filed an application for short term disability benefits which was allowed he filed another application for social security discipline that disability benefits which was allowed and after he is short term disability benefits were exhausted he filed an application for long term disability benefits from you know this case was tried to the district review this appeal did novo as well based on a conflict of interests based on recent authority i cited to the court in a twenty eight day letter yesterday that that there there's a conflict of interest here and therefore our review is less deferential yes your honor but i don't know if you argued conflict of interest in your brief i did not see that i did not i argued that that the determination should be subject heightened scrutiny under the handguard case which is not interested case but which is in the case about finding a mechanical recitation of its version of the medical history without any explanation so it recites the definition of disability which is a form that unit private and other long term disability carriers use it has the t a review of the medical history that the claims examiner chooses to present and then it says there are no restrictions limitations which  and unum did not have a physician review dr bell bill's notes unum had a registered nurse review dr bell bill's notes initially the major reason he was disabled from performing work but that the anxiety and depression that dr bellville referred to in his summary were becoming the greater reason for his disability now  the plan did have according to the plan a pretty ologist review records regarding mr balcony's chronic obstructive pulmonary disease his preexisting heart prostheses surgeries and other matters relating to cardiology and cardiolog conditions but if you review the action of records you'll see that the cardiologist reviewed a one page summary of the medical records from the claims examiner actually print out the records from that yes to be able to review them there's no indication that whoever reviewed these records actually reviewed dr  looked at the signature of the doctor who reviewed the records and there's there are two or three sentences that this person provides at the end of this summ y that he was given by the claims examiner which consists of a few paces in the records one page of medical history and i can't see myself determine that he is a medical doctor nor is there any curriculum either or i believe they did your honor because he had your reversible crime and chronic obstructive pulmonary disease but i don't recall any doctor using that language term no that's not the question your honor the question is whether or not only did he got that he was permanently disabled yet i don't recall the doctor saying he was using those words which was either sixty or ninety days actually receive benefits and the elimination period is usually sixty or ninety days if i'm disabled longer than the elimination period i mean titled to receive disability benefits and as a matter of fact when balcony applied he'd been disabled since february seventh two thousand and one he b c of six months of short term disability benefits which easily exceeds the on the nation period but let me understand the policy under the terms of the policy he needs to show that he is entirely disabled from performing the functions of his job but he's not required to show that he is entirely and permanently disabled such that for example you can come back in a couple years and say you look healthy to unaware no longer going to pay these benefits that's very close to the latter part is what the plan language says is that he needs to show that he's unable to perform each of the material duties of his job  long term yes yes that's right you've asked for eight you've saved about four forty five why don't we hear from the other side and then you'll have quite a bit of time to respond thank you of the court yesterday are all of rather i won't say they're all ancient they all predate the briefing in this case they include cases such as the supreme court's decision in the ward and this cour standard of review what should we do let's say making it materially alters the must have so making review less deferential if that if that turns out to be the answer what should we do well you are given that in this  there was no they didn't argue in this case at any point that there was any conflict of interest but painted the administrators and they didn't argue that the language didn't confer had there been any contention here that a different standard or review shit should apply but standard or review simply was not an issue in the district court as a body prove the parties that wish to raise that point raised and those who don't wish to you and wasn't even raised at all by you tell it well that we may or may not have to jump off that bridge when we come to the end of a lot of r v might say i guess let me ask question why i still remember this is something i didn't even think about until the area of cardiology it is not he did he doesn't specifically address the cardiac conditions because it seems that in fact after looking at the records what appears to be the main contention is has this for line handwritten note referring only to long functions and we're supposed to assume from that that he kind of the is out or read the file that she says is difficult to read  lung problems render him unable to perform this sedentary job that he does working on metal fabrication equipment i recall having read in the record evidence of  disabled by this condition again it well i'm not sure they're not saying that he's disabled by this condition goes with intention ears and there's some documentation on the record that among his sort of multiple symptoms that tak condition x condition may at this end of the spectrum be disabling and me at the side of the spectrum be not disabling and somebody needs to say where mr melody falls on that spectrum and nobody did it and then when waited and that information never came and we said we haven't heard from you we've been waiting where is this additional information where is the commentary function you told us to wait for because that was going to show us the condition of you last and he never submitted it so we finally went ahead so i did why doesn't sound like he had evidence to support his claim of disability based on a momentary condition when he asked us to wait for it either me with any exertion unable to perform physical work date restricted in limitations begin for two zero one and i'm reading about this information number three i think it's a  occupation are all in any occupation no if the patient is demonstrate a loss of function please provide restrictions and something and the date they began described and then that's his hand writing that's that's the bottom line you're lying on for a doctor certification that he's unable to work no oh ok well first of all in that context unable to do physical work could mean he can't do physical counsel per unit is correct this man suffers from a variety of conditions and and in combination they are disabling so what what you know him has well let me  symptoms and anxiety and depression symptoms included low energy low mood sense of helplessness and hopelessness in discouragement as well as some trouble with concentration this was felt to be related to multiple stresses in his life including the death of the two brothers and his own vocational and economic uncertainty related to a significant health problems and he the  encounters with mr about the money which you see at page one ninety two and concludes initially the major reason for mr about downey's disability seemed to be clearly related to his breathing problems however of his report that he is disabled graph out i well i'm not familiar with the body but i think neither party can dictate the standard of review that this court should use in determining this case we can't stipulate to it we can't dictate to it i believe that i have