spangler versus lockheed three thirteen f thirty three fifty six because there has been a continuous cherry picking of the records to support an end result in this matter most mckenna's job description is at page one  sixty nine through one hundred seventy two of the record it contains actually a number of generic statements about what she does and there is go out a lot of her talk got duties yes or there's not a lot of detail mckenna dixon to new physical therapy because it was not working and that's a great question around and i'm glad you asked it dr adams you will note nowhere in the records does he ever send her back to physical therapy after the disco gram because physical therapy isn't going to resolve those issues for disc or herniated and torn they're there they're just torn apart so physical therapy is going to put those just back together dr adams as a neurosurgeon knew that that's why he didn't order any more physical therapy that's why the injections didn't work she went under  underwent those painful surgical procedures to have the injections in her spine they didn't work either so we don't just continue treatment to show that somebody is treating the fact of the matter is he knew they weren't going to work that's why he didn't order them the previous doctors ordered that physical therapy prior to the disco gram before they knew that this is the condition of these deaths then they were never going to help or worse the february twenty third two thousand and thirteen date come from an interesting question i've led us that as well dr adamson is august twenty eighth two thousand and twelve attending physicians report had to give a response to a question that the defendant asked him they said when do you anticipate  work before the disco gram was done based on just what he had seen he said i anticipate her return to work february two thousand and three two thousand and thirteen in a strange thing as lo and behold that becomes the day the dr reuben latches on to what dr adams said it should be february two thousand and three to who i am meaning you know the burden is on your client i mean so why why not why wouldn't it have been fair to say ok maybe that was random and maybe it was slightly uninformed but it was still her doctor and that same doctor saw i mean that's that's really the heart of your case that you have all the stuff in the fall that shows it's not going away it's getting worse you have all these  problems and why it would be too much to ask to kind of correct that point well your honor the point was corrected explicitly yes explicitly it couldn't have been work supposedly go ahead i'm sure i was wrong when i said last summer she'll be fine in february twenty third the say that he did make that statement but he did give a look at all the whole case but he gave a statement in the record that could not be more clear and it was after i just voted the maid i just told you the way to make it the most clear i don't think you can now say there's a way to make it more clear than that i didn't mean to i was wrong about five i was wrong about february twenty third i spoke too early when i said february twenty third there is now all this new evidence and that was just a mistake on my part your honor to make that that clear  in hindsight would have been a terrific thing to do but as we know these are evolving cases there's a new test being done there's new disco gram was new all of these findings were new and so what happened is what does he do our subjective yes and it is the definitive objective test by the way a test that the defendant agreed established that she was disabled when they looked at that test this doctor said yeah i agree she's disabled but he's stuck on the february and three two thousand and thirteen date that was done back in august even though there had been an interim enter a statement by dr adams saying listen this is exactly what's going on with this woman in fact for her to go back to work she would put herself at risk of being crippled regard the reduced pain level is pretty simple she's on morphine this is the situation to keep her pain under control she's on morphine that's the level that her doctors have gotten her to and i really can't imagine anything sillier than asking a legal assistant to come in and do quality work and while she's on morphine i would not my legal assistant doing that i couldn't trust a thing that was done but the fact of the matter is saying that i came in on this particular day march eleventh by the way three days after we submitted our appeal and after i couldn't do anything more to supplement the record or explain the situation that because her pain level had dropped by one point that that means she got better while she's on morphine why is it fair for the company to point  action didn't complete physical therapy what other reasons were involved in her not completing physical therapy well i think it's not that a she wasn't getting better and it wasn't doing any good she was actually that type of therapy she made that determination or dr adams i think dr adams alternately made that determination because he never sent her back anything clarity never said to her miss mckenna listen this is what's going on i think physical therapy will help you that was absolutely not done don't you argue something about a reason being given that something was wrong with her saw her son was ill i didn't i did not make that argument my brief i don't know i don't recall i don't recall making an argument brief maybe i did she does have voice that she's raising but the fact of the matter is is that that level of damage in her spine was not going to be taken care of by physical therapy it just wasn't in so it's in your best argument about this severed twenty third was never never clear your ploy to return to work but that's true and that's a fact what part of the fact in the statement he went beyond that and explained in specific detail exactly why she could go back to work and exactly what would happen to her if she went back to work based on his opinion is a neurosurgeon who's an expert in that area and so in the thing that i want to point out to this court is in regards to this whole thing when you look at there was one review here in the initial decision was that we had not established that she had objective evidence to back up the restrictions placed on her by dr adams originally and so when we filed their appeal i presented them with that objective evidence they agreed that the objective evidence was sufficient to establish she was disabled they latch on to the february two thousand and three two thousand and thirteen date back in august before that objective test was done and then they did then they turned around in after granting the benefits revoke the benefits  their right is of that day and i asked what changed in the answer is there's nothing in that record in educates anything changed that nothing happened between february twenty three and february twenty four that magically made her able to go back to work those disks were not going to get on torrent they don't get on torrent and that's what dr adams is saying in his record so the problem with that is it ties into our argument that this really violates the kalisch case of surgical intervention discussed with your client and was she considering surgical intervention was discussed with the client a doctor at a specific indication is she's too young to do this right now this is not in her best medical interest to have a surgery right now at this age he's going to hold off which it isn't due to manage it she's in her fort and i'm sorry i don't know the exact the exact age but she's a relatively young woman to have this much damage but it's you know that it usually comes on would be something you'd see this later on but she has a lot of damage at that age and he's managing it trying to i would suggest you know get her buy in till she gets the point where ok it's reasonable to have the surgery now because the stage of your life that you're at now and how much life he perceives her to have left and knowing how long these surgeries last was she treated conservative them i would say that dr adams is contrary to her conservatively the fact of the matter is is that he saw the issues on the disco gram you saw what was going on with her and he said listen we're upping you to morphine this is what's going on you cannot do this that the other thing his is doctor say don't do physical therapy dr adams specifically never ordered the physical therapy he didn't say i don't want you to do physical therapy but people don't order their own physical therapy with all due respect your honor the doctors do it and dr adams when he took over her care never ordered physical therapy he did not see a condition that was going to be benefited by that and he never wanted it so what is she to do she's supposed to go get physical therapy when her  surgeon the guy has taken over a specialist now is taken over her care has said this isn't going to work she had therapy ordered by other doctors who are specialists in this syria and she did see a kidney doctor to see if that was a cause of the problem and he correctly said it wasn't but fishing around doing this stuff as you continue to get these tests when you saw that it was a work and then you get the disco gram that's why dr adams didn't order it again he didn't order it from august not so this is really this is not going to physical therapy is really a red herring and it's really red herring for this reason also they agreed she had established that she was disabled through february two thousand and three two thousand and thirteen that was long after the issue was going to physical therapy and remember the days to sort of the denial was that we had an established an objective rationale an objective test to back up the restrictions placed on her by dr adams after that disco gram was done they agreed we did that in nothing changed in her condition after that then they revoked the benefits and they don't explain what changed and that's the very nature of the kalisch case they just made a conclusion a statement that it should have been february two and a half months should have been enough to have this problem take care of itself although i don't know how because those despair not down on tear but that's the conclusory statement and beyond that there's a paucity of evidence in the record to establish that she remained disabled while i can't appeal again in that state's unfairness of the situation i don't get another appeal you don't generally this work should send me a letter you tell me what the story yes here's the problem we have with what you've submitted then i have an opportunity to chew correct that problem but in the revocation we didn't have that opportunity correct the problem it was a very clever way of saying we're to pay benefits for a little bit of your theory to time and work or off forever because we're never going to give you another appeal her doctor facilitated that with the initial assessment for what it's worth he could have corrected that well in all fairness when he made that initial as you correctly said it was an estimation based on every port but he issued a subsequent let's say for the sake of argument you win would it be problematic from your perspective  area the law to say but you know in the normal course when the claimants own doctor makes an estimate as to when they're going to be able to go back to work that's usually going to be controlling and if the doctor after subsequent t wants to decide that estimate is wrong the doctor's got to explicitly correct that would that be a terrible thing to say for the law even if you won i know you want to win that's important but for future cases why would that be a good r the problem that i have with the way that these things go in regards that your honor is that i don't control of this doctor he's not a hired gun to me he's just a treating physician i think you'd like him to be as i heard gun shots i mean i love how candid you're being but i at he says what he says it would if he wants to say he was wrong subsequent test proves he's wrong he should say that but i in isis i submit to your honor's with all due respect that his subsequent letter which is in the record and his subsequent statement more importantly does exactly that it's not as clear as you want to be but i believe there that if you look at and say what does this really say that's what it says after the disco gram results he says i'm going to follow up in more so you know that he actually saw her in december and then he said he was going to fall in march and nothing changed in either one of those he said she still had to disabling condition she still couldn't do those things and she was still on morphine in his reports have never me please the court my name is elizabeth mcduffie and i represent dow corning corporation long term disability plan and yet no life insurance company the a pelleas the court should firm the decision of the district court in this particular department she was required to photocopy make appointments for attorneys those type of things the decision the dr adams issued relative to her beliefs to do that job was based on an incorrect understanding of what her job entailed he in his statement that the appellant keeps referring to said that she had a requirement of lifting greater than ten pounds that wasn't part of her jelly that he didn't say that he said he didn't say she was required to live more than ten pounds he said she was restricting or not to live more than ten that's correct in that but in the statement he also says she can lift no greater than ten pounds which was something that had been communicate him that was inaccurate that wasn't part of her job description but he didn't say that that was part of her job description that's correct so if that wasn't part of her job and he said that she could do more than lift greater than ten pounds but she didn't lift greater than ten pounds then it wasn't something that she should've been restricted by we all bring boxes of file those are heavy files and generally back at the office a legal system is the one that's going to live put together and lifted initially was a different well if she needed assistance for listing it's not a requirement of her job but assuming she had to lift the box certainly there be someone who could assist her in doing it i also work in a law office as well and to the extent we have assistants who have lifting restrictions we have someone just do the lifting on their behalf it's not that they are if it's not part of their job description and it wasn't we didn't hire them and say as part of what you do you have to be able to lift ten pounds or more in so and the palin keeps referring to the august twenty eighth two thousand and twelve information provided by dr adams there was actually subsequent information provided the doctor who'd been based at the decision on whether or not she could come back to work as of february twenty third tw thirteen that was a december third two thousand and twelve report submitted by dr adams and he said it would be reasonable that in a two and a half month period she should be able to based on the medical documentation to be able to return to work and he didn't understand why she couldn't there were no functional limitations listed that after that point that would prevent her from performing her dr adam said he didn't understand marsh know dr rubin in reviewing the medical documentation established a date he said it would be reasonable in two and a half months that the conditions that were listed in the restrictions that he reviewed and didn't and didn't also roll law on and i'm sorry for being so pointed but did not also rely on a report of pain of  made the decision that she could return to work as of february twenty third that report actually her pain level was a four and it actually didn't we didn't have a language study and even gaited had an abnormal gait as is well and  well there was no adverse medication affects listed in any of the reports said dr adams submitted there was a specific question in each of the office visit notes and in each of those notes the answer was no any adverse medication affects the answer was no but i'm not talking about know the exact length that she was on morphine for but obviously would depend on how that morphine would impact her you know pain medication impacts people differently each individual differently so to the extent there was some impact you would have thought it would have been noted in the record questioning her pain level because that would be that would go to the credibility issue of correct questioning with a level of her pain i don't think there's any question the level of pain the term nation and the definition under the plan speaks to functionality and whether or not she can perform that her position material duties of her own occupation a point that hey if every twenty fourth find just bring the morphine up you'll be good well in any case in which someone has a medical condition to the extent that medication will diminish the impact of the condition on the individual and allow him to form functioning if it's a job or just function in the answer's yes yes bring your morphine that's your and if you have to sure you bring your medic you bring your medication to work and take you right i have heard of that you're shy about telling people they should be on morphine not disputing that there was a high level of pain that's the point of the pain medication so what happens on february twenty fourth she still needs morphine your view is she should come back to work well that with the morphine but the level of pain that's documented in the march eleven twenty thirteen statement from dr adams is a level three of pain it doesn't it doesn't back as watson is that because she was on morphine but that but we have to when the plane is doing an evaluation of whether or not and into based on the medical documentation provided by her treating physician it's looking at once provided by the doctor to the participant has the obligation to establish whether or not they are entitled to benefits under the plan so we have to be a liar so that you agree that if someone needs morphine they're disabled i don't care what the job is no one says just take the morphine at work do they yes into the extent that yes yes you do you say well just take the morphine well in this particular case if dr adams continued to pursue her morphine to take and that alleviated diminished her symptoms and allowed her to work and i guess i'm misunderstanding the question in terms of why that would be something that if it allowed her to work and go back to work in perform her  when there have been something listed in the medical records about disorientation no driving no something that would have indicated that she was in the works so that documentation would not have been created she wasn't at work with more things but in the office and for good reason probably but in the office business notes wouldn't have been summoned identification when the question was asked are you have any adverse effect from the medication there would have been something noted about those type of things that is you will see that there are adverse effects from the medication but it says dependent on it made a positive complete other direction ok i was on morphine twice for twenty four hours after i had each hip replaced and it was the most  experience i've ever had i cannot imagine a more i can't imagine but i called into work the day after i said i'm ready to go let's let's start working would have been a terrible idea for me to actually work on that morphine i felt great there were no adverse side effects i loved it it was the first time ever it understood addiction but i just cannot believe if someone's on morpheme they're not disabled but in terms of making a determination plan we don't make a determination just saying that you list these medical this this medication and automatically we say wow you must be feeling this way or you must feel that way would it have been incumbent upon her health care provider to identify step wrong you may not feel it initially but it may lead to permanent damage correct he did say yes if she continues her job but part of that analysis is that he provided was with the understanding that the two things that she was not required to do if you look at his his statement that he gave he said that she drove in and into in an office meetings she had to drive to meetings out of the office that wasn't part of her job she did not have to drive to meetings out of the office and i did not have to lift greater than ten orders yes she certainly could have she didn't those work requirements of her job they were all part of her job descriptions she was she did photocopying she made appointments for the attorneys she kept she debate stamping she  four i don't know anything changed between the twenty third in the twenty fourth i think where i don't think dr reuben said that he expected that the symptoms that she was exhibiting would result would resolve by the twenty third in so that i was twenty four she would be able to go back to work when he received the march eleventh two thousand and thirteen statement from dr adams nothing in that statement changed his opinion there were two opinions rendered by dr rubin in this case you wanted an initial opinion before he got the march twenty third march eleventh to two thousand and thirteen opinion and then once he got additional medical documentation he looked at that as well and said nothing changes my opinion and so we were under two separate opinions and in fact when he attempted to call dr adams nine times to give dr adams input on his conclusions he wanted to ask what in the medical records what would cause her not to be able to perform the functions of her job in the report he actually submitted the questions that he wanted dr adams to answer in dr adams never responded the reports were sent to him twice the initial report and the a dental report r adams and he never responded to those reports he also never responded to the telephone calls over never requested to be able to examine the plaintiff he did not he was not he was asked to do a peer review report and i think had he had a chance to speak to dr adams maybe that would have been maybe the next step i don't know i'd be i'm only guessing at that but it seems to me that her doctor in scheduling to time to speak with dr reuben and not following through on those scheduled times and then actual examination of the plane will in in these cases what happens is there's a review of the ministry of clean founded terminations made whether peer review rip peer review will be sufficient and perhaps as i said perhaps after a that is correct that the plan had a provision that requires that the aetna could require that she submit to a physical examination although that have been the better course here why i don't think i don't think so i think a peer review report in this case was sufficient and what opportunities i'm sorry are they truly peer inturn they're not they're not in the same medical category no he was a yes that is that's the first review was by a nurse or a yes that was at the twenty third because that's the date that dr adams initially came up to i think that part of the reason that yes that part of the suggestion that that was the date the dr adams provided i'm sure had an impact on dr rubin coming to that conclusion although as i said there was additional information submitted after that a dr rubin decided didn't change his opinion and neither did dr adams he didn't submit any additional information at least in return of the office visits to notes that indicated that anything should change from that date you received additional the company received additional reports and evidence like thing from dr adams that were not considered because you'd already made your decision or the yes that was well after the fact yes the this respond to a couple things you had some questions that i want to clear up you asked about the issue of travel and the administrative record at page one thousand and sixty nine it's pacifically says assist with the preparation mediations such as organizing collective need of documents for the preparation of the mediation and attending mediations with the attorney and so that's just an you know brief couple minutes and i had to run through this real fast the fact the matter is she does travel you asked when she was on morphine how long was she on morphine administrative record page two sixty five that's the original report from dr adams from august twenty eighth of two thousand and twelve she was on morphine at that time your ho so the game plan like i said before of thinking that someone is expected to walk around at work get these files get them to the attorneys and do all this stuff while you're on morphine when dr adams said two times two separate times with no uncertainty and ministry to record page two eighty five is october three two thousand and twelve letter says that if she were returned to work she may cause further damage or a spine which could lead to permanent nerve damage or paralysis and he said the same thing in a statement that was also submitted as part of the record so the defendant overlooks all of those things they overlooked the straight leg test that was positive and worse and it was they over looked the other findings in the february and the december twelfth three two thousand and twelve exam she had trace reflexes trace that means they were almost nonexistent and he also overlooked the fact that he said her medical conditions or problems had not changed she was on morphine in august she was never off the morphine and that's the only way that they're controlling her pain to expect someone to work in that situation where you are not functioning the way that you what do we do about the point she made that dr adams wasn't responding to dr rubens phone calls i really cannot respond to that because i'm not involved in that the part of the problem with the way this whole thing went down is that we submit our meal on march eighth trust the doctor i mean i assume dr ms thomas the truth and that puts dr reuben in a bit of a bind in terms of accounting for office i am not saying that dr reuben is incorrect i don't know whether dr room is that correct so i would never say that i have i'll presume that he was correct as a physician that he would make that up but here's the problem there's two separate things that go on we filed an appeal based on the denial and the rationale that we were given we were successful in that appeal and then they turned right around the next day and revoked the benefits without giving us an opportunity supplement the record here's what happens if you give me that letter and say you haven't proved that you are still disabled when you submitted your appeal then i would have turned around and said ok let me meet the requirements let me meet the deficiency that you guys have pointed out to my to my client and we would have taken care of that matter in that fashion and he was never given the opportunity we were never given the opportunity to do that and that's the problem i have with the way this went down thank you thank you very much the case you may call the next