it's number sixty three eight one seven first cory claims management services are given not to exceed fifteen minutes per side mr market you may perceive for the objective require requirement of evidence for disability this is long term disability and short term disability case but there's a unique definition in terms of what constitutes objective evidence yes it includes the standardized typical type of evidence that you might expect x rays them arise but it also includes other aspects in terms of ways to prove objective evidence of this disability and that includes the treatment plan and it also includes physical examination findings and observations of anatomical physiological or psychological abnormalities and we operate within those definitional parameters  mr corey was a machine operator he had worked for eaton for twenty eight years until two thousand and fourteen he was a machine operator in two thousand and fourteen he developed severe cluster headaches those headaches caused him to be in severe pain to the point where he would at times pass out he attempted to work during this period took time off came back to work but found that it could not work any longer he applied for short term disability it was initially approved and denied and denied once again and he was denied a long term disability application what's his status since the denial here is his work  no i don't believe so your honor and he's actually on permanent social security disability what was the last time that he worked for eaton because i thought i thought after the denial he did still work off and on for some period where was initially he was approved up until may seventh i think and then he was denied after may seventh and i thought he worked for some period after i don't believe he worked after that one of his doctors said at one point and he was confused that he could work maybe you know they put in that return to work type of slip that he's expected to be able to return to work and he should work one of the issues here in this type of case as you might guess when the migraine headaches aren't actually occurring he's able to work but when he has to return to work those migraine headaches well reoccur presumably because he was told to avoid working in a noisy industrial environment he was told this was his treatment plan to avoid machinery operating machinery including driving a car or he was put on medication he was given oxygen treatment and he was told not to return to this heavy industrial job that he was working at he was a machine operat for headache and a migraine headache that's one thing that's a good question you're on i've heard it both ways i don't think with different words or ones larger category than the other you don't know i think they have a different genesis but it's still somewhat vague your honor i think they are two different things probably in the grand scheme of things they're pretty similar though but they're always referred to as closer headaches in the record cluster headaches in that they seem to come in sequence you know there would be much use disorder and that's right in there exacerbated of course by noise in the industrial environment where he was expected to return one of the issues in this case your honor is that there are episodic in nature so that during the periods when they're not occurring he's relatively fine and able to work but if he returns to a noisy industrial environment exerts himself like he had to in his heavy industrial job where he did work for twenty eight years all of a sudden the sun cluster headaches will return to focus sometimes in this case are the doctors saying that while he's perfectly fine and capable of working when his headaches are not occurring please if you were the remedy what really the best relief you could expect for your client who can continue to work but ultimately it would be to review this matter consistent with this unique definition of disability put him back in the administrative framework and then apply that unique definition to the evidence give him short term disability benefits if so approved and then give him the opportunity to actually apply for long term disability benefits  the point is that the real goal would be benefits be different you know i know you that's why i asked you where he stands when he is in his life now and he's done long term could the reviewer what term of disability you think what term would would be available to your client but he would get short term disability benefits or do you a bad i mean really thickly i'm looking for the date what what where would the person start but that wouldn't go back to his happily cation day i mean the insurance company and it might have an opportunity to review he would get it that's may seventh may seventh of two thousand and fourteen and he would get those benefits but of course with long term disability benefit may seventh what's the end date where he would get six months of benefits total and short term and then get an application or an opportunity to apply for a long term six months would be what you're looking for and then the big ability to extend it by applying for a long term yes and of course any social security benefits would be offset or subtracted from that tony so y objective evidence requirement or something in order to provide for long term disability and that applies even though everybody agrees in some of these programs that applies even though anybody agrees everybody agrees that they may actually be suffering it's just not covered because it's not there's no objective manifestation i guess the reason for an insurance company putting that in there is that if there's no objective manifestation it's it's too often a problem that somebody could just say i'm hurting and i quit work that's the reason but the but the language of those kinds of requirements applies whether in fact anyone believes that they're real or not it's just if there's not an objective manifestation you're just not covered by the insurance here you you say this although we have such a provision it's sort of defined a way by saying well if you've been treated for it you don't have the subjective manifestation requirement it is worded that way but why doesn't your interpretation lead to that conclusion that's my question does it make sense well yes obviously you started off with the generalized notion that an insurance company should be allowed to have an objective standard within its policy but they chose to amplify this particular standard here and allow for proof the treatment plans and observations of abnormalities and i said that i'm just asking about the interpretation of that limitation because it seems to me like you may be it could be argued that you're interpreting it in a way that just sort of means there is no objective ministration requirement what i'm not interpreting it in a way that would nullify the original intent of the objective evidence mine under yes that's my question but i would say that it's it's to be used with the supplemental type of forms which says that you can prove it through these four or five extra categories and it's intended to be used broadly here to perhaps allow for certain types of diseases like fiber of my i was a for example very difficult to be fake you can go to a doctor and get medicine for fiber of my own and then they fit within the exception well the medication still has to and i agree with the district court in some sense either show that you can't perform the essential functions of the job or as to one of the other factors to show objective medication itself has to show that medication really has to lead towards you not being able to perform the essential functions of the job that is essential i think it'd be medication simply relieves you of your symptoms that's not enough to be objective well if it relieves you of your symptoms then presumably you're still going to be able to perform the essential functions of the job i think the medication which isn't it is true here but it was in other cases including the fourth circuit case that the defendant cites medications have to interfere with the ability to perform your job so if the medication is working and you can still perform your job then that medication could have medication or treatment which which reduces you are in ability but the very fact that you're receiving it shows that some doctor as consider that you actually have these headaches but that's not enough this this not is not enough under the definition you're relying on that's not enough itself of course you have to look at the bigger picture but the treatment plan issue here goes towards objective evidence because if you if you look to the treatment plan which tells him well you can't return to work in this noisy heavy industrial environment and work at as a machine operator can't even drive your car they said that's the treatment plan flare when you're in a flare or for that matter when you're not in a flare your honor because it will cause you to become disabled when it's layers up when you're reintroduced to those type of conditions so that prevents you from performing the essential functions of the job if you've got to go back to this job your headaches occur argument before you sit down confirming that your argument is that there are objective evidence exists here and it is in the form also as this court of law has said many many times it is certainly appropriate for a plan to require objective findings of a disability and judge rogers your questions went right to that and recognize that is the law within the sixth circuit and really all whether they've really done that here when they say one objective way maybe a treatment where for sure and certainly the plan does reciting treatment plans and medications as a possible objective finding but certainly as the district court found and i think as the plan language fully supports a medication or a treatment plan in and of itself the fact of its mere fact of its existence is an objective evidence of any particular condition it is not because you have the number the fourth one treatment is treatment plans but the the overall intent of the point in terms of compensating for disability assumes that the cause of the disability prevents work and if the only objective finding were the fact that someone was on pain medication does not turn but an x ray can show a very objective broken bone or a herniated don't know whether that prevents work it just shows the broken bone understand that the work connection to whether an x ray is objective or not an x ray is much more objective than a then a complaint and a moan right pertinence in is moaning because it hurts but there's nothing objective but an x rays objective but neither one tells you whether you can work or not connection i mean certainly if as x but the x ray doesn't have demonstrates connection the expiration x ray death demonstrates the condition isn't that right but the physician or the health care provider would have to continue from the point of view of a broken arm limit does limit the ability to work but the broken arm is the condition ok but here and correct me if i'm wrong the are the complaint in essence is that the plan didn't look at can he do his work it stopped at the point of saying you have no objective evidence obviously once you have the objective evidence you still have to say as judge rogers was saying is this so bad that you can't work ok i mean if i'm a lawyer you know a broken arm may not stop me from working but i thought the fault that the other side is pushing is that you said there's no objective evidence and they said yes we have this objective evidence under your standard big and let me add i would note that one of the objective evidence that the plan would accept would accept is diagnoses which is in a certain sense not objective that is the doctor has made a diagnosis all they want is for you to say we've got the evidence now you evaluate whether our evidence is good enough to be disability what's wrong with that or here i think the plan did find that there was no objective evidence in fact number of the  reviewing physicians said the same thing that there is no objective evidence but there is also plenty of record plenty of evidence in the record which substantiates the finding that the plaintiff was in fact able to work if you look at dr barron's report the treating physician the treating physician talk about objective evidence if you want to talk about whether there's whether people said they could work or not it's just not decision that we would certainly not concede in disagree with the fact that there is objective evidence the you get that that's what the plaintiffs position has been there by saying they can't work sounds like a non sequitur but i think the plaintiff's position has been that the fact of medication and the fact that there was some treatment prescribed well documented history of treatment and medication including that the fellow was willing to get an implant and is lying that was he was certainly evaluated for that process we don't know that it happened assign a record  it's just judge rogers is pointing out the plan doesn't say four of these each of the requirements the potential objective whatever is determined to satisfy the plan the four items the number four is a treatment plan or evidence of treatment and it can stand alone as i read your play on it it certainly a treatment plan is there but i guess the point and in the end is that there was no reasoned explanation by the by the defense the decision maker  it's final denial no reasoned explanation that accounted for the objective evidence that exists with respect to his well documented longstanding treatment for this condition the but the final determination and that could be determined to be and has been in other cases arbitrary  the failure to offer reasoned explanation it didn't even acknowledge that that was as i see counsel so i'm saying a lot and then the poor as yours but it didn't seem to acknowledge that his well documented treatment could stand poor and objective and just as objective evidence the the final determination did indicate that  the medical opinions of all the physicians submitted had been reviewed and that there was the objective evidence was lacking i think if you look at the decisions  nd if you look at the reasons for denial that's the bottom of the second page as i read it it just says i mean besides some boilerplate the substantial weight of the documentation provided by you supports the conclusion that your disability is not covered i mean it doesn't say to me your disability is not covered because you can work for your disability is not covered because of objective lack of objective it just says your disability not covered i should i look at a different major somewhere i don't have it in front of me but if the determination letter did go through the requirement of objective fact right it's list out about it and german normally i mean again if i were a lawyer writing this letter i think i would say your disability is not covered because you don't have objective evidence or because of something now you might make the connection but even if it's said because you don't have objective evidence of anything then the counter is yes i do i have a treatment plan i have a diagnosis too i think i mean there's a diagnosis of cluster headaches and then you would think you would then say and we have determined because of dr rourke and all these folks that you can still work now that would make some sense that's what i'm looking for and i think your point's well taken your honor if it were you was as counsel writing a letter it may be a little different but i think is this course recognized many times including i would say to the daniel  versus eating plan case the kind of recitation in a determined late nation letter that indicates that the plan has reviewed all of the medical evidence and other  submitted and in light of that review concludes that there is no disability here is a sufficient description in a determined germination letter and i think capricious standard deferred to the plants analysis to that effect that analysis would explain arguably the rather counterintuitive frankly reading of the plan to say that it doesn't make sense to me that that the treatment plan itself has a there might be some like you in order to treat this leg injury you have to be in a wheelchair and the wheelchair keeps you from working i guess would be the idea all right and it could you could have a limitation like that but it certainly doesn't say that in so many words and by comparison to some of the others it suggests instead that we're going to say if you've been given medications or a treatment plan that would be enough so we would have to interpret it in kind of counterintuitive way but to do that we'd have to ascertain that that's the way the plan interpreted it and i don't see anything in the record for the district court to come to the conclusion that that's the plan's interpretation other than the mere fact that you  we think and it's not there that i can find you keep so you say several times in your brief that that they reasons that way but i don't see the reasoning is that in the what they anywhere what they did they focused on the need for objective findings right but in that in the determination to look at the at the doctor reports where they say there is no objective finding they're not talking about this this provision which is within the definition of objective findings i'm referring to the determination letter the determination letter she was absolutely focused box was talking about right but it's as if a medication or treatment plan if the medication or treatment plan is the implementation of the medication or treatment plan keeps him from working i would agree it does not say that and i don't know of any decision of this court or any other that says that that kind of specificity is not  required but without it you would assume that it means what it generally means rather than a very kind of torture unlimited meaning of those words but if i may run i think when the plan looks in the determination letter and focus first specifically on the need for objective evidence and then determines why that's an x ray kind of thing that's what typically a play and love to have that  there's no doubt the person has a broken shoulder right or a misplaced or something but in a situation like this we have cases that have a very difficult you know there's got to be but it would happily your plan in six and i said four but it is six criteria to establish disability the last one takes into account a fellow like this who isn't that that interpretation is left to the plan and the district court i think correctly said when you're talking about an arbitrary and capricious standard if it's a rational reasonable interpretation of the point and it has to be up where is that interpretation the interpretation i would submit your honor is there because the did there terminations order first says you need objective evidence and then finds there is no disability now is there a  again i think the determination letter when it sets forth the requirement of objective factors then determines there is no evidence supporting a disability which is what it does and i acknowledge that's really all it does but that is i think very clearly an indication in a statement that the plan administrator found no objective evidence to support the disability police council does that you know you said you don't have it in front of you that there's no evidence supporting the disability it says the substantial weight of all of it supports the conclusion that your disability is not cover and we sort of getting over into what the district court said but i read this to say your disability is not covered it might be not covered because you can still work it might be not covered because you have no objective evidence you're right it's on the same page but the objective evidence is like boilerplate right there submitting they're telling you what the plan says and then they give you this one e that is what the determination says and i think it in indicates by what's before it that there is no objective finding i think it also ties in to the point that there is apart from this issue evidence in the record from his treating physicians that he was able to perform the essential functions and work even notwithstanding the  of the headaches and i would refer the court to dr baronies we appreciate your thank you very much there is still a requirement that the evidence be looked at in a full and fair manner and that it be reasoned and there is no reasoning contained in that final portion though if we gave you a  win or they might say there are no objective findings and we could review that or they could say there are objective findings but you can still work despite those findings right i mean any of those are possible and remain i suppose but i don't think you can reconcile his treatment plan and show that he can return to work without the reestablishment of these conditions which would be utterly debilitate well you what you might be right but we're not the ones in the position to agree with you at this point just saying that and i'll go with that and you have to convince them and see what the result is yes i am concerned that if henri manned it goes back and they all of a sudden come up with this new type of rationale that then it exists beforehand that it will sort of be a post hoc type of rationalization that will allow them to get away with this you can attack it for that reason i mean we have a law that says you don't get post hoc rationalization right but all of a sudden they'll say well this was our intent but i think we have to go back to this very unique definition that allows for medications and treatment plans and observations and you'll notice that when they asked these doctors were just simply reviewing a paper type of review not an actual examination they asked him to are there any medications which prevent him from returning to his job they didn't ask whether there were treatment plans that would prevent him from returning to his job so your honor is under those circumstances we look to the issue it's not enough really here for an insurance company or an employer or a plan to exhibit certain aspects of rationality or to make logical sense in its denial they have to track the specific definition and apply those four or five factors and say do these factors apply here to the medical evidence and would that prevent him from performing the essential functions of his job and we feel that it did prevent him from performing the essential functions of his job so we asked to remain under honor and we asked for specific instructions so as not to allow this insurance company and this particular plan to evade their responsibility to actually apply the specific definitions within this plan meaning the l to get anything out of the others well i think you know that one one of the judges i think it was judge rogers and forgive me if it was you judge biogs mentioned diagnosis and that is you would argue that but you pretty clearly didn't well there seemed to be more and we had a lot to argue your honor but there there seems that you have to argue it didn't mean right but remember mr and this is interesting mr corey was un representative in an represented in the administrative process and so when he got to this level which didn't are you right your honor we felt that the treatment plan in the tri germinal finding observation irregularity was the strongest i'm not criticizing you for making your judgments but it's a little