by giving the plan administrator full and final authority investing such authority exclusively in the administrator this policy clearly gave to the plant in the greater the power of power to decide according to its own judgment and the keyword is exclusively not does not have exclusive right to make the final decisions and so and so a baby really doesn't say that not my friends and discretionary authority in this case to make factual determinations in this case the baby because of the abuse of discretion standard was one thing under atwood and as i read the record it looked to me like appellant didn't assuming that there is an abuse of discretion standard of review may life abused its discretion and it did abused its discretion for several reasons one is there was not substantial evidence to support the decision and that's because the for seventeen know that the mere fact that you can do a sedentary job doesn't mean that you can do that specific job playing talks about a test for disability in this case with plaintiff's ability to perform her regular occupation people she told them that she was going to see her doctors and get some more material and they waited i think twenty seven days are the most thirty days from the time they sent of the denial until they made a decision they knew that she was going to see your doctor they didn't wait they didn't bother regulations specifically say that the review has to be when there's a medical question vaal has to be conducted by a qualified health care professional and the qualified health care professional with regard to fibromyalgia is a rheumatologist she was entitled to a fresh new look at that decision by a qualified professional in the in the field involved in the fourth reason why it was an abuse of discretion records of conflict of interest is doesn't the record show that math life it was the pocket book that would pay the claim as well that mystery and so wouldn't wouldn't it be proper to let the district court can determine or you can determine whether or not there was an abuse of discretion regardless of there being a conflict of interest but assuming that that that you don't buy my arguments and and i about there being a conflict of interest regardless of conflict i'm sorry about  regardless of conflict of interest you know you can look at you have all the evidence in front of you right here in the in the excerpts the record that we both files and you have all the evidence that was in front of the district district court and all the evidence that was the site abide by this court but sent back to the trial court because the plaintiff in the case told this court that there was additional evidence that he wanted to submit to the district courts and that that's why it was sent back but you can make the decision based upon the evidence that there is and trying to right now without having to send it back to the to the district court and what you have conflict of interest you have the same doctor doing the medical review in this case lieberman has did it in jordan so you've got what is talked about in the black and decker case about the usual medical  the concept that that life is not the exclusive decider it does not have exclusive discretion to make determinations in this case no one else was involved in any level in making decisions in anyone other than that life involved at any level in this case so met life does have this was his discretion opposing counsel could rest i think four main points as to how a baby would  affect this case and i think they're able easily refuted each and every one of them first of all there was no effort in the district court to satisfy attwood as judge gould ably noted i would because we have not had an opportunity to brief a baby to this court i would cite to the court a compelling decision from the district court in arizona it's wallace versus intel slip opinion two thousand and six westlaw two zero seven nine eight three nine district court of arizona where the court stated all of the factors discussed and if they really were at least as relevant then prior to this court's decision of eighty as they are now indeed given plaintiff's heavier burden under atwood's all or nothing approach there would have been greater need for a robust of discovery into the conflict issue at that time and in that case the court just determined that the plaintiff was not entitled to a so called second bite at the apple plaintiff is not entitled to t have changed the standard of review that issue just wasn't before the court it wasn't an issue that appellant was raising and so we shouldn't you know we don't need terry man to deal with that issue because it wasn't an issue it was not an issue it was not addressed because a baby has come out closed that would does not automatically mean that things should be sent down because there are compelling factors in each independent case as to what that district court did prior to a baby a lot of courts have said satisfied way affect the standard of review those courts have had but here are facts here if you're saying the conflict issue was one council could have raised did not raise and so i am firmly stating that we don't need to deal with  at a baby regardless of the baby it just wasn't an issue before the court south that's exactly what i'm saying you aren't if you didn't and i want to be from on that that is what i'm saying that's our position even if the court were to somehow disagree with that some of basic level that the parties have not in any way shape or form than has to address or brief those issues rather than coming in here today and i think this is an excellent forum for discussing these issues but i would think at a minimum the party should be able to submit some semblance of briefing as to why that would be the case not coming to the court cold although i made my best arguments and i believe they are correct and compelling i think that that certainly would be a forum to address the not simply to come in here today kind of is too short of notice to answer that you you want to cover that in briefing that's ok with me but i'm just letting you know what my current feeling is that whether given some of the other arguments i've made earlier today whether or not the court today can rule on some of these a baby like issues without further briefing two things one i would always prefer additional briefing before court because i think it educates the court more than a twenty minute world argument can and it helps the court frame the issues prior to the oral argument second of two points is that this court can look at the record and how the district court ruled on it the allegedly abuses of discretion outlined by mr fleishman here and rule on a baby without further briefing and without the remand of the district court and i believe that ruling would be in our favor i will point to a few of the critics perceive to be five roma alger and he cited a few cases where the other claims administrators or doctors have taken that position but in those cases the individual or individuals had active jobs in this instance of this only sky had a sedentary job that was essentially secretarial work she sat at a desk all day answer phones and gave advice so the concept that somehow we would go back to the district court to get into an analysis of whether or not that metlife did not consider the purported additional evidence that was submitted by this violence guys counsel this replacement after the denial that issue is moot if we look at the evidence submitted by that he apparently believes would change the court's decision and it is in the record i don't want to take up too much of my time searching for it but it's just simply a letter from m which attaches it to a two page summary report from dr target which provides no further insight into how if at all this violence guy is unable to do her job as a result of the fibromyalgia she claims that she suffers from so yes mr fleischer believes that there's additional evidence that should have been considered even if the court were metlife were to have considered it has no impact on this case given it as an assistant one and that's as if i have not identified it for the record ninety two and ninety three of the excerpts of record let's go back a second to the new conflicts of interest point that was not raised in th dual role which is perceived to be a conflict on its face are there any acts within the administrative record that show that they are abusing that do role and often times we see instances where they provide no information whatsoever to the claimant about how to fulfill a claim or they don't have doctors involved that have anything to do with the client there is often times discovery taken where a claims handler claims the individual claims handler is asked if he or she receives a bonus or something of that nature as a result of denying claims so be in even in the pre of eighty world there are plenty of i don't see any evidence that a plaintiff could point to to say given  role of both insured and administrator it has reached its its discretion by engaging in various specific acts and some plaintiff can sue or point to the administrative record as can take out examples from the administrative record as identified for the court some plaintiff seek to take discovery to get more information about those items and when they do they can provide a full record that was available to all parties prior to a baby and i come back to the decision in the wallace case it's a hot as far as i know it's not published decision but this is a baby world is kind of quickly developing and i think it's right on point and know that the court the district court in the wallace case established exactly that if you wanted to get into these issues that have been articulated innovative they were as if not more important in a pre of a world and you had every right to go into those and my family to do so here again you don't get a second bite at the apple another item that opposing counsel has brought up is something that perhaps this court or if it were to remain in the district court could consider in this post of the world is  issue that supposedly the defendants have said there was no mental testing as to the five rule my algebra two points on that first of all doctor chill vernon who was the independent physician consultant retained by met life to analyze the psychological component of the claim in her i p c c report she was the one who identified that perhaps mental testing could be undertaken and that was with respect to the psychological component of the claim and that's all in our briefing that we have discussed either in the district court or here if there's any confusion on that and either this court or the just report believes that somehow we were saying that psychological testing should have been done with respect to the fibromyalgia that's incorrect i would point out that the district court was not confused because that footnote ten of the order which is in the excerpts of record at page one seventeen the court specifically took that into your consideration and briefly the district court states in its footnote plaintiff argues that because met life now several tests and exams which would have augmented plaintiff's claim metlife violated arrested by failing to identify and request these tests reciprocally while it is true that a reserve requires that any denial of benefits be accompanied by written notice describing the additional materials necessary to perfect a plane and then there's a site we hold that not life satisfy this obligation by informing plaintiffs in two separate letters that objective evidence was required so the point that i'm making is even the issues that opposing counsel has brought up to this court and argue that this court therefore could rule in plaintiff's favor in a post of eighty world without a remained and without supplemental briefing i think has been addressed and has been specifically rejected by the district court so a real man would help the district court judge for it would be in no position to take an opposing position on th field or every the rules of the game change with the baby and and a baby is the way we have to decide these these issues now that would have gone that with a different rule under but under the same evidence that establishes arbitrary and capricious decision making goes to show that they can't that conflict of interest is a substantial interference to the decision the exercise of discretion and when the plaintiff put in evidence or argue evidence that there was an abuse of discretion in i've already laid out that evidence in effect i was i was talking about the same evidence that under act would which show that the conflict of interest actually interfered with the decision making process law but but you should have known about it i was anybody supposed to know about it minimally if if if the court does not agree with me that there was an abuse of discretion regardless of interest minimally there has to be an example reexamination of this kid case under the baby the principal's you know i think this court would be a good place to do it general name applied to many occupations all all of which have different requirements and you have to look at the specific occupation that's in question in my client's occupation was not just sitting at a desk in his room phone she was sitting at a desk answering phones from public people calling in with computer problems and she was a trouble shooter for these computer problems and she had to be technically smarten in and skilled and had to be able to duplicate the problems that these people having sedentary ability to deny benefits under an occupation a test is arbitrary and capricious might point with regard to the mental testing was that the psychiatry the psychiatrist hired by met life so there should be some mental testing but that was a as far as the psychiatric claim goes that's how i treat psychiatric claims that didn't exist by the time we get got to court she was disabled by fibromyalgia everybody agreed that there was no depression there was no psychological cause for disability it was all the fibromyalgia and the experts on they should have told her that's buton that's an abuse of discretion