record appropriately cited or would have appropriately cited had there been a conflict or conflict would be a factor and the degree to which that factor would be relevant would depend upon the significance of the conflict that is whether or not seeing that was actually influenced stacked up sort of to ascertain whether or not the underlying claim determination was without reason because the factors might be so heavily weighted however the factors including also go to determine the significance of the conflict and i think evaluated and whether or not claim determination was actually reasonable in the case of a claim administrator operating with a conflict the failure to express lee state that by itself means the case has to go back and if that's not what you're saying i have another question for you your honor that's that's not what we're saying man clarified what we're what we're correct even if it's wrong of course of this record said you didn't follow your own plan and that was highly problematic with your response to the district court's assertion that you were obligated by the terms of the plan is to make some kind of a  assessment to figure out whether he could earn sixty percent of a given earning before it's a vocational analysis right you are obligated you something and you did nothing you're honor there again we respectfully disagree with the district court below and here's why this plane the definition of disability has two parts within the first year the participant is only disabled if they are found to be disabled from the well that they're disabled if they're found to be disabled from their own occupation even if you know the participant into another  don't think anybody argues that there was a problem with phase one for all about phase two right here right right so base to the question is whether or not they can perform any occupation for any employer and if they can they're not disabled provided that that occupations are found to be able to perform would provide at least sixty percent of every disability pay right eligible pay in this case cigna found during the second phase that hey you know mr fund's limitations now i've seen about the diagnosis but the limitations imposed as a result of the condition are no longer severe enough to preclude him from doing his occupation with losing any occupation for any lawyer including his occupation for loose so he could perform his occupation lose the previous ability and by definition logically he must be able to earn at least sixty percent in fact one hundred percent of his principal income so we found that that he was not totally disabled under even the more restrictive standard during the that mr funk couldn't even mop floors he said that he could probably perform you know low stress low cognitive the man in other words he give up floors but that's irrelevant and then a doctor can shop suggested and this is where there's evidence any physician bias as an advocate he said oh yeah but that doesn't meet the sixty percent salary requirement in the plan that's where dr pincheck said well i'll leave that to the experts but ultimately that was just an interim conference between the two doctors that was not the basis of the decision ultimately doctor came and more importantly cigna the claim administrator determined that mr funk could perform his occupation and therefore no vocational analysis was required we weren't it wasn't r merely a narrative in a peer to peer review notes his ultimate determination was that or that his his you know as determination after the surely finding limitations was that his condition or the limitations related to this condition had changed that they were no longer severe enough to limit his his limit in from performing the requirements of his job but my question was this there must have been something that the doctor saw to come to the co function properly in i understand your question your honor it's essentially what changed his condition yes but but but the question i perceive i think correctly is is is based upon a misunderstanding as mitchell opinion of dr haneef say that he severe is from a severe psychotic episode he can't work so then saying he can work but your question is part of your question you come you say that and i don't think i think it's  incorrect dr james never concluded that mr funk could only work in a low stress supportive environment that was just a note of passing notes in a conversation the ultimate determination the initial determination of benefits and found that he no longer suffered from severe symptoms it was the severe symptoms which which led to the impairment from performing his occupation for example the records demonstrate and doctor came notes that records show funk is not secured from not suffering from severe symptoms for example he no longer is drinking alcohol that resolves he no longer to monitor psychotic dr he was not diagnosed with bipolar disorder however there was no information no no no it's to support the diagnosis during the relevant time period there was no information regarding the extent of the symptoms provided by dr penshoppe but what we didn't know reviewed some records make some comments that was the limit of the investigation and based on that said well we we think you can still do your job that's if i got the record should go do a detailed analysis and if if you're on a security field analysis what you mean when i said he he reviewed the records that wasn't an insult i'm just saying that's what he did he never examined mr  the district court appeared to take the view that this was a this was a decision that was made in the face of the so security administration's decision in the face of his treating physician in the court has already done a review of dr ship goes report shows that he specifically addresses various points raised by dr pinch up in dr livio and him and it is point by point it's not just the willy nilly acceptance of the ship and also the it was simply a passing reference and some fear fear hearing or if that's not the case here cigna ducted his decision his opinion in their in their first denial of august twenty second two thousand to support that you would be unable to work in a supportive loesch resolute cardinal demand environment that was the basis of their decision is that it is that the decision that we're reviewing you just said that's the decision we're given but are we reviewing the last final decision there was another appeal after that right that's correct and every appeal within that administration says that is the noble right yes but i think this points to the procedural irregularity here of how the if they had come to a decision on in entirely new evidence that was clearly sufficient in your last step you would say it's still reversible if they need a mistake in an earlier step if there was some entirely new evidence that came up but what happened here i'd like to put it into context about the process because these are risks review cases when you're looking at the  itrary capricious standard is about the process and how they arrive at the point of decision i agree the final decisions which reveal that we need to put it into context cigna first terminated mr fox benefits on the basis of their determination which is clearly stated in their denial that he could work in a highly supportive well card who command low stress environment they didn't address their definition of disability mr fucking ages counsel and engages in an appeal and on his appeal he argues to signal hey you didn't follow your definition of disability your definition of disability requires that iron forty seven thousand dollars a year in an occupation there's no analysis of whether you could do the regular occupation any occupation or earn forty seven thousand dollars so he points this out the signal signal instead of addressing the vocational issues instead of addressing social security find it instead of addressing your original papers he was fine address mr function he'll what they did was simply get another medical reviewer and i'm examining expert to say something totally different he has no research therefore he can do anything and and if under our standard of review if they have a medical expert who says he can do he can work without prescription and therefore they say well you can go back to your old job is there a logical flaw in their assertion that that doesn't meet the sixty percent requirement yes there is definitely a floor because they feel to reconcile two of their own consultants opinions i mean what you have is the treating doctor saying one thing i think even if we not that they have substantial evidence to support their position that's correct but the decision has already resigned if they've got somebody bids that says what they say the person says are they  something that are looked into the recent l t d that is if you determination but it's not just simply substantial evidence is also whether they reasonably proceed here and there's numerous evidence there's numerous instances in this record under clan other than the financial factor we did not release the financial copy it was thrown into the opinion it was a one sentence a decision but we think this court can exercise going to remove you and look at your a weighing process going on here post gland and one of the factors and clear in hand work it's whether you've got a contractor and she says there is everybody in the case agrees there's not is that in and of itself enough to say well we don't know how you would weigh this if you didn't have a false factor in the mix you've got to look at this again well the court has plenary view of this case and i think it serves no useful purpose and i think  can also look at judge hodge first decision and see that she is very well thought out on all of the other factors are there where these financial conflicts was just thrown in the face it with a one sentence a footnote however there are appears to me that the court was actually the supreme court is actually english in the newson case and if in effect saying in that case they just didn't they didn't read it right in this case it doesn't matter now i'm paraphrasing what i understand the holding of the in asking you to respond it doesn't matter that the monies are in the hands of the of the plaintiff at the time the insurance company says i want to get reimbursed and it doesn't matter whether the monies leave the insureds hands it's a nuff but there's an identified sum of money that's agreed upon on out and i'm asking you to tell me whether you agree or disagree and if you disagree why we disagree serve or still require that there be a form and in fact conservative it was a medical it was reimbursement claim for medical benefits that was a basis on which they distinguish knutson and said that's what's different here we're not talking about equitable restitution no he was talking about equitable restitution he says here we're talking we're arguing that there was a lack of substantial of the support of the speaker's decision and but the courts have held that you just don't look at the end result if you look at the procedure implemented i just like the was only one of nine symptoms to be considered when when we're analyzing whether a person has objective evidence of depression you look at hopelessness hopelessness suicidal thoughts but it doesn't stand for the proposition that is not the sable i think they were taking it for the proposition that he was not cognitively disabled and then relying on doctor should go to say he wasn't sufficiently ratz that not how they were dealing with it that's correct but we would submit the doctor should those opinion doesn't bother to reconcile the previous previous consult a sickness previous consultant and that's that's wh would they still be required to make the vocational determination well then change their mind based on the pick and choose between two of their soldiers one consultant says he has with in the here to here conversation call here that's correct he did it was expressed as his he indicated that i was having a telephone conference dr pincher said i don't think you can work and i said the doctor pincher i'm paraphrasing here that i don't think i think he could work it out in a supportive low stress environment and that's and that was put into sickness thank you thank you environment first of all i think the court understands that is not the relevant inquiry that's not the real point in time for this court to consider the relevant inquiry is whether or not cygnus final claim the termination the process is not irrelevant the process may be relevant it's most relevant in circumstances where there would be a conflict of interest to ascertain and instruct the court as to the level of the conflict or the love itself even influence with the disability claim manager indicates that the information referred to dr and his report was reviewed is one of our nurses case managers on staff she is measured doctor came a clearly he looked at it too and she says it does not couldn't function because he was severely depressed and and dr hans this report doesn't speak to that at all it just addresses something that nobody was ever disputed first your honor cognition was asylum grant was no real prejudice just letting the process i mean i know it's one of the arguments you're co counsel may deserve a real approach just to just letting it run its course so you get a chance to litigate and you can always appeals court at the very end whether or not mr to has a subject to restraints on his liberty not suffered by the public generally and the fast and circumstances of this case show that he is well wouldn't the limit of your argument be one make sure i understand tory relief position you can take perhaps you could say under the administrative procedures act you've got it all by itself right there you've got a federal question jurisdiction argument that you could be making i'm not i'm wondering why you're leaning so hard on in custody when the ramifications of what you're asking for goes substantially beyond district a hospice case and would if we were to say the things you would like us to say would in all likelihood be cited back to us by criminal saying miscarriages of justice to prevent those miscarriages of justice it would not be asking this court to extend custody to everyone if we were simply to look at the facts of not impartial would that not be and it's an exceptional circumstance to have a decision maker who was apparently not impartial making a decision a had a basis for saying that would that not fit the b a s own standard of exceptional circumstances respectfully your honor there is no way in this case looking at the circumstances of this case that the my question to you is not whether they're right that she was party but whether as a legal matter it would constitute an exceptional circumstance if there were he by his decision maker some other jurisdictional basis either they had a clear tory johnson act so we're not talking about he is really for tying the general jurisdictional issues here what is it about the two thousand and five amendments that order of removal what's different one is that in two thousand two thousand and one seven since it was making that statement yeah individuals could still go to the district court challenging removal proceedings during those who oversee things or prior or even at the end of the  really reflecting what the supreme court says well fifty two benign means when it says you have to interpret it in light of well fifty three b if you've got to interpret it in life well fifty  hate i had a removal proceeding and they are there's no reason i have a final word and there and it's a final order in my favor and therefore to put me back in the cycle for no reason except they can use to effectively say they can keep doing this to me forever until they find an i j they like and that that can't possibly be what the congress had in mind use you say and i think there's more  no end to that no matter how good faith or acting and if they want to keep doing it they can keep doing it right it can never be finale this is a theoretical more than practical in the sense that what w but if there was nothing new that that may be a concern there isn't fact new material here which although it may not seal or something it's what was in the affidavit that was submitted in two thousand and seven by an f b i agent in which they wasn't said before is there something new in his affidavit that wasn't said before or is it just a different conclusion i believe to be what they we they considered new is this conclusion that they at this time cannot determine this individual is not a national security concern how how can one ever disprove a negative mean if if the f b i comes back and says the information is the same but we can't say there's not a security threat is there any response t should address that when they say you have no case on one because they're all on the negative side none of them in a circumstance where the v a act what's your argument i will respond to it first in subsequent twenty eight j briefing case there discussed the general proposition that reopening whether it's granted or the night is not subject to review what occurred in the bush case they the court addressed a limited exception was their legal  when you say there's no jurisdiction to you and denial that's always in the context of has been said in concert so we don't have any standard measure that against here there is a standard  only one situation in which exceptional circumstances have been articulated in a consistent case by case matter in which the court could reason we find that the e p a had cabinet its discretion under that statute provided a meaningful standard for the courts to apply is there is what is the what's the backstop is there any backstop at all mr veni to the infinite loop is there a zero due process argument that can be made and if so where every point from now on it must be raised with i don't believe it appears here in this case the b s a to figure that out though right i mean you seem to be making the argument that yeah there's no end in sight but don't worry about and i guess i'm trying to figure out if i'm understanding that argument if that really is your pitch your organ is it's true this could go on forever but don't worry we let that happen especially that's your paraphrasing of argument i would say what is the end point  i've heard you say we have to presume they'll act in good faith but that's the only thing i've heard you say in this regard and that sounds to me like trust us and that's what i'm trying and it's you know the belly up who's if it's true that your position is yes as a logical matter this could go on forever and tell the b i a gets it to nigeria who rule against them as a logical matter that's true but don't worry about it then that's all i want to hear you say that's your position that's your position but if you've got a reasoned argument for why that isn't a risk i really want to hear it generally when an agitation is made if they're acting in bad faith that they're doing something for altera purposes that they're not doing what they're supposed to be doing  presented our case we have the evidence here this is an incorrect legal premise then that's your backstop but we haven't reached that point yet that's our backs up how they raised i guess that's what we're going back over night i don't need to down the road what would prevent your colleague from main justice coming up here three years from now four or five the ration is on the road and saying well you still don't have jurisdiction to look at for the same reason we told you back in two thousand and eleven that ma no more questions honor the reason that we're here is because the future hasa has already been through the process that the government speaks of the government would now circumstances of this case and what happens as the court is right we turn them out there can never be an end to removal proceedings in the event that someone wins and prevails at him you bet that to the extent that there is a motion to reopen that is brought by the government that the government is not held to the same standards as an alien would be held to if they've brought  a motion before the court for reopening that is what this case is about mr karzai has been for removal proceedings he was granted asylum in two thousand and two the government appeal the government now says is a reason that they can't rule out mr shah's as national security rests this richard haass of voluntarily came forward to offer information about the nine eleven hijackers and then he came right and he was detained as a material witness and then released and in the ninety's decision the immigration judge said the f b i has found that you are not a danger you are not a national security risk and we thank you for coming forward so that was fully litigated those facts were known and as the court rightly points out there is nothing in the ija now say as an affidavit that shows that these facts were not known and could not have been  previously there is nothing new material here either with respect to alleged national security threats posed by mr charles up or in terms of misrepresentation which is the other which was the other basis of the government raise motion to reopen the bottom line here is that all of this was laid bare not only before the immigration judge but by the board of immigration appeals the board of immigration appeals had to no