please the court of franklin chancy on behalf of the appellant monica crocks i would like to reserve three minutes please your honor there is a runner's there is a vast and expanding universe of precedent in the in courts consideration of a recipient and determinations from that i think that there are three principles that are now becoming firmly established in that precedent the plan begins with what would appear to be a very explicit grant of that authority the problem is that you can't read that sentence out of the context of the rest of the plan language in that language limits then the authority that's given to the to the administrator in two particular ways the first way is that it goes on to then say that the administrators decision must be quote reasonable now this court has long taken the position that plan provisions in orissa cases should be interpreted according to their plain meeting in an ordinary and popular since that's the purpose versus that in a life case what is the definition of reasonable i would suggest that the ordinary definition of reasonable is something along the lines of fair insensible having sound judgment or reasonable fair proper or moderate under the circumstances that's the black's law dictionary version of it you have a good case that explains language like this by it i don't your honor but this court in particular has issued a lot of decisions that frankly would suggest that there's multiple meanings to that term looking at ones that i think are favorable to our side of the thacker case for example use this language in ministre decision was reasonable therefore not arbitrary and capricious well i don't disagree with that statement but it's not the same thing to say that reasonable means not arbitrary  which is what's urged by the defend in this case in the wooden case this court said as long as there is evidence to support a reasonable explanation to deny benefits the decision is not arbitrary capricious i would submit to the court that the ordinary in plain meaning of that language requires by its definition an objective look at the evidence that's being considered by the plan administrator by definition reasonable implies that it's an objective standard which would require a de novo review i also would point out to the court though you are saying that if the plan language gives discretion to the minist but then also says that needs to be reasonable that means our review is dead no i think in this particular case the what the the precedents have said is that if the grant of discretion to the administrator is subject to more than one interpretation then bad in those cases required to know of a review i thought arbitrary and capricious is known in the legal world by everybody compassing reasonable well except that your honor the cases say that the language is not intended to communicate to lawyers in judges it's intended to communicate the information to the ordinary person who is the beneficiary of those plans in this particular case no ordinary person on the street would conclude that the word reasonable means not arbitrary and capricious they would assign to it the normal meaning of that word which is fair moderate that's not the end of the analysis with respect to this plain language though because there's a second part of that which is much more disturbing but when read together buttresses what we're saying to the court the plan language then goes on  says that you can appeal your decision the court can seek a a review of the court in the court or determine the standard of her view in the case and the court always does that respectfully your honor in this particular case the apple e is suggesting to the court that because of the grant of authority that the review in the case in the standard of review is going to be the arbitrary and capricious standard well enough to get to the court where the court will make the decision i mean that's that language almost sounds exactly like what you get in a criminal plea agreement where it says you know we're going to do certain things in this is our advice but the judge can do whatever she wants that's nothing wrong with that like they're arguing that you can't do that and then in fact the court the district court had no discretion that the plan language required the review under the arbitrary and capricious stand up let me ask you one thing of what you were just saying in terms of you were saying it might convey something to lawyers but not to the to the beneficiary but with respect to what the standard of review is that doesn't seem to me to be the sort of thing that has you know when we talk about what does the summary plan description convey that's not something that the beneficiary is really concerned with are they we disagree richard bogs in fact it's vitally important because does the plane convey to the beneficiary the importance of developing the medical evidence early in the administrative process that's going to then be reviewed or does the plan suggest to the person that this is an opportunity for an appeal reviewed by a judge under and a look at the evidence in the case and that's been recognized by some other courts that the seventh circuit used the language would an ordinary person conclude the district court would make a benefit determination from its own review of the evidence or would they conclude it is limited to is there evidence to support the decision what's that site that is d n a as versus pre dinner cited in our brief your honor it's a seven circuit two thousand and five case  let me ask you something from your brief because you know the standard review is important but you also then start to get into the details and on page seven of your brief the discussion whether she's unable to perform any gain the rehab specialist identified sedentary jobs and then this is the sentence from your brief each of the sedentary jobs identified by the specialist requires skill sets that crocks would encounter difficulty in performing comma the very definition of sedentary work where the defect that mean is that there are a typo there i understood it up to the comma and then suddenly it says that requiring skill sets that she couldn't perform is the very definition of sedentary work well the definition of sedentary work in the plane included things like hindering stress talking working under specific instructions dealing with people in the medical record in the case there's multiple instances of doctors concluding that she had impaired  speech that she had occasions where she stood at that she sometimes passed out that she had difficulty talking difficulty walking in different places so there's multiple areas in the it's a necessary component of the types of jobs that the plan administrators decision said that she could do and it listed two or three kinds of insurance clerk something a couple of others that escaped my memory right now  that's what the vocal rehab specialist said but i'm trying to focus on this sentence about the very definition of sedentary work it is defined in the plan what sedentary includes includes or requires much my question is a big difference between whether things are illustrative of something that are included as opposed to being something that's required i suppose being fair to the to the plan in this case it would be relatively impossible to define every potential sedentary job so they have given broad classifications of what might be available ok we'll look at it you know that takes us into the second part of the problem in this case which is the courts in our view failure to adequately consider the conflict of interest in this case of the plan administrator and it's particularly important here because we have a voluminous administrative record as well over two thousand pages in the case the vast majority of which deals with the clients with my clients medical conditions there's the administrative layer which is well recognized as a potential conflict of interest in these cases but this goes on further in this particular case there's a number of medical reviewers hired by the by the by you know in this case who also had that conflict of interest one of them literally listed his occupation as former vice president of you know him medical director in his occupation is reviewing disability claims a second when listed his primary occupation is doing that for you know in this  case the vocational rehabilitation specialist is in house employed by you know in this particular case there was no attempt made then i can find in the records to see either in independent medical exam or a functional capacity exam both of which were provided is optional under the plan was that the case for work code c and stove are both full time employees of whom no no it was a what i mean by my question here is because you're right we see a lot of these cases and where is the stark difference between whether somebody is on a roll or his contract because i've heard lots a lawyer stand there and say well if you're on contract and you don't give them the right answer then they're not going to review your contract or if you're an independent insurance company and you don't give them the right answer they'll contract with a different insurance company i would venture only the money comes from the person that's paid in the money and so whatever kind you it there's always some conflict so why is this worse than any other well at least on paper it appears the degree to which these individuals are dependent upon this particular company in the degree to which these individuals are listing their occupations is in fact doing this kind of work ok i think your time's expired unless my colleagues have further questions you have three minutes f just very briefly on each of those four standard ever review the effect of the conflict of interest the third issue has to do with the substantive reasonable most of the benefits decision and the waiver argument that the union has made with respect to that issue i think all of these issues should be decided in humans favor decision below should be far regarding the standard of review in mosques the unum of life insurance company for ninety five federal appendix five eighty three a two thousand and twelve decision by this court which is sided in the briefs this court addressed the exact same description language that is at issue including the statement that the decision must be reasonable and based on the language i believe that crock sets up a false dichotomy between discretion and reasonable miss discretion is not purely what's happened here is i think unum has been very careful to track this court's precedent in its language to make sure that it's consistent with what this court has said is  case five fifty four u s one o five conflict of interest is merely one factor to consider among others depending on the circumstances of the case it can be a more important factor or a less and cited the standard that a conflict of interest must be taken into account but they never addressed it crocs objected on that ground in the district court agreed and said you know  should judge didn't really take this into account i will and did so and said it's an insignificant factor in the decision is still reasonable and firm so  i think the key point here is that you know reviewers it's unclear i think from the record whether they're employees or independent contractors but the point is that you intense efforts to obtain the complete medical history relevant medical history for crocs provided that complete medical history to all the reviewers and they accounted for the complete medical history in rendering their decision and the district court found that that was a step that promoted accuracy and the determination as case talks about and that rendered the conflict an important didn't change the decision so i think both of of on both of those issues the standard overview and the conflict of interest issue the district court was correct and should be affirmed i'd also like to know that the only point the crux made up of about how the conflict of interest affected this decision was to say well you only had unum reviewers he didn't have an independent medical exam and i don't think you know the universe of yours looked at the whole record will they did look at the whole record they're not required to have an independent medical exam a paper review is perfectly appropriate depending on the case and here crocks had at least sixteen treating and examining physicians there was no shortage of medical history for the reviewers to rely on so there is no other evidence in the record to support any argument about the significance of conflicts such as claims is that any of her positions say that she was doing the dirty work under the any gainful occupation definition of disability which is the it is our medical opinion she is not physically disabled from doing sendiri work she is able to do full time said work the only decision to the contrary was  a vocational cessnock form filled out by a nurse practitioner sparks who works for a neurologist treating neurologist she said i'm not answering the vocational question so she said is she disabled she didn't click yes or no she said i'm not answering it and then said i think she has problems being able to lift up to ten pounds she has tremors in her hands but you know i've only seen the patient once and i'm that she referred to all the doctors have said that's distractable in other words the hand tremors go away when miss cruxes attention is focused on a task and concluded that that probably has a psychological or no origin of physical so you know it was not required to credit that opinion over all of the other medical opinions stating that she wasn't even an opinion excuse me are you talking about the nurse practitioners yes yes sure it wasn't an opinion i don't have an opinion that's exactly right to the extent it was an opinion it was properly discount about think you're right in she's she's not a physician and it was very unclear what exactly she was trying to say i will jump ahead to the ultimate issue i think the denial of benefits here was reasonable it was not arbitrary or capricious the there is substantial evidence in this very large medical record to support the decision dr stover a specialist neurologist who miss crocks treating neurologists referred her to get a more moment about the waiver issue we have advanced the argument that crux has waived really any argument before this court concerning the ultimate issue and that is the substantive reasonable newness of the disability determination the reason is that here we had a magistrate's report in recommendation which y kind of a double layer of appeal it's well settled law in this circuit that only specific objections made to a magistrate's report and recommendation are preserved for appeal to the court of appeals the two issues advanced in crocks is objection work the standard every view and the conflict of interest is those are the only two issues advanced as specific objections at the at the very end the conclusion of the objection to the important recommendation crocks did say you know and the entire medical record report recommendation is the same as no objection it's ineffective to preserve issues for review to the court of appeals and that to make a specific objection requires explaining and citing specific portions of the report which can't countenance problematic that wasn't done here with respect to the substantive issues concerning whether the medical records supports the benefits now so we would submit that that issues way  i've addressed all of the issues be happy to address any questions or concerns that the court has but thank you thank  overall medical history as determined by the social security administration supports a finding that plane it is disabled due to physical reasons the council seems to be arguing that the brief that we filed with the magistrate which has all the sats to all the records in it somehow needs to be restated again in the objection to the magistrates findings i don't think that that supported in the case law anywhere we think we put that before the the court properly and so we don't agree that was wa now with respect to the conflict of interest issue the reason that it's particularly relevant in this case is that one of you know my own reviewing doctors earlier in the process found that miss miss crocks was disabled based upon physical findings of all these other doctors what happened in this case is that miss crocks continued to seek medical treatment on her own trying to figure out what was wrong with her she went for a one time evaluation with this doctor doctor concluded that she had this conversion disorder that's referenced and that's really the basis of everything that happened after that the problem with that is that after this doctor reached the conclusion that she had this psychiatric condition dr true del a neurologist performed a series of objective tests on her not his observations actual testing and those tests confirmed that she had the condition that dr stover said she did not have you know and then usually it's reviewing doctors who overwhelmingly utilize the fact that dr stover reached this opinion in order to make its decision they even went so far as to say with the social security administration didn't have dr stover's report when it found her disabled but they left out completely that while that's true the social security administration didn't have the later objective testing that was performed on her which confirms she had these conditions were the people that referred to her tremors as distractable were when well dr stover did in what other when did but there's a whole constellation of symptoms this lady has besides just hand tremors in the problem here is is this court noted in the darwin versus for this case which i believe judge siler sat on the regular reliance on the same medical experts is in and of itself evidence of a conflict of interest so we would respectfully suggest to the court that in this case when you look at the totality of the evidence it's clear that it was an arbitrary decision to rely on that particular portion of her medical record you