realized there were some typographical errors and some grammatical irregularities my apologies the court wasn't counsel for that those being there there weren't many but there shouldn't be any i mean like to start back one step from the prior case maybe i'm totally out clench on this but i think in light of burke and wayne was most two cases that the question of discretion the absence of any granted discretion in the summary plan descript which is the primary if not the singular document that the participants in reality receive that discretion should not be available to you or packard there's no dispute that there is no reservation no grant folks talking about regarding the psychological ailments that the administrators will make the determination there's a fair amount of discussion in the summary plan scription on what you need to do to perfect the claim no mention is made of plant s p d remaining silent on this question no notice is given to the participant of the burden they may have in trying to perfect the claim if they have that notice many of them could look elsewhere for a group plan either through a professional association or a hobby group they belong to that actually does not have that granted discretion and so with the grant of discretion being so important as you for you well know from these basically most participants never see i think is unreasonable and i think that discretion should not be granted it's an easy matter to put in the summary plans scription and if it's not there i don't think there should be discretion how some of the court disagrees with me and says no there is discretion and that's the standard we're going to use i like to go on to talk about the initial denial the initial denial in this matter  multiple pages that dr snyder submitted it mentioned excerpts from them but not the entire limitations that he placed on her which included the fifteen minute every hour you can bathroom breaks and instead jumped into the following paragraph stating that fibromyalgia and mental disorders are limited to fifty two weeks and i think it's important your honour's to understand that black and decker  for bladder functions and limitations that result he filled that out in detail and sent it back it's not even commented on the letter in the denial letter the first letter that went out so clearly the tree physician from the outset without any credible reason was was disregarded i think that that was inappropriate and ultimately in the final denial by dr weingarten the issue of this reposition again was not considered at all to rely on the reviewing treating physicians and even if it differs from the treating physician absolutely absolutely there was not even a nine reviewing nine reviewing physician that look the first time the physician reviewed the file was there after we dr wang garton got it on the appeal that was made so we start with abuse of discretion i think we see a pattern forming here additionally arena position  dr weingarten we have two issues with dr weingarten one is was he considering all the evidence that could be considered because objective evidence in the plan was not to find the same way as objective evidence was the find a doctor weingarten he was given a form to fill out which said objective evidence means clinical findings and the plan has a different definition of objective evidence of talks about findings that aren't distorted by passion and interpretations etc it's not as tight and limited as the clinical finding definition that dr wangari was given so first of all his review was under a standard that was different and does she need even more than fifteen minutes per hour breaks when she has flare ups and he responds to that yes during flare ups she will need even more and to take that out of context from my letter that i wrote him that's not a fair analysis the final point i'd like to make is regarding the the mental nervous disorder and i heard opposing counsel comment that this plan is different than the plan in coonan and patterson because this plan has a definition of what a psychiatric or mental numbers disorder is i greet it does but that definition specifically as detailed as it is and because it is detailed does not cover a pain disorder its pacifically says that the manifestation must be behavioral or mental impairment the manifestation of the psychological order must be behavioral or mental impairment not physical and that was the whole point of pa everybody agrees that there can be frequent bathroom breaks no analysis was done on the vocational impact of the frequent bathroom breaks and it becomes quite clear even the court below said if she has to take these frequent bathroom breaks court can figure out how she could work she just didn't understand the illness so those are the issues i think before the court in this case are there any questions i don't see any you have a little bit at some time i for one republic you choose to use that's what i'm going to you for your honors thank you very much for your counsel different colored papers for this one place the court this is the second of three cases to be heard today involving the income protection plan and there are two issues did the failure of the summary plan description to include within that concluding that d p a should not abused its discretion and denying plaintiff's claim for long term disability benefits now in terms of judge wilkens decision to apply the capricious standard of review this court reviews that and often in this case judge wilkins conducted a rule fifty two bench trial and so the standards that govern factual findings in a bench trial would apply to her factual findings in this case there's no question that there was no prejudice to ms right the parties did agree prior to the case management conference that there would be an exchange of joint motions for summary judgment judge will can disagree to the case management conference and at that time ordered that instead of cross motions for summary judgment she would conduct a bench trial and instruct of the parties and any jurisdiction has ever helped that the summary plan description must constrain the standard for the administrators exercise of discretion in fact every court that has considered the issue has rejected it that's the first circuit in the fenton case that's the fourth circuit in the martin case that's the eighth circuit in the walled case and that's this court and the atwood case i did not cite the atwood case for that proposition in my brief on that issue i cited it for a different issue in terms of whether or not there was a conflict of interest that would give rise to adjourn of a standard of review that this court specifically in at what dressed whether or not it would be required and that's found thirteen twenty one thirteen twenty two of the court's opinion and relevant part the court help at what's next argument in favor of the novo review is that new months of summary plan description does not state that newman has discretion in this situation and that the s p d should control we disagree this is not a situation where the s p d fail to describe accurately the circumstances or actions which could affect  employee's eligibility for benefits as counsel acknowledged the summary plan description laid out the definition of object of medical evidence that laid out the standards and the exclusions to the mental illness d says on its face that it is a summary and that the terms of the plan will control the actual language this section is a summary plan description as required by a recess this section provides the highlights of the plan but it is far shorter and less technical than the official plan documents efficient plan documents are always used to determine when and what benefits will be provided under the plan and remember that in this instance she was represented by counsel before the claims administrator if you did have access to the plan there was nothing here that in any way amounted to a surprise the ninth circuit continued the emission of the plan language placing the determination in the discretion of newmont just not undermined this conclusion plans rules should be explained in the s p d to permit the ordinary employee to recognize that certain events or actions could trigger a loss of benefits the provision at issue has no bearing on the events or actions determin let's look at the claim for disability and let's look at the claim for disability based on the conclusion of interstitial cystitis irritable bowel syndrome not one physicians fa that ms carter was disabled due to this condition each said that she would need to take breaks and that's what judge will can focused on specifically her most recent treating that this condition is characterized by flare ups and episodes of well being but during the flare up episodes patients do need to go to the bathroom more frequently for that reason we tend to request that these patients are given breaks on a relatively frequent basis doctor although rado's letter is found in the record it d triple zero thirty four and so then what's it's this me it means that you can accommodate her condition and that's what dr weingarten found and he found in terms of the physical limitations on her job he checked off that accommodation would be needed it's and box number seven shift and the time that would be required would be fifteen minutes per break it could be up to fifteen up to fifteen minutes it could be up to an hour each time and i believe one of the doctors indicated that she might miss up to three days of work per month as a result of her in addition to those in addition to now let's look at what doctor one carton's impressions were his first one remember that the terms of the plan are caused or contributed to by mental illness ok mood disorder major depression rule out bipolar depression so the first basis is depression and depression there's no question it fits within the i c d nine codes number two she's had a history of cervical cancer status post total hysterectomy three he questions the diagnosis of he found that there was one chemical test that would suggest that it was present and there were two other chemical tests that would have suggested that maybe it wasn't present so he's questioning whether there was a diagnosis of everything from two ninety to three nineteen in preparing for oral argument i went on to the center for disease control and i printed out that section it's twenty five pages the plan simply references that it's supposed to be anything from two ninety to three nineteen and the somatoform pain disorder fits within that category finally doctor weingarten concludes her major her primary problem is major depression and mood disorder remember if the total disability is caused or contributed to by mental illness that's the language in the plan she was not hospitalized more recently she has been diagnosed with irritable bowel syndrome with abdominal pain whether it is probably a manifestation of her psychiatric illness in that occasion that she might be taking for her psychiatric illness that's just our eyes can cause diarrhea in a dominant pain i grant this is not the world's best written sentence but i had read it  she also has a questionable diagnosis of interstitial cystitis where i see very little if any objective findings in regard to this diagnosis again her primary diagnosis is major depression with some odd ization chronic pain disorder that's his conclusion in other words he felt that her irritable bowel syndrome may have been caused by the medication that she was taking for her depression and that he concluded that she can return to work but she would have to be given frequent practice and remember the terms of the plan the terms of the plan control the total disability caused or contributed to by mental illness if the medication that she was taking for her depressive disorder what's causing the irritable bowel syndrome that is a total disability contributed to by her mental illness and not covered by the plan it would it would only be covered by the plan if she had been hospitalized and she had not been hospitalized and remember that your illness the cause it doesn't matter whether it's social psychological genetic physical chemical or biological if it falls cases are adamant they are powerful they're determined of cases that if there's a conflict between the s p d and the plan the s p d controls what is the s p d say about psychiatric illnesses it doesn't word result from cause or contribute it that's why i am bringing it up this court and i circuit in paterson dealt with that issue and they and it concluded that it has to be a direct result means direct result that that's your element is the result of not that it's caused or contributed now that applies to the medications and that's where that issue plays to but let's even look at cause or contribute it again counsel talks about one of the two prongs in deciding what a mental illness is what is the exclusion cover it covers elements that are listed in the american psychiatric association association's d s m diagnostics that is going manual and and not or in and it has to have a psychological or behavioral manifestations or impairment mental functioning so the result of your psychiatric illness has to result manifest itself in a psychological behavioral or mental functioning not in stomach pain and that was the patterson case the court said in patterson whether the depression his pain or the pain causes the depression if he has pain and the pain is disabling unless the plant excludes a pain disorder the pain disorder cannot be just drug dropped except for fifty two weeks unless your hospital they don't say if you've got pain throughout your body that's caused by an underlying psychological disorder we're going to exclude it they specifically detail what they excluded does not cover a pain disorder i think paterson is directly on point in this case and dr weingarten finds that she has the limitations he attributes that to mental pain disorder which is not excluded dr snyder and and it's work or not he was told not to the same thing goes to dr snyder he was sent pages ninety seven ninety eight ninety nine one hundred and one hundred one of the original ministry of record that was filed ninety seven is a bladder problem residual functional capacity questionnaire he goes through it details the limitations that are on it that she has how often is your patients experience or symptoms severe enough to interfere with attention and concentration frequently to constantly checks and she's going to be missing three days a month of work she's only gone fifteen minutes from her station an hour he says  ability to sit standard walk less than two hours sit one time fifteen to thirty minutes he goes through and creates limitations that note right minded person including the judge below could translate into a job to say that nobody's found that she can't work is disingenuous dr snyder answered all the questions asked of him and limitations preclude her working dr weingarten was told don't make a vocational sassaman so why would he say whether she can or can't but he did find complaints a pain to be legitimate on either results of medication or metaformin disorder so he found that her pain was legitimate as well and found frequent bathroom breaks were required in any