special argument here from our standpoint is that this theory presented a lot of evidence a lot of evidence supporting her functional limitations an inability to work in any occupation this in the which is almost always going to be the case it's got to be the case in a pain and fatigue case especially the really is no other way to produce evidence of functional limitations except through subjective testimony and the questions got to be well at what point  we have the subject of testimony and she presented evidence of limitations substantial evidence that the record is voluminous we spent a lot of time at the administrative level building that building up that evidence and i don't mean building it from a manufacturer standpoint these were interviews that were conducted by myself with mike with my client and really doc tickly carefully going into every aspect of her life what's it like to wake up in the morning what's it like to fight through the day on top of fatigue it's not that she didn't sleep at all sleep was an issue it's like how do you operate on top of an unrelenting fatigue that alters your performance that alters your personality and that is well set out in the briefs o'connell i want to ask you you don't you don't make the point that the plan has accept the subjective testimony because my understanding was that the plant can do its own independent investigation figure out sort of whether the claims are true or not and that's kind of what they did here saw i'm trying to figure out what exactly your problem is thank you well the problem is the quote is the question is how does in a risk of plaintiff how is that person going to be believed so what we did in this case is very carefully amount of clinical evidence and clinical evidence and this is one of the things that respectfully urging the court to begin to clarify in this to look at the subjective testimony question does it match are there is there any contra indications to the subjective testimony for example some insurance companies many times  clients to look and see just this really match there's a function limitations really match what she's saying they are in her life there are there is credibility analysis that you could do but it was never asked for never requested by united in this case there are credibility scores that can be done through standard neural psychological testing that look specifically at that and again that was never called for in this case so we never responded to that we didn't respond so yeah but you know when you when you look at it when you look at this is a little bit unusual this case because originally made they made the determination that there was no disability and then they they reconsidered it and they said look we're going to make a judgment call here we've looked at all the evidence and after making a judgment call they said we really think that there is a disability but the disability is caused by depression and anxiety and so it's subject to our mental disorders provision in the plan we just don't think it's  fibromyalgia while she may well have and they don't dispute that that she has it all to me that that's not what's causing the disability the cause will factor is the is that oppression anxiety and so that seems like a judgment call that the that the plan is entitle to make am i wrong about know when you if you are in the unfortunate situation or if you know anybody in the fortunate situation of somebody with this condition that again they're up you have to if you picture people somebody operating on top of the fatigue it's different than a loss of sleep it's an relenting fatigue it's almost like the experience that i've had sometimes of driving late at night and it's almost painful to be awake and you have to stay awake but it's painful to do that so if you're going to perform an occupation on top of this on relenting fatigue which is the best way i can describe is painful i don't suffer from that but i know a lot of people do that there though that the fact in our circuit fibromyalgia is recognized as a diagnosis when the standard trigger point test is is done as it was in this case the so when that diagnosis is determined then you have fibromyalgia it's not it's distinct from depression the question then becomes can become and we presented it with out rebuttal however in this case united has never voted it at the administrative level and we present this never at the at the district court level or before the magistrate and to this day has never about it we've claimed that depression is secondary to the  diagnosed with doesn't the plan define mental disorder any condition or disease regardless of its cause is that the way than the united can say well there is the the mental health disorder doesn't matter the cause and you're saying perhaps it's the cause it's the fibromyalgia i think that's arguable your honor the plan doesn't exactly say that the definition of disability is it's caused by something but the question is what is it caused by if it's caused if the depression is caused by depression that's one thing that's a standard d s m five diagnosis if it's caused by the fibromyalgia that's something that's another animal altogether and so we then have a certain robot then wouldn't it seems then you're talking about two separate almost separate diagnoses the the depression which make qualify here for a mental disorder but then the physical limitations the united was requiring some kind of clinical proof that the physical limitations were such that there was no occupation or job that she could engage in yes  and in this case this is the heart of my view this was the heart of the case we thought that coming up at that district court level and through the appeal that you know that united had punted on the issue of clinical evidence i was aware that clinical evidence would be critical in this case which is why when i started the sergeant today i'm urging this court to distinguish to start to clarify to really clarify the distinctions between the types of evidence the that our clinical evidence is by observation of a doctor based who's treating a patient that's what clinical evidence to sensually means is defined in the brief it's so if you have clinical evidence and all of her treating doctors and therapy provided extensive support for this if you have clinical evidence that's we are  that that ought to be what is looked for to corroborate subjective testimony that's ought to be one of the key indications or so if you have clinical evidence and there's three at least three questionnaires to  look at in this case that were prepared by me for doctors to fill out but i didn't put words in the mouth ever they provided narratives and they were clear that their patient that this supported her claims that she had unrelenting fatigue that she was in great pain that she was dealing with cognitive issues and the medications that she was on another point in this case there was never a budget you know she has fibromyalgia she has a series of other conditions she was prescribed prescription medication very serious prescription medication like other panton things that are neuro drugs that impact your ability to think and she and the record shows mistery was constantly looking to looking at how do i balance that if i take the neuro medication there was a constant battle between do i take the medications today do not but she had prescription medications again something that was never addressed at the by the administrators or by  guy i'm not sure how to pronounce that either your honor he saw her one time very briefly his role was his role was to well look to see you know she says if you're this ill you try to find doctors that can dr jager purgason stated that they do not recommend disability for robbery you know what that well argument before the district court but he never say never rick they never that's how i read it your honor we'd never had any communication with dr jack after that yes that's our that was our argument at before the district court that that isn't saying that she doesn't have fibromyalgia we just don't recommend disability for clients with fibromyalgia and a number of clinics feel that way the other thing to note though in this case is that the substantial evidence that we presented was never presented that subjective evidence the clinical evidence the checklist none of that was ever presented to dr jekyll sporran so he based his any even if he said that farber my l j is not an appropriate disabling diagnosis for this patient assuming arguing  dr becker spoke to him he said he did not recommend disability he didn't say she didn't have fibromyalgia i think it's pretty clear from the record and i think united has acknowledged this from the outset that there is substantial evidence that mystery suffers from fibromyalgia it's a question of whether it reaches the level of disabling from a sedentary position which is another undisputed fact what you know that how do we know what that what that short  to conclude whether there's a disability the doctor's role is to provide results results of testing and to opine as to functional limitations but not  ultimately question of disability in that short comment when it talks about disability and we never we don't recommend disability for front row my own sure it sounds a lot like go dr becker's interpretation and that comments been interpreted several times now dr bakker who put it in his report dr becker's conclusion was based on all the evidence he reviewed that her level of pain  is that this particular rheumatologist did not think that she was disabled based upon what he knew based on the evidence presented to him and in these cases your honor i would say that it is not the role of doctors to make legal conclusions whether a person is disabled under a disability policy or not however in a case such as this you have subjective complaints really versus objective evidence and the objective evidence that can be obtained by the claims administrator in these cases are from physicians that's one key piece of evidence i would argue another problem clear at the beginning of our exchange there you said that the dot doctor jag us for organ was making a statement of no disability did you say from us from a sedentary position what was your i didn't catch no i don't  the quote was did not recommend her for disability and dr becker in his report concluded that based on the evidence and based apparently upon that phone call that she was not disabled dr becker was asked whether she was disabled from sedentary work dr becker concluded that she was not that the objective evidence did not verify that she was disabled from s they are absolutely distinct separate diagnoses they're separate distinct conditions problem mileage is a physical disorder i don't think there's any question about that there may be some overlap in symptom health problems as well certainly certainly i see it all the time without any kind of symptoms i believe so i've been doing this a long time i've seen a lot of fibromyalgia cases and i've seen quite a few where there is no argument there's no mention of a mental or nervous condition because it does seem to be a distinct type of problem just disorder diagnosis because  one i it is its symptoms are in many ways subjective pain city and it does have it it seems at least in a lot of situations and maybe you're correcting me that i'm not a mental health component so that you're dealing with not just you know a broken arm or a physical limitation but also a combination of what the physical limitations that lead into the mental health or vice versa whether certain overlap you see that often  not exclusively well but for those those segments of the population who have fibromyalgia and have the accompanying mental mental health issues that go along with them and as i mentioned opposite counsel i think that antidepressants and are often or the physical symptoms and so my question for you is it's a little bit of a chicken and egg problem here from from your position which is did the mental health come first and cause the cause of disability or did the sort of cause the mental health septum which which one came first and which one is predominant here it's really hard based on what judge kelly is saying in particular to figure out what the causes here i understand and i appreciate that position i think though that here there was a finding that she was depressed and she had severe anxiety a position that changed from the united they referred it up to a second peer review this doctor disagreed with the first doctor said she has severe anxiety severe depression and disability benefits were paid for two years ok i think then so after that there was significant analysis of the physical limitations and it was established i think by the evidence that on the basis of fib pain her disability didn't rise to the level of being disabled from sedentary work and that's a key to that she was in a sedentary position always made the analogy of the guy who operates the jackhammer versus the person sits behind the desk if this was a jackhammer operator the results probably would've been different so your point is even if the fibromyalgia may have caused the depression the fact of the matter is the physical symptoms the physical symptoms just didn't rise to the level of the disability the only thing that we really know for sure is the mental health symptoms gave rise to it gave rise to a disability made her unable to work i think that's a fair conclusion based on the evidence and the other problem i think for illness limitation was not an abuse of discretion and reasonable person given the evidence in the record could reach a similar decision therefore potential is entitled to summary judgment on easements recent aristocrat the point being that it's not necessarily whether the conclusion is correct it's whether it's reasonable the court could come to a different conclusion but if the conclusion reached in this case by united was supported by substantial evidence and was reasonable it can be overturned and that was the decision by disability the policy ensures against disability it doesn't insure against illness in for that reason i think it was proper for united is proper for the district court to focus on those limitations and not necessarily  the illness just seems like there's a particular challenge here and corroborating a verifying when so much of it comes from a subjective description of pain and fatigue and i understand that no one has claimed that mysterious not a credible corroborate that to a degree that is that that satisfies united that these subjective descriptions are actually sufficiently severe green the green case decided in two thousand and seven by this court green versus union security six forty two fed third ten forty two and in green the court discusses briefly this issue there is very little distinction between what we call objective clinical evidence i think you have subjective evidence and i think you have objective one of them over here and i think for purposes of arrests and disability they're pretty much the same in the green case talks about in the f c econ context which is functional capacity evaluation which sometimes disability claimants go to the insurance company pays for it or even plaintiff pays for it and it's an evaluation of their physical capacity and in that context green following other circuits have lumped in objective in clinical that's kind of scuse me that's kind of one set of other subjective and then you have everything else ok hopefully specifically answer your question it is a struggle you have to you have to draw a line somewhere ok every claimant says i hurt therefore i'm disabled then every claim would be paid so i would say this isn't a credibility issue as far as mysterious concern this is subjective complaints versus objective evidence you need verification of disability verification verification of illness or injury or condition whether or not the person can perform the duties of his or her occupation in this case  what about the cognitive describes well so that i would say that united reviewed this claim four times and there then i let her spend thirty one pages and the record was thirty four hundred pages long so i can tell you that that issue was looked at and i can also tell you that the the objective medical evidence from the reviewing physicians didn't find that dispositive didn't find it compelling so i i guess that based on the evidence that the cognitive fog and some of the other subjective symptoms that matt has brought up don't rise to the level of impairment in this case did the administrator notif determine the claim its maximum work passably united advised that there were insufficient evidence of motor deficits after figure reduction in of involved muscle groups things one would expect if her condition was incapacit g the report recommendation also talk about the policy requirements of proof proof of loss consists of clinical records charts of x rays and other diagnostic eight amount of time looks like  thank you for your argument one of the questions the court should consider and is whether the issue one issue is locked up there arguably was a law you could make that argument we don't think wasn't muscle atrophy and redness joint to fusion things that i have no idea where they're supporting any of the medical literature that that's somehow proof or disproof of claimant having pain or the severity of pain but assuming argue and that is so there is nothing in the ministry of record that goes to case this was something that we presented that was never addressed and you can scour the administrative record to determine what type of notice was provided to miss theory regarding what it is that was in her proof was lacking we put in about fifty pages or so of clinical evidence we thought that was sufficient to