good morning horace may have placed the cork i'm richard hawkins i'm here on behalf of the appellant plaintiff nancy harrison who was in the courtroom here today i am here and i will be arguing on behalf of of the plaintiff the appellant with respect to the substantive issues of the substantive on reasonless of the novel benefits in this case and i will be stating seven minutes of my time to miss gale perry who city counsel table she will be presenting the procedural and reasonless arguments on behalf of the part of labor your honour's this is of benefits case involving a woman ms harrison who suffered from severe and extensive thyroid disease that thyroid disease required her to undergo a six month three procedure treatment plant designed to assess the fire ojt condition and then subsequently to remove the thyroid masses none of which well all of which were finally removed completeness after the end of the sternotomy which of course is the breaking open of the the breastplate time between nine eleven two thousand and eleven and october thirty first of two thousand and eleven so roughly six and a half weeks if you review the even the independent it's our contention that she was disabled throughout this entire period of time that but at the bird a contest six and a half weeks that is correct that is correct they agree she got the short term disability benefits up until  lab and then she got him again after jan thirty one no she never did get him again that's that's part of the problem here because what wells fargo told miss harrison is that she had to return to work in order to requalify so when she ten thirty was correct because she because she failed to bridge the gap she never she never was entitled to recover even for the subsequent periods so what's what wells fargo concluded was that because her benefit because she was  to go back to work in that time frame she was then not able to requalify for her short term disability benefits as of october and by definition she was then not eligible to seek long term disability benefits because by then she was suffering from severe post traumatic stress disorder and would have remained the same and if you look at that i believe it's joint tenants page fifty five and fifty four that said the surgery sounds like a lot more serious than the first one that time were significant and had been in the words of dr hollings pressing upon her trachea and causing significant trachea compression which surgery to talk about there that's the second what's in actually october thirty first or yes and this is in the record chase three seventy four three seventy five and what's important about that fact is that between the time of the pyrotechnic and the time of the spur not a me those masses were existing inside of ms harrison and were pressing upon it's a difficult question but whether there was a full rupture here there is i will i will defer to some degree to miscarry on that but what i would say is that from a substantive standpoint because that procedural matter deals primarily the psychological harrison's disability claim but substantively speaking when we're talking about this bridge the gap period the evidence is overwhelming the medical evidence is overwhelming that she was suffering from symptoms that were directly tied jumping right hands of this question without understanding whether there was a decision made on a full record i want you to help me out with respect to well because she had provided them the direct contact information for dr glenn she gave that to them in their appeal and when she does that she puts them on notice she says i'm going to see them on either of you or ha psychiatrists and or depression which was brought on as a result of the surgeries plus her her husband's passing which is a lot to hit somebody man records before them because a lot of time as a goal and psychological and psychiatric conditions in iraq yes your honor and i'm not sure that they considered should not be here on the psychological issue if wells fargo and all everything had just picked up the phone this information was given to them on several occasion when the psychological review in supporting the record supports it it was just overlooked by march twenty twelfth they could not have their denial make committee meetings because they e herself we had had indicated that she was in the care not only of her treating physician and not only physically almost but also in the  diagnostic procedure and then she was undergoing different sarge or her husband passes away she's under the therapist retired serous that's been brought to the plan administrator has attention and as far as i can see they didn't consider it they did not consider and it might have made a real difference as to whether somebody could return to work if that stop or this series of i mean that's a hard thing to hear in a human being that least to have the information or to make that assessment and her psychological condition was an essential function of her and fair statement of reason yes it was not a full and fair review for silva reasons and that being the primary one you know the apple e's would have you considered that they suggest that maybe ms harrison was not s dr glenn that maybe she wasn't seeing him during the operative time but that's easily found out pick up the phone when they made the referral to the peer review psychiatry to look they only provided d is continues to be ill and having medical issues but if they do find it on that everybody basically i think the first step is that the claimant have to provide all the information to support her claim but in looking at that information if ninth as well as the fourth circuit the four surface cases found that but for this overwhelming evidence of the treating physicians saying yes are the claimant can go back to work and go back to part work part time or there is overwhelming evidence that the claimant could return to work then there is not an obligation to do to seek further there is no fishing expedition here this  yes this would have a material impact on the point especially when they have that information now the records do not support that she was ever specifically asked to provide dr glans records they just said had given us interest or did should have been a factor with the district court weighing whether to put the burden totally on the claimant versus looking at in a responsibility that the plan administrator as a i said if you look at chapter nine of the plan document you will see all the provisions in which procedurally wells fargo fail to follow even with respect to those denial letters some are sure question yes faced here's we don't want to ignore those we don't want to minimize those in any respect hard not to come across as uncaring when you're in my position but we do care having said that the district court was correct wells fargo did not abuse discretion when it concluded that ms harrison was not entitled to short term disability benefits during that window of time between september eleventh and october thirty first and the first thing i'd like to do now is address judge wilkinsons point about the process this is an arrest a case you have to start with a plan when you have an arrest case the u s supreme court said that over and over again in mccutcheon and other cases the plans squarely places  obligation to produce medical records on the plaintiff it's in page four eighty one forty four and forty five of the joint appendix it says that over and over and over again that it is her obligation to provide the medical records to it couldn't be more clear but but wells fargo and its claims administrator liberty life did much much much more than that other than simply rely on the plan documents in administrative records there are multiple references to efforts on the part of liberty life claim a hedge or to advise ms harrison or obligation to provide any records that she had to them to consider during the appeal mean wouldn't of with peer reviewers at least have benefited from that information it's hard to know your honor because of the timing of all this and that's a point that i want to dress for judge  the period the window in time that's not covered here where she was deemed not to be disabled is just from september eleventh october thirty first as of october you say it is a six and a half weeks yes just what happened after october thirty first after she had  that second more serious after surgery i think it was more serious your honor and i think what would have happened is if she had gone back to work then she would have been able to reapply she should have gone back to work on the first november nonono i'm sorry between september eleventh and october thirty first quote until surgery for thyroid mass is complete unquote yes and that our eye surgery for thyroid matters is complete and that surgery was you all say one surgery always seventeenth and they didn't complete on aug seventeenth they had a second surgery on october the thirty first it was two operation he didn't say one and tell us tell you the first surgery is it's a way i read that until october thirty first or after i assume after some reasonable recovery after october thirty first at the time that you know you say that it would be some reasonable period of recovery after october thirty first right we're not we're was no expectation that they were going to need that second surgery so they went and well there was that was an expectation but they knew it after the first surgery and you all don't explain anywhere how you justify cheyenne it's only one they did and you're saying that between those two surgeries the lady is not short term disabled right between those two sir correct correct and this is why your honor after the first surgery on august seventeen h her first post op of examination by the surgeon after that he described as only having moderate chest pain and doing well the next visit he said she only had mild chest pain and was doing better still the standard recovery period is two weeks she was given three weeks she had a normal heart rhythm test she had a normal chest and there were no there were no further workouts reported for chest pain the surgery removing her thyroid was described as successful the for all those then they did they concluded that that that second operation would be necessary but again for all the reasons i just mentioned that the the plan concluded that she could have come back to work for that brief period of time six or seven weeks moderate then is mild standard recovery period normal heart tests normal chest scan no further work ups reported for chest pain needed during that time i mean i'm not  scale and we did just that if you look at page thirty two the joint attendants the very first time that ms harrison mentioned the psychiatric issue was when she was being told that the claim was denied on the  surgery and when she was told that in a phone call from the from the case manager and they document all this in their computer files for all this and you go to page thirty through the joint appendix and see it the nurse case manager was told that her husband had died and she had you know gave her condolences as you would expect and then she said to her in that same phone call she said well look you know dr patrice he hasn't documented anything to say that you've got a psychiatric issue so you in fact in fact he said your mental health exam was fine so you should go back to him and get him to take another look at that she specifically told him that in that phone call miss harrison goes back to dr patrice at that point couple weeks later in october said and they a have an examination and again she hasn't even begun to see dr glenn yet so we can't be faulted for not having dr glenn's records or ask them because we don't even know about him yet in that examination on october f really where the fact that her husband right now not the initial did not go because again in that phone call where the case manager tells her that there terminated are benefits that's when she says for the first time my husband died end of that window if you're going to dock the window from out of temper eleventh october thirty first ms ms harrison sent a letter and to liberty life and says i'm planning to see dr glenn that she has developed significant anxiety and will be saying your local psychologists all these issues have resulted in her inability to return to work at such a joint appendix at one thirty seven and i was in so far as dr glenn is concerned harrison did not that contact information that they contact not the glam there's nothing in the record to suggest judge hamilton that they did reach out to dr glenn what they did was they went back to the claimant and they told her it's your obligation to get us the records under the plan and those records i'm just what i'm concerned about is i'm having a decision made without a very important material fact omitted is there anything in your statement of reasons is there any mention at all what mention is made of course the psychiatric treatment she was receiving and of a fact of her husband's passing was that a part of the decision of depression and was able to work with that history of depression before her husband passed away she had been on antidepressants and is a history of that and work with  that she has said she's going to see a doctor glenn but he did not very shall you had if i had known about the combination of this of the surgeries plus the psychiatric treatment floss the traumatic event in her personal life wouldn't that have made a difference in your assessment of whether somebody is able to return to work i mean these don't strike me as general ideas you know general concerns of no lingering or anything else they're very specific somebody spouse dies and somebody spacings surgery and if you had both of those   health condition now what i'm saying is when the plan puts the burden on the claimant to provide the medical records and the crew and she's told of that riveted by over now that i understand that the plan puts the burden on the plane to provide the medical but you know the plan puts the burden on the plane administrator of the statute puts the burden on the planet minister to give a full and fair explanation of the reasons and where there's a conflict between the plan and the statute nt to provide the medical records and virtually every plan in the country does that and and once they get you those records then you have a full and fair review but there was nothing wrong on the part of wells fargo with the obligation on her to get those and it's holder over and over and over to do it and the plan documents folder to do it and the denial letters told her to do it and she partially did it after she heard from them she sent medical records in from other doctors just not dr glenn s begs the question why not dr glenn and i think the answer to that is because she hadn't seen him yet or if she had seen him she had just seen him very very late in the process but  was was made after she had visited him and had undergone and was undergoing a series of consultations with him we don't know when she saw him we just know the following from the administrative records we know that as of october eighteenth she was still using the future tense and saying i have an appointment coming up with him ok so we don't know if she ever saw him before october thirty first that alone would be sufficient to justify the short term disability that is understood here on the psych issue your honor i would disagree with you on that because why i want what's a psychic should go after this i'm talking and on that point i don't want to beat a dead horse but i did take off those different medical records that were in our hands at the time and i also like to point out two other things said she has the burden of proof under the plan to decide seven straight that she's entitled to benefits and then she also has a higher burden of proving that the plan abused its discretion and under the circumstances here we had a nurse case manager look at it you had two independent peer of you doctors look at it and those records that i just described a minute ago  think you can conclude there wasn't a piece of discretion i think judge spencer did a good job of walking through that in his opinion and explaining why there was no of these the discretion it was a close case i agree i don't i don't challenge that you know it could have gone have again going into the operation your honor they thought it was just going to be one not two and it was two operations and there was a ample period of time for her to recover between the back you all knew all about that we did know that your honor we had all this other evidence that suggested that she recovered enough to be able to go back to work between the two surgeries and again we have to preserve the plan assets for a lot of people of the plan but you also produce very for her right absolute acting for her benefit absolutely no long those lines they they told her repeatedly what she should do to get her records to us so you can't fault wells fargo for not getting the records and  i would just caution the court you know the gaither decision is a very narrow decision i caution the court not to go any broader than gay for i think if you just to adopt a gaither we would still win to but for harrison to win here you've got to go much further than gate and you've gotta say that even when the plan documents puts the burden on the claimant and even when you tell the person over and over to produce the relevant records you still abuse your discretion when you don't go out and hunt for them on top of that never cleared her to return to work during that fifteen day period the the way it works your honor is the surgeon who did the initial thyroidectomy released her to return to d patrice and i understand that and the diet he never returned her to go to work during that fifteen day period there was no formal release to return to work there were the records i described earlier but yes you're right your honor thank you your honors i'll be very brief judge hamilton to your point about the august communication about multiple surgeries that was actually expected and contemplated that multiple surgeries would occur as far back as  twelfth and i'll refer the court to j thirty eight a telephone call between liberty and ms harrison where she of it informed liberty that her surgeons and her treating physicians had told her that it might require more than one surgery so that was known to the administrator as far back as mid july at and with regard to whether or not who had the burden to provide records certainly ms harrison have that as as the opening plan documents say but as  wells fargo know that it doesn't have records from from dr glenn and knows that they are material at that point he had had notice constructive an actual knowledge that it needed to obtain those records and at that point it should have told mr harrison you haven't submitted the specific records and we're looking at this file and oh my goodness we need these records dr gerster dr daniel said exactly that much and when he sent his report to harriet m she knew those records were required that the plan and wells fargo talk about these quote normal findings and we were both of them in our papers but it bears repeating that a normal heart rhythm test says nothing about whether or not a mass is st existence in this harrison's chest there was a quote normal chest cam and this is a j c three seventy six but it also reported swelling mass or lump in chest and confer a five center meter mass if you look at the normal certainly don't do it under reso in effect the plan was adding a new plan i will say also that in talking about the nurse case minister nurse case manager the court should take note that they use the same person for both the