now i see what i think the quote is that no objection here using blowups a particular documents in the record but this she first of all i don't but i can't really read what's on on there from this distance and if it's just referring to other documents why don't you refer to those documents one of the time i don't the other judges can read that but i with material probative evidence of a financial conflict of interest is presented to the court and it is not rebutted by evidence that the plan was serving at least the interests of other plant participants separately under whether an expanded record is required for the determination of whether there is material evidence of a fiduciary breach of loyalty the use of discretion review raises the issues one whether  presented the three main areas the medical history the claim denial and the appeal of the facts i want the medical history is most notable for the ninety ninety five surgery where the doctors scooped out the jelly like substance by in which to make an appeal to the appellate court to which she was directed to make an appeal now why does not dispose of the kids in your filed documents it's your exact number forty nine well first of all she's contacting the plan as opposed to the medical providers responding during the prior year these are first written contacts of the plan about the claim denial if during the sixty day period it does not use the magic word  i am appealing claimed that's correct however it is intended to rebut and it does for a but successfully the economist reports that she is able to sit and stand and walk and work because it says reclining is last allowed it closes the medical report that says not only is allowed but it's required that she replied so it is a rebuttal to the economists report that say she's employable that's number one it's not addressed to the  plans possibilities in accordance with the plane instruments and this plan seven point two b of this plan says that an appeal submitted in writing their own sixty day period executes all the appeal procedures  reconsideration there's two possibilities there's a claims the middle and there's an appeal there's only two possibilities to get the administrators attention and during the sixty day appeal period the only thing you can be seeking is an appeal and she submitted this rebuttal during that period it was received now here's where mr supports us seven point two b n the plan use the word appeal and request for review interchangeably it says both that appeal is submitted in writing or the sixty days will lead that we referred to earlier and was told request rereview and tamar disagrees so if i do share this plan received that communication now arista supports us again on that point you're saying but you sure it that could not reasonably be understood by slavers we've taken up the issue of the address we've taken the ditch the issue whether it's an appeal or not and i want to ask you also to the plant's terms on the question of whether it's an appeal because under seven point two b the word request for review an appeal significant because that's the case where the plan for the callahan got the appeal communication didn't do anything with it and the district and feels court in that case that he was a reasonable target for appeal communication they said quote carter was not wrong that reclining rebuts the economist opinion nor why she never gave it to betty march in the first place was in the same office so i think under both repudiation the active doctrine of carter under five or three f one in and give me a citation the record judge your point is taken she did not articulate that i believe an appeal at this after one appeal my next step is to go to courts do not say that anything that now my question again is was there understands that's the next step and as she has explained when she finds a bunch of attorneys that means going to court and paying retain rule lawyer so yes that's a misleading communication from the plan i think because of the duties under you're believing the new opinion over the opinion of the previous doctors they say quote there is no reason for rejecting the evidence and quote of the predecessors and that's our case we have there is no doctor who has ever said that she can extend unemployment that is full time and yet the economist said so there's no doctor who's ever said that she can manage center work without replying and there's an economist who says she can sit and stand and walk and work and there's never an explanation ever this one still don't know and it's never been told this record or your court why anybody has ever concluded that she could work full time when the doctor said no we should go work sedentary without reclining and that excuse is exhaustion under the saying for her strength limits can she work at a sedentary level that's checked but right below it it says can she work at a regular employment with or without restrictions and the restrictions are stated underneath she needs to be able to recline there's no medical provider was ever such as she could manage th could still excel at some employment and the question is asked could she work full time in our industry and the answer is no and there is no physician or medical provider anywhere in this record over the entire five year history of a disability who's ever said that  incapable of minimum seven terry activity on it quickly they never said they said she could excel at some employment but they said not full time in our industry they said that she could manage the sedentary strength limitations but only if she could recline during the eight hour day and  get to it if you were to look at the expanded record before this image that exists before the district court any ambiguity about these forms were completely erased by simply putting the question to the health care providers do you agree or disagree with the economist about these jobs and the doctor said none of those jobs are suitable none of them allowed to recline none of those jobs are suitable she's limited to a four hour day and then she goes home forty five minutes sitting which is really examining whether that would be standard applies or whether there's some other standard and so if we get to that issue we would probably hold the case until the end have planned provisions description of any additional information necessary to appeal the claim and description of the appeal procedures that's all contained in the plan on the first day of the administrative review send a written request to review with the denied claim so the requirement to submit an appeal is to let the public committee know that you want to appeal you probably don't have to say the word appeal but it needs to be the record page two nineteen in the sealed records it says please note that in an eight hour days she allows thirty minutes of sitting standing or walking with rick klein allowed to control pain if you need you need to go ahead and file an appeal so the note in the record at page two twenty seven clearly indicates left voice mail message at four fifteen june twentieth go through appeal process then you have the denial letter that's easily understood and explicit in saying here's what you do if you want to with keil it tells  form didn't do that in her death the ration she explains why she didn't do what she said i sort of gave up i tried to get a lawyer i couldn't get a lawyer so i gave up there's nothing that the orleans medical provider what if any job she could do that would fit her restrictions genex provided a number of different reports as part of their retention by the u s west health vocational providers in terms of ability to do the job in the work in the work force and then there's the closure report and that's the last of the three report submitted by gen x the closure report indicates medical of valuation and there's really no indication of that in the record in fact i'm much more reasonable interpretation of the death gen x series of reports is that it certain points there summarizing information as opposed to being now janet's ultimately found that there were nine employers in the relevant labor market pain between ten and fifteen dollars an hour that could accommodate ms for this restrictions and there's a final l c d claim review form that it's in the record  need potentially to recline intermittently that there was clearly an aide to move around intermittently change positions and that what her report says is that she communicated the claim this restrictions to the so then the plane administrators sensed the denial letter i think if you look at the denial letter in the record at page forty five it clearly complies with the resend it indicates the documents that are relied on in order to den fact that she's saying you know take a look at this plan administrator the person making the initial claim decision and she doesn't attach new documents she just says you know here's some let the claimant know you need to go through the appeal process we've looked at what you've provided as it doesn't change the denial go through the appeal process so the fact that they took a step in luck before telling  to complete the appeal process i don't think can be reasonably construed to be a violation of the plan or a breach of an obligation under  proceed here's how you do it send your appeal today march the peals coordinator she has a plan that indicates that there are separate administrative entities who who have responsibilities which trying to find the record at page forty five indicates provide any additional documentation that you may think supports your claim we didn't get to it in this case but once an a and what she says there is if that's where she says after i sent my field of plan office i got it and voicemail message saying the claims were you were wouldn't reopen my case and i didn't proceed because i couldn't find a lawyer and i just was frustrated  address that if you want i was just alerting both of you that i think what would happen is if we get past the exhaustion issue it gets to the merits that probably would have to wait for that case evidence would only be admissible into circumstances one used to determine whether a conflict existed but the second is the review was determined to be denoted potentially in some limited circumstances the refused to allow evidence outside the administrative record indicating that that evidence that was attempted to be submitted was available to the plane at the time the claim was being processed and therefore it wasn't appropriate very important in the rest of context and it's only in the extraordinary circumstance that you should admit evidence outside the record and here that the case is complicated significantly fi the fact that there was no contained in the record here and there and eight two thousand and two social security disability decision the only guy in there that couldn't have been submitted as part of the record is not limited and the exhaustion requirement isn't enforced players and courts are going to be confronted with claims that have no realistic conclusion and that would days in the field in writing to the appeal committee ok i'm going to read you seven point two b because directing anything to the appeal committee is nowhere in there and i need you to understand what it does say seven point two b a claim for benefits or review or any other appropriate matter related to the plan is denied with a discipline or other duly authorized person we should to appeal this denial such appeal must be submitted in writing the labor department has issued the regulations and five zero three g one which is third that the reasonable opportunity to appeal must or shout include review upon a written application to the plan and the plan is a plan for due sharing and that's the car versus save notice that i mentioned to you earlier he's a reasonable target for an appeal communication that's what carter held and if that reasonable target doesn't execute the plan your point and then there's thirty seconds or so for it's the economist who made the quintessential medical judgment of her functional capacities and that is the only the economist has ever said that she c one and work without reclined there's no medical provider in this whole five year history of being judged disabled who's ever said that you don't work without being in a lie down during part of the work day at a desk job and there's none who's ever said she