contrary evidence such as a functional capacity evaluation neuro psych testing and her own independent medical exam so back to the st topic when mr kerry appeal united's adverse benefit determination she explicitly requested that united disclosed her report to professionals but united might generate during the appeal and give rick chance to respond within days of ms jetties written request united wrote back and said in substance no way develop and over time the secretary has the prudent regulations provide three intertwined rights to protect the plant participate and to assure that the review process is fair the three quel rights  receive copies of all documents generated during the course of a benefit determination and the regulation actually does use the word generated its in the definitions under and making defining documents to the right to comment on the records considered in the claim with view process and three during the appeal the p d surely must respond to the evidence submitted by the participant so the rationale behind these three core rights it's essentially to prevent sandbagging participants who are at a time with this court is used enough by the hearses boston chipping with new supporting rationales for justifying an adverse benefit determination and not allowing the participant to o to my nd topic while the regulations make a real world their friends we start out with a primary goal recession period when congress passed it was to resolve disputes over benefits inexpensively and expeditious store there is nothing in the record that disclosed that she was spending regular work hours doing that and she just wasn't and what was really unfair about dr i'm sorry dr hyman his recitation of the facts is she implied things such as ms j was riding motorcycles they were all references to social media that was way out of date so there really wasn't any evidence that correct absolutely and she didn't have a brick and mortar store she may have had the wrong there myself the brick and mortar store may be gone on for a little while post this ability and attempt to do something but then it appears and doctor pinsky for whatever reason checked the yes box and in terms of what he was agreeing with that was not sufficient evidence to terminate the claim based on everything else in the record s argue that the two thousand and eighteen amendment or regulation it is relevant but i take it that another one of your arguments is that you don't need that that the agency itself had interpreted the existing regulations since at least two thousand and nine that you would like it interpreted and therefore our deference would apply so long as it's ambiguous and on that there's a circuit split i agree with will say ninety nine percent of what you said say here's my one little slight difference yes to two points deal with this position is that the two thousand and two regulation had always require disclosure of reports even during the address the problem created in the th circuit by midgett the th circuit case and drawing a blank next year and the th circuit case and to be it specifically clear that the two thousand and two regs have always required this is to   our deference i'd say after the supreme court decided price or if there are if we want to conclude there's ambiguity the could the court should defer to deal with al's interpretation but reading the regulation it is clear to me that there is no hair splitting in it that allows that only work wired under the two thousand and two raves to disclose reports generated on the initial termination and not disclose anything generated on appeal so that that's my only slight difference with the way characterize to judge our own rights let me ask the court if there are additional follow up questions at this point now all right thank you the interpretation of the department of labor regulation in effect between twenty million twenty two thousand and eighteen allow me to address that there really is no circuit split six courts of appeal have examined this department of labor regulation all right tell me why the th circuit in selma doesn't come out the way it doesn't come out on the other side in white it is consistent or in line with the ther who agreed that this regulation the two thousand and two to the two thousand and eighteen regulation is that all you have to say about salma it is and in addition and that is your argument that there is no circuit split decision goes into the greatest analysis and detail about the partner not labor regulation one age of the regulation which talks about screws or relevance information does not in the context of the information used to determine the make the initial claim determination it's per one h three rule minette three risk talks about the appeal process does not call for production of documents created during of the department of labor's trimble to the two thousand and two version of the regulation talks about the importance of producing relevant information so that the claimant can make an informed decision whether to pursue an administrative appeal and the courts uniformly look at that and then appreciate that the regulation in effect at that time did not require production o wished the department says we have always interpreted the regulation as requiring disclosure documents produced during the field appeal phase and she suggests that that positions entitle however two problems one is the department statement of its position in the preamble was released two months after united rendered its final determination in the  judge thompson's question about what has always mean you doing knowledge that it goes back at least as far as two thousand and nine that that was the department of labor's position yes referring to the amica strafe we're talking about analogous pretty filed in the and one case that was not widely disseminated to the industry the but that doesn't make it not their position yes but turning to the issue of our differences whether this court should defer to that position in this case the supreme court has made clear now that our differences is only when the regulation is genuinely ambiguous and if you study the exit to the opinions we would submit from the various circuit courts of appeal they are not finding an ambiguity in this regulation and so we would contend that our has no place in th suggests that that is that there are no facts to support that in fact the facts that exist in the record would support the opposite conclusion and yet she sandbagged as to that because she didn't have the report didn't have a chance to challenge it so what do you say to that two things to that well i mean let me say this the issue of whether he claimants can drive a car to work route how they get to work is immaterial to whether or not they can perform their regular occupation and that is the issue mediately before the court can is generally performed her regular occupation reasonable and it cites restrictions the limitations agreed to by ms jenny's own treating physician there is an abundance of substantial evidence in this record to support you know just plain determination the department continues to believe that the unfair review were required that claimants have a right to review and respond to new evidence or rationales developed by the plan during the pendency up at the appeal and have the opportunity to fully fairly present his or her case at the administrative appeals level as opposed to merely to have a right to review such information on request only after the claim has been denied on appeal so de there is clear and it goes on in the preamble it was and continues to be the view of the department that claimants are deprived of a full and fair review is required by section five hundred and three a barista when they are prevented from responding at the administrative stage level to all evidence and rationales and that's what happened here the process wasn't fair it's just not that hard to be fair united should have turned over the purport and that let me point out a practical problem here if it's not addressed claimed someone goes on claim in two thousand and one the insurer terminates the claim in two thousand and nineteen there that because i'm in the weeds on these cases i can tell you this goes on complaints are not in dispute it is my impression the she does not have a physically based medical condition that would preclude her ability to perform full time primarily seated work is jerry had spinal surgery mis to decide that withholding the report was unfair but i laid it all notions of full and fair d overview the case should be remanded back to the district court with further instructions to retain jurisdiction and send it back to disconnect from the hearing at this time