it please the court your honor my name is julie marsh i represent the that she was disabled due to sickness in construing the remained order from this court to say that the court did not have to consider any alleged mental condition just syndrome is this court another circuit courts across the country recognize is largely subjective largely is proven by subjective symptoms that are not provable by objective medical evidence the district court made absolutely no factual findings regarding the impact of these subjective symptoms on mr coe which is ability to work as a card dealer  specifically there was no discussion the record of the widespread pain no discussion a record of her depression no discussion of the record of her acute distress and anxiety no discussion in the record of her crying that was observed repeatedly by her doctors in the office no discussion of her brain fog no discussion of her for t fatigue or insomnia no discussion of the side effects from her treatment with medications for pain including suicidal and there was no discussion of her headaches and there was no discussion of how her subjective symptoms would allow her to attend and concentrate and do what a car dealer has to do there was also absolutely no discussion or reference to the eloquent appeal letter that mr covert submitted setting forth both the physical and the subjective cognitive emotional symptoms that she suffered from and also how those symptoms affected her ability to work as a car dealer day in and day out the employer statement says that her job required her to work five days a week over forty hours y court does not in any way address that that letter in its order can i just focus you on i guess what i find a difficult obstacle for you to get over and for your for you to prevail to tell me if i've got something in terms of my understanding the record wrong you're right that there's no dispute that she suffers from your client suffers from fiber mileage and there's no question i don't think that she also has a pretty serious psychological or psychiatric issues as well and the question is whether those are caused by the fiber mileage or whether instead they are themselves kind of a separate condition right that wouldn't be covered under the provision of the policy you're seeking benefits under doesn't it and just so i could fix that and it seemed like there were at least if i remember two of her some of your clients specialists who themselves indorse the notion that boy to the extent that she's not she's suffering all these psychological issues i think that's actually separate it's kind of its own separate thing and it's not in fact caused by the five or milder and what she needs to do is get psychiatric care and if that if that were  understanding of your client's condition were accepted it seems like you would lose that's that's where i'm sort of stuck i don't believe i disagree in that i don't believe that this particular policy requires that she prove a particular psychological condition or physical condition she only has to show that she's sick as a result of it it's all in her own mind i know so tell me if i've got as definite how i've understood this i've understood there to be you need to show that her disability arises from a physical condition most definitely not a mental condition because that's a separate two year kept you know there's a cap on the benefits there and she has even saw the medical care she would need to qualify for benefits under that so that's why i say if in fact you but back to your point let's be clear that medical records that doctors in iran referred to stated that at this point in time we believe her or sit her illness is psychiatric in nature but in march of just looked at his medical records and concluded that now it her her impairment is psychiatric in nature he did not there's no evidence to record that he said she now is not still suffering from fibromyalgia syndrome he's saying she is impaired there's no disagreement that that they believe that she was impaired at the end of this evolution of symptoms from psychiatric or cognitive emotional problems that is correct but none of the doctors was her primary doctor who well you know it's one of those that the specialists who i thought said basically at this point i'm led to believe that this is really stemming from kind of a a separate psychiatric condition not so much from five or something to that secondary to from something like that i believe though there's a reason we're tribulation in the records that maybe looks like she has a psychiatric disease process but she was only always diagnosed with fibromyalgia syndrome that's why she was sent is it clear that they were in disagreement or i don't think that the anthem and c d s ever asked them for any any information whether there was a psychiatric disease that was separate apart from fib submit that there is no evidence in the record that she had any d s m order that was not related to the fibromyalgia and in that regard that's why i thought it was important for a judge for the district court to listen to what mr colbert said herself in her own letter and at least give it some i mean some some merit there is no evidence in the record whatsoever that these symptoms and exist and that she was a credible so if the medical information did not decide the day i mean why not look at least listen to her and say how these symptoms did standard in this case there's both in my opinion legal error and there's facts clear under a clear error under the factual findings as well because the district court specifically set apart or evidence that prevented mystic ovitz from providing subjective proof in support of her disability claim and that is your honor i'm saying she had to show that she was sick that is what the definition planned definition of disability said you know she's disabled as a result of sickness not as a result of something more specific like a physical size illness the district court properly said it was a physical illness but then failed to incorporate but do a thorough inspection of the administrative record to say ok these these psychological issues these cognitive these emotional issues that she's have and should be considered by me i may reject them or not but they need to be considered because they're part of the administrative record and that they are part of a sickness that she is claiming under this policy the court did not do that so i do think that under the clear error standard for factual findings  saying i'm not going to consider thing related to an alleged mental condition so i believe under the if god if if you don't reach on the clear air standard of factual findings and i think the court clearly erred by not considering that eviden how can she prove her case if most of the sort of symptoms that she's suffering from are not even considered by the the lower court so i and the other thing is that i believe that the in this case because her credibility wasn't challenge the her appeal letter setting forth all her subjective complaints and how they affected her ability to work as a car dealer were not considered this was a case in which  syndrome and that simply wasn't done here if the court had done that then i may not have a legal argument under the novo review but i do have it here because because it was not considered it simply wasn't considered it was did it at the  district court's final comments are what she has some physical disability i do think that there is some physical difficulty but i don't think that gives rise to that's not the standard under the policy the stand as is due to sickness was mystic morning anna martin on behalf of may it please the court it's a pleasure to be here today i'd like to address first of all the district court painstakingly reviewed the administrative record in this case which include all the medical evidence twice the plaintiff in this case did not satisfy her burden that she is disabled under the policy plaintiff once and both ways she wants to use mental illness as both error and evidence and in this instance the court did exactly what this court ordered it to do and basically plaintive did not claim to be disabled based on a mental condition and so when you look at the administrative record and you compare it to the district court's order you can tell precisely what the district court did the district court basically took removed all of the opinions that said her so her basically all of her symptoms were due to a psychiatric illness and then looked at the record without that conclusion and the district court absolutely considered mental illness when discussing the opinion if you look at the district court the district court first cited to dr gendron letter to dr say in gendron stated that he believed that her ailment was mostly psychiatric that her illness was due to a psychiatric condition the court said i'm not going to consider that because again it goes to that that conclusion that her condition is due to psychiatric condition but then the court goes on to discuss references to other mental conditions and the court in the order references dr howard who said that plane of complains of depression but he was not sure what was the cause of the depression and then most notably the district court goes to dr jean who was her treating rheumatologist who i believe just as what from is who you were referring to he's the one who directly in response to a letter from dr gendron wrote a letter back and he specifically stated that plaintiff that she was most likely impaired by severe depression with muscular skeletal manifestations instead of her fibromyalgia and the reason why the district court cited that decision is because it addresses the issue here is whether or not her condition her disability was cause either by the fibromyalgia or the psychiatric symptoms and dr answered that exactly exe answer that exact question and that was her treating rheumatologists in this case we most certainly have a consensus of medical we have two of her treating the orthopedic surgeon and the neurologist and there  neurologist would be the doctor to treat her for these for any mental fogginess for cognitive issues there's now many mental status exam she was not referred for cognitive testing none of those things and so we have dr baker who's the neurologist he says i think all of her problems are psychiatric she needs to see a psychologist you know a psychologist or psychologist and and there was a level of exasperate and his medical records because he couldn't understand why she still had not seen him at a mental health provider then we got dr baker who's an orthopedic surgeon who also is just noting that all the diagnostic testing is normal and and the physical exams are essentially normal and he also says i have nothing further to offer her she needs to see a psychiatrist can i ask you though the reason this just seems somewhat artificial this this dichotomy we're drawing is because we know that fiber miles is a physical condition that there are no tests you can run to say aha we've discovered that you know how this right it's most of that is manifested in terms of your psychological symptoms right so i guess it just seems artificial to say for any of these doctors to say well i've determined that it's due to some separate you know mental illness because i mean how would you i'm not a doctor so i don't question their expertise but how can you ever really be sure that it's on this article i'm not the other you know i'm i'm not sure that you can be decide what side of the line it it's on but just because you have let's say you have fibromyalgia and it is creating psychological you know manifestation symptoms you still especially under this policy you're obligated to get treatment for those you can't just say i'm disabled due to depression but it's because of fibromyalgia and i don't need to seek treatment this pulse you have to be under appropriate care and when you have three of her own treating doctors telling her she needs to see a psychiatrist and you don't do it then you aren't getting the care that you're required to guess and which the district court absolutely not is not with what i believe what the district court did as i think the district court did what this court to wrecked and that was to set aside basically any conclusion where some doctor said look her impairment is caused by a psychiatric condition the district court put that aside and then looked at the record as a whole and determined whether or not plaintiff met her burden of proof in establishing disability which she did not meet if you look at all of that if you take out that psychiatric component that's the cause of her impairment she didn't mean it she's got no r n else from from dr g a new from dr baker from dr milligan the only one who gave them was dr se and the district court was well well within its authority to look at that that s statement and go ok look their doctor say didn't offer r n l's on two separate occasions prior that he offers these are in else they he dates him back to two thousand and eight she work till september two thousand and nine and then he later i don't understand because we in our prior decision seem to say that that those statements considering concerning her not getting treatment manders the they were to consider that so how do we now conclude that she never that this was mental in the chief she should be faulted for treatment i'm not even saying that you have to conclude that i'm just saying that what i believe the district court did in implementing what this court ordered in a split decision remember justice so scallion believes that just yeah he lost but he strongly you know he believed also that she had not satisfied her burden under the standard and she didn't do so here the district court followed the mandate of this court and removed that issue and then looked at everything in the file to see if you take out the opinion that she psychiatric disabled did she satisfy that she's disabled and the district court went through and the district court did consider you know mental illness symptoms he did consider those and what's interesting is that he does the one reference that he does talk about the psychiatric symptoms as he focuses on dr g in his opinion who said look her psychiatric symptoms are not caused i mean her must sometimes are not caused by far the amount of their cause by a psychiatric illness that's her own position was more likely quote impaired because of her so severe to severe depression with muscular skeletal manifestations and then the district court adds with no quotes instead of fibromyalgia and i think that sounds like that's what the district court was imputing to what the doctor said rather than the doctor saying that that she has a severe problem that has muscular skeletal manifestations and it could very well be a result of fibromyalgia well dr jean you did his letter went on to basically marrow what the district court stated and he said that her symptoms were caused by severe depression not fibromyalgia let me just read this and so if this is going we're talking about and i'm just going to read it without trying to correct the grammar thing i would inclined to believe at this point that her physical complaints are well i mean the burden she's got the burden of proof to establish that she's disabled the burden is on her we've got a doctor saying look it's less likely due to her fibromyalgia and more likely due to some psychiatric illness for which she hasn't se such treatment and then we have neurologists rheumatologists and orthopedic surgeons commenting on someone's psychiatric state when they're not the proper doctor to be doing that because she never went and got the treatment the records indicate w know it's just they were just multiple requests to know falling through and then and if we really want to get into treatment here which is also a sign that her symptoms were not as severe as she claims is that she didn't seek treatment she didn't go to physical therapy she didn't do aqua therapy she didn't go to the balance institute she quit taking medications i mean this record i'll just be honest with this record does not scream to me this person is faking all this and she really work that's what i think most big for my college but that's what i find frustrating about this case i don't doubt that she is experiencing all of the conditions she's claiming to and it did then it just becomes well what box do you put it in is it stem mostly from five miles or is it's them mostly from the separate i don't know how it could be a separate but some separate mental illness or condition and that's one thing that just seems really artificial given how closely linked the two things that we're talking about are i mean possibly except that this is a case in which she has to prove her disability and we've got all these subjective symptoms but we do not have treating doctor support for this disability this isn't a case where we just had paper file reviews that disagreed with treating physicians we don't have that we have her doctors who are exasperated they don't even we've got an orthopedic surgeon and an a neurologist too they can't figure out what's wrong with her and they keep thinking it's more psychiatric and then you then you have her rheumatologist come in and say look i think it's i think it's less likely i mean i'm not sure what more an insurance company can do in this instance i mean we don't have the support there aren't the are a now support for a claim disability here and the burden was on her and it's twice that the district court has been through this record and came down the same way and i really believe that an overall review of this record to me i think more definitely demonstrates that she didn't satisfy her through interpreter policy terms this is how does that affect it it has no effect on your review your honor because this is the court ruled on that the district court ruled in that anthem did not have so dr howard was the first consultant to that anthem used he was a rheumatologist he diagnosed he's the first one that said yes he's got fibromyalgia syndrome and he noted and he noted medication that she had side effects with medication and so the question is whether she was sick i am i to maintain the position that her by the time doctors you knew wrote that letter in response to dr jenn ron's posset posit is she more impaired by physical or by by psychological psychiatric it was in september of two thousand and ten she had submitted her claim in january of two thousand and ten and she if you look at the record she was getting much worse from a psychological standpoint so  fibro that's from her own your client's own doctor so how do you respond to your opponents argument that like we're the insurance company we get that what are we supposed to do is it i mean under the definition of disability does it matter what the source is of an impairment i think person's opinion that at that point but that was all that was in the record from that i mean he i don't he wasn't asked did she have restrictions limitations from fibromyalgia my opposing counsel said she didn't offer any work restrictions and limitations in support of a burden of proof but she never was asked to do that that the definition in the policy says what you need to do proof if you look at the proof of last provision it says you need to fill out these forms and then what you need to provide us anything that we ask you to provide in the if you recall in the record her roommate calls and says how does she prove this what does she do and the response in the record is you just look at the medical records it's what's in the medical records so she did the best she could getting dr saeed to submit a medical source statement and to submit her own letter based on what was all that she could determine but she was never said you need to sit you need to get dr baker to send in restrictions limitations you need to get dr you gave us a new restrictions on patients the letters that they responded to that were sent dr baker was tell us the we know she's got basically we know she's got an impairment but is it more psychiatric or is it more physical in nature and he took a doctor should run took from the medical records from dr baker at this point in time in july two thousand and ten that psychiatric any any took from what doctors you knew said that at this point in time it's more likely related to depression i mean your honor honestly i don't know if we talked to doctors or do it if he would say but i would treat overseas for fibromyalgia syndrome and i believe that that's it's related to that but i believe the definition is broad enough in the policy that her impairment is that that the district court had to consider everything as to determine whether she was sick and whether that sickness caused her to be unable to perform the essential duties of a car dealer that that was never examined in this record and i believe that that it constitutes clear air i see that my time's up i'm person that's not sick that that can work i believe she's sincere so i believe that it changes your question i believe that and she her she herself in conjunction of those two doctors met her burden that she was unable to perform the duties of a car dealer which were very difficult in addition i mean more so cognitively than almost physically because of all the money she had to count i mean we all probably know what do and so i do believe the district court failed to make that make that determination and that that prejudice to her as to whether her and her  impairments are her inability to work all hearst subjective symptoms that she credibly testify our credibility submitted to the to the administrator prevented her from performing her central submitted and we are now adjourned for that week