and then against metropolitan life insurance is our final case of the day my name is martina sherman and i represent the plaintiff appellant susan hannan this court should reverse the decision of the district court upholding met life's terminations of mis sentence disability benefits the issues in this case are straightforward met life attempted to rewrite the policy in the middle of the claim to avoid liability and then when met life consultant suggested that an independent medical examination was needed met life slammed the door issuing a denial letter the following day it is contrary to a risk to make a claim and comply with the requirement that is not in the plan the plan limits disability benefits for one and quote neuro muscular skeletal to sorters but it contains an exception for ridicul which is a defined term that says a disease of the peripheral nerve roots supported by objective clinical findings of nerve root path biology susan henin complied with that requirement she provided met life with who agreed with dr keep his findings that the e m t showed ridiculous that the and finally met life's on medical director dr at a loony reviewed pendants medical records and agreed that they supported a current ongoing diagnosis plumber a ridiculous fifty that should have ended the inquiry but metlife moved the goal post it hired neil mcphee a frequently retained non examining file reviewing physician from arizona to say that all four of those doctors were wrong that the e m t was really nagin live for quote unquote active ridiculous the tea which is a term that appears nowhere in the policy and has questionable scientific validity and i don't have the sherman did is there each normal course of proceeding in cases such as this is your only evidence in this record that would indicate that know is that the medical director reviewed the medical evidence and determined that it supported an ongoing diagnosis of lumbar ridiculous fifty and met life's internal claims personnel determined and i don't  starkers there was some discussion of functionality by dr peters who examined the the medical evidence in the appeals proceedings but no none of the the only issue in the what henin couldn't couldn't do not whether she suffered from ridiculous and it was a gratuitous suggestion by him that she in fact didn't suffer from particular that the he he came up with this distinction  to the functionality question i think it's certainly part of the inquiry in determining you know what what a person's functional limitations are i think it's debatable how how valid a person can make functional restrictions and limitations based on a failure lack of it in person examination is there a piece of paper in the record for exactly what mitt asked this time even after that compression has been relieved there will be often continuing pain weakness in the limited sensation of right yes that's correct is that what i'm getting at is my concern about the difference that dr ma hee focused on between active and i guess past ridicule apathy but the you know that in the past nerve compression at least can cause current symptoms so right  even if this court disagrees with our our criticisms of dr make these report it it must contend with the fact that dr mckee himself said that he had inaccurate or inconclusive information that an independent medical examination was needed and metlife never followed up on that recommendation instead it issued denial letter the following day this court considered  has a duty to get to the truth of the matter and to seek to obtain evidence that's readily available that might prove a claim to be valid trying  dispute about the medical interpretation of diagnostic tests for particular pathy ms henin underwent surgery to relieve a herniated disc in two thousand and twelve her surgeon dr phil visually inspected the lumbar nerve during the surgery and documented in his operative report that the nerve was mobile free and indicated no sign of damage saying there had been no nerve compression or that he relieved surgically the the record suggests that there was nerve compression when dr phillips relieved when he performed the  some kind of compression record which would have been that's why you do the surgery correct yes yes but this is not necessarily nerve compression when one does the surgery but yes i think presumably it would be indicated problem the problem here though is that the case comes to us not with the issue of her functional capacity before us but only on the issue of the ridiculous with the evidence make fees statements that additional electro diagnostic testing would be helpful and recommending a clinical examination if needed to further assess the issue of possible ridiculous but that doesn't sound like he's foreclosing that issue yes a doctor mcphee determined it multiple in both of his reports that the normal insertion all activity and the absence of spontaneous activity in all eight muscles tested and thus an all nerve roots it demonstrated were normal findings and demonstrated that there was no active ridicul kind based on his expertise that the motor unit action potential durations in eight muscles could potentially show a past ridiculous the was unlikely because the findings of the durational the durational findings were so diffuse and all eight muscles which is unusual and there was no testing on the contra lateral l damage there is no longer damage to the nerve root now one still might as a result of a past ridiculous apathy one might or as a result of the laminectomy or of any other things experienced ridiculous as ridiculous but past particular pathy is the absence of of the disease or damage to the nerve root itself what what's the purpose of the objective evidence requirement for the soft tissue disability this is a very broad limitation in this plan and it's this really comes down to employer choice and c r is a very large employer and it comes it comes down to having the objective clinical evidence right as opposed to purely self reported symptoms that's and i think that's correct and in this instance with ridiculous but the one is looking at damage to the nerve root but but if you have had pas compression and damage they're pretty i mean that's an objective indicator that can lead to symptoms today i haven't wouldn't i wouldn't agree with that and i don't think dr mix mcphee is report shows that the meaning of the motor unit action but tensional duration and whether or not there was evidence of a past ridiculous with not whether there was an active ongoing ridiculous thing and in this instance under the plan disability must be continuing and that the disability must have objective evidence of ridiculous to think ridiculous pathy several years ago without an active ongoing without a damage of the nerve root doesn't fall within the exclusion to the limitation would be ridiculous but the would account under the policy of nerve compression from a diminished sensations diminished strength with account into the palsy there could still be active ridiculous but when the compression is removed because there could still be damage to the nerve root that would be picked up  n electro my graphic test because one could then determine that there was abnormal insertion all our spontaneous activity in the nerve root when that ceases however and hopefully for the patients it does s the ridiculous up with a at the city because fundamentally one must determine whether there are still damage to the nerve root and that damage could continue but it would need to be did picked up objective lay and in this instance as d report extensively discussed the normal insertion all activity and absence of spontaneous activity and all a nervous demonstrated that there was no active ongoing ridiculous thing under the policy do treating physicians clinical observations count as objective evidence i think it can it depends on what it is certainly dr phillips surgical observation endurance observations of diminished sensation strength i think there's problems with that on true grounds one is to a certain extent it is dependent on  with ridiculous up with the because of the variance in the limitation and on the day of the i m g there was five out of five strength and two months earlier there was three out of five strength pain ranged from zero to one hundred percent zero to ten out of ten that is dr macphee points out in his report is inconsistent with an active ongoing ridiculous thing so metlife maintains that under the