is that i would note that to the extent that this is relevant to the elegies decision of whether she was disabled from october two thousand and eleven through the date of the decision six times a day it's not every hour and a half that's that's about every four hours and six times a day even even if it's three waking hours maybe it's every two hours but we know that that claimants are entitled to breaks every two hours i mean we don't know when she's a six times a day she might be saying during the working day i mean that the notes are not totally clear and i think the concern i have at least is that the ale jay didn't i mean you have the problem she ha very sad and i'm not sure the l g really other than saying she doesn't have it which i think there's evidence she does he did really at least my mind explain how could someone do the job she supposed to be doing if you had to get up every forty five minutes and go as is your response the she did not prove that or that the explain why she could still have a job if that was recent no i think it's the she didn't prove that and i would note that this one note that that's on page two eighty one that says pain and discharged aro six times per day meaning that that's one reference in the record again it's before the alleged onset date there's no indication that this has recurred in any way and it's during this period when she's right after recovery from the colon surgery she still having issues of her in her recovery and the idea that this indicates this says discharge six times a day indicates a loss of power control just an inability to control herself and just needing to use the bathroom every forty five minutes to an hour that i mean maybe some fact finder could interpret that as supporting her allegations i don't even think it's reasonable surgery to interpret that note on page two eighty want to supporting those specific allegations but even if that was one reasonable interpretation of that one page in the record it's only one page it doesn't recur it certainly doesn't occur anywhere during the relevant period for her claim of disability and this court's he saw from since vincent versus hackler in the one nine hundred eighty s i think more recently and howard versus barnhart stated that the l g needs discussed only significant probative evidence and if this is one note from nine months or ten months before the alleged onset date doesn't fully those and specifically support the allegations she made nobody is pointing to this nobody's relying on this i don't think the claimant has identified this you know if they did maybe maybe maybe i'm mistaken but i don't think anyone's argued that well this is the smoking gun and if that's the only thing on the record that supports the claim and sally ations the a l g was well within his finder to finally claim and hadn't supported those rather extreme allegations a total loss of fall control so the record doesn't support that allegation the substantial evidence certainly supports e l t s finding claim it didn't have i'm going to try to touch on all these issues as quickly as i can first it's rather in congress for the commission to assert that education and language limitations don't appl perhaps at the actually performed as actually perform but the commissioner cannot have a both ways it cannot adopt so surely rulings eighty two sixty one eighty two sixty two zero zero for piecing at step fo we look to the d o t as generally perform for the as generally performed analysis the d o t says language matters you cannot have it both ways i don't think it's proper for the commission to adopt in co rulings and then ask the courts to reconcile them so that the rule of the regulations also zero for twenty four for fifteen sixty b and for zero four fifteen sixty sixty talk about the d o t we are adopting that to assess how jobs are or perform in the economy the d o t is unequivocal language matters the pin oak or did not want to address this issue and if this court is not inclined to do so i just ask that you follow the pinto perform any evidence about how much was lifted at this job and as generally performed we don't have any support for the language limitations and there is no cross examination or examination of the vocational there is supportive evidence that the need for bathroom breaks is a legitimate basis and the judge did not have the clear and convincing basis to reject that testimony thank you thank you very much i think most