police court good morning joshua bacharach representing the appellate reliance standard life insurance company like reserve five minutes of time for a bottle where people in the district court's decision in favor of the plaintiff on this arista disability benefit case there are two significant errors committed by the district court which let the court arrive at his decision the first is the court applied the treating physician rule as we now know according to the supreme court that rule does not apply universally cases and i'll address that more later the big issue here is the court refusal to look at this case on the arbitrary capricious standard even though this plan grants discretionary language the court did so because the decision was rendered after one hundred twenty days so the question here before this court is how does je into effect that in jeb into this court stated that when the planet states that he decision will be rendered in a certain timeframe and it's not i think it is deemed denied but in this case we don't have the plan having that language in it we have though the arista regulations and the recent regulations state that a claim must be decided within a certain period of time so i guess the big question here is answering what was reserved in jeopardy  regulation why is that regulation less regulation of any given effect on the standard of review than if it had been in the plan i may not disagree with you but here's the interesting thing the regulation in effect at the time of this plane did not include the team tonight language that was added to the two thousand amendments that deem that a language does not appear for this specific claim but the issue here is we are to have a law in our circuit on what happens if there's any procedural violation and that's precisely this issue in floud versus del monte in parker vest first as bank or bank of america in mckenzie versus general telephone this court has repeatedly stated that absent some sort of harm to the procedural violations in those cases it was the failure to supply requested information the courts didn't say we're going to review it to novo or even that that was an option under the law of this circuit dating back to the eighty's this court said only that this violation is a factor to be considered in deciding whether the decisions arbitrary and capricious in other words you want back to judge reimers question that you're making the argument that judge to shima made in the sand  within one hundred twenty days it's deemed denied and at that point we don't have to defer to the discretion of the planet and you don't have to unless and this is a majority a majority says they're still circumstances which will retain discretion and that's consistent with every other jurisdiction that has adopted this deemed denied language as well as long as it's not a significant departure in time and as long as there's this ongoing exchange of information if you're still going to keep discretion i mean the difficulty he presumably to violate federal law it is but this court has said that you have to show harm to get relief for it and what this court in four cases three that i just mentioned but there's another one dating back even earlier this court has said that it doesn't automatically entitle you to any relief what you're doing essentially as we're saying here is something that is a procedural violation and the claimants arguing it should change the standard of review but what this court always said that to change the standard of review you must present evidence to so that it was a significant or serious conflict and that conflict motivated the act that occurred but now we're not even looking to that factor even though that's the law of this circuit we're saying oh well if it's a dean tonight even though it is as much a violation of the regs as it is the failure to disclose we're going to look at it differently and to me that doesn't make sense so i think you have to look at the end and champion does say we're going to leave open the question of whether it's different they specifically left open the question of whether it's different if it's just a regulation and i submit to the court that it is different because we have law already we have case law already in the circuit that explain what you do if you're claiming something should alter the standard of review and those cases deal specifically with procedural violations so we have the answer to this question and the answer i it is still the claimants obligation to prove it's a serious conflict and that it was motivated by the conflict of interest let's move on to that then because the district court alternatively found that your client did suffer a conflict of interest in i refusal to comply with the treaty as this well before i get to that point your honor with respect to this point the court said that the the latest situation was not material evidence of a serious conflict now going to the treating physician role you're right the court relied heavily heavily on the treating physician role in finding in favor the claimant and that's wrong we know that that's wrong because the treating physician was no longer valid in arista cases but if i can for one second your honor go back to this point with the with the deem denied if you have even stands that it's not a clear cut you lose discretion job even says if there's an ongoing investigation you retain it and that's what happened here my client issued a decision albeit the first one was a little bit late but then they realized we forgot to send documents that were requested by the claimant and my clients ted if you would like you can submit new information to us and are going to open our investigation up again and they did just that she submitted information and i did miss gatty some information that was most of what the coridon in reaching its decision that is the ongoing investigation that no matter whether jesse into applies or not you don't lose deference because we want plans to accept evidence we want to encourage them to continue to review a claim if they do have a history court relying on that new evidence and it's the same and that's part of my problem too we got doubly punished and only to the district court said you are deemed tonight and your you lose discretion because as soon as that that the courts to review absent extraordinary circumstances but the court found extraordinary circumstances here by saying look this was new information that the party wanted the insurance company to consider and the insurance company actually considered it in the decision to reaffirm the decision to deny so i'm going to look at what's wrong with that what's wrong with it is if you're saying that you're allowing the administration to open up the record again and have an ongoing investigation and they make their decision on an ongoing investigation and timely manner under gebbie into you cannot lose your discretion what what i hear you say is it would have been ok if the district court had relied on the information and i've held our decision but because it writ applied to novo and overturned is that it can consider that evidence and not necessarily no no no that's not what i'm saying what i'm saying is you have to review our decision arbitrary under the obvious frank rich the standard heightened arbitrary capricious if you review it on the i know of a train capricious standard i still don't think that i do think then that that evidence will come in and the court could have found against us based on that evidence under not that i think that would have been correct and also claim that later the court could that with found against us based on that new evidence if applying the heightened overtrain capricious because then we reviewed it and we issued a decision based on it but to say that you're deemed what the court is saying it is going to make sure i stay in the majority too by the way the court is saying on page eleven zero six and it goes through eleven o seven if if you're looking at it and you're deciding it on the if you have an ongoing investigation you have to remove context they just say that gilbertson and they are just saying that even if you missed as the tenth circuit recently noted in gilbertson it's sort of designed to promot deemed an i'll under the regulation and i deem denial but under the plan then they would make sense to defer but we have other issues here don't we have the treating physician rule eleven seems fairly clear have submitted something from her doctor saying that is due to due to chronic hepatitis not bipolar therefore i must find her favor and that's wrong even hundred noble review that would be wrong and i think you have to look at the evidence in this case claims because then we decide the claim based on this issue and we say you know what this plan limits benefits to twenty four months for mental illness it specifically includes bipolar we do that many doctors change their opinions dr sam planner now says well i'm looking at doctor records changing her opinion so i rely on her you have dr record who said bipolar sometimes she question marks it but she says bipolar and also she's saying it's not bipolar  also have here is dr rice telling my client one thing and then looking at his office knows and we see something else dr rice tells my clients it is due to physical illness not mental and then you look at his own treatment notes the stained period of time days later he's saying it's mental illness not physical why because he's trying to help out a claimant here and that may be what he's supposed to do as a doctor but we don't do that as as lawyers for judges survive if  don't the first admission on this case the the problem i have is that if the supreme court tells us that we're wrong on the standard of review in javelin then the argument you just made may very well save your client's decision if the review is abuse of discretion but i'm not quite sure how all those facts would play out under the novo review but don't we really need to know from the supreme court whether they're going to take  leaves this court that decision jevon says we leave it to another day to decide whether a procedural violation means the same and i'd like to think that the decisions from this quarter earlier on procedural violations say that it's a different situation but of course we don't know how narrowly or how broadly if the supreme court does grant cert it will right in this area through some maybe even a bit of court will answer that and you know your honor may be right maybe this matter should be taken under submission and waited until after that decision because it may why should you devote an opinion to something that may be moved by great talking like preserve the rest of my time  today is to make certain that people who are entitled to their to benefits with alec claims do not have to wait forever in connection with receipt of their money and that they don't get a particular silly or after it becomes a meaningless event for them before we discuss the good be an issue which apparently is on everybody's mind i like to remind the corker please consider that doesn't make a difference what you say about you have been because there's no evidence to support the respond i don't deny that but what you'll find as they get found that that reliance standard insurance company had found nothing and supplied nothing to establish that the have to tie the switch disabled m original denial which was i believe april third of two thousand there was no medical evidence that all provided by reliance standard of any doctor who treated him considered treated or even reviewed just because they didn't so there was no medical support for the idea that she didn't she was no longer suffering from have ties to the extent that they had they attribute something to dr record treating for bipolar dr record as a  doctor record never pretended to treat for for hepatitis so if she hasn't some incentive and i think the three times women in her notes mention something about remission one says maybe one says i and he says what how to quantify how much of the of the fatigue is caused by this and how much of that is i can't i can't answer that either what you have is dr rice the treating physician taking a very clear stand dr record being on on on involved in any diagnosis or treatment of hepatitis and dr sampson are saying i can't quantify anything there's no the only medical records or medical personnel brought into the situation by reliance standard at that point in time other than their justice who are not trained is dr de luca who says yes it's hepatitis in the and remember the psychiatric or psychological problems having faith back to the hepatitis we're talking about some who does not have a psychiatric record or whatever what happens is reliance standard does nothing for six months they do not answer this godey's request for documents they send about three months later something that says take us longer than sixty days and that's it whether there is a dialogue between attorney between one side and the other where you have nothing your mind standard sees that she's not represented she's asked for information which would help her appeal and they do nothing they do nothing for six months and not only do they don't do nothing for six is not really a car a lot of things that these tests mean that you no longer suffers from hepatitis all the doctors who are on record dr rice dr sam finer and even d basically says on the other hand it's been two and a half years since the muscle enzymes with normal eyes and she has the psychological problems that she must not have appetites anymore at least that's the only medical support aside from adjusters giving opinions that's the there was that that was an impossible burden kind of a catch twenty two you have to prove something that's impossible about what's causing the fatigue or how do you know they were very happy with the objective with saying there's no objective evidence soon as they get objective evidence on the directly on point that the d n a test will go ahead may not not only do they say it's not relevant they take the decision by an adjuster they take the decision without even showing it to any doctor dr place for among other reasons is that the same basis that he says she's not she's not suffering from hepatitis anymore on the other hand you know elsewhere in his opinion he said that at these muscle enzymes the tests show normal through figured out i mean much as i love being a district court tract and i do i guardian in jeopardy and after the deadlines had then exceeded the deadlines have been blown by the by the plan administrator but in general and also the court in the ninth circuit and the trial court considered the substantive opinion of the appeal from the from the plan administrator in other words what happened in just the end was there was an excess of time taken it was much it was much too long a party litigation and then the plan administrator went ahead and filed its final order denying the appeal and that's what was considered the question was whether that would be given deference and that's exactly comparable to what we well i will say this your honor there's a big difference between a two week extension and a two year extension and if i if i could tell you that i knew that the supreme court and in a week was going to give the answer to the question i would feel a lot more comfortable agreeing with the court that maybe that kind of deferral should be made but i am very concerned that a single mom who's gone through what my client has gone through should is if you if you leave the claimant with the option of being ignored for six months and ok you can file your suit but you can't introduce new evidence that is a totally unsatisfying remedy as a matter of fact what it really is is a reward for or for poor behavior in violating the law by the judiciary fiduciary here went six months without either following its obligation to render a decision or in some respects even more importantly because who wants to do an appeal without knowing what the record is it just ignored the request of a pro per claimant she wasn't represented they didn't take the seriously and six months went by the fact that between end and frankly they're all getting mixed up in my head it is very clear that waiting six months and doing nothing is not the type of good faith dialogue that would excuse anything and it's also very or so she had something she could have done she availed herself to an ongoing investigation therefore she has waived the right to argue that it's being denied county council had mentioned that there was no change in the  that the docs were all saying that it would her claim was due to physical disease that's not true i mentioned to you all the records that were there before dr record did say anything about half the tightest we never lie on him we rely on dr sam planner saying that  couldn't tell us what the cause was we have this issue with the d n a testing this was a report by dr rice dr rice and even treat her for hepatitis he was the family doctor not the same plan it was the hepatitis doctor and what that article says is you do not diagnose chronic hepatitis faced on one test we have to do is you have to look at other factors there are certain criteria and persisting liver disease is the first one they mention she doesn't have it it says characterized by positive serum test well first of all for her to vaccinate it for a number of years in fact to talk about that test as the hallmark of chronic hepatitis the hallmark of it that's its words in the article what's your response to the argument on age thirty of the record as to what the parties stipulated to do before judge the product under the novo review under carney the court can look at as a motion for judgment on the record