decision of the lilly employee benefits committee who just determined that the apple a miscarriage he was not entitle to continue benefits under the plan there are two issues here on this appeal whether the district court mis reste reinstatement of ms kennedy's benefits rather than remanding i want to start with some important medical evidence this really is a case about medical evidence and going back to september of two thousand rheumatologist who was hired to do an independent medical exam and who later became ms kennedy's treating physician performed a very comprehensive exam and examination of her some of it is cited in miss kennedy's brief a lot of it is not and i want to draw your attention the court's attention to a few comments if i could and this is in our supplemental appendix physical examination reveals a well developed well well groomed female she moved back and forth in the exam room without apparent discomfort she was a tenet and alert more common sense to the joint examination a variety of negative findings dips negative pips negative i don't know what l she is able to do her pretty morbid level of routine domestic chores including cleaning and sleep shopping she is physically active she runs three miles about four to five times a week she is active in yoga exercise and doesn't aggressive stretching program she is active in church and then finally as to functional impairment dr noise said it is clear that the patient has relatively high functioning she is able to jog three miles she is fully capable of doing her a t l and routine social functioning however when i think when this is compared to the high stress that she was in there is an inability to return to that level of work so that was what dr new wakes said back in two thousand and ten his essential conclusion was this patient can do a low stress non high cognitive function job this precludes her current job but does not preclude the performance of any type of occupation now miss kennedy's benefits were terminated when her claim was reviewed under an any occupation standard she had been under that through three years she initially was under the own occupation standard the plan changed during the time period that the plan changed there was a transition of plain administrators it went from anthem to said wick and during this process they were gathering information ultimately  determination under the any occupation standard she did receive benefits during that time period she was used with two hundred twenty four thousand i think it was for i think it's fourteen thousand dollars a month if i recall correctly and so she did into benefits there's so much work still to contractors as we've despite their reliance on dr schreiber despite their i believe there are still the contractor i'm not for certain about that  so during that transitional period there was no review and eventually as far as i can tell from the record there was no formal review when said what did the re review it was in november of two thousand and twelve they made the decision to terminate the initial decision to terminate ms candies benefits and then she appealed that and the appeal was denied in april two thousand and thirteen now as it relates to the medical evidence considered at that time what the e b c considered were three different in the pedicle medical independent medical exams from dr oz and noyce who i just spoke up and dr schreiber for independent record reviews from have particularly since social security found she could not do her prior job as newstead and the so security standards obviously quite different from the willie standard well the this court has ruled that it is error not to consider a so scary trend toward what we could you give it it's one piece about evidence along with all the other evidence part of the social security a determination reasoning was similar to what the e b c's reasoning training and experience that the standard under the lowly plan is any occupation consisting consistent with her education training and experience now keep in mind ms kennedy had extensive training she had training in human resources was there anybody when she was working was anybody senior to her and human resources yes there was a senior person she was reported directly to the what the vice president correction or since she had extensive training in human resources obviously twenty years of experience she had extensive training in compensation and benefits she had an engineering degree so in the typical disability case you have somebody with limited skills that can no longer do their job and then the medical exams they talked about the evidence from a rheumatology perspective i think the key issue here is given all of the medical evidence was there sufficient evidence for the employee benefit exercise of discretion to decide that although ms kennedy had limitations those limitations did not prevent her from doing any john consistent with her education experience and training w does to me right pain they both want objective indications which seem to be understood perfectly understandable in almost every context but fibromyalgia is a special problem i would agree that five mile just a special problem i think to go back to your first question then to go to the next question dr no it's his exam was very comprehensive he accepted the diagnosis of fibroid  fact became her treating physician and his his i am he specifically said in two thousand and ten that she was not disabled under the did you provide any updated information and when he provided any updated information if you look at the additional information that he provided he still did not say that she was disabled from any occupation he said that she could not do a high stress job should work full time and that she thought she needed to produce schedule which is and that i  believe those factors are it's within the discretion of the employee benton's committee to apply its judgment consistent with its knowledge of not only the many many jobs available at lilly which is a large employer which offered  went in looked in critiques them all and i think this court has ruled previously that doctors are not supposed to write lawyer like opinions there was a large amount of medical evidence here and not one single doctor other than dr condit said that ms kennedy was disabled under the any occupation standard and even dr condit did not really provide evidence of restrictions that would support us he he filled out a couple of forms one of which said that she couldn't sit for more than two hours and that she had to change positions that's not consistent inconsistent with any occupation standard so the district court i think went through and dismissed some of these features is not inconsistent with fibromyalgia having disabling affects on people's and i think your honor that is exactly the issue these you can work twenty hours a week as an administrative assistant then you are not safe all under this any occupation consistent with your education training and experience well i don't i'm not sure there's any relevance to that other than ms kennedy appears to be claiming at times that she didn't understand what the standard was and in fact that phone call and other statements in her appeal indicate that she was clearly told that the of a global pharmaceutical companies management she has paid disability insurance premiums including the optional extended benefit and is getting paid benefits of some fourteen thousand dollars a month very different from most disability cases we see uses lilly's position in the commission committee's position for example that if she's able to work and a an entry level h r position paying let's say fifty thousand dollars a year that she is then no longer disabled and must take such a job i think the the answer that question is in the is in the most information we have about that is in the letter where it says well the committee determined that from a rheumatology perspective you may be precluded from performing your prior human resources executive position it is all to determine that the documentation does not support your inability to perform other occupations consistent with your education training and experience so essentially louie's conclusion the e b c's conclusion is that just because you can't be an executive anymore doesn't mean you can't perform a job consistent with your education training and experience and i think this is really an issue that is uniquely interpretive as to what that phrase means i think the question your honor is posing is well if somebody is used to being the president the company and they can't do that anymore but they can do lots of other things is that consistent with their training education experience i think implicit in this letter was the  look what he said he said increasing the dosage of her medication caused cognitive impairment while decreasing the notion caused her to be somewhat uncomfortable and the last visit her function level had declined slightly and her anxiety was significantly worse  that in that very latest letter he said that he didn't think that she could work a regular schedule again and he said that but he said other things about her function level declining and her staff anxiety being significantly able to work it and she he never offers very little work with or cognitive impairment right because even if she can't perform her high level executive job there's plenty of work in compensation and benefits and i disabled from any out occupation the only you know he just keeps contradicting himself and i think the employee benefits committee was entitled to take all of the information from dr who likes into account well so is the judge that was judge lawrence's yale and and what i submit to you is that it was the e p sees decision at the outset to weigh all of these different pieces of magic lab and it's just i think if you look through the records in great detail you'll find very little not only objective evidence but even subjective evidence of real restrictions that would prevent ms kennedy from returning to work under the standard of any occupation ok well thank you judge lawrence is the surgeon was well supported well reasoned well thought out in clearly showed that the e b c's decision was arbitrary and capricious judge lawrence's remedy of reinstating benefits was also consistent with this court's holdings in numerous cases could first as xerox schneider vs century group and so on the status quo ante prior to the termination of benefits made in the record at page three twenty one of the claim filed indicated that the definition change was approved that there had been a vocational review and that benefits were scheduled to continue until twelve thirty one twenty twenty five that was the status quo ante the only evidence you see twenty twenty five twenty twenty five that's when she'd be eligible for retirement that's when she would reach the age of sixty five you can be eligible for full retirement one of the ironies here is that ms kennedy was forced to draw early retirement which is an offset against the extended disability leave benefits the evidence subsequent to the mature file review indicated that if anything ms kennedy's condition has worsened at the time that the decision was made in two thousand and eleven in continuing dr condit's reports indicated that ms kennedy's pain level was at seven point five out of ten he added to her medication regime which consisted of two opioid pain relieving medications  certainly were recommended twenty eleven two thousand and twelve when she was receiving those medications the statement that dr noice did not support ms kennedy's total disability is a regular work schedule he maintained the same finding in december of two thousand and twelve he maintained the same finding in february of two thousand and thirteen that was the evidence judge concluded that based on the evidence contained in the claim record just as in the hawkins vs the hawkins case that the that this court authored in two thousand and three objective proof of diagnosis is not required objective proof of functionality may be required for the problem though is that the plan never base their decision on a lack of objective evidence they never cited that provision of the policy they never said in the initial denial letter miss kennedy you need to provide us with the objective evidence of functionality such as a functional capacity evaluation well the thing that concerns me and maybe it's not a concern but you've mentioned it the standard is arbitrary and capricious correct and it should be that the thunder of whatever we're calling it should have a substantial difference i mean it's that's the point of having these people in and judges making medical decisions and what concerns me is that some of the discussion we've had earlier is a woman of this capacity is not reduced to zero and not done and i can understand with the pain and but certain objective standards for instance a lot of people a lot of very talented people know we're kind of the home and with the us tronic and computers and everything else i have a half time clerk who works at home it's mostly because of her handicap child and she has to stay there but she does great work and and that's what bothers me about this case is there is halfway point you know there was some mention that she could have possibly had another job with really big company and had all kinds of at every level maybe that isn't fair to have to go and work for the same company to be deuced level be surrounded by people that used to your subordinates i don't know maybe that's a way of looking at it as opposed to using her her ability and she's probably still very talented in her present capacity and that's what bothers me about this case because you have the erbitux increases standard which i think you judge that is you know it doesn't matter arbitrary and capricious she still wins so that's all i'm questioning i'm not sure where i am with this but i do look at a very talented woman she was very highly paid she's now about this unfortunate disease which is you know is the pain is subjective no question about that you know you  somebody hurts the objective standards which i think you least are important they should should be considered and to your zero and get maximum retirement no maybe should pay a lot of premium to get ms kennedy could not sustain a regular work schedule and he cited both a social security case and a discrimination case for the proposition that the inability to work a regular work schedule means that you're not going to be a reliable employee and therefore you could potentially be disabled that's what he used for his conclusion mrs kennedy has regular pain spikes from the twenty ten i am me the d an indication that the pain spikes would be unpredictable and that she would be expected to miss at least two days of work each month to recover from those pain spikes this is a woman who suffers from severe pain on a constant basis who doesn't sleep well at night and is severely fatigued and a constant basis and she wrote something interesting to the committee that the committee never responded to this is in the supplemental appendix at page seventeen she expressed her understanding that the definition of disability under the any occupation standard consistent with training education and experience has two parts can the employee return to work at the same work schedule is prior to becoming ill in the second part is that the same level of job in the field of expertise slash experience the employer work prior to becoming ill that's the correct interpretation of what's meant and what distinguishes the definition of disability in this plan from the social security definition of any gainful activity reduced ability that is a disability reduced ability is a disability and w lillete determined that miss kennedy could work at another human resources job what's completely absent is any vocational determination that reference that there's a reference in the defendant's briefs to a vocational assessment that was done by him is all riley but the reference to that page does not indicate a full blown vocational assessment it doesn't indicate any capability of working in a particular job it just suggested that there be that the committee get more evidence which the committee did but ultimately the only reliable evidence the only substantial evidence from a doctor who is examined in this kennedy is that she cannot work a regular work schedule on a consistent basis dr condit had written that she was at a level five impairment incapable of sedentary work activity so the evidence established that she could not final claim decision so the only thing that's left is dr payne and this the court has pointed out dr pain was apparently addressing something besides fibromyalgia but never directly addressed fibromyalgia see my time is up  would you like another thank you and one thing that strikes me as i'm listening and pondering the questions that were asked is that we are debating the definition of disability and i think some of the questions have related to can ms kennedy be essentially forced to take a demotion that's an interpretation of what that provision means in the plan now the e c or the early could have created a plan such that says you never have to take pay cut you never have to take a demotion you get to stay in your same job and if you can't do your same job then you're disabled that's not what this plan says this plan has in any occupation consistent with education training and it will mean to the biopsy said that the committee didn't consider her actual ability to do any work on a sustained but they did they consider the medical information and we've talked about dr noise and i've got the letter that you're referring to your honor in february of two thousand and thirteen he says she could not do high stress activities or high cognitive functioning and he didn't think she could work a regular work schedule they consider that in light of not only lily that she could work i don't know how much weight they placed on it and they did discuss it in the letter and dr no it's also said in december of two thousand and twelve it is my opinion she'll be permanently disabled from this particular job i think the interpretation dr noice was he was saying she couldn't do her former job and she could not work a regular schedule was the committee told by these doctors or by anyone believe that the e b c applying the standard and looking at the restrictions and weighing the medical evidence can want to have the competence to do the what was this committee composed of well there is news people there's various doctors on the committee among other things they also are will employees who have knowledge of the jobs available at lilly and the accommodations that an employer like lily would make to somebody including this this plaintive for this a power what have they ever actually picked was the positions that were offered to her were not placed in the administrative record which is the record that's relevant for those us not to make it very hard to evaluate it does and we're not relying on that what i rely on is that this interpretation of the any occupation standard is really the purview of the employee benefits committee they looked at the medical evidence and the restrictions and concluded that she could do some work not her former job but some work is there any understanding is there is a social security disability that the work at least has to be full time that's not in the definition the it the definition is consistent with education training and experience there are some plans that have specific numerical definitions like you have to be able to make sixty percent of your former income that's that's not in this definition so the definition is is what we have and implying applying that c concluded that she could do some work and then finally your honor i would anybody could do some work that is true and what they concluded was absurd that she would never have an it you'd never have a disability and you're right i misspoke what they concluded was that she did not meet the the meaning of death disability as defined by the plan any occupation consistent with education training in excess ariens based on her training experience