supreme court ruling of black and decker has taken the review of the medical evidence under the treating physician rule off the table therefore there are two remaining issues the first though whether the two remaining issue is whether the trial poured in correctly applied the abuse of discretion standard of review to the plan administrator denial benefits instead of that the noble the clarity that was required to grant the plan in ministry her discretion they did not confer discretion and the engram analysis was directly  point as to the clarity that was required and it sector of the met life policy in in rome they refer to what took place in benefit them and they found benefit to not have addressed the clarity of the language dealing with whether or not the abuse of discretion whether  finding of breach of five you sherry duty that with then the abuse of discretion standard was there a conflict and was there objective evidence to support the conflict that is opposing counsel went through a dialogue regarding whether or not ingram applies to this policy judge fletcher felt that it did but clearly we weren't aware of the case and i  issue is whether the ninth circuit the first time around determines whether whether the train language was clear enough to grant counsel was aware of ingram he didn't cite it he didn't bring it up he didn't make it he didn't make the port of aware that he didn't make opposing counsel aware of it rules of professional conduct require that i don't think i don't think it was intense it was clearly not brief we didn't argue it it was discussed with opposing counsel but with judge french or in he gave his views aren't i think if he wanted to limit that or if it was then it's decided in some fashion his opinion would have been much more clear than it is here here it's clear from our vantage point of the policy in language was non issue it was market term and it was agreed upon by the parties and that's what was before him on the first appeal second issue the church waiver brought up is the treating physician rule is off the table there's no question about it but this court did n that he does not have the mental acuity to handle the job of control or even under the definition of within the occupational piles controller thank you your honor thank you good morning my name is christopher starring representing the app only plan i'd like to address the last point mr rosenthal me first if i may with regard to the state of the medical evidence today even in the absence of the treating physician rule which in  in the first appeal this court issued a memorandum which amounts to a judgment resolving all issues in the case save one remaining it to the district court instructing mandating that that he followed this court's instructions he dealt with the one issue that he was instructed to deal with and at this point in this procedural posture mr unstaffed is now claiming that you should find that the district judge in the vatican admitted error because he did not do something he was not instructed to do it's probable that he couldn't do it because he had expressed instructions from this court telling him the would ask the court to consider but i will acknowledge that quite candidly i found it yesterday so i can give you the citation that would support that as i think the proposition your honor i can i can give you that  itation if you would like and it is and said you know even though they've told me handle one issue i'm going to go ahead and introduce a whole bunch of other issues which are resolved in that memorandum which amounts to a judgment discretion while ingram get was declined to extend then dixon to apply to the completely different language that met life head present in to hold that metlife completely different language grants discretion granted discretion only issue properly before the court and now that issue no longer i think you made that argument whether or not there was a conflict evidence of a conflict that would ha of the plan administrator that would heighten the standard of review they determined it wasn't and lastly there is no evidence in the record even if one had to use in revert to the use of discretion standard there is no evidence in the record to read but d the abuse of discretion standard has not been met because there is no evidence to support the conclusion that he has the