is that evidence still have to be substantial number three when the supreme court said in black and decker we express no opinion on any other issues does that mean know what their opinion by its own doctors and decides to quit its experts over treating physicians who have longstanding clinical experience with patients does on your side of the case is hypothetical purpose putting aside what the plan of ministry to consider well what is it that in your medical filled out the the portion of the can exist and statement for the client and in that statement dr vince specified all of the activities that she could not perform which were all activities related to her job decision making  organizing high cognitive functions activities at that very same time for security title had already advised them that those were the job duties that she had so you have at the at the very end of the ninety day period you have the treating physician saying she can't do these things which the security title is it in a fight i have i think probably haven't done a very good job of questions this is one of the reasons we asked perplexes his to tell you we see for half for your clients and to give you an opportunity to tell most how you get over i've looked at this record and i cannot find anything in any of your clients training physician mystery there isn't a functional capacity evaluation or a disability report during that period of time and there's a reason for that because she had a progressive disease she had had multiple sclerosis for disabled at this point but none of the disability statements of which i believe there are or talk about a disability during the period and issues and isn't that really what they were get accommodations to her job that i believe is it is in fact of the same thing as saying i recognize you cannot work at your job so why don't you see if you can get accommodations  again when you're under this disability pov it's not just a question of accommodations you could you you might not be disabled even if you have accommodations you might need accommodations because your illness doesn't necessarily mean you have a disability a point in time in which the the preventive fishery could no longer work there wasn't a doctor at that point he said stop working today but she just physically and mentally could not continue working and visit in a critical to have a doctor plan disability here we are usually the person with a little more rigor and say you can't work right well even if you just can't dr rosenberg in december who basically said you can't work without accommodations ok and you accommodations is different from a doctor said in my judgment from a doctor saying you are released to work if you have accommodations as we see this policy didn't require accommodations so therefore if in fact it was true that she could only work with  accommodations she was disabled because there was no accommodation for vision in a requirement in this polity but my point is that within a few months after she had her last day of work we had three or four physicians on several occasions to certify that she could not work yes they were never asked by unum the magic question well when is that mean she couldn't work from december twenty first two thousand they never asked that they it was a little bit of a stand back here and that's true that if that was so important that question should have been put in their denial letters to the doctor that there should been some communications either the claimant or to the doctors by the way we need to know if she could work was a clear error on the part of the district court and human because they rely heavily on the boxes that were checked on that form with respect to moderate disability but if you look at the top of the form it's only relating to although i see mention of a possibility of them as i don't see any evidence in the medical records i may well have missed that you can help me out with that that the doctors actually went through that rigorous criteria discounted a lot of other possible diagnoses that could is that is that your understanding records you know not i don't view the record that way the f t e the doctor been filled out one of the diagnosis she put down with the mylan disease that was this case turns on the standard by which unions decision must be reviewed because the arista clannad issue reserves discretion to unions to make then if it's decisions unions decision can be reversed by this court only if he has no if you reviewed it didn't know them because de novo review might entitle miss downstream to additional but i don't think you need to review it to know because in order to overcome the plan's abuse of discretion standard the stalls from would have needed to introduce material provided got all of her medical records got job descriptions from her company review those medical records send them to multiple experts even as the diagnosis on the basis of disability change and going through all those records because there was no linkage between in symptoms with which she had worked for many years and an inability to perform the material and substantial duties of her job sound that there was no satisfaction polic and that's really at the conclusion of her elimination period she has a doctor this says she's unable to return to work for of these six months to a year and says that  remains she remains disabled the question is in the face of that kind of evidence whether it's treating physician or not because we don't credit it extra we never know surgery black and decker walker is the specialist who she saw for headaches and dr walker has it looks like it's a form from his practice it's his return to work or school form he's crossed out school he's circled work because it's from stall strand and he's indicated that she can't go to work for six months to a year at the point that dr walker completed that form it had been a year since he had treated her and for the conditions that he was then pining were disabling which which is which is a problem with right i think that was the end of my thought about dr walker it's also important to consider the valuation prepared by dr bents which is the only other piece in the record that arguably ties medical history to why suddenly in and this form asks his fans following questions what is the what is most also his ability to work relative to the attached job description and she checks moderate and if you read the key on the form moderate is impairment effects but does not preclude ability to very or core to the supreme court that we should pay significant deference to administrative agencies in carrying out their functions we're a court that frequently reviews the work product of this appellate process that comes out of the social security administration they are not the most want of the heart of the agency and the face of the earth and in order to establish this ability is as i understand it you have to establish to their satisfaction that you cannot perform anything asked in the national economy we frequently see cases from this administration where the law relied upon vocational experts that are dealing with people who've lost arms and legs and other functions saying well this person could still be a parking lot attendant or something like that what they're for and sort of conflict of interest tainted its decision process and the district court mindful of the supreme court's admonition in the north case that social security standards shouldn't be imported into the original context because they are so different from the plan provisions that will be specifically it is to reach aristocles even after toughie even if they're tougher and this is why the definition of disability is clearly different and for the first twenty four months of benefits  she only had to be disabled from her regular occupation as it was performed in the national economy not from all occupations after twenty four months she would in fact have to not be able to be a parking lot attendant as your example to continue to obtain disability benefits but here's what's different about social security social security has a very complicated regulatory structure and part of that regulatory structure is a set of presumptions the treating physician role is one of those presumptions but there are also presumptions about certain medical conditions and what it means to have that happened who exactly matched the elimination period as it applied to her under your points policy what they have been required for in any way to that they would be required to consider it and your question actually raises the other important distinction to be drawn here and that's that all that you know was given was a single page letter from the social security administration indicating that the stalls for this claim for benefits have been granted you know was not given any of the evidence that the social security administration relied on in they cannot determine nation we asked mr armstrong to provide us with any evidence that she wanted to provide us that she felt supported her claims she certainly could have provided additional evidence of the social security administration every one we can't understand why this functionally limits you from your job if you have evidence that would change your mind please give it to us right but the other thing as a thing you know could have done is ask her for a waiver to see the file because it about as powerful as you find in a case like this one the sole spiritedness trajan's determines that she can't work in the economy anywhere in the united states and that i think is the biggest red flag on this case is that it looks as though your client ignored that or said well alright we need further proof now i realize the we are going to import so scary standards but the treating physician rule that was discussed in black and decker is far different from the ultimate determination disability  unum didn't tell her that they received the social security administration's decision and that they didn't know the basis of the social security administration's decision she could easily have provided additional evidence and in fact her failure to do so would suggest to a reasonable ensure that social security had exactly what the insurer had and again the treating physician role while it was probably important in this case in social security administration's determination given what some of her treating physicians have said if those opinions got deference rather than the the appropriate level of scrutiny that you know apply things might come out differently but those presumptions in social security are so important in cases like this presumptions about the nature of disability and how they interact with jobs so that if you have certain conditions the social security administration doesn't really ask you to go through a now an analysis of jobs that are available economy it says if you have this disability we're going to assume there's nothing for you to look at and that's not are you concerned if she doesn't have them you know has consistently acknowledged that she has been diagnosed as possibly having m s they've acknowledged the evidence of death to mile an eating disorder stretches back in her file this case isn't really about whether she has amassed it's whether whatever she has does that mean she can't do her job that's really the basis of humans determination not any specific di well there's certainly no reason not to but there's no obligation to send her to a specialist either until she can look more of the sort of mystery of all this news that we're being asked to look at the decision know there there are there are two answers one yes the dispute is really the answer to this it's question the dispute isn't about what condition she has it's about how they relate to her limitations and one of the reviewers  this file is an occupational specialist someone whose specialty is looking at symptoms and how they relate to a job you know it's red automobile insurance policy in the person making the claim was  broken if you are we want you to see the specialist so that we can determine if that's a reasonable expectation of the way insurance company treats someone who's not their insurer why can't we expect this first of all because there is reason to believe that i've an expert in multiple sclerosis wasn't really necessary in this case where the issue is not to use the secondly because issue the problem with the shafran is she comes in very late in the process her notes indicate possible multiple sclerosis there's no evidence that she knows what in the stalls for this job is and her the only evidence of disability that she provides is literally as she torn from her prescription pad where she writes is disabled at this point which raises both the temporal problem was she disabled for the necessary elimination period while her policy was in fo when when i look at the records what i don't understand and what union didn't understand is why she stopped working on december twenty first two thousand when the day before she saw a neuro psychologist who said go back to work try to reduce your stress come back and see me we'll treat you not only did she not go back to work she never even saw that doctor again she stopped being treated for her depression beyond medicine that other doctors were administered in to testify or her records  se from her on that issue might sit in her little nose and the record reflects a certain amount of up and down in her symptoms both before she stopped working and after she stopped working but it's key that she was seeing three specialist she was seizures and headaches dr walker for headaches and dr rosenblum for her panic attacks and depression none of those doctors ever said stop working somebody needed to say what's going on with this woman means she can't work that's the piece that's missing here that's the piece it's needed to meet the definition of disability under the policy and the standard of review isn't could un acted differently couldn't stalls from his a bit different evidence could you look at the evidence in a different way the standard of review is is there a reasonable basis for unions decision if there's a reasonable basis reading his decision if it's not based on we've never said that social security was something that they needed to adopt or step wholesale however it is evidence and it should have been considered there is nothing in the record that shows that it was considered in the slightest degree this goes to the heart of the we see the problem and why we're here today and that is the breathtaking view of the district court of the wave of black and decker when you read the opinion especially all of the authorities decided by the plaintiffs were just counted their dismissed because they created black and decker whether it was still security or the need to have an expert when you have an uncommon meant that and there they didn't throw out all the other body of law in a recess in this case particularly the requirement that unum should have gotten an expert on v m s now why didn't it's real simple they wanted to take the position that there was no basis or reason for her to stop working that it had to have a precipitous to bent if they accepted in mass as a diagnosis that would explain why she stopped working because m s does everybody knows it would have started during a right at the end of the elimination period to mass as a progressive disease over years it culminated on that date for her and the doctors afterwards explained this is what she has yes it's possible there were more tests over time it's been clear that she has this diagnosis but unum resists that diagnosis because that would then explain why she quit why she had to quit  description and should have asked for that they claim that they sent a job description to dr vance when she filled out the se in march but it was attached that puts in suspect the entire section of the s c e they rely heavily on the site section because  was limited from performing that job a stressful job i had gone through the order and i had a list of about a dozen clear errors that i wanted then if i don't know how much time and the two minutes  these near very most of them so probably we were given but at the end of the day the question one of the primary questions perhaps a threshold question is is this is this enough to get you to conflicts of interest because one could argue all of these things saying well that the evidence goes the other way and you're going to concede well a lot of things went wrong with the investigation but that unum in the district court the court said that unum hat was appropriate for unum to consider how her job was performed in the national economy yet there's no evidence that unum ever did that we it's obvious that you know made no attempt whatsoever to look at her job in the national economy it merely said you didn't give us evidence you can't perform your job somewhere else and even the district court didn't catch that apparently because the district court is under the assumption that unum did consider did do something but all evidence and support if you look at every single medical record that they commented on in their denial letters they cherry picked every single fact out of every record that supported the denial and ignored or misstated