or even mention most of its chemical evidence supporting disability in the denial letter including an extensive objective functional capacity evaluation report and nurse psychological testing indicates that the plan did not choose to credit gainful employment but no your honor they were never asked whether he would be able to maintain gainful employment for longer than not be disabled for longer than twelve months however last for twelve months she did explain that severity of those conditions and that it wasn't going away anytime soon also dr todd explained that it would be difficult for mr nichols to maintain gainful employment that it would be at this time he just specifically indicated that mr nicol would with an able to engage in any occupation now peggy for mind indicated that his current condition would only have minimal impact and that's because there is this concern about brain damage due to the impacts that he's had over the years now the generational issue no know your honor they indicated that he was not disabled from the single impairment that they were assigned to a task but several of the plans own evaluator indicated that he  hired by the plane to evaluate mr nichols psychological condition and concluded that he had psychological difficulties which impacted functioning but believed that he was capable of that we some kind of employment and when asked what type of employment squatting and climbing yet to alternate sitting and standing could only walk short distances and according to do was limited to a nd sedentary activity a truly full and fair review required the plan to go back and finish it to consider whether the misapplying the plan's total in permanent disability pension and that relates to thirty thousand dollars income provision the starting in that order the board is accused here of ignoring all the evidence and i would submit that's not a fair characterization of the record in the case at the risk of stating the obvious for the court the board is not a panel of experts medical physicians it's a tough partly board composed of three individuals appointed by the n f l management council and three former players like max mr mickelson self who are appointed by the players association the size of the board rely on neutral physicians to review records evaluate players and answer the dispositive question whether the player is capable of any employment whether he's totally and permanently disabled the board's approach here i think is hardly unusual or unreasonable fiduciary is of course expected to rely on experts across many areas from investment advisors to tax advisors to medical experts as in this case the neutral physicians here are undisputably instructed to and trusted by the board to conduct full and unbiased trust placed in them as a dental five but the fact of the plan documents as neutral reports are to be substantial factors in the board's decision so in all fairness i think that's what happened here the board reasonably consulted and relied on the finding who personally evaluated mr michael that's true for every one of them all reviewed what records were made available to them at the time and they reported that he was capable of employment and that he was not totally disabled mr michael's argument on this point seems to turn on the perceived shortcomings in the board's final decision letter the decision letter is meant to convey the decision the basis for it and cite the plan provisions on which the decision is based the decision letter accomplishes that it explains in straightforward terms to be understood by any purchase been that the board found mr mickel was not totally disabled or permanently disabled based on the conclusions as i said of seven plan evaluated him reviewed the records and gave the reports according to the late justice ginsburg and this is from the nord black and decker decision the board does not have a discreet burden of explanation meaning it doesn't have to detail every if that's the date i don't have those minutes in front of me your honor so the reason i'm asking is because for that i couldn't find where the board only to active players didn't i didn't say the record is devoid of evidence to be totally honest i didn't see that not what i'm asking is there anywhere in the record that you can show me where they the opinion of an orthopedist for example and then consider get together where people that were examining the psychological problems for example i can point totally disabled and that was my reference for honor to sort of devoid of evidence or critical of the plan neutrals or the board for not evaluating the cumulative effect but there is no players different than retired players it seems like to me that the plan allow for the social security determination of  disability can play a larger role and evaluating disability claims of an active player than of a retired player is that and i write about that you know your honor and let me if a player is actively playing football he wouldn't be entitled to he would be applying and he would be entitled to disability benefits well i mean i'm ok thanks for your help i mean i  michael's case the level that they receive depends on the amount of time they've been out of the league is actually just to boil it down so that will affect the monetary value perhaps of the benefit a player might be entitled to receive but if i'm thirty thousand dollars a minor standing is the way it's been interpreted this allows players with some income signing autographs making slippery appearances that happens with th mickel wasn't deemed to be employable merely a yearly because he had some income he was found to be employable and therefore not entitled to benefits based on the opinions of seven own evaluators opinion that he was limited to short distances walking he had to alternate sitting and standing could only walk short distances and dr didn't indicate it was limited to se mr junks representation that the individual physicians are going to be limited to their ease of expertise and very reluctant to provide opinions outside of those areas discretionary authority and it was the plan that failed to complete its review the plan has the obligation to consult with appropriate professionals and if the plan desires to do so we can even ask those professionals to provide siloed evaluation however it is then the plan's responsibility to go back to put all that opinions and evidence together and assess whether mr nickel could actually work under the definition with all of these various impairments nothing in the but the board here could have hired a vocational asper if they did if the board did not feel comfortable making this decision the cumulative effect analysis that it should have hired a vocational expert to do so why their mission they call had the physical ability to do the single job listed by dr faber that he can to assist in a sports program for the youth and ask whether he actually could do that job with all of their impairments the board could have  in a position to make a decision whether he actually had the physical ability to do that considering the cumulative impact of all of his impairment that was barely more than there would have been a lot of ways for the  mr mickel actually had the physical ability to handle the one job that their only doctor indicated that he couldn't do it all right i understand your argument thank you very much and that  our argument for the week i will talk to my colleagues and conference as soon as we can get there and we appreciate the the arguments this morning court is in re