my name is tony mary with me at counsel table is my newly admitted associate benjamin mary and we requested three minutes for a robot that you may proceed thank you when the claims administrator in this case the r m s denied jesse bruton's final appeal it cited just one reason for its decision that in his opinion bruton was not disabled from performing the functions of a sedentary job in the district court a you will  to nd argument that britain had not been compliant with the plans regular attendance requirement a claim d r m s raised in its initial review of britain's claim but one that it subsequently a bandit records clear that britain was under the a variety of physicians and was therefore in compliance with the regular attendance record but the threshold question is whether a ul is permitted to raise the argument in this case we're here on differential review the answer that question would be no has long held that post argument post hoc arguments are impermissible on differential review the whether post hoc arguments are permitted when the court's review is to know however appears to be unsettled as administrative rights regulations require base a stage process at the initial level the individual makes an application an insurer can deny the application whatever basis it finds appropriate the regulations however require that the insurer set forth in a manner calculated to be understand by the claimant the reason for the denial in the specific the specific reason for the denial number one the specific plan provision upon which the denials based number two in them are three in explanation about what the individual can do to cure the deficiency that that winnows the claim down because the court has held that once you move to the administrative appeals stage that the only issue is is whether the basis for the initial decision  was substantiated to the insurer typically can't bring up a new reason let's just assume that all the various reasons were sufficiently set forth for purposes of appeal today and we have before us we can focus on the issue of the regular attendance and wonder if you would like to be happy to be happy to focus on that your honor without without yielding our comply with it but has never really said why the regular attendance provision contains three parts they've never identified which part he allegedly violated the st part personally visits a physician is medically he in the year in question in in the us i think i in the in the brief in the sixteen month period and in question he saw the his primary care physician d a dozen or fifteen times he says are four times in the month of march two thousand and fifteen prior to that before he ever filed the claim he had had a number of back procedures he had seen a pain specialist dr batra in twenty four coming up to before he ever applied for disability he had been treated by specialists and then during the during the year that he had his claim in process he had seen a  to a physical medic medication and rehabilitation doctor to a pain management doctor and to a psychiatrist average out want to no i think it was more that well more than  and fifteen and during that period of time in march for example he saw a doctor real honest four times and she noticed noted particularly the progression of his illness during that stage what do you what do you make and you know i think part of that reflects the reality that we're living in these days but dr but the pain management doctor specifically said that he referred the broken back to dr briones for medication management and dr batra two thousand and fourteen specifically said that he didn't have any objections about about the pain i mean the rule why it would be concerned about is if we're going to say that the general practice physicians can't whether whether who had been recommended by dr reichman well several several thoughts and your own st of all there are plans that the condition disability benefits on compliance with physician's recommendation so i've seen plans like that this for either because you got confused or you couldn't afford it or whatever seems like a draconian response offered by an insurance company seeking to deny claims he couldn't afford to pay this other doctors at the regime well the record he was never clear why he missed the one doctor's appointment and i don't think it matters because he subsequently saw what he saw a we don't have in the record so we just have to take the reviewers word for that but it had gotten worse and dr briones wanted him to do an m r i april five months later and he just said i have to be from my pocket i don't want to do it but no that's another there's nothing like that the record that's just my guess but anyway he was under the impression he death to pay for he didn't want to pay for it didn't think it was think it was necessary and i don't how do we how that in our analysis i mean d says recommend the nd m r i for apparently some medical reason he can't afford it or chooses not to get it i guess how does that fit with the regular attendance requirement that he's receiving the most appropriate treatment and care that will maximize his medical improvement the argument i'm guessing we'll hear from here opposing counsel here that he i needed to get that m r i so well not just could evaluate i think you've got to look at it globally your honor in my responses to what would the m r i have done he went to see afterwards a spine doctor he went to see afterwards a pain medicine doctor he went afterwards to see a pm on our doctor he'd gone to physical therapy judge show or dr ro the doctor much slack i mean he's a professional in the in house guy he thinks that opioids only cause constipation he don't doesn't think they have any longer i just don't take his subjective evidence of pain or that subjective evidence of pain actually corresponds with the findings of the m r i my time on amy i think briones does based upon her on her observations but the better evidence on that is is mostly and and the pm are our guy simak because they actually you know physically examined him did all of these medical is cognitive stuff comes comes is important because of what his job was he was a computer programmer and his his statements in the statements of his doctors and everything else was didn't remember what you said but it's that part of it in the we cited a couple of a particle so about how back pain alone and i was struck by the physical therapist remark that he couldn't even sit still for an interview mental strain that's required for the job and kind of psychiatric issues correct yeah we've never claimed that he is disabled by by depression or anxiety and he's got all of that although most people that are disabled are also depressed but but no it's his it's his cognitive thinking because of the back pain and because of the medication i mean we didn't make much of dr garrisons refusal to fill out a form because we don't think he's mentally disabled we could take a nd before at least noted that he had not we how does that fit in the analysis here in terms of the regular attendance requirement well ok and once again you're out of the issue here is is he is he disabled from doing his own occupation therapy he didn't want to do it because i think he thought it would do him any good and i don't know maybe he just doesn't like the pool i don't know but but you know in the big picture of what all the other evidence is if we're going to disqualify somebody good morning your honors me please the court my name is tina bangs i'm an attorney with ogletree deacon and i'm here on behalf of american united life insurance company which is referred to as a ul in the briefing to get into some of the issues you just addressed with my opposing counsel if there are really two independent reasons for the claim determination and both are required if either one is not established and proven by the ponder in some of the evidence by mr bruton then the claim determination denying benefits was correct and the district court's decision should be appellant starting with the st one what if there's a rd factor test for regular  particular requirement it's also part of the total disability definition so even though disability is the portion of what's required regular attendance is also required in order to be eligible for benefits and as was discussed there are three component parts to the regular attendance definition as stated in the initial claim determination letter the determination was that factor number one personally visit the physician is medically required according to standard medical practice to effectively manage and treat disability and number two receiving the most appropriate treatment to maximize medical improvement there was a discussion in the initial determination letter that the failure to just obtain that recommended m r i that the primary care physician dr briana's had indicated with necessary that affects both one and two as well as the refusal to obtain the arc with therapy in addition number three that the other factor of the regular attendance receiving care by physician his specialty or clinical experience is appropriate for the disability that factor was discussed in the sense that the primary care physician was monitoring the pain management which can be appropriate as dr russell and dr both indicated however it's standard practice to require a pain contract with a patient that's on opioids expression when the opioids are being increased and there's also a standard practice of doing random drug testing to make sure there is compliance with the use of those medications those factors were set out in that initial claim to to avoid it what of that there wasn't a pain contract with the work or the effect of on receiving the most appropriate  it could it could meet that criteria the focus though from dr toki and dr russell with more on the rd component and the regular tenets receiving here by physician who specialty or clinical experience is appropriate for that  appropriate specialty it seems kind of technical that in him just because he did except for the mr or the dr webster that that component of it and see i mean it was just following what dr briana's was telling him and that's a very very good point that he was following what dr briones was telling him but he was not following everything because dr be honest was the one who told him go get another m r i so we can figure this out she obviously wasn't comfortable with plan terms that must be inforced as written then that type of treatment should have been obtained and it wasn't just not getting the m r i it was also not getting the act with their b it was also not doing what recommended if not going out to get physical therapy to do a home exercise program so between all of the treating doctors all of them had recommendations for additional medical treatment that mr bruton chose simply didn't have the money to pay for it or we're going to rely on his financial inability to reason for the denial of  it is the tough situation your honour's we have to st start with what the law requires the law requires enforcement of the plan terms and the plan terms require that he meet the definition of regular attendance which requires these types of things to the kurds because his treating providers had recommended it it also talks about in the plan that those things have to be done it has cost there are no exceptions put  in this situation we don't have that fortunately we don't have that kind of evidence in that we have two hundred dollars that he does and that is correct but we also don't have a cost factor in terms of the with therapy why he chose not to do that we do not have any cost factor prohibiting him from seeing dr whetstone when that was also recommended by the neurologist he saw as well as his own primary care physician so did a little and that is correct he did see a doctor mostly nine months after the relevant period so that is also the key that we need to look at in this particular case the relevant question is did he proved by the preponderance of the evidence that he met both requirements of regular attendance in total disability plan some employees will return to work they will continue to be covered and then they would be eligible to bring a new claim if their condition worsened we don't have those facts here because he did not return to work so under the regular attendance pran which is part of the total disability provision we have disputed facts that he was rick recommended to get an m r i did not he was recommended to do walk with their a p he did not he was recommended to wean off of the pain meds and do home exercise he did not he was recommended these different things and he cannot now establish that regular attendance requirement but in addition we also have the other factor the other requirement the total disability provision in looking at the record evidence from all of the treating physicians putting aside the reviewing physician opinions we have each of the treating doctors finding issues with treater for the mental health condition as far as the other doctors dr brianna what's interesting about her opinion and she's the only one who imposed such restrictions to prohibit him from working from any of the other doctors in february of two thousand and fifteen she actually indicated he did have sedentary capacity and he would be able to return to work estimated in may just three months later and then without any explanation without any indication in the records as to why two months later in april she all of a sudden indicated he could not function in any capacity he was homebound and he would never be able to  vature no spine tenderness tender pierced spinal muscle no tenderness the b s i joint straight leg test negative motor system normal sensory exam normal reflexes normal gait normal there were only a few instances where some of those factors were found to have become a little bit impaired little diminished but then in the next appointment that diminishment was no longer there and it was back to be briones abrupt change of opinion that he couldn't do anything in contrast with her own exam finding that boehner not just today and not just her we also have the fact that  dr brightman the neurosurgeon did not impose restrictions saying he was unable to work we also have dr simic the physical and medicine physician who did not impose restrictions on his ability to work in in actually in his exam findings he found negative muscular skeletal deficiencies spine negative for tenderness no sensory issues no motor weakness balance and gait intact and none of those doctors even found that there was cabinet of deficiencies affecting the ability to perform his job and none of those treating doctors impose restrictions based on medications so when looking at the t the district court in an illicit case the nat's the standard of review that applies at the at the court of appeals and we can see that point at the case is clear on that particular point but given the tally of the record given the express play in terms that are not ambiguous this gentleman did not meet the definition for total disability because he was not able to establish both the regular attendance requirement which it's not enough to look at the expressed terms of the plan and only if those plain terms are ambiguous and that's indicated to be if there's more than one reasonable interpretation of those play in terms with then the court look to see how it would analyze those play in terms but yes under the standard looking at these particular play in terms and comparing that with this particular record evidence to see wh determination and at the last page of your brief you suggest remain rather than just the ward and if it's out right what would what would be the point of the remaining things that were just looking at the record and making their own determination of whether we think by a preponderance of the  every man might be appropriate ok thank you at a time there's a big difference between the secondly why why she got to the fact that he couldn't even even do that is documented in the record that his his condition progressed materially  as far as is as the  regular care issue my friend reminded me that the issue is preponderance of the evidence so i think we have to look at all of the evidence if we're going to permit in the church to pick one thing that  claimant didn't do and that justifies denying the claim we lose all the time in fact in this case we know that jesse britton had an m r i in two thousand and ten it's not the record but we know he had one he had one in tw he saw him before so if you look at the preponderance of the evidence he saw all these specialists he took all this medication he did do physical therapy he had two m r i s you can always find one thing the claimant didn't do finally on the on the point you raised judge murphy about reviewing the district court's decision there are a couple six circuit cases that suggest that you review findings of fact  but if you track them back they go back to where there was actually a bench trial there's no reason in this case i think this court probably can read dr record actually better than the district court i don't know how that developed like so there's you're not allowed to present new evidence in the district court you don't really follow the federal rules of civil procedure apparently it's almost like at administrative agency proceedings but the federal administrative agency but it's not and thank you for the question i respond briefly judge cole would know part of the answer to this because he was in the majority on a case the wilkins case he wrote the majority opinion but it was a concurrence that set up this whole structure and decided we're not going to be in the rule fifty two dollars we're not going to be under rule fifty six dollars it is unique in the circuits although i wasna say every circuit has its own problems with this because for example i think the nd circuit goes under rule fifty six they construe the evidence against it in favor of the non movement you have to moving parties you construe the evidence against one in construe the evidence against the other i don't know how you sort it out so maybe an appropriate time want to have a big brief in and talk about the procedure because it's although i will say it is a benefit of it works it's efficient what i like to be able to bring in new evidence of the district court yes sometimes i sure would specially if the client comes to me after she's handled her appeal oh by yourself and there i am stuck with whatever record there is so you're bound by whatever comes up here are all absolutely absolutely and right y the case will be taken under submission and you may call the next case