ll the litigation that's ensued i still don't think the commissioners answered this question the residual functional capacity in this case said that mr pants you would need to miss up to one day of work per month that sale his own finding the vocational expert was asked to do the job for the remaining days of the month that's finding the yes the fine would be there would be one day of work per one day of work for a month that she would not be able to be present and  that the other days she would be able to work within the other limitations that l j set forth yes so the vocational expert was asked about this work function of being able to show up to work and he said well for the for if you said well for the st ninety to one hundred days there's a probationary period for unskilled jobs where employers typically tolerate zero absences and then she said after the st nine thousand one hundred and twenty dollars days employers will typically tolerate  two absences and so the l j found that she could do those unskilled jobs and so the issue here that's teed up is you know is it is an inability to maintain employment past nine hundred and twenty d absenteeism relevant vocationally relevant and it clearly is the commissioner's own regulations describe the analysis as whether or not the claimant can adjust to other work let's let's circumstances that before somebody gets hired they have to go through a training program is that would that make a difference in other words you would not be hired you have to go through a training program in that case i think it could potentially be significant that you haven't been hired yet because all of the authority that they've cited talks about employer hiring practices and so if the if  if if if it could be framed that they have not yet been hired i think that could potentially be an employer hiring preference a lot of the case law talks about an inability to complete and pass a medical examination pre hiring and so i think maybe that could be analogous but probationary period now the focus experts said during the probationary period nine thousand one hundred and twenty days are separate and no tolerance for absence so we know she's limited to unskilled work from the record based on her other impairments and the vocational experts say no more than two days and that's later on down to one day per month every single month as you sit at the onset but that still leaves i think that there was some testimony from the vocational expert that there are hundreds of thousands of these jobs sorry yes that's still these thousands even if you've got a small percentage that don't have such a probationary period available i know that their argument goes something like this where there's all these jobs and they say typically so let's just assume that one percent of the employers don't don't tolerate this but the problem is there's no evidence in the record for that assumption and  the question posed was obviously hypothetical question yes st nd it does not talk about all the jobs talks about typical job and so what we're left with is not all that is that i may just lie she answered with with after the probation they're always testifying what typical employer tolerances are and so but you know i do have to admit that if you are inclined to see some typically then there could possibly be a purpose for remain and i just don't see it that way aren't you you're being a good lawyer and what you're saying is that your chances on remand if we do it the way that my colleagues  it please the court i represent the commissioner so security your honors the court your firm the commissioner's decision because supported by substantial evidence as the supreme court recently held in peace efforts his burial whatever the meaning of substantial and other contacts in the search security of context the threshold is not high i mean yes but the problem is that there is no job as we know there may be but there is no job this guy can do according to what vocational let me give you what i think is an analogy somebody applies the only job they can do is to be a fireman and you need both legs to be hired as a fireman he has only one leg turns out that if you are already a fireman they keep you in a desk job and they show that people pointed out in our brief circuit courts have recognised that the that the entire disability scheme is to is to show an approximation of the availability of work approximation is fine and if you show that there are jobs for that don't have this probationary period then your father and but if as seems opic is not the government's burden is to show that there is work in the national economy that the claimant could perform and the vocational expert testified that a person with mr penske's  expert says if you get such a job typically you need a probationary period and this guy can't do that now whose question is whose job is to have a complete record without probationary period i disagree your honor for for the following reasons the exact question posed by counsel was correct starting in fifty eight i'm sorry ok and how much absenteeism or tardiness is tolerated in a routine unskilled entry level position during a probationary period council did not councils question presupposes the existence of a probationary period therefore the vocational experts response is is given that supposition nd the vocational expert only opined as to what was typical not not what is present in all unskilled jobs balance saying we can just assume no so jobs are very air but i think this record is incomplete and if our record is incomplete why what is the big deal about sending it back and letting you find your honor in response to that line of questioning on five thousand eight hundred and fifty nine the l j immediately shut down that line of questioning for the simple reason that probationary period do not enter into the determination of disability so this it seems to me is the fundamental point right and i wonder if you can help us is there a specific regulation or on probation periods as being excluded from the calculus of whether someone can do the job not exactly in those terms here but we believe that probationary period do not enter into to the determination disability for these reasons and st time in answering that question could you cite to a single district court or appellate case that goes your way it seems that every district court opinion goes the opposite from what you're arguing we said it in our binding authority for that proposition in their brief as well we don't believe that probationary periods are are relevant for the following reasons the commissioners the commissioner regulations specifically provide that in order to support a finding that an individual is not to say well that the th step the commissioners are responsible per for providing evidence demonstrating that other work exists in significant numbers in the national economy that the individual can can perform to descend the commission's regulations and rulings are clear that the only factors in reaching this determination are the vocational qualifications of age education and previous work history in the r f c second so security act and the commission's regulations are also clear that an inability to obtain work including the inability to find work in the immediate to go to other things that's why for me the analog is one i gave you about the job where you somebodies in it they can stay despite the fact that they have no a physical disability like no leg and somebody who looks for a vet job will not be hired because no one is hired who doesn't have two legs social security disability is a practical matter her care and this guy get a job not does he failed to go at arsenal but can is physical condition permit him to get a job and if  probation every period is required and i'm not saying it is that if it is required and he cannot physically physically meet that then how can will say that the jobs are available as we pointed out in  brief your honor the supreme court has upheld the commissioner's determination that l imitation on the ability to work has to last for twelve consecutive months and that's been our view thomas it the limitation for a period of ninety dollars to one hundred and twenty dollars days she would not be able to perform the job per her reading of the testimony the government's point is that that limitation lasting ninety dollars to one hundred and twenty dollars days does not meet the definition of attained permanent employees status the dictionary of occupational titles already defines how long it will take to learn this job there is no nd in co it set of requirements that that and to say that there is a nd additional set of so i think context very much appreciate the government's buy because we're talking about national and national economy and national uniform standards which trying to get and a every single lock up of position in the country's got a probation period for thirty days and you cannot be as a law or absent from your position for more than five days and one of my you know someone applies to be a law clerk for me tells me that she's going to have to be absent for six days isn't the probationer isn't the fact that every law clerk position has a probationary period and does not permit absences of more than five days relevant in that case in that case your honor we would have had a question from that was posed about the exact occupations that were relevant now we pointed out to you going in answer to that question and that hypothetical you going back to the problem with the question posed by the attorney director now let's say that the question had been the right rightly phrased and the question had been is there a single job among these three unskilled jobs out there in the national economy in so far is it was correctly posed in irene practice and is excluded by regulation would come back a moment to your statement that a disability has to last more of a ninety a certain amount of time aren't you confusing wherever va disability last longer which in this case it was the disability continues continues throughout and whether the disobey the requirement food be hired because of the disability more than a certain amount of supreme court hasn't said anything about the amount of time that is needed to be forever as far as we know after ninety to one hundred and twenty days the vocational expert stated that she could perform the job you likely would no longer keep her from having a job but that's different from saying those job precludes a fine finding that a claimant can engage in substantial gainful activity is not correct that's correct your honor and our position is that after any a political vocation a probationary period which has well i'll just point one thing out about the question there's a lot was made about how vague this question is and i think it's actually clear testimony that has been a lot on the that the question is ok and how much absenteeism days there's typically no tolerance for absence it's a lot clearer than i think he was portraying it to be and i'm sympathetic to you know the position but i just think that there's not as much wiggle room there as is being allowed on that unless there's any other questions