good morning and welcome to the th circuit before we begin judge bennett and i would like to welcome and thank judge silver who's sitting here today with us by designation from arizona thank you for coming walking and very glad to have you one case came off calendar and that is crude versus you star with the deferred submission all four remaining cases will be argued the  st of which i'm not sure to pronounce it correctly mikkel versus you know group when you're ready if i may reserve three minutes may it please the court counsel ranking is my name i have the honor with john wood of representing mr mccullough there's a threshold issue in this case your honors that is important and that's the standard of review this is a rule fifty two dollars proceeding the district court handled in that manner and there is a dispute between the parties as to whether the din of a standard overview applies to this case or whether it's a clear error standard of review as you know from the briefing our position is that it should be to know and the reason for that is that in these a risk benefit and i'll cases the review is limited to in most cases not all as an variably but in most situations and this is one of them the review from that both the district court and the court of appeals is limited to the pre litigation appeal record and that's what we have here consequently and this is something that the district court expressed some frustration over the  judge brian said i'd like to see what happens in the crucible of cross examination to quote him but he was a little frustrated that he was dealing with just a cold record as you are the point is that under rule fifty two dollars of course there have to be separate findings and conclusions set forth and those findings when they are based on credibility evaluations are deferred to their only reversed when there is clear air however we don't have any credibility issues interrupt i'm afraid i've got a case suggests that well if there's an essentially factual question then you review it for you review it for clear air i'm not familiar on or off the top of my head judge fletcher with them you know it's case that you refer to but i do think the dowdy case which is a relatively recent case i think a two thousand and seventeen case talks about the fact that if there are essentially factual questions then clear air is appropriate you have a case i'm referring to is  c construction management written by judge clifton i think it goes against your position i would say this your honour's the thing that is frustrating about having clear air apply when there is no meaningful ability to make a credibility determination here by just reviewing a record judge brian did the best you could express his frustration about trying to evaluate credibility but your in a no he was in no better position than i have to say i'm sympathetic with your argument but i'm not sure that i can get there from here given argues law well we would suggest that you know i as i say your honor i'm not familiar off the top my head with you know it's and i apologize for that something that i should be aware of but i don't know whether it was a nurse a benefit claim if it the analysis of the district court was as to why this individual mr mickel was not entitled disability benefits they both the i am me and the the i mean reviewer and paul revere made a fundamental error here and just looking at one relatively short time frame a snapshot in terms of the activities of mr mickel and then extrapolating it out projecting it onto whether he could carry out the material duties of as of any occupation when you look at the seven or eight pages in which the judge talked about what his findings were it doesn't appear to me that he's just looking at a snapshot he is relying in part on the video but he's also  talking about the medical evidence he says that he our fifty medical evidence does not support i mean quoting the medical evidence does not support limitation and restrictions precluding full time work and he's looking at the whole record he's talking about i have on the bench five large binders in front of me there was a lot of information and the frustrating thing and this judge bennett is that you're looking at an individual who had been on disability for eighteen years then all those records all the individuals who had reviewed this claim knowledge that he could do he's been fairly forthright mr michael about what he could do and what he couldn't do and there's quite honestly not much if anything in that video that's contrary to what he admits that he was doing on a regular basis so what is it that  justifies on that video alone or in the medical records i mean you refer to the medical records judge bennett but but the medical records form the basis for paul revere to pay benefits to him for eighteen years and there's nothing in there that really changed in a significant  way the i am me is concludes that there is work that he can do and that he's not this able within the terms of the policy doesn't it well yes that's what the i me conclusion was but i would that is worsened by physical by work activity and that's something that paul revere acknowledges is the disabling condition it's not that he can't get up and move around it's that he can't do it on a sustained basis over a forty hour work week quick the problem that we have in the use of discretion here is that paul revere never made meaningful efforts to evaluate whether mr mickel could in fact carry out a work week activity of forty hours they look at a snapshot a relatively short time frame they don't look i don't care what job is we can deal with any occupation in the country for which mr mickel is qualified by education training and experience you gotta show up to work you've got to be able to do your job competently there's no effort made by paul revere that's reflected in the record to carry out any analysis on that they're hanging their hat on two things the surveillance video and the i me and the i me of knowledge goes through a lot of medical records but there is no effort to evaluate the extent to which this post fatigue and pain that mr mickel undisputedly has dealt with for eighteen years is going to allow him to show up to work on a forty hour week basis that's the problem and we've got a lot of case law that we cite that from the th circuit and elsewhere th talks about the limitations of that kind of surveillance video and being relied on so heavily and improperly by an insurance company in cutting off benefits in other words you've got to do more than that that's the maid that may be the st step in a skeptical insurance company who's concerned about whether an individual should stay on claim but you've got to do a lot more before you can get to a point for paul revere of saying you are qualified by education training and experience to do any occupation because we know you c work forty hours a week they don't have that in the record there's nothing in the record that addresses that let me ask you question it is not really clear to me from the record maybe i was taken from the record he claims that he is his disability is not based on i so mad a form disorder right but that was the original it was the social security disability right yes and he did receive it for that but there is a mixture here isn't there you bet the pain so  adamant that it's not a matter of warm disorder what is it well that's hard to know etiology this has been something that people have been struggling to pin down for a long time not just with mr michael but with many people who suffer from these kind of symptoms initially it was again bear syndrome and criteria or or you know you can't take an x ray for example and that and find this stuff and that in and of itself the fact that you can't find an objective lead based etiology for some of these things isn't in a itself a basis to deny a claim there are other types quezon if not purely objective analysis and that is you've got individuals who treated mr mccoll for as i said judge so over eighteen years and they're consistent in saying he's disabled he  amana fest fatigue they can see it in his face or they can see it sometimes and how he behaves in front of them or they can do what testing they can to try and pin this down but it is you're right a combination of things my point our point is that there was very little effort by paul revere to analyze number one the post exertional aspect of this so you got thirty seven minutes on a boat on an afternoon a nice afternoon we know that paul revere was doing a lot of surveillance of this individual there's no surveillance for the next day or the two or three or four days after were they surveilling him and he never came out of his house we don't know oh very possible let me ask you this then judge brian said and it is absolutely correct to read his opinion as being that he was troubled he was having trouble with it and he made this decision in front of everyone it wasn't written but then he realized why couldn't he rely on the video and make that decision  you i think you can certainly rely on the video for what the capacity of mr mccall was at the time he was being videoed well and then then your client had the burden of proof so why not well but the burden of proof here's the problem you have the eighteen years of records showing that he couldn't show up and do his job on a forty hour work week basis and the only thing that that surveillance goes to is what was going on that afternoon period end of story there's nothing in the surveillance that provides any basis for the i physician to draw any conclusions or paul revere for that matter to draw any logical or reasonable or rational conclusions about how todd mccomb was doing the next day or three days later we don't know the answer that question other than through paul or other through todd and isn't that a reasonable finding for the judge to make and certainly not clear error based on the video which i presume we've all looked out yes i agree with you judge that i looked at the video and thought certainly doesn't look here that the clearly erroneous standard should apply so if that's true the issue for the court is whether under the full record whether judge bryant's analysis presides in a presenting a plausible justification for we have on the record with respect to the sailing video is that true that's not true that's not the record either i think the the full surveillance that was occurred is in the record specifically and i think it's over a period of three days but specifically the surveillance on the sailboat was for the five hours but i do want to address something that he said he said well where is the review that you would submit that he was feeling terribly the day after the sailboat that he was not active the day after and we asked the court to look at evidence or the record of two hundred and thirteen he submits a seven page declaration he actually tries to take on the surveillance saying the surveillance isn't exactly accurate but there's something surprising then that it's not said there and that is the next day i was washed out i couldn't do anything it's just not there and i think this comes back to the whole issue in a case asking for we are asking for objective evidence of disabling pain and so yes go ahead but with the one question you raise is also is important question here and that's a credibility issue and the judge didn't make a credibility determination he suffered throughout and said it was a close question but what i've been wondering at throughout my review of this file is when did your client finally determine after they seventeen years of his having this disability and a substantial period of time for when your client decided that he was disabled when did your client finally determine he is not disabled it was a well longer has chronic fatigue syndrome he no longer has the illnesses that your own witnesses and doctors had originally found and that with all due respect your honor they have never said he doesn't have fibromyalgia bar or any of those they've never contested that the issue was what's the disabling the fact what is the pain and so my st answer is that i am me it's a twenty four page i am me it reviews all the doctors there's over sixteen doctors over a twenty year period that dr mohai reviewed and then he has a seventy five minute actual physical exam of this person much different information than what judge brian had when he concluded he was disabled back in two thousand and one i was on that case then and judge brian ridiculed us fairly i believe that we didn't have an irony in that case so seventeen years later one million six hundred thousand dollars paid out seven thousand five hundred dollars a month dr moai a board certified seattle rheumatologist who paul revere has never done any work with before in the past reviews all that painstakingly and so i would say that that's when they came but but here are some  some key things that go to the credibility and that's number one mr mickel took the position during that independent medical exam that he has not had any improvement that's the record of one  but the records show much different so he took the position that he had not improved which means he couldn't drive a car that's the record of one hundred and twenty nine that he had far a white pain in his muscles worse with any activity that's the record ninety dollars that he had pain one hundred percent of the time that he couldn't squat or bend that's the record at penn that's the position he took with dr mohai but the medical records his own doctor showed much different kind of  doesn't require a proof of medical records and and so you know in may of two thousand and seventeen and after the doctor his doctor did an examination one year before he said he still had the same illness that he had been treating him for for i believe it was ten years as opposed to seventeen and that chronic fatigue syndrome as we know from the th circuit makes clear objective findings are not required and i didn't see in the report and you can tell me where i missed it where your doctor actually took apart his doctor's report one year before where the doctor said  unequivocally that he was still he still had the same condition he didn't examination of it then your client in may of that year came back an employee of your client interviewed him said are you still your position and he said adamantly it's still my position that he has chronic fatigue syndrome so the objective evidence tell me why the objective evidence is enough all right so maybe i have not explained it correctly but again our position has never been that he doesn't have these conditions the issue is whether he asked where is the objective evidence of disabling pain we cite to the jordan case and the jordan case says in cases like this what objective evidence do you look for and they say you look for muscle weakness acute distress whether they can be freely ambulatory and here's what's really important about muscle weakness when you have disabling pain and you don't want to move you end up not using that muscle and over a period of time you get muscle weakness that's what the jordan case talks about but what we know here is that in the independent medical exam and the jordan case i'm sorry i think the ones i've been looking at for two thousand and four case and it's really going to the issue of the save he's talking about fatigue and pain that's what he's talking about and that's what you're looking at then is is someone not using it and here's what's great there was actually a test by one of his doctors this is the record s c r at twenty one where they actually made the conclusion after they did a bunch of testing that he had no symptoms of reflex sympathetic dystrophy reflex sympathetic dystrophy is exactly what you would get if you were in a pain situation where you felt like you couldn't usually muscles when you don't use your muscles you get out or feel when you get atrophy you get muscle weakness and the key finding in this independent medical exam is that he had no muscle weakness and the other doctor has found muscle weakness with him that's what's important so what now i turn it back to the case for judge bryant who i've never had this before actually said in the record he reviewed this record with a benefits they say he can be or she can be a small parts assembler have no idea what their ideas but that's always why they deny benefits that's an unskilled job he's obviously got some skills he was c e o of some kind of a computer company up small parts of someone or sitting in a chair or does it mean does it mean that he has to do something that's as it were suited to his experience and educational class what's the what's a just what's a mean is any occupation it doesn't have to be tied to that disputed correct and judge bryant found that the question and then your forty nine was going to perform sedentary work either using as a guide as former owner manager occupation or any occupation in the policy correct and your view is that that's a correct reading of the policy that's correct yes but what i'm trying to figure out is is it really low skill low stress totally tedious occupations that he would never in his world in the world want to take because he's much more educated than social security because you have you have experts that make a determination as to whether or not somebody can do sedentary work and it's your position that you read the policy as you would for social security is if you can do anything well that's i isn't the policy i mean i just go with the policies that the decision that was made then in two thousand and five when they and we dr afridi i think found him disabled that at that time he said he could not do any sedentary work they concluded he had met the definitions of the total disability end of the policy that's not what and consistent throughout then even way back in two thousand and five i think that would not be a consistent ruling there has dissed statement because unum of paul revere did challenge it in two thousand and one and said we don't think he's totally disabled and that's when judge brian looked at the record said it's kind of a close call but in the end you should have had an independent medical examination and that's what they did in two thousand and five you did and you're you're examiner said that he had chronic fatigue syndrome there's no arson there's no we didn't really focus on the very issue i think i'm asking right now is whether or not you read this as if he was incapable of doing sedentary work so i see them as being inconsistent that your position today is that that all your client had to do is make a determination that you couldn't do certain terry work but i don't see that as being the decision that was made by your independent medical examiner in two thousand and five well we disagree  more symptoms related to grueling baaa that's the record at sixty nine dr mohai says when he didn't examine any palpated them he did not sense that there was any response or pain so the exams actually show up he had no functional limitations during the exam yet for range of motion and all that so and then i guess i have to finish with the video with all due respect because this video is not intended to show everything is just getting back to judge bennett's comment that it does affect credibility when you have such an important credibility and there's about eight things in that video you should look at that aren't consistent and when they're not consistent i think the judge can look at and say gosh looking at the video i have to say i don't view what happened what we saw in the video was going to credibility in any importance sense because he has said very openly on  was listen i go sailing on wednesdays and i've got my own boat move around i do stuff the heavy stuff maybe i have my friends do but he's doing exactly what he said you do now it turns out that if you look at it he's doing it without apparent difficulty but he was very forthright that he was that this was an activity that engages not as though you caught some guy who claimed to be totally disabled algol thing three times a week i mean those are slam dunk for you but he's doing what he said he was doing your honor all present a different view the record at one hundred and thirty seven dollars he said he told the doctor and told paul revere he does not pilot the boat he does not sail it he does other tasks that's the record this video shows he did number two he says he'll sail for a maximum of two hours well that's not true either he actually sailed for a maximum of five that day he says he can't squader bent that's the record it s e r ten but on that boat he  dollars that's not what you see in that video so we believe there is at least sixty eight dollars in consistencies that at least substantiate that what they're being told isn't exactly what the record is and with that we ask you to was just made and how do you respond my response is that it's not that difficult to pick nit pick some things that say hey that's a credibility issue because there's some inconsistency were much more in europe camp in this judge fletcher in the sense i'm not sure what camp i mean well your comment talk about credibility todd miccolis said i'm laid up all the time he didn't he was forthright in explaining what he did twenty three times a month like months ago sailing and that's what he did you can nitpick about well he said you know ten or fifteen years ago in medical record he said he doesn't stupor n because it's too painful and he was doing that come on i mean if you go through twenty years of medical records or fifteen years of medical records you're going to be able to find some discrepancies or things that are consistent from time to time i think i don't think that's a fair question about credibility but but point is more when you talk about the standard of review that's what i mean if it's a credibility issue and if it's clear we lose period end of story that's the problem here we don't lose because the process by which they used the video to an end of a self without much else at all use that as the basis for terminations was a flawed process that was arbitrary and capricious why because it was a snap shot you've got to look at the post exertional pain and fatigue you've got evaluate you gotta do something to evaluate whether mr mickel can show up to work forty hours a week that was where paul revere dropped the ball they never got to that and until you get to a point where you have some information in the record that justifies paul rever terminations because they took the next step they went beyond that st step of hey this video raises some concern ok fine go out and get additional information about whether you qualify for any occupation and i want to address your question judge fletcher this question about education training and experience that language in this policy means something what you heard paul revere say is it really doesn't mean anything if he can do anything at all in any occupation that's not a fair reading of the language of the policy a fair reading of the length of the policy says when you talk about by education training experience you're limiting the scope of activities and jobs and occupations that you have to be able to do in order to disqualify yourself from that if that isn't your brief don't know because i don't think we that wasn't something that was raised in the brief by either side but i think that that's an argument based on the plainly in the record because that it's in the record well i'm saying that you're playing a reading of the plain language of the policy if you read it the way paul revere's asking you to you are to disk you're ignoring explicit language that limits the exclusion or limits the ability to limit those benefits  counsel what the judge found forty nine is the plaintiff can now perform sedentary work either using as a guide his former occupation or any occupation in the policy and you haven't taken issue with with that reading of the policy just one aspect of any occupation there's the other things that are brought to bear for doing the job ok thank you both sides for their arguments mikel versus you know route now submitted for