court has often suggested that one of the measures of the reasonable us of a decision of a plan administrator is depends upon the quality and quantity of the evidence in the record with respect to the quality and the quantity of the evidence in this case the various opinions of dr dan jones patio kudo's treating neurologist established beyond reasonable question that paddy's disabled by narcolepsy and sjogren's disease dr jones's opinion is supported by objective testing in the form of a baseline polysomnogram fee and a multiple sleep latency test as well as by dr jones is clinical observations at the time he wrote his last opinion he'd been treating patty for  twelve or eighteen months not only did dr jones provide a diagnosis supported by objective evidence he specifically explained how these diseases disabled her in the record we have  couple of documents that he's submitted in support of her social security disability claim where he explained that based upon patty's medical condition she would have difficulty understanding remembering and carrying out simple instructions she would not be able to perform work at a consistent pace he said that she'd have good days and bad days but that he said that she would miss work more than four days in any given month and the four days was the maximum number that he could check they didn't have five or six  reliance both in their administrative review and in their briefing in this case if this court ignored dr jones pretty much completely there's no reference  at all to the two objective tests there's no real reference to his opinions reliance instead relied exclusively on dr  a sleep clinic that may or may not be the case but i can run one or ran one you know many years ago ok that could that could be almost all my point was i could probably run a sleep clinic as long as i had qualified sleep doctors to work there i don't think that establishes that he's qualified his is board certifications don't refer to to sleep medicine at all and i think it's also important to note that in his in his first he wrote two opinions had in his first opinion he never really said that he didn't think patty head narcolepsy he has two or three paragraphs where he kind of dances around the narcolepsy issue and says well this seems to me to be unusual and this seems to me to be unusual but he but he never says that she doesn't have it he never disagrees with the diagnosis and furthermore he was asked whether he would make any recommendations  changes in her treatment and other than he said he thought she needed to see a psychiatrist he didn't make any other suggestions and most of her treatment was directed toward the fact that she's in our collective so that's that's inconsistent this argument part of the problem with them figuring out what was wrong with patti because she showed up at her doctor's office on that one day in january complaining of of things that ultimately proved to be related and then a week later she went into the hospital with with severe abdominal problems and i think basically they decided that she had two different disease processes going on along the way  and i think his qualifications rule him out for any reasonable is in the opinion but the other thing is he did not at the time he made his opinions have dr jones his last information in them and the multiple sleep latency does so i didn't dwell that was kind of ambiguous about whether he thought patty was disabled and if so why they ask him for a correction and he said well she's mentally disabled but she can physically work at a full time said terry job and that's just out of the blue i mean i there's no evidence that he could have reached that can solution that's like i had a case here years and years ago the macdonald macdonald case gets cited every now and then and they did the same thing there they got up an opinion from a guy that was kind of ambiguous so they call him and ask him if he could write it and the second opinion was yeah there's another all of this guy at work and this court assail that opinion for the second opinion for it didn't have any basis in it and it makes i think it really makes his whole opinion suspect i want to turn about this i'm a member of the company that she only gets twelve months disability payments of  mental condition contributed to her disability even if there are physical impairments thank you your honor i was i was just going to say i want to turn to that before i run out of time i think it's pretty clear from their letters now that not clear necessarily from their argument in their brief but i think it's pretty clear from their letters that they said depression shows up in the medical records therefore this this provision applies in and we can limit her benefits to one year i've been doing this for twenty five years i've never headed disable a client who wasn't depressed you know you're fighting the insurance company you don't you can't work you don't feel good your family wonders why you're not working so you can find depression in any in any medical record so it's important i think to clarify it and i also think that the ms bishop who's the only mental health professional in the record her observation that patty's mental problems were sprang from her physical problems plus the evidence that the lot of people narcolepsy have depression i think that carries the day for us on the on the mental illness we best the court to consider adopting the that the second test that the reliance now concedes applies is the test from you know from the george case where if a person if the evidence is clear that a person's physically disabled don't look at the mental part the mental illness thing doesn't apply to to return just for a second to the d s m for a human if you look at the definition in the reliance policy of mental or nervous disorders and it's on page five of my opening brief it's on thirteen dish one number ninety four of of the record it lists nine well really mistake because the ninth is mental illness and so this kind of redundant but but it lists things like bipolar disorder schizophrenia delusional paranoid disorder psychotic disorders those things are all primary mental disorders i i really think that's what this policy was was getting at it does say depressive disorders but you know that's that's pretty broad so i think a fair interpretation of this limitation is is that when the the depression is the physical disease you can apply the mental illness limitation what's interesting is to think that they have written these policies so that if you have a lifelong mental disability bipolar or schizophrenia you're not going to be able to get long term disability benefit yeah and i you know when when congress was considering the mental health parity act i was really hoping that they would address that particular problem because it's just it's odd thing in this case is with respect to the mental illness limitation and that's really the principal part of dispute is reliance has the burden of proof and i've looked for cases the talk about how you reconcile a burden of proof issue to say where you've got the differential review and and and and i think one of the main differences is they can't win with substantial evidence they have to win with a preponderance i think that's a that's a key difference they can beat if their selection of the evidence is reasonable which it is not in this case i think they can it can defer to that i think if had they interpreted their policy reasonable i think you would defer to that but they still got the burden to prove that not by substantial but by preponderance my time is all right mary that the district court does not deserve deference but my kind which means that as long as my client's determination is supported by reasonable evidence my client's determination has to be upheld  concerned about the posh jury in which this case comes to us it seems to me that the frame is rather all wide because in the district court you argued and the district court accepted the argument that if a mental illness contributes to a disability then you get no disability coverage well that's what my understanding of the briefs and i think there's no question that the district court helped but i bet if there is a if the mental health issue contributes to  the disability then you do not qualify for disability but my understanding is before this court your argument now is in accord with george that mint has always been the same thing said if the mental health contributes to the disability you only get twelve month or the mental condition so the question before us is whether there is sufficient independent evidence of a physical disability for which she qualified as what my client determined which is what we've argued from the get go which is what judge frust looked at as well the question whether she is sure that soley disabled from a physical standpoint that's the issue here before this court that's the issue so help me since the analysis in your denial letters had to do with a determination that there was a mental health issue in that she received the twelve months of mental coverage one part of the determination that leonhard point me to the best analysis that you have in your denial letters of her symptoms were lighting to crown narcolepsy fibro muscular dysplasia so grins says that several different letters as a result of the late approval of benefits the issue was that her o'connell's appeals were exhausted on the physical issue at a point where the benefits for the mental condition where proved so that the finding in what letter would you  contains the analysis of her physical ills should be the matter after the first appeal i believe there were three appeals here and i believe the result of the second appeal was the split decision that benefits were to be awarded for depression and anxiety which are specifically referenced in the policy as mental conditions that benefits are to be awarded for if they contribute a cost and it still maintains that the physical conditions themselves which is the same line standard said earlier by themselves were not to see blame and the physical conditions in this case fall into two camps we have fi grins i think yes i disagree with regard to the fiber muscular dysplasia i think that is off the table and there was a footnote in plain of the pallid brief which suggested that there was a prior working diagnosis but towards the end it her own treating physicians realize that that was not a proper diagnosis in this case so we're looking at now and her collapse that's absolutely correct we're looking at a possibility of credits there's a split of the union there's a well family doctor says she's disabled as a result of all kinds of conditions including fibromyalgia including depression including anxiety bodies treating her for crohn's disease because she's receiving medication for it and is at some point in the hospital complaining of symptoms of chrome that might be well doesn't that establish that she has crones crones isn't something that clears up on its own i understand but mr murray didn't mention clones and has a while argument actually he addressed the court saying disability was based on narcol showgrounds which is something well sjogren's is a condition similar to crone's is it not not an immune disorder yes ok but similar i think it affects a different part of the body how those conditions affect her ability to work minus depression anxiety fibromyalgia and spinal disorders and that is exactly the issue here and that is exactly what my client examined and evaluated this case whether the physical conditions that are left after we subtract the preexisting conditions and after reception the mental conditions whether those conditions by themselves standing alone and reach a level that your opposing counsel referred to in his argument and in his briefing it's your position that those are not independent evaluations not work ups that establish her inability to work there is nothing in the record that establishes her inability to work on an objective basis yes we have dr jones's opinion that she is a limited and can concentrate more than two hours but we don't have any nurse psychological evaluation which says that there are indeed cognitive impairments year object to flee other than just oh we're talking aims are we talking about cognitive impairment or are we talking about physical impairments were lighted to auto immune disease because if you're trying to divide between mental and physical that was your opportunity to have employed for the review of the records a mental health specialist and you chose not to do that  to objectively prove that her medical conditions reached such a severe eighty as to prevent her from performing the material in substantial duties of initially her regular argue patient and thereafter any occupation she submitted to claim based on two conditions we examined those conditions and we found that those conditions were preexisting she shifted course and told us oh hold on those are not the conditions i'm disabled for i'm actually do so i will based on those conditions at that point the first time she mentioned my client reviewed that worse conditions and while mr mary keeps on saying that mr barlow is a sports medical physician that's not true he's an occupational specialist he's specialized in occupational madison he's actually the type of physician that is appropriate for a case like this which means a physician who reviews limitations and restrictions as a result of medical conditions and how they affect a person's ability to work knowing only had physicians to look at her review her medical records and and i know i'm asking a compound question here but it's also a big troubling because  if something goes beyond a certain level however interests prescribe medication for depression they prescribe medication for anxiety they treat pain disorders they treat your flu internets are the broadest medical  is a sleep disorder and we have a physician who performed an independent medical review who has experience in treating sleep disorder that physician had any experience in so grins or crohn's disease i have not personally spoken to him mr merry has not taken his deposition or propounded any discovery so absent from the evidence that's on the record we do not know and the record does not show  background it shows that he's an internist who has a host of years of experience hence mr merry's comment that hysteria track which i find highly offensive plus he has a long history of teaching he has been involved with a lot of different institutions and facilities out east so i would believe that autoimmune disorders have crossed a stock however with their no physical exam it is a person with multiple issues and problems and you do two paper record reviews can you give me a further explanation why a reasoned principled process would not expect to have this person actually examined or at least have your review doctor's consult with her physicians neither of which occurred in this case i cannot speak to the exact certainly as there were no discrepancies here to such degree as it felt like an individual needed to conduct a physical examination the medical records are silent as any objective evidence limiting mr corona there is objective evidence diagnosing mr cohen i agree with that that's not what we're looking for we're looking for objective evidence of stablish ingber stricture and limitations that would apply to her job and her job as a sedentary job nobody says here that mr conan does not have medical issues we have the last ones to say that nobody says that mr quinn can go out and lift heavy boxes now but he sad she can work at a facility driving a crank that's over saying or saying shot and or that she cannot even come to work at least four days of every month what is he basing that on that's exactly our question there is no evidence saying that that's the case he says so but that's just not enough in these types of cases case law from this court is very clear that there needs to be more than needs to be objective evidence showing that the conditions cause symptoms which are such severe as to limit somebody from doing in this case at this juncture any occupation which means any sedentary occupation which requires frequen which requires only ok janelle walking less than an hour sometimes that's all we're saying she can do so this is not a situation where we're saying she doesn't have any medical problems not at all all we're saying is her sedentary and i think my time is up so i will just finish my sentence for sedentary condition and her sedentary position is something she can do and that is what the evidence supports in this case age he isn't that much older than i am he's a geriatric pulmonologist because he treats breathing problems in old people his certification is geriatric pulmonology so it doesn't matter i guess and that goes to the fact that the no other reason why is not qualified because perry who could always only forty or forty two lots of discussion about objective evidence there requirement in this plan for objective evidence number one a bit of anything and number two nobody raised it in any of the letters they didn't say you haven't given the subjective evidence point number three is a doctor who treats tons of objective evidence here yes the only other thing i'd say is you know if they didn't like our evidence they could have told us what they wanted they could have center for their own sleep examination they could a center for a mental examination they do do any of that realize his decision was on reasonable we've asked the court to reverse the decision thank you or what are you what are you asking for my way of relief well they were there raise their raises an interesting question your honor because as we've talked about in the briefs and i was under the understanding that she had a two year own occupation stretching here so i was always of the belief that the issue was own occupation it was only when they called it to my attention in their reply brief that i saw looked at the plan and said oh own occupations only covered for a year there's there's nothing in the in the briefing or nothing in any of the letters that alerted anybody to the fact that they had changed the standard from own occupation to any occupation my initial request for relief was reinstate the benefits and then it'll go back for for any occupation since that there hasn't been any occupation  it's interesting because there wasn't any occupation determination in my view the defendant says there was so i don't know whether that constitutes a waiver of the right to remain and in the court can just order any occupation benefits reinstated or not that's what i asked for my initial brief in the in the reply we do except either one i mean she's since since this all came down she's been determined to be disabled by social security and there's a whole lot of other stuff so i don't have any doubt and force the table was clearing me all the next case