good afternoon i'm joseph socially representing myself regarding the motion to dismiss my long term disability case st i want to say there's absolutely no dispute that i became legally blind in june two thousand and fifteen while actively employed and covered by the disability plan in fact prudential even acknowledged that i was unable to work due to that condition what is in dispute is did i somehow become eligible for benefits because i was notified at the end of two thousand and fourteen that at some undetermined point in the future it would be my position would be eliminated in a reduction in force the district court correctly determined that my case was subjected to an over review but fail to apply that standard in deciding my case defendants argued that i was ineligible for benefits in june two thousand and fifteen because even though i was legally blind and was a player told me i could stay at home the employer continued to pay my false salary you're working you working from home i was doing those aspects of my job that i was still able to do but it was greatly reduced from what i could do before so i was still receiving my full salary and they said they did not meet the definition of earning slawson under disability when my when my employer eventually stopped paying my salary they argued that at that point i was no longer actively employed and therefore not entitled to benefits well the problem with that is it's a complete catch twenty two not just for me but for anybody is totally disabled because the definition of being disabled and actively employed are mutually exclusive to be disabled you have to be unable to work and have a loss in earnings to be actively working actively employed you had to be working and still being paid by your employer so we guard listen while you stop working where there was a reduction in force you quit you fired you filed for short term disability in any of those cases according to defendant's interpretation you'd be ineligible for benefits there's no causation requirement that the reason that one is terminated is because of the disability there's a requirement that you're loss of earnings has to be due to your disability in my case prudential conceded that i was unable to work due to my disability and their appeal letter which was cited in paragraph forty six of the complaint and i think it's a very short hop from going from unable to work to having a loss of earnings so what i did was to represent suggest what i think is a much more reasonable interpretation of the plan which is to qualify for benefits you have to suffer the disabling condition while actively employed as i did and that has to lead to your loss of earnings as it did in my case but the district court what the district court determined and i would say the primary reason for my loss of earnings was because because i became blind and unable to work it would have had to stop working would have had a loss of earnings whether or not there had been a reduction in force argument is the reason i lost my earnings was due to my blindness and my disability was it open to you earlier when you were vision became so impaired to work with your employer and either reduce your workload or declare your disability we were eligible for any other benefits at that time and i'm perplexed that you stand on a full salary you continue to work and we can't rewrite the plan and nor could the district court the plan is the plan and you are you we cannot wish that you were terminated because of reduction in force not because of your disability so it's it's a difficult position i think it's i had a progressive disease and i that started when i was a teenager progressed to the point that i became legally blind in june two thousand and fifteen at that point i continued to be paid because my employer agreed to pay my my fall salary although they greatly reduced what i had to do and let me stay from home for doing that also at the same time i inform my employer that i wanted to preserve my rights to seek long term disability benefits and they were sick a tension between separation agreement with your initial a had a full waiver of all claims looting disability claims both they didn't do that until actually the last day that they paid me which was august st and this may not be on the record but did you consult with the human resources people at your employer and say what what can i do to preserve my stream of income well but at the point i want to have to do is to say well we need to cut your salary by thirty percent and then after that terminate you your honor at that point in june two thousand and fifteen when i became legally blind and i don't have all the work i had already been informed that at a point in the future my position would be eliminated so it really wasn't up to reconsideration to go into human resources and asking for accommodations at that point wasn't very fruitful but i had previously disclosed them to my employer before my initial employment in one thousand nine hundred and ninety nine my condition and they did provide accommodations during the course of my employment so they were well aware of my disability and frankly were very accommodating which allowed me to continue to work from one thousand nine hundred and ninety nine in till two thousand and fifteen when when i became legally blind you have reserved a minute f throughout his oral argument identified as since they hear he is trying to recover both severance benefits and long term disability benefits the plan expressed there requires that the individual suffer a loss of income due to their disability in order to receive benefits under the plan it's an income replacement plan the whole purpose of the employer offering these benefits is that if you cannot work because of your disability they will provide you those benefits so was it was it open then it was only to  say you have to work less i'm going to work sixty percent or fifty percent or whatever reduced my salary that amount and i'm putting in for disability correct he could have applied at any point in time when he became disabled for example in june and made a claim at that point in time in terms of more and then you get replacement but then there has to be determination after that there doesn't have to be terminations your honor so many employers actively often keep people actively employed as in what if what if there is terminations after that if the terminations is due for another reason and the person is already on benefits that terminations wouldn't occur so in this particular circumstance for example he would not have been terminated under their breath because he this case an employee developed a disability does not have a reduction in salary but is terminated because a person can no longer perform the essential duties of the  a nation which of course is loss of income but no incremental loss of income before that and or that circumstance no they want to qualify the plan requires the loss of income in order to qualify for benefits under the you have to lose you have to have the employer cut your salary before you terminated and if you had able to and then when you terminated what do you get in the way benefits you would get sixty percent of your income replaced under the terms of the insurance plan the income replacement would be a one hundred percent sixty percent of one hundred percent correct so the individual has to be able unable to work otherwise you can receive double recovery right the whole point of the insurance remember we go back to the basic we are in front of this court arguing about whether or not they meet the definition of disability there's no question about whether or not in fact they suffered the loss of income that is why we moved to dismiss on this case because it was such a clear cut basis that he in fact had not met the terms of the plan which is what the court is required to enforce here and i understand you say if you lose all your income by terminations without having your salary having been cut before that then you don't get disability payments even if you terminate it because you can no longer perform your job if there is a connection between the basis for the terminations and the reason why you are terminated and here there is not that connection the end mr suddenly was terminated because he was severed in a reduction in force  up until then then he would have come and potentially would qualify and there are many other cases that have held that in those circumstances but that's not the circumstances we have here mr selling knew he was going to be subject to reduction in force in june the complaint alleges that going back into the previous year he knew in november when his and he was acquired by bank of new york mellon that there was in fact going to be a reduction force he continued to work and receive his salary and met the terms and conditions of his have his employment during that fall time and then at the end tempted to both capture severance and income replacement the plan expressly actually carves out anybody who's receiving severance for this purpose because the intent is to compensate individuals who lose their employment because of their inability to work to their disability not because there are some others business related issue that results in a reduction in force that leads to their living nation there he was paid severance correct he was paid severance he admits that in his in his complaint that he received severance benefits under  the terms of a severance plan and he essentially is trying to capture both the severance benefits and the disability benefits which would both be replacing income for the exact same time period the purpose of severance is to recover from a time that you were laid off from your position and to  you for your salary for that period extending out from when you were laid off disability benefits are intended for and your income not to analogous benefits because severance you take your ball while one goes to find another position where his disability implies you're not going to find another position but the intent to both is to replace income the reason for the loss of income is different so for example with regard to the law is future income correct and so the loss of  income to disability that's what the disability insurance policy pays for a loss of income due to a layoff is what the severance pays for but he would essentially be recovering at the same time for that same loss that's why the rule exists that you can't be actively working and being paid and receive disability because the insurer the employer is offering a benefit to insure against the fact you don't receive income here he was receiving income in the form of severance benefits and he would arguing that he should also at the same time receive disability benefits for that loss of it would essentially allow him to double dip and recover twice for the same loss of income which is not the intent of the us a plan there was a plan is intended to compensation ability payments would go on and on and on as the severance i don't know how and but the severance usually is compensation for loss of income in an interim and to me when gets the next employment and similarly disability benefits are for a particular position or for particular qualifications and they have to maintain ongoing ability to show that they are disabled they would also have to show under this part of particular policy that they are unable to do this position and then they are unable to do any work in the greater population so there are different cutoff for under the disability plan as well that would have to be continued to be mad at various times better deal for you will terminate you will terminate you and you'll get your disability rather then then it's almost like the employer's election not to pay the disability even though he was disabled but instead to pay the severance you are i would argue here it was in fact mr savile is decision to take the severance benefits and not to apply for the terms of the mattress does he have refuse not being fired because of his disability and he's permitted to stay at home and do those parts of his job that he could do that he couldn't he couldn't resign and get the the disability he could do what virtually every other person under disability program in america does which is to say i cannot work and have a note from their doctor that they cement that says i cannot perform the functions at my job as required and therefore i am eligible to disability benefits and that's what every single disability case that comes before this court there will be a doctor's note and a letter attesting from the person no dispute that he was unable to do the main portion of the job he couldn't come into work he was working at all people work from home and many people in fact don't do any portions of their job he continued to do the portions he could do he admits that in the complaint and he continued to receive compensation for that the vast majority of cases that are that are granted and the ones that are denied relate to individuals who come in and say i can no longer do my job and here's my doctor's note  sure st there's nothing in the plan that draws a connection between terminated being terminated and your disability the requirement under definite disability definition is that you have a reduction in income due to your disability which absolutely was my case i was blind i was unable to work and as a direct result of that i had a loss of income there might be a secondary reason which was a reduction in force but there was no question that it was due to my disability they had to read and i also presented in my complaint that prevent you all had waived their argument about receiving disability receiving the separation agreement because they failed to raise that argument when i when they st denied my claim and i presented the case evidence that says that if they can't come back later with a secondary reason additionally and my brief i argued why that was not a double dip because i think what the plan says is that you cannot file for disability while you are receiving severance payments i file for disability as of june th two thousand and fifteen while