Action 'the command "make" is not currently available'. sometimes but not others

CS5 Mac OSX
I am making an action that uses an adjustment layer. when I go through the process without recording the action it woorks fine but when I record it the action always stops at the Make adjustment layer step with the error 'The command "Make" is not currently available.' I tried inserting that step through the adjustment layers panel, from the bottom of the layers panel, clipped and un-clipped, but I can't get it to work. I made a test action with only the make adjustment layer step and that worked but when I copied the step into the real action it broke again.
how can I get this action to record?
