in determining whether language is sufficient lead to a discretionary standard of review one of those opinions was a nonviolent decision but despite the fact that four times this court has clearly stated  formulation using the terminology satisfactory proof is not sufficient to convey discretion the district court in this case erroneous lee determined that it did in the thomas case this court said that no matter how you slice it requiring a claimant to submit satisfactory proof does not unambiguously confer discretion under current and then if you go back to kearney kearney envision  three different scenarios about whether discretion is granted from the formulation of satisfactory proof and it most using the green in wilkerson district court cases that we cited in our twenty eight day letters discretion is wholly arguably conveyed by the language in the sunlight policy a sole sentence that says proof must be satisfactory to sun life but if that's arguably conveyed it arguably is not conveyed in the status factory proof as this court made clear in kearny is an objective standard moreover in the thomas case the court clarified even further  kearney decision that there's two parts to the conferral of discretion first there has to be language conferring discretion and second that language has to define the scope of discretion at most in this case the statement proof must be satisfactory to sun life conferred discretion but it did not convey the scope of discretion in his further illustration of that the southern circuits recent decision and diaz versus preventi benefits he does not reveal whether a plan does or does not reserve discretion to the administrator similarly of plans requirement that an application that an applicant submit satisfactory proof of entitlement does not necessarily mean that a plan administr or has discretion because every plan requires submission of documentary proof and the administrators and title to insist on something like a doctor's note rather than once latest telephone bill but even if this court  radically from its four prior decisions and decides that the statement proof must be satisfactory to sun life does confer discretion that does not clearly answer the question of whether this court or whether the district court should have applied an arbitrary and capricious standard of review there's two further hurdles that have to be crossed before a discretionary standard of review may be applied the first is the issue that this court set forth in been versus i t t and that is that the original law is very very carefully structured and the original law provides that there has to be initially a reservation of discretion by the plan sponsor and then a delegation of that discretion to the party who's actually making the decision sun life is not identified at all as a party having discretion having to do share the responsibility under the plan in fact the plan sponsor id t is the party list that is the plan administrator and merely because of the fact that id t purchased the insurance from sun life that is not sufficient to meet the requirements of twenty nine u s c section eleven  is this court explain them in the madden decision there has to be more there has to be an explicit delegation of discretion and just as this court said in the ingram case and here we are seventeen years after firestone versus brock here we are seven years after kearney and this is what the plan comes up with proof must be satisfactory to sun life that just is not going to cut it there has been sufficient notice to insurance companies what they need to provide if they expect to receive an arbitrary and capricious standard of review and then the final hurdle is the conflict of interest issue and i recognize that the court has that issue under consideration in body decision but here we have a two instances at least of situations that understanding ninth circuit case law would qualify as a conflict of interest which would diminish if not there was no dispute as to whether she qualified for those benefits initially on a partial basis and then on a total disability basis after she could no longer work and then we have the i am the report by d doctor who was hired by sun life to conduct an independent examination and what did dr borgir conclude dr abortionist stated that at best his five wish could work no more than four hours a day now under the definition of total disability in this policy total disability is decided on an omen occupation standard the definition in the policy states the employee because of injury or second as is unable to perform all of the material in substantial duties of his own occupation we also know how to interpret that provision from both the mcclurg decision and from the the southall decision issued by the ninth circuit's in both of those those decisions the court made it clear that if the individual is unable to perform any single material job duty the individual is precluded from performing the duties of their regular occupation and disability little disability must be found staffel was even more specific in pointing out that if you interpret it the other way that if you have the capability of performing some duties perhaps not all duties that it would do is conflate the two definitions of total and partial disability and eliminate the partial disability definition here the partial disability definition in this policy requires that the individual be working the partial to disability definition does not apply at all if the individual is not working and to further reinforce that point this policy has a provision in it which liberalizes the standards for the more highly compensated employees  provisions faced with benefits ceased when the employee is able to perform on a full time basis all of the material and substantial duties of her own occupation even if the employee chooses not to work so this provision leaves that in the hands of the employees in for good reason because partial work part time work in a highly specialized field may not be feasible it may not have been feasible for tony five wished to find work as a technical writer and a part time basis her employer indicated that it could no longer employ her on that basis they needed a full time employee and that's why those types of provisions exist in the policy but here what we have is we have all of th showing that ms five wishes incapable of working on a full time basis including the insurance company's own doctor including the insurance company's own employees who documented in the claim file after doctor borgia's examination that this means total disability under the policy yet just a couple months later the accepted diagnosis was departed from and the insurance company issued a decision saying no longer totally disabled while ignoring the provision that i just quoted about having the partial disability where the employee can choose not to work in still receive total disability benefits the second ground for finding a conflict of interest is the financial motivation of the insurance company this indemnity in this case of over four thousand dollars a month was considered a high indemnity claim by sun life they made a point of documenting the reserves on the file this was would be to vacate and remain and but the court's alternate statement really does not make sense under the terms of this policy the court's alternate statement toward the end of the district court's opinion says that at best the evidence shows th work capacity and but for her choice not to work she didn't qualify for partial disability benefits that statement that conclusion reads out of the policy the provision that i just quoted the employee is able to perform on a full time basis all of the material and substantial duties of her own occupation even if the employee chooses not to work but the finding is erroneous for another reason because the evidence really did not establish the tony fight that saying that that she would need to take so many micro breaks of fifteen minutes at a time that she couldn't possibly meet the ninety percent of her day keyboarding that was required we have the functional capacity of valuation that says that she can't meet the  fingering requirements obviously that the key physical requirement of somebody who's a technical writer working on a computer and having to type for at least seven hours a day if she had to take the thirteen minute breaks every thirty minutes she c standard the only evidence that we have that might might support the possibility the twenty five wish to go back to work is the actor newman's report but dr newman performed no fingering test and dr didn't newman reported that the baseline pain level was four out of ten if we assume that zero is no pain and ten is pain is so bad i have to go to the emergency room right away the minute tony five was reported for work should be half way to the emergency room is impossible to conceive of a situation that tony five which would be able to work at a highly demanding technical job if she's experiencing that much pain free from a question either way if again no standard of review appl act in conclusions of i'm correct exactly and on this record there is no rational way that the district court could enter judgment in favor of sunlight because the evidence was so strongly in favor of neurological problems the insurance company produced one doctor who said that dr newcombe should be able to work the courts but i'm not that's really not answering my question you're not asking for a summary judgment in your favor  kearney the court can conduct a paper trial the court can take the evidence as exist as it exists or the court in its discretion may decide to hold an evidentiary proceeding we discussed that during the course of the oral argument if this court read the transcript and it appeared as if the court the district court was leaning in the direction of holding an evidentiary hearing prior to granting summary judgment the sun life but that's going to be within the court's discretion i that that's probably correct but it's hard to make credibility determinations based on a cold record i suppose it's reasonable to say that that i was just supposing that i was just but you know my my of my main quest was whether on this record the court record that summary judgment is appropriate if it's if it's a weighing of the evidence type of procedure i'll attorney i think that it would be required be reasonable for this court to grant judgment to twenty five bush but realistically i think the proper outcome is to remain on the case back to the district court ok thank you thank you my place of court my name is mark smith and i'm here today representing sun life assurance company of canada it's our position that there are two ways in which the district court can be affirmed in this case the first is to apply an arbitrary capricious standard because the policy grants discretion to sun life and to determine its own life decision was reasonable as did the district court the second is to affirm the district court on the dyno oval ruling based on the fact that the district court's findings are will that's my question is that appropriate because summary judgment is a decision that there is no reasonable question of fact well reasonable is the key word here your honor what she said in her opinion at the end of the day is if i were to hold a trial in this case which would be a bench trial because that's what's required under rissa i would limit my review to the same paper record that i reviewed in conjunction with summary judgment and that's where discretionary authority to do so in fact this court has health that that would be the preference that you do not admit it dition eleven's unless the district court finds that it is necessary to conduct an adequate review having done that she's going to review the same would have to issue finding to correct the findings are in her current opinion i think they suffice they're going to be no different on a remake of summary judgment i'm sorry on a summary judgment you cannot enter findings because one of summary judgment says it is the reason no question of fact but she has spelled out the facts in a detailed fashion in a lengthy fashion to demonstrate that she's porte through the very same evidence that she's going to look at again credibility findings where there's a dispute like she can make those determinations on a paper record most of these cases are tried on a paper record and fact kearney monga lose though and other cases in this circuit and all the circuits say that a district proceeding has discretion to limit its review to the administrative record and she specifically stated that's how she would exercise her discretion but she would not look at any other evidence and that if she looked at this record from of the noble perspective she would find  overwhelming evidence supported the determination there is nothing different that's going to happen back in the district court absolutely nothing it's the same evidence and she's already told us how she would rule so renae and accomplishes nothing  you might do later she may have given and indication but we don't know i don't i disagree your honor i think she stated very clearly what she would do and i think she stated knowing full well where this case was going once she ruled and i think she wanted this court to know what she would do an overall proceeding and she stated very clearly that she would limit her review to the evidence in the record and that she would find overwhelming evidence favoring the honor but in the case like newcombe i think at the end of the day this court has to consider what is the point of sending it back when the district judge has already told us truth the two things she needs to tell this court whatever the she's going to look they can be well they can see but in this case nobody ever even proposed any witnesses well the court of course back we don't know when the court court determined everything based on everything she in front of her but she would not need to go be on the record for good reason this record is loaded with medical evidence this record is a thick it's four volumes in the supplemental appendix she doesn't need other evidence to determine whether sun life decision was reasonable or whether it was correct this record contains two i emmy's an independent functional capacity evaluation and reviews by two consulting doctors i don't know what more plaintiff expects in a case like this and to say that using i am nice evidence is a conflict of interest doesn't make any sense if some life had not used in these the plaintiff would be here in front of this court saying that evidence conflict of interest merit that plaintiff was not disabled and that's backed up by solid thorough reviews by qualified physicians and other medical providers and let me address then why didn't she render her  considered the evidence then we would have to review that but that isn't what you did but she considered in these types of proceedings or are she considered the very same evidence that she's going to consider again we don't know that well she made that clear that that's all she would do states that was then before we might render an opinion that would change my well you might i don't know what this court's going to do but she said on this record she would limit her review of the record which is  an individual a specific entity that needs to decide satisfaction the issue in kearny and the only issue in kearny was does satisfaction require determination by a reasonable person or no you get over you know to get to get beyond the de novo review you can differentiate between discretion interpret in the plan of discretion and terminating so if they have limited discretion it could very well be the tenth circuit so limited discretion here or if you look at this if you read the way before it confers the type of discretion that gets you beyond you know what review i don't think that this court has that it needs to be both your honor at least it hasn't had a case in which the language would differentiate between discretion to determine the ultimate fact and discretion to interpret ambiguous provisions of the plan i don't think the ny circuit has not gotten there yet the kearney case though if you look at the distinction in the current case said we disagree but if the language had an indirect object i think is the grammatical term that is if it said that discretion must be satisfactory to said you don't need any magic words to do that and in response to mr de bosky point that you know some life could have rewritten its contract the fact of the matter is sun life has been told by multiple federal courts district and circuit subject that's one that's fine your honor but if all the courts have said up until the district court decision in green last fall if all the course of have said unanimously to sun life this is sufficient nobody is going to go rewriting the contract because it rewriting contracts means getting approvals from fifty insurance commissioners i mean it's a lot of work and if the courts are saying uniformly this language grants discretion which they have done well yeah yeah i agree with you but up until last fall that was it everybody else was saying this language grants discretion because when a policy says the proof of last must be satisfactory to the insurance company and all proof must be satisfactory i think that the key language just uses the word proof must be satisfactory to some life but it's in the context of what is considered proof of claim right right which means which includes the medical evidence which includes all the background information about the claim which includes the initial filing of the claim and which concludes the continued allegation of disability are all those things  judge mol i think that her point was to make very clear where she was going maybe or maybe not that's sufficient i think it is i think there's plenty of evidence to show that she poured through this record that she drew her conclusion she made her findings granted in a summary judgment standard in which the evidence is undisputed but she also said that to the extent the evidence becomes disputed and parts ways we find i find that there was overwhelming evidence to support the decision and i think that's i think that's in order to be respected i think she meant to tell this court where she was going you know lesser for the questions that's all and thank you of the excerpts of record this is a quote from the decision based on that record at this court conducted a trial the court would find from the overwhelming evidence that five wish could work at least part time but that does not meet the terms of the policy that says that if she can work part time and chooses not to work she's still considered totally disabled under the policy so that finding alone is not going to be an adequate basis upon which the court below and remain and would in analyzing this evidence again secondly with respect to the standard of review issue as i indicated in my opening presentation there are two factors that this court requires and that's not enough under the ingram case because that does not clearly inform the planned participant that the decision made by the plan is going to be largely insulated from review sandie besides the  power or discretion none of those terms are used here of the court stated that there are no magic words that a plan necessarily has to use them in the court went on to humorously say we're not well we are at first year contracts right now and in first year contracts we learn from the restatement that the word satisfactory is only going to be given discretionary meaning if the contract between party a and party b is for something that we lies on the personal satisfaction of the promise or and in that in that's the type of a situation like somebody promises to paint a portrait in order to meet the satisfaction of the party who's asking the painter to paint the portrait in the herberger case in the kearny case the word satisfactory was clearly explained to imply an objective standard fed third three twenty seven and the references are on pages three thirty and three thirty one because this plan has not clearly conveyed to the plan participants that the decision to be rendered by sun life is going to be a decision that's largely insulated from judicial review that means that the noble standard of review should have applied here in the district court heard in applying a discretionary standard thank you thank you