the our briefs in this case are quite detailed in terms of both the facts and our position but i thought it might be useful to give the court sort of an overview of what i view as some of the errors by the court some are factual and some are more legal first of all the court erred through an adequate support for major findings that made through factual inaccuracy and by that i'm referring to the in m s e the first demand massy that the court attributed to first t to two thousand and twelve which is correct and then made to two thousand and twelve and then may and then may like eighteen for the court was sort of all over the place on that one and that's the one that it compared to the later june twenty one in two thousand does but she also says that the decline was not explained she doesn't criticize it but she does say it was not explained well isn't that the district court i guess what i'm what i'm probing here is whether or not this is really a significant error by the district court given the fact that he he essentially credited mendelson critique of the horn report and one of dr mendelsohn's concerns was there is this significant seven point drop in a very short period of time that really isn't explained by dr horn or consistent with the observations of the other doctors who examined your client well it definitely was accepted as a valid first of all dr horn states that it was comp when you have a legal action that would make sure i understand what mendelsohn was i thought what the criticism was was there was no showing in the report of the the inherent validity of the test results well and but she didn't explain what test results there's there's i've not heard of any particular effort test applied to discredit an entire neuro psych exam now that may be that there's a validity test that applies to one or another of the domains but to have to trash the entire detailed why didn't make sense and there was no explanation there so it was sort of how about that how about the more significant concern that the treatment and observations of the physicians who'd been examining your client over a extended period of time didn't corroborate dr horn's conclusions which is what i understood d s they ok so if you look at that if you look closely at the medical records they thought all of them up up until the neuro psych exam was ordered to find out the basis of the cognitive whether it was depression but it was something else  they all attributed the loss of concentration and focus and and resulting memory issues to constant severe daily headaches and that's very apparent in all of their statements there is no function test claim wasn't wasn't ever feast on headaches or at least as i understand it they're saying this claim wasn't based on headaches it was based on memory loss and some kind of more like to mention symptoms there's seems to be a mismatch between your jump to the headache and you can you respond to that point absolutely what was presented to the court was all of the medical records every single medical note and every single medical note makes it very clear that because of his daily severe  t non responsive to medications headaches and the result what they thought was the resulting inability to focus and concentrate on work he couldn't work i mean imagine trying to go to work every day and have nonstop severe to where they're unbearable headaches all day long and then try and run a business and that was explained by bear in dr baer in his a p s it was in his a couple of his notes it was the horn tests confirm the headaches because i didn't really understand that they did did the the horn the later test that horn finally does test seem to show a problem that hadn't shown up in any test that had been ever given before do those tests relate to the headaches or is it really two different conditions she was to a neuro psych test is is not done for headaches it has no place  severe headaches can't focus and concentrate on what they're doing and as a result they don't remember things what her job was to do it was to assess the nature of the cognitive deficits how bad they were and what they were from because you can tell from a neuro psych exam evaluation if if if the cognitive problems are more organic based or whether they're depression based or whether they probably arise from headaches and she determined that the memory issues and that doesn't mean that the focus and concentration still isn't affected by the headaches but the memory issues were definitely deficient and had become probably more  deficient over over time and and she'd diagnosed that as organic brain disease with a dementing process and was that the first time there were tests that you can say validated a diagnosis of dimentia of anything really had there been tests that validated the headache complaints when he was yes but there aren't there are tests when when when he was not responsive to any of the medications which typically treat are used to treat headaches and migraine the question was ok so what are these things so dr bear the pain medicine guy  to the neurologist and nazareth documented the various types of symptoms that he had because migraines are clinical and there are certain number of symptoms that you have to have out of a list and from his medical knowledge he didn't i don't think he wrote down every element or factor that one considers but he looked at were there you know the severity of them and yes they were they were at least moderate to severe they were you argue in the district court that the basis for disability was the headaches yes at the very beginning of the brief it mentioned the fact that he was disabled by the severe headaches with the cognitive issues and then it went on more to the cognitive issues because they were finally advena fied as not a rising from the headaches but both of them made him unable to focus and concentrate on his work what evidence is there in the record a inventory stock or he has to run a three part business with all of the business planning all of the negotiation of financial contracts and he did that in state out state he couldn't travel he he presented information about some of his failures at work which included he began writing checks in the wrong amount he was untimely in his check so you have a problem you have a location orientation problem not most if not all that was his own testimony was right and they didn't ask for anything more i mean i'm sure he would have been happy to submit it but  have submitted though because his doctors seems couldn't really pin down what the problem was so it seems different than the cases you're citing in which the insurer ignores something that's in the medical records here even the doctors didn't really know what was happening right well the doctors knew he had constant severe headaches at that that's not the question the question is where the will to identify a definitive diagnosis and i by every report that he gave constant severe intractable headaches and that is and the abnormal in a day it differs from the normal body state and that is that fits right within the definition the definition of illness is a pathological condition pathological or pathology is not defined of the body that presents a group of clinical signs and symptoms and lab findings the lab findings are always normal for migraine if they weren't they would have a den a fight another pathological state so the lab findings were the normal findings which rules out anything else the symptoms were classic for migraine he did not have every one of them but but he had that the sufficient number to meet the factors of migraine he did not have the visual difficulties that are typical of the nor and therefore he was diagnosed not only with migraine but very specifically with common migraine not classic migraine the district court seems to have understood this claim to be based on memory loss or some kind of dementia not on the migraines and pain you say that it was mentioned in the brief but can you point us to where we can find the argument made well enough that we should view it as having been preserved in the district court ok two part two parts to that question for what i heard is the district court said  i think the district court accepted migraine but then said there has to be another diagnosis you can't be disabled from migraine alone and that is when you've got someone with constant severe migraines every day that's illogical i mean imagine yourself coming to work every single event any of physicians with a migraine on the day the exam and i don't see any any treatment note that it doesn't say but it suggests so because one of the side effects of migraine is neck pain and he presented at least five times with neck pain after examination it was found and his neck pain was reported to be at the back of the neck up into the back of the head you want i'm sorry you wanted to say four minutes and you're down to one forty five would you like to reserve that i better do that ok essentially to conduct a bench trial and on the record evaluate the persuasiveness of conflicting testimony and decide which was more likely true in discharging the responsibility the district court based on a thorough review of the record ruled in it favor and concluded that mr johnny had not met his burden under the plan the issues the primary issues that are now being raised go to the district court's credibility terminations based on the factual findings as well as to issues discretionary rulings made by the district court here the district court did not commit any type of a clear error which would be required finding based on the credibility issues discussed or abused its discretion in ruling on the evidentiary rulings like to give you know a general overview with respect to the evidence that was presented and what the district court was faced with the district court was faced with a half months records from the treating physicians in those eight and a half months of records there is no objective evidence that mr adie was enduring the type of subjective pain all of the the evidence is based on his self reported statements so what test could there have been of pain but if you compare it to the decision that was submitted after the fact that lets the decision and gives you a very stark contrast between what could have been presented and what was presented here so in our case we don't have any evidence other than the self reported complaints of pain in the let's slow decision you have a history of migraines that began when the plaintiff in that case was twenty one years old i'm going all the way until you know through the disability claim you have a history her going through all sorts of different medications i think seven or eight different medications including steroids botox injections in thirty botox injections in the face you have a history of absenteeism prior to the disability claim being submitted and you submitting the disability claim but it seems like part of his very problem is he's not allowed to miss work until he can actually be proven to be disabled so he stopped working because he says he felt like he couldn't work and then eventually he gets tests that show he really has a problem but there's this gap in between where perhaps he's perceiving problems that the doctors can't detect and eventually they do detect them it seems like the way your plan is written you need to have to be able to prove that you're disabled from the very day you stop work you can't have this sort of gradual decline in my understanding the policy correctly in that way that is correct so the day that you see mention disability claiming you're off of work is your first day of disability and that's the day that you have to be able to show that you are fact disabled and if you can't show that that day you had the test but a week later you have the test you're going to lose under this plan is that right no not necessarily so if you have a test or weeks in elimination period before you start  correct but the elimination period doesn't start until you're determined disabled isn't that right you have to show that you are disabled throughout the elimination period in order to to receive the basically you have to be able to prove that you were disabled from the very first day that you decided i can't go to work today no not necessarily you have to be able to show through medical evidence clinical findings exciter as required by the plan that you are disabled as of september first if you're tested in occur until october first and that's what so disability in that test was able to go back and say as of september second when he was the first day he missed work he was actually disabled as of that date and you would have met your burden under the plan but if you have a condition that causes a gradual decline one it often be the case that the tests don't show it until later and there's some ambiguity about exactly when it got bad enough in circumstances where you have a gradual decline the issue is when does a person become disabled and so if you if you look at the was completed and it showed a normal result and one of the concerns and the criticisms of dr horn's report was that and then that and as the report that was done was normal by dr nazareth and then just a short time later there was a finding that it was severe drop in that finding which was unexplained and dr mendelson pointed out that dr horn didn't explain why there was such a significant drop in such a short period of time and you can see why that's important from the disability carriers perspective is because they need to know going back to the day that he left work and if you can pay benefits to that person for missing work during that period of time that he was in fact is able to back that he doesn't even have the option of saying ok don't pay me benefits for the year start paying me from the horn tests onwards that's not an option this plan right he has to be disabled on the first day he misses work i don't know what mr current status of work is and if he's still employed and what that the effect of his benefits are i don't know if he has the option of submitting a claim based on the disability now it depends on the policy still in effect but based on the plane at least admit he's done some other job or some new work it can't be based on his working for a long time and paying into this plan and then if he stops work before the test can actually confirm that he's disabled he's out of luck right unless he somehow is able to work again despite what seems now to be quite a serious condition and of course i don't have all the facts to answer that question but i think if he is still covered under this plan he w this plan what would be the facts that would help you answer that employment for example if you know he will be able to work again despite the decline that's getting worse all the sudden now he needs to be able work again he could still be employed at his employer i don't know if he is based on on the record before us i don't know if he is still employed he could be on a medical leave for example he could he could then submit a new claim for disability based on his his claim as of you know dr horne's report going forward if that's the case if the other company didn't have such a  requirement like eighty percent or something like yeah i think it's think it's eighty for the first part and dropped to sixty i could have that backwards but there is a minimum income requirements so unless company put him on some kind of i don't know if light duty is even the right word but some sort of maybe leave without pay or something and he could show the drop in home and then a later definitive diagnosis assuming that the plan was still in effect then he might be able to submit a supplemental claim or a new claim for disability though the my understanding your honor yes because that's the way social security disability works you may not be able to establish the date of onset as early as you want but if later it becomes clear that you are in fact disabled you can set a new claim right now nothing you did order to submit a new claim for this he has to be working full time that right i thought to be covered he had to be working full time or it was a quite a lot of work that required you to be covered by this plan i thought yeah i mean essentially you have to be at the current time when you're claiming your disability thing you can't have been working at that point in time you can't have been making a certain amount of a minimal amount of money during that timeframe because if you were going immediately before that so i maybe i wasn't clear about the question so in order i think you're saying he could make a new claim if he was working right before he makes the new claim is that covered under the plan then there is a possibility and again i don't have the facts in front of me but there's a possibility that he work for a cellular company correct a d p is just the payroll and it's sort of their  department for the employees of the cellular right right so so for with respect to whoever his employer is obese if he is still employed with that employer not necessarily working he gets a medic lame for disability so i mean for example if but it does seem a bit of a catch twenty two because if he's the manager of the store and he can't work because of the headaches or the dementia it's unlikely that he's going to my understanding yes but so you're saying if instead of terminating him because he can't work anymore they just continue to call him an employee at that point would he if he's not making any money because he's not working would he continue to pay into the plan with what would it look like to continue on with coverage if you're not working it's a good question and i did it again but i'm talking disability insurance premium you know the sort of the employer would still have to keep them and i don't know how this works because it's far outside my my around but what my kind of expectation would be would be if they had some type of medical leave for example where you go off and you're no longer paying your salary but you're still going to keep your insurance benefits and retirement benefits and everything like that  would he have known that he needed to ask the employer to not terminate him but call him this create some kind of medical leave for him so that he could eventually test this badly enough to qualify that the plan does have provisions that relate to when your coverage ends and one of those points is if your employment ends and there's a whole section on that so yes the plan does clarify as to how long this plan is available and those benefits are available to the claimant but the record doesn't tell us whether want to just point out real quickly with it and this report there's a an argument that there isn't an error made by the judge in this one month kind of decision and i just wanted to hit on the fact that in doctrine as with report there's two treatment visits one was from april one was from a in his report it specifically says that he gave him an m and m and m and s e exam on that particular day if you go back and look at it it does look like dr nash was cut and pasted everything input from the first into the second but i think from that you can logically infer that when dr nazareth saw mr hadi on the second visit everything was the same the status was the same either he felt that he didn't need to do another test because he thought the results would be the same but he would and should have well as when dr horn had done the report and then finally just to end up with respect to the abuse of discretion and the evidentiary rulings as to the two thousand and thirteen m r i and the and the dr fisk declaration those those documents alternately don't add to the analysis the district court  so do you know when i well he was the employer but he owns the company and manages it and it's a three part it's a three business company all covered under the a t p so he could not go back to work because not only have you thought he was terminal no way i guess now i know he can apply again because it seems like maybe he didn't have the data he needed to support his real claim but it sounds like he could apply again he needs to be actively at work but well but we just heard that he didn't need to be actively at work that he could be on medical leave and still apply again i mean clearly show the loss of him if you were if you are considered disabled and you go back to work you're still covered one he can write in a taxi and that was based solely on speculation and conjecture and speculation and conjecture is not a ground for reasonable inference the second i thin still working because after that he was at home with his wife who didn't work and could drive him anywhere and he had two adult sons was that if the marriage had developed to the dr horn   what the what county where day of the correct it was what time right so if somebody like that get in a taxi and say take me to dr horn and he couldn't but that's the problem here's a guy with time orientation problems place or he has some problems and he's reporting what he's always reported nobody knows if he was taking any taxis at that time and if he was whether his sons are as wife was faxing off to over something a picture and instructions but more likely he was taking them back and from june to september there's no information about when how often how far anything you have to completely speculate on that those it seems that it's going to be hard for us to sort out the stack dispute about the period of time between when he stopped working and the horn tests but it seems like he may be able to have a claim some time after the horn test if he applies again according to your opposing counsel so