now do you agree do you agree that the doctors were provided with a list of her job duties to some of them i mean you you agree that some of the doctors who are reviewing this were i mean there were provided with her job duties i'm not saying i disagree with you that by and large they reported their findings in terms of a sedentary the record i'm just trying to figure out what the significance of that is to this question that is it isn't the point of the own occupation art of the policy in the argument that you all spend a lot of time making is that her she has a very specific demand she's not just an attorney or employee in a sedentary occupation she's an attorney doing particular type of work so when we say own occupation it begs the question of whether she's doing litigation work whether she's got an office practice whether she is a tax lawyer or whether she is is drafting leases and in agreements contracts and things of that nature it isn't that the point of the on occupation argument that's right yes you're trying to put a finer point on what the insurance should yes you're right about me go back just real quick you've got dr shafer to i was looking you said it in his report i mean he is he is offering findings in terms of an attorney in terms of an attorney being it was good to work because he says that he would if that foster would not be limited to complex legal tasks if these did not involve much oversight and responsibility   yeah yeah ok what about the doctors who are reporting about whether it's i mean i think i mean but we're going to mouth you're saying at first that the doctors were considering h the physical aspects of her job you know the sort of the do the job as a physical job can she do x y and z but there were some reports of i'm not mistaken correct me if i'm wrong they did consider the kind of aspects of her disability you're talking about the cognitive or non exertional aspects is that right that the doctors were considering not just physical but the cognitive ability to to to to do cognitive tasks what would your view be that even if you had a doctor or doctors who were evaluating her cognitive abilities that's not sufficient for the own occupation clause in other words if you did the assessment has to be in terms of specific job duties of an attorney it would that is would that be an argument there is that an argument that you're making or foster was it was also very much aware that she was a health care lawyer with a predominantly regulatory swiss foster provided her job duties very early on principle life contacted her employer else for a job description no official job description was provided because none was available but later on in twenty fifteen mr story have owed a letter which sat on the level of executive function that in his opinion was necessary for miss foster to do her own no q you agree that being able to perform sedentary work desk work isn't sufficient for the owner occupation qualification of the policy  ability to process information the ability to place that information in a new provided in a persuasive manner the ability to draft briefs helms provide opinions is obviously very much a component of let me hold it so what i heard you say to judge you know hard as you agree that we need to find i mean i what you say about the burdens is consistent with my understanding even if that even  proves a substantial case here you can also have a substantial case and you win so much so but but as i understand it we need to look in the record and find that credential i'm sorry that's wrong principle i keep making that mistake that principal had evidence that she can perform the cheaper that she can perform the duties of her occupation not just send her a worker but in other words that we got to find doctors assessing her from the point of view of the functions it measures not just intelligence as mr tolle o'donnell seem to think it measures problem solving and conceptualization it measures planning and organization attention memory and learning concentration language academic skills  was disabled from occupation we will never know but he certainly provided a statement of her support yes before we move on from the definition was there anything else the principle relied on to define own occupation aside from reviewed the records that's simply not true the letter was provided in twenty fifteen obviously it couldn't be provided to anybody who rendered an opinion in twenty forty so with the idea that only the physicians who were later on in the aca had  letter well of course because at that point principal had it and could actually provide it there are several medical opinions here who will render june twenty fourteenth those opinions could not consider that latter because principle i've had no and that letter at that point every time my client sends it out so unlike other insurance companies that i work with there is not just a letter or a reference in the record saying hello restamp the records there is actually a full and complete set of the records that were so the court can actually see that once the referral is being made to an independent vendor the following set of seven thousand pages are the pages before that going backwards sent as a complete submission to the vendor and based on that inclusion of the actual records it is clearly visible that the information that was provided by miss foster was given to these physicians my client is not in the business to render opinions that are not based on the full set of evidence once it receives something from the claimant it wants to give her a fair shot which was one of the reasons that approved benefits in the first place took her condition for what it's worth for what she presented it to be and then continued evaluating meaning it would not be in the business of withholding documents and not providing the full set of documents to the review and  concentration were not impaired as a result of her condition which leads me to briefly make the point that mr to dollar until that on a has suggested several times that my client did not believe that she had headaches and demanded objective evidence my client did no such thing we do not debate that she has had it we do believe that the record does not necessarily support that it's a migraine disorders she seems to think but leaving the a challenging question aside we take her word for it that she has had the question is not whether she does does not the question is whether those have risen to a level that would actually impair her ject of late demonstrat from performing the duties that she performed as a health care attorney prior to leaving her we believe that the record contains substantial evidence that questions that and that supports my client's determination that she could do it and that of course also brings up to full question as to whether her headaches are of a functional nature or whether they're actually of a physical age and to the extent that mr telethon or suggests that my client pulled it out  is that these headache syndromes are of a psychological or mental nature much rather than a physical disorder the record itself force that conclusion which occur in very inopportune moments but her headaches actually can be different they can wait until an event happened and when they come back she is able to put them in a room and throw away the key those are her words she developed her headache when her mom stopped as a caretaker for her children she was shamed by her mother by her own admission to not stay at home and while the appellate brief contains reference to her dream job i would say the record makes it very clear that being an attorney was not urgent but that she much rather wanted to do something else and that it was her day job and that she was actually shamed by her mother for not staying at home that her mother stopped being a caretaker that that the record also demonstrates that she has a longstanding history of other emotional problems connected to a number of different situations in her life and that as a result of that her headaches  to clarify classified as brakes that are headaches allow her to put on the brakes whenever she's overwhelmed that her headaches are allowed her to stop doing something that she doesn't really want to do and i think this case is very much the another component of those heads yes so it is it is not a clear cut picture and migraine headaches is one of the diagnosis of course i'm sure you recognize as judges we don't have the expertise to resolve a disagreement about etiology or whatever i've heard of we we don't we don't do that all out and i have i'm not expecting you to write all i'm saying is there substantial evidence here which suggests all kinds of different possibilities  functional overlay leads to such a finding that with proper treatment they might go away but that in any event she is not impaired to such degree that she cannot do what she did before and facts opinion exactly did that of the chef its did not evaluate her from a sedentary perspective he did not see whether she was able to nine and a half hours in his office which she was but what he actually did was  he had a battery of tests that he asked her to perform and my understanding is it's quite a grueling process and the answers get evaluated they get scored it's quite a science behind it and at the end of the day they g evaluated with regard to several different aspects like i said before intelligence just being one of them but the ability to function with the condition that the individual is under is  exactly what an i and a does and that is what i understand in the disability context to be the foremost evidence of any type of cognitive and concentration issues and it is or is it or is it your argument excuse me th with the understanding that she was a lawyer and a health care lawyer he had a specific description of the job duties and he provided answers to the question as to whether she was able to engage in legal reason i believe i talked about the objectiveness again it's not about the headache disorders it is about the functioning and the lek of functioning that needs to be objectively demonstrated the irony in our opinion objective lay demonstrates exactly the opposite that my client while it certainly has a structural conflict of interest did anything that would show that the decision was tainted as a result of that i believe the fact that the claim was initially approved i'm giving this foster the benefit of the while they continue to evaluate the question that it included a myriad of different physicians trying to understand what miss foster situation was and he said body farm neurologists to psych and at the end of it went beyond the mandates of what the department of labor regulations require by conducting an i and a which is not something my client had to do but to chose to do because it really wanted to give miss foster the benefit of the doubt and by providing her an additional level of appeal which is also something that my client didn't have to do most insurance companies provide one mandatory appeal as required on of the parliament of labor regulations principal provided to allowing her to present additional evidence which would fully and fairly consider as a result of that the disagreement by miss foster enough itself does not show that there is a conflict of interest here which tainted my client's decision conflict of interest descriptions are there wasn't there clearly before you get to the conflict of interest let me ask the flipside of the question i ask you're a permanent where should principal look to obtain the definition of  occupation in other words principal job duties if assuming that they have the letter from mr stoli or the employer and they of course speak to her and interview her maybe a probably more than once and she met with these health care professionals where else should principal look to discern the principal job responsibilities they can do a number of things one is to get the information from the state the claimant and others to get it from the employer another is to look at the d and i'm looking at dr chefs is reporting it's it's i mean it's very clearly done with you believe knowledge that she has i'm reading from it she is a thirty eight year old lawyer with a long history of headaches and possible seizures so i mean that report at least is being done from the perspective that she is an attorney with some knowledge of her job duties so i mean it it's not i don't i don't think it's accurate to say that that report is done purely from the perspective of a sudden terry work or dear lord or do you disagree well again i think we probably all agree with that there's a structural comfort to the introspective would you also agree it's cool it's one factor in the analysis right so why should it why should have moved the needle in this