but good morning your hundreds charles fleischer now caring for the appellate mr armani i think the central issue in this whole case is the meaning of sedentary work in the context of a disability claim and i think the  meaning is pretty clear i mean i think the judge got it all wrong if we welcome it if we agree that the judge got it wrong because the judges person involved said ok well even if you can't sit for six hours or whatever it is you could these days we have sit stand from that from their native desks and then they said ok he's probably going to need surgery this if stand accommodation will be it will work after you have the surgery what it is it's a pinched nerve and if you've ever had one for some people it's debilitating and all the doctors all the doctors agree he can sit at most for four hours and eight hour work day and why should why not send it back to the judge to the to decide because you have all the evidence all of the way but wait one second hold on hold on second there's something so i want to go back to that to the two to the core of what's at stake here and as i understand it the district judge said you want to take this definition it's coming from social security cases these programs are fundamentally different and we shouldn't we shouldn't apply from social security a doctor and over here a right yeah but isn't here which state with the insurance company pointed to when they were looking for alternative medicine means of of work of sedentary work they look to that they found  they said there are three other positions include including his own then he could perform and there sedentary under the d o t they're defined as sedentary positions in the dictionary of occupational title bulletin that says that sedentary mostly sedentary or mostly sitting during the day means you can't have six hours or you can't sit for more than six hours as so s the evidence was that he could only set for about four hours a day and walk for two hours and and stand for two hours that was a two to four hour sitting right you know and all the defense doctors agree so there's nothing if you were to look at the record as it was and all that no he would get benefits into the future up until they can always go into revaluate you know i think you do it tomorrow so they can take another run at this that's true of every year is a disability case they can always do that it always goes back to the plan where they have to start paying out the money and then they can turn around tomorrow and send him to another doctor well they never send him to a doctor but they can send him to a doctor for a for a medical exam or they could find some records and they can organ the can just decide we're going to cut him off again basis right they have to have a reasonable basis in when they're when they're dealing with the social security definition and they know that all the doctors say four hours in the social good security definition says six hours there was entitle to benefits the medical records in this case stopped up until the time that northwestern closed the claim the most current medical records found that mr omanis chiropractor scheduled him to return to work may of two thousand and thirteen the denial was not made until the summer of two thousand and thirteen all during the appeal period northwestern mutual asked counsel asked mr armani through counsel to provide additional medical evidence that would support ongoing disability and furthermore would support that he was not capable of performing the sedentary work that was identified by northwestern mutual in its closure letter there was and how did how did northwestern define sedentary work in closure letter in the closure letter there was a reference to the department of labor d o t right the department of labor discusses sedentary and your honor in terms of answering your prior question there are within the confines of social security code of federal regulations that ail days are required to follow in order to establish grids and entitlement to social security benefits i would respectfully now going to the d o t it specifically says that sedentary work generally involves sitting most of the time most of the time most so so is the ability to only sit before hour drives me is a little on i'm sorry and it strikes me as a little later on or what we have to do with an insured is look to the restrictions and limitations and see if that person is capable of performing sedentary work here the employer found and notified northwestern that reasonable accommodations could be made northwestern determined by virtue of a vocational review that a sit stand workstation is very common in the workplace if you look at dr pad viens the chiropractor restrictions and limitations it's four hours a day sitting two hours a day standing two hours a day walking with a sit stand workstation it is absolutely possible and within reason to disarm it let me ask you this what were the three positions  do we know the closure letter which is found at excerpts of record starting at one forty seven going over to page one fifty two it is a manager risk and insurance manager manager credit and collections in each of those the vocational expert looked at restrictions and limitations the doctor paddling had provided also looked at the independent physician consultant reviews that reliance i'm sorry that northwestern had performed first by a doctor heart and then on appeal by a doctor haun and each of those two doctors disagreed with the restrictions and limitations th had described there had not been an m r i or any m g on mr mani since two thousand and one there had been no treatment other than conservator treatment no epidural injections and i understand counsels position that his client was worried about having epidural and jackson's there was no recommendation for surgery although there was early on that is exactly why northwestern continued to pay benefits because even though dr hart initially determined that there should not be restrictions and limitations in performing his job because he was being evaluated by orthopedic surgeons northwestern continued to pay  pursuant to terms of plans it is possible to have an independent medical examination done however there are duties that insurance companies o the plans to be cost effective and in terms of doing their review paper reviews are accepted by the courts and it is not necessary to do independent medical examinations it is not the law of the ninth circuit that carriers are quired to do independent medicaid independent medical evaluations and in fact the united states supreme court in black and necker decker nord specifically said that social security requirements regarding giving deference to treating physicians do not hold in the evaluation of arista cases so again based upon the medical records more importantly the complete lack thereof there was no medical documentation that supported mr armani's claim that he was entitle to ongoing disability benefits past the time of the closure the standard for this court to review the district court's determination is it must be clear error in terms of factual findings conclusions of law do novo but there was a d of medical documentation that supported disability other than the form where dr pat bean indicated that he believed that mr armani could return to work without restrictions in may of two thousand and thirteen the denial again was made in july and mr armani through counsel was invited to submit any evidence after july of two thousand and thirteen your i believe the court was correct the reason being the up a decision clearly says fourth criteria when a court can look beyond the administrative record i think the law in the ninth circuit is very clear that absent exceptional circumstances and i do not believe exceptional circumstances are rosier that a district court should be limited and its review of the administrative record and i think the court appropriately did that just when it's an abuse of discretion standard in terms of the insurance company where there's really just almost one northwestern actually didn't have the strictest one i mean there are some where the courts really can barely look at them because it's just such a you'd have to you have to find an error that's completely agree just that it has to be based on the administrative record that's the abuse of discretion and i believe that was nice circuit the ninth circuit is not is not as liberal however this was reviewed underage and over reviewing but even under innova review it is the responsibility of the district this street court to step in to the administrators role and see if there is sufficient information the information that came in after the fact was not submitted during initial disclosures it was not submitted at any point in time up to the briefing and again the court determined that based upon its review of the record in its entirety not just an isolated form but a review of all of the medical records and a review of the independent physician consultants reviews and a review of the vocational reviews that other than a form that simply checked two to four and i believe significantly your honor in that form all the doctor said is mr armani was temporarily totally disabled from his job the district court determined that he was entitled to be paid benefits for the balance of his own occupation we are not here on that issue that medical record did not say that he is totally disabled from performing alternative occupations so that did not go to proving continued disability under the any occupation standard because there was a change of definition in this case as of july seventeenth of two thousand thirteen and if you look at the four corners that medical record the district court got it right there was nothing in that record that proved that it was ongoing disability let me work and they identify three alternatives that these occupations exist in the labor market insufficient number in your labor market insufficient numbers they don't say that you could work with in any of these sedentary jobs with some modifications as you were pointing out not in this particular letter this is the denial letter right i understand you are write your own and so they just say of the time and you know i thought the evidence showed that he could not sit for more than four hours it was an opinion by a chiropractor your honor and well i'm to give deference to him we had it independently reviewed by dr hart and if you stick with the closure letter at page the exercise record one fifty two  specifically advised as i indicated before if you want your claim in this decision reviewed you have the right to submit additional information it would be helpful to include medical documents documentation supporting that you are unable to perform a sedentary level occupation on a full time basis and nothing you don't know if you don't claim that he didn't exhaust all his remedies through the through the plano he did appeal the defense doctors agreed that he could only sit for four hours at most and that's not just to the doctor pard dean or whatever his name is the chiropractor they all agreed even the defense d agreed if you've got a guy that can only sit for four hours what additional evidence and the question is what evidence do you have that you can't do a sin terri chop up i can't sit for four hours whatever what else you want to hear anyway  the fact that they had no would authorization get medical records they were supplied to an authorization it's in the supplemental excerpts of record there were they were suppl it was late but they had time to use it they chose not to do it they chose not to use it up with regard to the the ergonomics stations the note and in fact reads in this is found the excerpts the record one fifty four the the person is told about the ridiculous up a theory and then she writes as this is the case i was asked to complete my review and make a recommendation that an ergonomic evaluation be considered as an intervention once the claimant has recovered sufficiently to consider his return to work options so th home station now it's when he gets better he can use an airgun amik station as a matter of fact two or three days after that this expert wrote this opinion they granted him the disability benefits for under his own occupation now when they found jobs that he could do under the d o t one of those jobs that he could do was his own occupation along with the other through the counseling about and that occupation in the in the scription of that occupation is it requires seven hours of sitting so that we quiet seven hours of sitting and that's one of the occupations that they found in the d o t that it could perform it doesn't make any sense but it does if you look at the the excerpts of record one sixty one this is the report of the vocational rehabilitation person the information that he had came strictly from dr hart with regard to my opinion that the claimant is the capable of doing a student terri level occupation without limitations or restrictions so we only information this guy had a plan which he was looking for jobs for mr armani is dr hart's opinion that this is one more point i want to make sure yes i shouldn't but i'm sure i never could understand when they claim he didn't give us enough medical information when they deny the claim there's no question sit for more than four hours everybody agrees so what other a digital information are they looking for it what what if they are gonna get more information with that are they saying we don't have enough information to make a decision therefore we