think the defendants forgot that they are fiduciary is a risk of fiduciary owing duties to my client of divulging all the information that they have all the in all the medical reports that they received  they just they played a close lipped on everything they objected to the production of darkness on attorney client privilege when all the documents should have been turned over to the for the board certified orthopedic surgeon and the board certified neurologist that reviewed ms hoffman's medical records in two thousand and fifteen reviewed records dating back to in no was it an abuse of discretion not to consider the earlier treating physician records directly i'm not sure which record you're talking about and the records i'm talking about that weren't produced were they had they hired take into account the treating physicians then i'm just wondering if the treating physicians determinations were included in that in those records that they that they had they had all the records from a first case ok they said in answer to no i did tori's that they did not review those records in the second case and whether that's proper that's not proper they all right ok they had reviewed the records they answered you know i get tori saying if you wanted us to review those records records that we already have that they already had you should have asked us to counsel or those in iraq or tories and he answers given by the plans are they part of the record before this court yes correct judge did if you had a follow up i'll defer going all right counsel i wanted to ask you a little different question one thing i struggled with in preparing for this hearing was the issue that the district judge had a trial scheduled i believe on october eighteenth but that motion for summary judgment filed by the defendant on october seventeenth the day before and he initially his ruling looked like a an order granting the motion for summary judgment but this is a trial on the administrative records so how do you proceed to have that trial the next day how would that trial have differed from his review of the material submitted on the motion for summary judgment what would have happened at the trial that didn't happen in the motion review to be honestly i can't tell you what happened ok but i can go in the result would have been out with the trial have looked like he would have considered my opening trial briefs in my reply trial brief you didn't even considering where they somehow different than the argument you made and yes most of the motion in opposition to the motion i began with the opposition to the motion saying we have a trial schedule i've already filed the trial beside i want to burden the court where the trial brief in the reply trial brief but i want to talk right progress i want to clarify counsel if that trial had proceeded the following day this would not have been a trial the way i usually think of a trial with witnesses and evidence and direct testimony and cross examination that sort of thing this would be a trial based on the record with perhaps some argument from counsel is that correct yes all right so what are you asking this court to do are we to are you asking us to reverse the trial court because there were unresolved issues of material fact or are you asking because not clear to me are you asking this court to reverse the district court because it reached the wrong legal conclusions based on the stipulated ok i'm asking the court to make of this court to make a finding that my client was denied a full and fair review as required by the us a statute in the recent regulations and he was denied that because a she would deny that because she was never given all the records before the administrative decision was made final and she was in fact a lot of those records were never even given to or during the litigation and we didn't and we discovered the existence of other records just through happenstance because they gave us a letter after the briefs were filed saying that they'd asked them or less for a prior review so we were never given those records she was denied a full and fair review they didn't even show that the trustees her declaration regarding after all how did they communicate their beliefs or their findings to dr constantine they must have written something or did you think dictator we have nothing and so i understand your objection that your you answer your objection that you and your client didn't have access to the records of the plans apparently relied on i understand that objection and i'm not discounting it however what's really concerning to me is did the plan records when they made the decision they made and that's what is not clear to me i don't know either i know that their lawyers had the plan had all the records how do you know that because i missed it in the review of the record but i'm looking at a record evidence to a nine which is the decision of the plan or a summary of the decision of the plan this letter is dated march twenty two and it's a letter to your client or to you and it says i'll summarize just for time that we've made our decision against your client we asked for records of dr saul berg's swan and a few other doctors and only one doctor responded so we don't have the records which is concerning because they granted the disability in two thousand and four based on those records and then they took away that disability in two thousand and twelve and they said we don't have those records you know what did they look at that's the question i don't know what this is there is that they don't have those records this is their responsibility they have an obligation as a producer surely to to to investigate the claims and i got a letter from mum if so you are two sixteen pending in the prior case it was the denial of disability benefits right now it's just the retro well what happened here was we made it back and then they decided on the remaining back when you've never been disabled at all or back to two thousand and impairments in tandem with her mental impairments but the board i recall enlisted an orthopedic surgeon to consider hoffman's disability which would tend to suggest that they did consider the physical limitations is that sufficient what other evidence of physical impairments i guess was the board required to consider the issue was whether or not she is disabled and it could be mental physical or a combination of the both there are doctors numerous doctors and i list him in my brief that found her both physically and others and found her mentally disabled now it turns out that she said two pet scans and twenty twelve that that show she has pramanik brain injury which could be the cause of all of her symptoms i mean the physical ones with the three operations in the knee in the end and a herniated disc in the back that's one thing but the mental problems could be a result of the brain a traumatic brain injury so i'm not focusing on which injury is the most important here it's just that there every doctor that has ever seen her say she's totally disabled the to the opinion of their you know house doctor psychological testing show that she's totally disabled it's hard to figure out what you're supposed to get approved total disability when you when you when you talk you know just about everything both social security never changed its mind it never said this mind she's totally disabled  and that's the concern i have is i'm not here to decide whether she's that this court isn't here to decide whether she's disabled or not it's here to make sure she was given a fair hearing most of my understanding of the record most of the doctors who said she was disabled for one reason or or another or the doctors listed in this letter from the plan or the plan announces we don't have those records they're all in there on the administrative record and they're all part of the record on file but is there anything in the record that you point your briefcase is there anything in the record that we have to demonstrate that they did indeed have this evidence their big stance many of what their home running on  well said we didn't at one point he says we did at another point so you go figure it out and says it's and then they say they have certain documents that they're not going to show anybody because it's protected by the attorney client privilege well how could you have it how can you know it's a case can you have an attorney point privilege when when they're choices i think the court has the power to say based on the evidence before us where every document examiner said she's totally disabled when you've got all these objective tests showing objective conditions cause of possibly causing the disabling conditions that you can find that she is totally disabled when she was totally sables the alternative is you can remain in the back for another full and fair hearing which will never happen with this board we don't even know who the board members are we don't even know if the same board members the ones that originally denied she's been the not a full and fair hearing and if you send it back to trial court he's going to just have to send it back to the plant for a phone fare and if you do that under panna baker she's going to get her benefits anyway so it doesn't really make any difference to me whether you find that she's totally disabled o hearing because it goes back to the plane and she's going to get the benefits and that's what we're here for all right thank you very much  please the court jeff kravitz on behalf of apple ethan and i think it's important to take a look at the requirements on that the circumstances of this particular case which is that the plan has according to both its rules into the law discretion to make the decisions and that the review by any of the court should be under a deferential use of discretion which was exactly what was done by the trial court should we consider the fact though that the plaintiff here had disability benefits extended to her by the plan in two thousand and four dating back to two thousand and two but then in two thousand and twelve the plan initiated a review and took those benefits away and sought repayment of the twelve years a benefit she's already ten years a benefit she's already obtained and nationally spent so should that be considered by this court in evaluating whether the plan abuse i think it was considered by the trial court and i can point to the quote from judge fees who said well i mean back it out a little bit able to work she on her website said i am a stunt coordinator i can work and the plan takes a look and says what the heck and judge fees took a look and said what the heck she was holding herself out and when it was discovered and while to the court's attention that she was holding herself out and representing that she could work at that point she removed the proof showing consciousness of guilt but didn't that where out of that was that she never made any money from from that at least from what i read that she was doing edge she was going out lecturing at schools  and that that was just on her page but that do you have any time at the tax records reflect that she made any money doing that to question so let me address them seri on them if i could the question under the standards of the plan is whether the person has any substantial gainful activity by reason of any physical or mental impairment but also whether they are able to work and that has to do with the unique net nature of the entertainment business at any given time ninety five percent of the people in the entertainment business may not be working that doesn't mean they're disabled well what it means is record is replete with reports from treating physicians pining that hofmann is disabled many which tend to show that she became disabled during the course of her employment or that employment caused her her disability how do you reconcile those the documents with record whether the plan even looked at those records the plans own letter says we don't have them there's a little bit of confusion there which i let off yeah exactly but each of the doctors that the plan had to take a look at her medical situation reviewed every single one of those medical records the records that were quote not available with a question as to whether he had anything additional to supply to the plan for example one of the people that she was seeing was a psychiatry list and there were no treating records by a psychiatry list to the plan that's not what the letters i mean maybe that's what was that's what  understand so what happens when the letter says something completely different the question is whether any of this made any and any difference and they didn't because all those records were available to the plan were reviewed by the plan i do want to talk about how you know  don't want to what is the other than you saying that where's the proof of that in the administrative record and in their well and in the records by the treating the doctors try that by the examining doctors who took a look  the that the board in and did what they were supposed to do in this case with respect to reviewing the reference to the reference to the examinations by the doctors that they censor out to in terms of examining the records and coming to medical conclusions but the it's not clear that the board even knew about them based on some of the references in here or that they looked at each of the reports by those doctors or addressed specifically to the p n i know they could have been addressed to me but i do you know there's no there's no evidence that the board took into them into account the reference is their reference to those various reports i'd like to talk about the tax records because the tax records as noted in the letter that was sent by my colleague were sent by her and those specifically by her letter were not sent back in the reason is they were really volumin and he already had and he already had them that doesn't mean that they weren't examined it simply means that they weren't sent back and they were referenced by us but the i go back to the standard that is to be applied which is not whether she actually working but whether she was able to work and according to the language of the plan it isn't as though she had to be able to work in her chosen profession there are cases which were cited by appellant on this matter where it was a question of working in your chosen profession but if she could be somebody answering phones if she could be a barista she does not get an occupational disability pension under the terms of the plan that's simply not what's done so it's a question of being able to work and it's also a question of it being able to last the individual's life time and as referenced by the board there's no indication of that she could work in any generalized capacity and that i think is important as well because it's a crap just so much confusion here in the record i was hoping you'd be able to clarify and in  give us some clear clear answers on there is some conflicting evidence and in the record regarding whether the board considered the administrative record from hoffman's first  claim when it denied her second claim so was the prior administration record view by the board that it was the only thing that was not reviewed by the board because he mentions the prior case they were not given any of the in the prior case of the opinion of the ninth circuit so if that's the case where the medical reports from ms hopkins treating physicians included in that earlier administrate of record yes and seen by the committee and by the way the committee the the board's denial letter doesn't make any reference of hoffman's pyre medical history doesn't that seem odd to me no because under the circumstances the board is entitle to take a look at everything and come to conclusions based on what they think is the appropriate result and it is black letter law that unless it's arbitrary and capricious and here it wasn't because the various doctors who saw  and there were six each opined that she could do something again maybe she can't be a stunt woman anymore but she certainly could do something in society but just on that same evidence ten years earlier that same evidence led the plans to decide she was disabled so what changed what changed what changed was a couple of things number one that was back in two thousand and two so the year i'm sorry it was back in two thousand and two and her situation changed as noted by one of our reviewing doctors depression is something that usually over time manifest itself but you're able to work it out in terms of going back to work so what changed was that and what also changed frankly was the startling result as per judge fees if she's saying she can work she's telling the world she can work but she's telling this board that she can't work you can't have it both ways and i find it remarkable based on my years of experience trump all of what these treating physicians because of timing in other words these were not written in two thousand and two if the court takes a look at those statements they are not illiterate statements they are fully develop statements they reference prior jobs they write reference current jobs they have a reference by somebody who said gee i just employed her and making this decision did the board ask her to come in or whatever the plan whoever made the decision for the plan did they ask her to come in and say we have some concerns that your disability situation has changed because you're holding yourself out to work so please respond to that to that and that's something that's customarily not done but i what i will say is there was a deck with no but there was a declaration submitted by her and that is at eight e r to fifty nine which he claimed wasn't submitted to the board but it was because it's got the numbering at the bottom eight forty four which is part of the administrative record and what she doesn't do notably is say i can't work anything what she does is she talks about the experience how limited it was how it was a volunteer as opposed to getting paid that's not the standard the standard is can she work at anything and she can work things and that was the finding of the trial judge and you know the trial judge i can't help but noting the trial judge said she the briefing that's being given to us by the plaintiff on this thing her or her decision to respond to the motion for summary judgment by simply reincorporate an earlier briefing and then leveling attacks on defense counsel there was nothing really playing games at the trial level there was nothing at the trial level defending the position after defending the now i find that remarkable but we shouldn't be wasting the time  judges and then you bring it up here for the first time the trial judge was most perturbed by that as well he should have been the trial judge did with what he did which was to uphold the decision of the board which is a deferential abuse of discretion and the question is whether she would be able and in the language of the clan in the sole and absolute judgment of the board to engage in substantial being in full activity statements from the internet that s posts are they in the record they are on the record where that aisle i think it is i mean that's fine i think can i supply that to the court rather than spending the time at this point but they're absolutely in the record so that lea judge in addition to the motion for summary judgment so how did he make findings of fact he asked he asked for for findings from from from us ok but wouldn't that be  issue of material fact at the plant in the position based on what they read on the internet that she told herself out to work but the plaintiff is apparently say no i really wasn't working i don't know what she's saying but she's disputing  explain why i don't know whether anybody here is a baseball fan but the rule in baseball is tie goes to runner the rule in a ryssdal law is that the decision by the plan is reviewed only for abus would it have made if the court had waited one more day to have this trial on the record which seems very similar to a review of the record for motion for summary judgment or he would have done the same thing i mean we're supposed to have done the same thing  k we're told that one of their doctors told the board that depression goes away and people she's got medical records that i point out that come after after the  if she's got treatment resistant depression according to one of their doctors how can another one of her doctors say that the pressure is going to go away ok these are all contradictory they don't even make any sense  they did not look at all but according to them they didn't they changed their story now but that's that's to be expected i guess that's far as her at her but web page there were three movies that were involved one was made before she w