issue whether they've court below employed the proper standard of review and determining the plan administrator decision and that is set out and it points out that this court has done novo review of whether the lower court applied the proper standard of review we believe that they did not because of their rationale set out in woo versus dillard's corporation an older eighth circuit case which is still viable as set out met life versus glen's footnote if there is procedural error regularities that affect the outcome outcome of the case which give rise to serious questions on the planet that exist that may have affected the outcome and i'd like to point out your honors there are there's not just one there's not two there's a whole litany of what we think are procedural irregularities number one and this is tied in issue three the penalty provision which i won't focus on this much we requested the plan as required by certified mail all plan documents summary plan plan and form pithy five hundred four they relevant plan at issue and most of that record that he had are plans that were produced to us that don't even apply in this case there are two thousand and thirteen in two thousand and fourteen plans that description of a bigger plan and a summary of the riots in the court below and then the claims process that was never produced no two thousand and twelve planned after the whole thing was over in summary judgment the defendant submitted a affidavit one liner saying oh there was no two thousand and twelve plan we don't believe that should even be considered that wasn't part of the record in the claims process or any of the appeals that came up later when we had no chance to test that by cross examination discovery and to see whether it was truthful or not so so when you received the two thousand and thirteen and the two thousand and eight documents did that come with it some kind of a cover letter or enclosed please find that current plans or the claim plan that was in effect immediately prior immediately after wow that's a good question your honor and the letter was very ambiguous it just said we're in closing the plan in the plan documents without identifying which plan applied it doesn't identify which year applies and it doesn't identify what they're producing now in the documents if you read through them and the record the court made a finding there is no two thousand and twelve plan in the record and so left us searching through thousands of pages of records trying to figure out the relevant precedent it doesn't give a detailed denial upon which to know what they're really based in their decision and one of the things that i think is very telling is that in our appeal letter we include new ability to work or not work education and the denial letter doesn't even mention that reported at all it doesn't seek to discredit it or say why it wasn't valid and that's just like the mayo clinic records we enclose those were records of subsequent treatment after the claims denial in which our client had cancer and he had problems with absorption of minerals and vitamins and they called it something like hypo magnesium and some other terms that i can't even pronounce but basically due to losing that call and then the l a ostomy losing gallbladder and some other problems he didn't absorb vitamins and talking about you're appealing the original decision that you're complaining about right for a to have references in that appeal letter did you highlight those problems i highlighted many problems in the as well as the shortcomings you felt were associated with it due to the lack of attention to a medical problem well i couldn't cite all the procedural error regularities because i submitted a new records that they hadn't reviewed our d n a in this should change the process and i didn't know they were going to reveal or articulate that in the final denial we don't have a chance to reply to their last denial and but the last letter where they denied him you can read it and the whole of their analysis of the medical records is one sentence saying we were via the medical evidence and find that that's not  we find that you're not disabled and they don't even discuss the vocational report and what's interesting is they had no vocational eleven and they hired and i am a doctor dr marsh who if he analyzed his not as qualified as the treating doctor and the reason that's important dr freeman was the nurse of the plan for proctor and gamble wrote dr freeman the letter asking him to analyze his ability to work with this definition and the plan and she gave him a definition that's different than definitions in the plans they produced to me the definition they gave to our treating doctor was are you totally disabled is it from a condition that's normally recognized in the medical field and dr freeman wrote her back saying yes he's permanently in totally disabled he can't even do the light duty work and they'd given him that's what they said the definition was that's what we were allied on and then peeling it and yet later they're saying the definitions even more severe than that normally they have to be hospitalized or home not just totally disabled but that that's a definition they gave dr marsh he said oh he's not totally disabled well that's a different different definition they gave the treating doctor and that's their plan and that's the not the same as a plan it would be very peculiar if the summary plan description served as part of the plan or the actual plan because it's intended to be just a summary of their rights not the whole plan and therefore in this case when they were using the summary plan they say that takes the place of the plan now that's what they're saying the post decision making that's contrary to what was saying and so you can have versus america the other thing i'd like to point out if i could is that the report they relied on by dr marsh was outdated and stale by the time they deny they claim now why do i say that it's because they did not the plan did not submit our vocational report the mayo clinic records or the st francis medical center records back to dr marsh and say hey look at this new evidence and tell us does this change your opinion instead they stood on that denial that was a year old and they ignored all the other evidence and didn't ask him to consider that we think that's another irregularity and by itself maybe that's not enough because the standard on the rest as difficult i'll also say i've done lots of cases and there's only two or three where i've had the court lower the standard but one of them one of the evidence from the plaintiff they have to consider that and they can't ignore that and just rely on some i am a report they have to evaluate it and give reasons for why it's not good enough in this case they didn't do any of that now another factor that's very unusual is when they claim was over and in summary judgment exists that there was a report from a doctor they had and i am need to actor that was in their file that they never provided to me even though they claim they sent me the whole claims file and what they dead which is another irregularity is and that doctor said oh well from a gastroenterology standpoint he doesn't then that bad of problems but that's something they never produced to me for a comment for rebutting the evidence it wasn't part of the claims file that they gave to us and that's wholly improper under abraham versus carville and a circuit case and that case that one irregularity alone caused the court to remand for a new decision procedural irregularity regarding the improper definition did you raise that the district court has a reason for higher standard of review i believe i did but i'm not positive your honor i can't there were a lot of factors  right now i can't recall so all have to let the record reflect what i write a stiff so anyway those are the points i'd like to make now and i to point out as she had three deals with penalties we think the court improperly denied him because they have never produced of two thousand and twelve plan there has to be one that exists or they wouldn't have a two thousand and twelve summary plan description and we think it should have been  progeny after the supreme court's ruling in metro vs gland the court has yet to decide that issue and this this is not a case in which it should do so because the  procedural irregularity what about the problem in the definition saying that while he relied on the wrong definition that was presented to his own doctor and wasn't allowed to proceed under a stricter definition that later  irregularity under boyd even if it could be construed as such he hasn't showed how he was prejudiced by the treating physician receiving only part of the definition of total disability how the treating physician opinion that mr lehrer was totally disabled would have changed had the entire definition been received and finally he did not raise this issue before the district court so this court should not consider at boyd explained as judge woman while it knows most of the rest of the court in order to potentially alter the standard of review any procedural irregularity has to be a significant divergence in plan administrative procedure that amounts to a serious breach of the plan administrator is for do sherry duty and accordingly results in prejudice to the claimants for example in wu deny the claim without plan that applied is not a procedural irregularity that could be it could that be a procedural irregularity if you got sent the wrong in years plan only if the material term that plan were different and in this case material terms of every single plan document and s p d were the same they all granted the trustees discretion and they all contain the same definition of title disability and it was that represented to the court and briefing and by affidavit that all of the plan documents contained contain the same terms and the district court specifically found that the purported different definition of similarily does not establish procedural irregularity first the administrative record and the affidavit that proctor and gamble provided a stablished that the trustees provided mr lehrer and his counsel every document he requested trustee should have provided a more detailed analysis of the many hundreds of pages of medical records that he submitted without any explanation of how those records substantiated his burden under the plan to prove that he was totally disabled and what about the doctor's report that isn't mentioned doctor visit chef dr shatha he was a independent medical review were retained  required to be there was no he did not request his request for the administrative record happened earlier in the case and it was provided to him the opinion of dr shaath under the applicable deol regulation i claim review regulations that were in effect in a playable at the time of his claim that would be different today had this claim been submitted to the trustees on or after april second of twenty eighteen but that is not the case in th matter so any failure even if he should have been afforded the opportunity to comment upon it he has not shown how he was prejudiced in any way by not having that opportunity which he was not entitled to under the the d o all claim review regulations so again that it's not a procedural regularity that would change the standard of review in th and finally the district court concluded with regard to dr shops opinion that even even excluding it from consideration in the case the trustees decision that mr lay was not totally disabled was still appropriate and not an a of discretion and more on that in a moment finally mr lehrer argues this procedural irregularity that the trustees did not sufficiently credit his medical evidence however as glenn made clear the relative weight given to medical evidence goes to whether the trustees abused their discretion in denying the benefit claim not the appropriate standard of review in summary the district court clearly can correctly concluded that they  substantial substantial objective evidence in the record indicated that mr laird did not satisfy the plan definition of total disability as of july twenty third going forward i'm sorry july two thousand and thirteen forward which was the operative time period in this matter until mr larry participation ended in the plan when his employment terms terminated in two thousand and fourteen specifically there was an april twenty eighth two thousand and thirteen  perform medium demand work with some restrictions and finally dr shah independent medical review substantiated that based on the administrative record there was nothing to support that mr lehrer could not work it was otherwise totally disabled the defined by the class it's true that mr list treating physician opined that he was totally disabled however the precedent of the court and the terms of the plan document do not require the trust laird may be permanently disabled and that that opinion may change after mr larry treating physicians made recommendations concerning his physical limitation altie and exercising discretion to grant or deny penalties courts primarily consider any prejudice to the claimants and the nature of the plan administrator is conduct here the administrative record establishes that the plan administrator document with any similar name however there is no plan document with that name or similar name and to the extent there might be although there is none mr lehrer conducted no discovery on that issue simply put there has been no showing of any prejudice to mr lehrer or any improper conduct on the part of the trustees and accordingly this court should conclude that the district court did not air and refusing to award him arrests a penalty i have a little so i have very limited time but i wanted to point out if he seem my appeal letter where i cite what mr stock fan he found mr lehrer was incapable of performing any work whatsoever and lack the training to a new occupations and dr marsh said he didn't have all the records that our guy had sleep apnea and maybe had narcolepsy in the needed to see those because he was a safety hazard he might fall and get hurt or hurt others those were never given to him by the plan i submitted them there discussed in my appeal letter they relied on dr marsh's undated report and verified a report that was too old under abrams versus car hell the seth report that we're talking about the court says that a report like this that's given to the people not given to the claimant and they use it and they claims file is pure gamesmanship circuit isn't going to tolerate this game to mention because it's inconsistent with the full and fair review the plaintiff has a right to see it to comment and we believe it's very prejudicial when we add