first the first point being the standard of review second point being that concept of objective evidence and the third point time permitting being dr alongst july twenty third gene report the standard of review turns on whether or not the court authorizes or recognizes the plan administrator for right to pull in the summary plan description by incorporation the courts that have wrestled with the recent cases over the past fifteen or twenty years up until the america decision have had to deal with claims about whether the summary plan description gives a private right of action if it what if it's contrary to the play and what if it it's the plan is silent on an issue and we've we've got this whole series of litigation that i think the supreme court pretty much cleared up in the american supreme court says very clearly that there's a plan document in the summary plan description and i quote the americas on page eight of my brief where the supreme court says we've got no reason to believe that congress ever intended to mix the two but the plan document can choose to can incorporate other documents all nothing but i would i wouldn't categorically categorically rule that out but i think there's a fundamental problem in the case of incorporating a summary plan description and i would i would draw that distinction because a plan documents a similar function no fiduciary responsibility attaches to whatever you put in the plan benefits stated sixty five in the summary plan description or perhaps because this incorporates into a woman is perhaps a letter from the department of human resources that says you could benefit stage sixty seven well this is a summary plan description amend the plan no conflict between the documents it can it can be incorporated i would i would i would go with caution on them i wouldn't i'm not here arguing for a blanket rule i can imagine a plan that's so simple the what's the point of having a plan and a summary plan the scripture i'd also add if you look at the four hundred pages of plan documents we got here this isn't it the fact that the supreme court told us twice the first time in the kurdish right case and what the court was worried about in kurdish right was who has the authority to amend the planes so if you've got a plan administrative that issues a summary plan description that's not quite in accord with what the plan says has that has the plan been them and that was the kind of the issue in in the kurdish reich case i started up my world drafting plans and i remember we it's a problem when you say that the summary plan description can supersede the plan because you're supposed to put it in plain simple language to proceed implies a conflict corporation oh i gree with that i bring with that but what happens what happens if you corporate it a document where there's a conflict yeah i mean that i can put it you plus i still say you can incorporate a whole lot of other documents but if you're going to incorporate summary plan descriptions or fiduciary communications like in a moment materials that's a big can of worms in more we said you could do that i mean we said when a plan document express proposition right i mean isn't that i didn't i didn't read more quite that closely my understanding of what moore held was there was a trust agreement and then there was this other document that was labeled the summary plan description but there was no other document in existence everybody agreed that the s p d more or less laid out what the terms of the plan were i think you could have reached the same conclusion and i still want to make one of the distinguishing point i think you could have gotten there by saying even though this is labeled summary plan description the label doesn't matter it's really the plan i think that is is one distinction i think secondly you can you can say because i believe the firestone case way back  in the in eighty's i think it was originally if i remember right an unwritten plan so i think you could say the summary plan description represents the evidence of what the plan is but my point is i mean moore does not have an a corporation d but the more opinion says if you do then the corporation is effective that seems to be a straight well what they say i'm not going to disagree with you about what it says but i multiemployer plant where you've got trustees and trustees in a mostly employer play and they the exercise settle or functions and the exercise fiduciary functions so you've got a really different creature there anyway why does that matter for purposes of whether you can incorporate that speed while i think i think it's a reason i think it's a distinction in the case th i think it's a distinction the helps understand why there were only the two documents and once again i'll just i don't think more binds this court i understand but i mean you know i mean here we do have sort of the t's crossed in the sense of the plan itself expressly references this i mean i understand why this is important to you you know i mean it's the standard of review alternately that's at issue here and that's pretty important  yes although although mine i say that the i don't think our case rises or falls on the standard review because i think there was abuse of discretion here and i'm perfectly happy to go that way as as an as an a risk of practitioner i'm really i think the the court should hold the incorporation of summary plan descriptions in roman materials is improper and should not make it recognize why does everything have i mean it's because of the different sort of capacities in which one writes these different direct correct because one is a fiduciary document and i think the supreme court spoken very clearly on that point which case in particular i think the i think the kurdish right case in from the ninety's and then the americas in the in the in the more recent past i mean the crucial rate case went up on an issue about whether or not the language in the summary plan scripture was in forcible in the decision was remitted for a determination of whether the people that this not really a question is this some pretty to consider when you're talking is it seems like she has a couple of or treaters who just refused to recognize any limitations on her ability to work and so it would be helpful if you kind of address that as part of whatever you choose your i would be happy to start with that and also to that can you fall in whether she was exclusively seeking total disability or whether partial disability was something that she was seeking because the rejects both claim for partial and total disability but i didn't see where she ever requested that you know she was this is a total disability explicitly she's claiming to be totally disabled but but her medical condition and i think it matters here the chief handled the appeal herself i would hate to see a decision that basically says every person who handles their own appeal is a fool the argument could be made but i mean had she been represented things the evidence would have come in differently which you're running out of time i know i'm just i'm anxious to hear kind of from the top your explanation of why the medical records here just  exciting that the decision was based the denial was based on a lack of objective evidence it was not based upon nobody's taken wrong the two written decisions where there is no objective evidence my response to that is there's objective evidence all over the place number evidence all over the place dr kelly the doctor that saw her last said clearly and unequivocally she can't work she can't work because the pain is incapacitating no doctor ever doubted the pain so dr except for dr long ever said no restrictions well now there was the other tree or there were two triggers that said that there might have been one back in two thousand and twelve but but the plan and i mean he talked a lot about the old doctor's hi somebody else the claim was approved with or without you know you can't make it you can't start a new argument here you can't say dr heil really said that she wasn't disabled because that wasn't the reason the reason the reason was no objective evidence and in my our position is we got objective evidence all over the place and i want to thank you ok your honour's jack folks on behalf of the procter and gamble health and disability plan let me first address the issue that mr merry raised as to  the incorporation of the plan documents of s p d and other documents this is a situation where first of all with respect to curtis right which i want to talk a little bit about curtis wright appears for the first time in the reply brief of the appellant it's not in the principle brief of the opponent it's never raised in the district court our position is that the district court quite appropriately addressed every question that was raised in the district court the incorporation by reference argument is with respect to curtis wright completely inappropriate in the reply brief it's waived i submitted a supplemental order that the curtis right aspect differ from the other aspects that were courteous right your honor actually is supposed to be addressing the question of whether or not there is the authority of an individual from a when one wears two hats settler function the fact that you send that s p d on to a communication goes to a participant or a beneficiary that is a fiduciary function there is nothing that actually addressed a different argument which is can you incorporate and ask p d the argument as to capacity was never presented before and could it's right actually is a critical document i procedure or elsewhere it is bound to that level well we didn't have the opportunity to tell the court about the plan documents section fourteen point one a which is the amendment privilege and that says quote the company shall have the right to a man and modify suspender terminate each plan to any extent and in any manner that it may deem advisable at any time or times but said page i d two forty why is that relevant it says that any part of the company can in any way it wants and the plan document it doesn't do a restrictive approach that mr marriott is asking you to do we didn't have the opportunity to raise all of the cases that we might as to incorporation but we did cite the more case  quotes from the first circuits try to allow case fred allows the use of very straightforwardly it's my firm that wrote the plan document in the s p d f that are incorporated there in it's for the company up in columbus that is a situation where the plan document like this one says we are incorporating as p d s now in point of fact could you include plan applications on all these other things you can include anything you darn well want to does this plan document do that the answer is no it actually has a schedule that lists each of the documents that are  incorporated and what the first circuit said was sick not doesn't have any restriction on that because cigna involved a case in the one up in the second circuit where a district court found that there had been a violation of fiduciary duty straight out misrepresentation as to what certain pension benefits would be when they want from a traditional plan pension plan to what's called a cash balance plan where you start with a law and you get dollars out of it the district court crafted a summary judgment motion based on newsletters and an ass p d and said the in justice briar's opinion to say was that means that we look at what eighty three kenya record a three to see if there can be a reformation of the contract based on the misrepresentations and then the court said well we can do him in reformation and then once the plan is reformed you can enforce the plan document as reformed under a one b there is no suggestion here that we can't refer the reformation there isn't an a three claim this is a simple claim for benefits let me say a couple of other things curtis wright references plan documents doesn't say you can't incorporate where does it say that it's five fourteen us seventy three eight that page eighty three it says i written plan is required in order that every employee may on examining the plan documents play determine exactly what his rights and obligations are under the plan courts we didn't cite the first circuit obviously  did we say more controls the seven circuit in six eighty nine f third seven twenty six asherman versus that no life unless there's going to be an exam on this stuff later  can we talk a little bit about the merits yeah sure this is really one of the few cases that i've ever seen where we don't have a social security disability determination that conflict which mother mary cites to you make a big deal about that you say where there's a security disability determination that's one of the factors to look at whether you should have an app c e o some kind of independent exam well this is one of the really crazy cases where you have an entity the read group that says hey we're going to recommend disability even though i'm no doctor says that and i say that no doctor says that prior to dr kelly on appeal we're really looking at a situation where the person who actually treats performs the surgery on the topic pregnancy releases are to return to work at the end of april of two thousand and twelve yes which doctor was that again all right that's our i apologize your honor that is not one of the ones that i had down if i had we relied no objective evidence i assume you're not saying there's no objective evidence that miss saunders is actually in some serious pain right it's no objective evidence of occupational limitations that is correct your honor there is no objective evidence of any restriction or limitation that precludes her from performing her sedentary position as a public relations manager at procter and gamble so the implication would be notwithstanding the seriousness of the pain she could bear or be medicated or something while she's working yeah and this actually although neither side really spent a great deal of time arguing the point the definition of total disability the judge l to the immediate confines of the of the home there's no suggestion of anything nearly as restrictive as that there is no question of all the mission for the part of the discussion that we as page twenty nine of appellants brief makes very clear you actually apply the same standard of review on appeal as the district court does down below and so therefore you can actually make your own decision procter and gamble disability case where there was alleged to have been saw miss conduct in the administration of the appeals process i don't know what it was and i wasn't counsel but from  webber's decision for the plan you actually affirmed on a to nova standard in favor of p and g back in two thousand and nine it doesn't have anything that's particularly informative  for this case and so i don't think i cited it is a situation where you could actually make that determination this is a case where we really believe that it's clear that you can incorporate by reference i was going to mention this if you were to hold as mr mary actually proposes you would undo what most benefit plans do which is use a general document that incorporates at least in welfare plans i won't say that that's true in pension plans but in welfare plans you bring in a lot of different benefits health benefits which is here long term disability benefits which is here opp short term disability benefits that are here we didn't make this point but there is in fact in the form fifty five hundred which the department of labor issues and which all pension and welfare plans have to file if they're old enough size there's a requirement that those plans can on page of situation i said it was page seven i'm a policy on the web page it's page seventeen it gives instructions for lines five and six of the form fifty five hundred this is a significant  issue with respect to how we go about doing business and to do otherwise actually the seven circuits decision that i cited as part of my were attempted lengthy recitation of all the case law that goes our way and i don't i'm unaware of any case that goes against us on the incorporation of a plan document where there is an express in is no conflict because the plan document incorporates the s p d and here there isn't a conflict i want to address the suggestion that in the base document when you look at paragraph eight fourteen it talks about a plan administrator it's not a singular it really isn't a singular and what you actually need to do is to take a look at what plan administrator means a plan administrator does  have to get documents you have a right as a planned participant or beneficiary to ask in writing that and plan document and s p d a form fifty five hundred the most recent if it's a pension plan annual statement if there is a trust a trust agreement if there's a collectively bargained benefit and then that's what that says it doesn't say that you can't have claims administrators and plan administrator and when you go to the s p d it identifies that the plan administrator is one entity and it says for appearance and we cite this in our brief in opposition and it doesn't appear in either the brief on appeal or the r brief that oh gosh we're golly it's the board of trustees who have the discretion to decide appeals on benefits claims of long term disability claims that is the claim  issue here there isn't a conflict it would actually be the narrow controls the general even if you were to think otherwise i my time is up i appreciate the court's attention thank  h respect to the objective evidence question the judge you cast the issue is no objective evidence of occupational limitations that certainly would have been a permissible interpretation of the plan language but the were interpreted that they never explained what they meant all the said was objective evidence in the discussion of objective evidence it was lab tests medical tests clinical note that sort of thing so i grant you there are cases and there are plan documents that say objective evidence of occupational limitation i gotcha with it but that's not this case that's not this plan and nobody told christine saunders that's what she needed to have all they said was no objective evidence she's a young woman dealing with pain at home she writes or only appeal she says i don't understand why everything that i sent before doesn't work now the other thing missing from their argument this morning and from many of their briefs is what what evidence medical records clinical notes testing results but this is important to indicate he was disabled as defined by the law so i think it is more it sounds more like judge half which is question because those records were just supposed to be a quantitative record of how much or or how much nerve impulse it was actually supposed to indicate he was disabled under this definition requiring care and a house restriction to the media think telling them tell them objective evidence is good enough if they wanted her to see a evidence period it said objective evidence and then gave a bunch of insurance of what that would be a sure on medical reports she submitted lab reports she submitted she had the statement from dr kelly that says she is too much pain to concentrate now the plan didn't have to take that r pt doesn't say you got to take the treating physician but a receipt does say you gotta treat the evidence with respect and bice ship in the file off to a paid reviewer and coming back with a there's no objective evidence doesn't get there with respect to the remedy regardless of what he might have been getting i mean i i have a lot of sympathy for klein but i think what the reviewer might have been getting at is it's kind of conclude from dr kelly and the antecedent observations don't really support it in terms of her ability i think use the word meditate or something like that well i'm out of time your honor but mentation means she can answer questions ok fine he accepted that she could meant aid but he didn't except the other