good morning may please the court judge will bacharach i represent the palace in this case is the appeal from the judgment of the district court in favor mr king on arista disability case district court found that the plan abused its discretion in denying disability further disability benefits to mr king i think that contrary to the district court's decision what the court will see is that throughout the handling of this case the plan handled it the way that this court would want it to at every point in time every benefit of the doubt was given to mr kane what we see here is in one thousand nine hundred five this claims initially submitted and at the time his own doctor saying it's going to be for a limited period of time and they're not able to yet identify the cause of these subject know there were some that were off ject of but what we have here is for each of them there's never been a diagnosis of the physical condition and yet we have on the other hand a diagnosis of a mental disorder a mental disorder that explains all of those conditions and explains why over a seven year period twelve doctors  and what we have originally yawners is again we have a claim that's paid out over four years initially without any diagnosis and that to me starts off a good faith review because they interest and i because there was no diagnosis that would be wrong but what they did then as after four years they said let's look at this more and they asked a doctor dr walsh to look at the records and they said dr walls do you see a physical explanation and the doctor said no but they went further they part of her opinion was this was this was not a medical condition correct and i think i know your honour's headed the district court said adopting the plaintiffs hired experts which came psychiatrist she's not a medical doctor she offered in her opinion that this was because the issue is is this exclusively psychological or is and and  you discount that that it's a medical problem and she offered an opinion on both sides of the equation right well she did but she even said she hadn't she had herself realizing that she can't go and offer that physical diagnosis on the part of the plan and the way this court wants you to handle not you want to handle these cases is we then went to dr fern asked his own treating doctor and said to the doctor the physic a physician a medical doctor or what do after the denial and after the attorney then went back yes but what we have though is when we asked the doctor this question to look at the issue of report dr furnace agreed and what's important here is again dr furnace wasn't real reason stated and i think in jordan versus northrop grumman this court stated that uncorroborated unsubstantiated conclusory opinions by a treating doctor really aren't do and then there's more of a star in tests that's done which is the one that's the gold standard and the gold standard test comes back and says he doesn't have it and it should have responded anyway to the of the a lot of those were not documented by the doctors as saying i observed the doctor state in their records that this is what was reported to them and i understand there's a comment about the line but again that was one of those preliminary tests and when the more accurate testing was performed it came back negative but what i think the real question here is your honor and i think that's what caused the problem in the district court was the district court here sat there and weigh the evidence and it weighed only select portions of the evidence rather than all of the evidence that this record essentially took the report of dr lewis the report of the other expert and quotes forbade them in large sections of the opinion ignoring evidence that we provided the question under the standard of review is based on the evidence whether a reasonable person could accept the conclusion that was reached by the plan and what is that substantial evidence that's here well you have the fact that some added form disorder explains why no doctor instead of in years was able to find a cause we have the doctor agreeing his own doctor agreeing to that we have mr king accepting that diagnosis he doesn't appear well frankly it's not appeal issue because they just said we're going to we find the twenty four month limit applies but he doesn't object to it at first he waits until near the end of the benefit period to object to it what he does do is he takes that report  he gives it to the social security administration and that judge says i don't find any evidence of a physical disease i agree with this doc this explains everything and the so security administration i understand that's not binding but it's persuasive and the fact is social security administration doesn't care what the basis for the claim is as long as you're disabled so they didn't need to find it being a mental illness it was that's irrelevant the question is whether he's disabled you also have the district court ignores other evidence other evidence including dr wallace who reviewed the medical records and looked for a physical cause and found on the fact that she said that the doctor from ng is the only one who found this mental illness that's not true you also have dr hashim who found an affective disorder and the district court fails to mention that so there is substantial amount of evidence here i think one of the keys to me your honor and it demonstrates how the district erred is the district court said in a warning feast to mr king that even though nobody's been able to find a diagnosis his treating doctors  like syndrome that it was like there was never a definitive diagnosis of fibromyalgia so that's takes us away from that line of cases that council is urged which say that you can't question the ideology of something that  so subjective disorder that's not this case there is no dog in the district court says it in its brief and its opinion that there has been no firm medical diagnosis mr king states in his brief that there has been no firm medical diagnosis and stead what you do have though is this psychological condition which has been identified and explains everything well  you do the shark please you but in interest of in a few seconds what i found also significant your honor we cited case called seabrook vs standard insurance company the district court case we understand it wasn't binding on that court certainly not on this court dealt with the same facts exactly the same facts and that's what applying the law which this judge didn't even really cite in her opinion found for the plan and the district court failed to even mention that or distinguish why that case didn't apply here or why that case should be found in favor of the plan but this one not and there was one significant difference though between speaker and our case the treating physician rule did apply back then and the courts did not withstanding the treating physician rule we still find in favor of the plan facts there's a fear a few things that i need to address right away before i get to the heart of my argument first of all as judge fletcher pointed out there was a diagnosis a definite diagnosis of fibromyalgia the doctor  peter stein professor ken sack at the university of california both sad whatever else is going on this man has severe  quote is you're entitle to your own opinions you are not entitled to your own facts if i've gotten the quote wrong i prefer the corn pretty she at the point you i'm sure it was a more colorfully than i and i it number one there was a diagnosis in that the doctors have been scratching their heads for years but one thing that they've agreed on is well whatever else is going on he has froggery my alter as diagnosed by the fibromyalgia there's no i don't know i frankly i don't know what counsel is referring to but that is in the record in the court to satisfy itself on that as far as dr wallace the only thing that i have in the record here is that excerpts of record one answer overall claimant has a multitude of sematic symptoms but there is no objective evidence of resulting impaired function therefore the record does not support diminished functional capacity this is not a doctor saying this is a mental condition this is a doctor saying why don't have i don't see any objective medical evidence of impairment something that later the even the insurance company has to acknowledge was really not an issue bay they fought that fight gave it up and then decide maybe we need to fight this on a psychiatric issue now to get to the heart of my argument is very brief the just the court didn't care and the appeal of the district court's decision doesn't demonstrate era defendant's argument in essence is we really really really really really disagree with the district court and her findings of fact but one of the arguments your opponent makes is it has a ring of sense to it and like you to address and that's the argument that the touchstone  deciding what their benefits were improperly terminated is the good faith of the disability provider and in this instance the disability provider went to your client own treating physician who told them it's not visible now how do you respond that that they have gotten a quarter of the way there but not not all the way good faith is is respect not the issue but rather whether they abused their discretion whether they employed the proper procedures whether they did the proper investigation and what's wrong with asking the disability claimants own treating physician not a thing not a thing there's nothing in fact i would i would argue that that was something that they that they absolutely should have done his treating physician however one of his one of his party's primary physician was a family practice doctor who that what they point to was he said they gave him that they gave him ings analysis by the way which doesn't say it's a mental condition says i think it it's probably a mental condition but i suggest further testing and they gave it to dr for nasty primary care physician who said well i'd have to agree but i'm a little hesitant to weigh in here because i'm only a family practice was i'm only a family practice physician so in the very state in this very same breath in which he is telling them well it looks like you've got something here we saying but don't count  because i'm a family practice physician and we're dealing with something a little bit beyond what i what i can what i can confidently address now they take the first part of it and disregard the second so i agree with your are they absolutely should have and acted in good faith in sending the report to the family practice physician but they couldn't stop there when they got something that they liked similarly when they when one steps back a little bit we what we see is we have a dozen doctors over the course of years doctors from also all sorts of specialties who are who are saying in essence i'm not quite sure what's going on here but it's physical and that includes two psychiatry court saying it's not it's not psychiatric now weighed against that we have the report of a psychologist  i'm not sure and this is something the district court pointed out so she gave her best opinion as it was perfectly appropriate to do and was also perfectly appropriate for her state the limits of her opinion which she did and said i'm not sure i suggest further testing and testing by the way that she had been recognized was beyond her expertise toxic to exploit your toxic chemicals like your my graphic potentials things like that it is an abuse of discretion i respectfully submit when you have a number of doctors when you have a number of specialists who are saying it is and it is a physical condition and you have and you have what to weigh against that you have to consider an equivocal report from under risk with examining the records to decide whether the whether under an even under an abuse of discretion standard whether the administrator has committed clear or not bad faith not not intentional wrongdoing whether they've gotten it wrong and that's it that's even under an abuse of discretion standard and even under the most recent opinion of this court in jordan that is that standard is clear error now in this appeal defendants in appellants have have not not only not demonstrated error i don't think there's a serious attempt to show that the district court erred in that analysis but rather to say if they were being conducted by this court as a new of fact they'd want you to present those arguments and that and that these judges should see it differently than the district court that frankly that's just ignores the standard of review and in this court however even if this court were looking at it freshly as a new trier of fact the school can't get around the facts of the record that you have specialist doctors including psychiatry saying this is not a psychiatric illness rheumatologist saying whatever else it is it's disabling firing miles or and weighed against that the only thing they have is a report from dr chroming who says well it might be psychological but i can't tell you that definitively without further testing if that's not an abuse of discretion your honor frankly i don't i don't know what it is i'm not claiming bad faith i have never in this case urged that the friends acted out of animists or out of anything other than trying to understand the claim but it wasn't handled properly and when they when they didn't when they terminated the claim it wasn't done for sound medical reasons now the gist of the at the last point i'll is the essence of what a trial court does and that's that is not assignable error absolutely showing that the district court clearly erred in that now that they simply haven't done and a new trier of fact the record here is rather overwhelming this gentleman is suffering from a physical physical illness even the best specialists can't say definitively what it is and how best to help him counsel again keeps using the term psychosomatic he's trying to distract the course not psychosomatic it somatoform disorder and i find it offensive the council repeatedly makes that argument now he said he doesn't know what i'm referring to when i talk about this fibro my alger type pain syndrome rather than a specific diagnosis it's right there in his own record excerpts page fifty two of the kelly's record excerpt dr stein who is one of the doctors he referred to fibromyalgia type pain syndrome it's right there in the records let's look at doctors doctor we then have another one of his doctors who he said dr sack well i've got dr sacks report this is the one b the march twenty eighth two thousand and two the most recent one i believe it's a lengthy report to dr lewis three pages here and one thing that's not mentioned anywhere in here is a diagnosis of fibromyalgia or fib type pain so dr sack doesn't say that contrary to what counsel said so if the only thing you're relying on is dr stein statement well you have in our record excerpts one sixteen you have mr king writing to us saying that dr pierce as well as dr stein are not current with respect to my symptoms david statements by them are inaccurate misleading that's why we went to dr furnace who he told us to go to counsel says it's arbitrary and capricious because you have doctors saying that it's physical well again that's the treating physician rule that doesn't apply also in jordan versus northrop grumman this court stated in almost every one of these cases you have conflicting evidence that doesn't make it arbitrary and capricious either the question is whether a reasonable person and he's trying to switch the burden is here whether reasonable person could reach the same conclusion as the plan reached and here the an administrative law judge did and of course reasonable person could your honor judge lester in the north case when that came back to you few months back you said that the only thing that held that loud that plaintiff to win the first time was the treating physician rule and that no longer applies therefore that claimant can't win same thing here and counsel says well you still have doctors who are saying it's physical and the district court said you still have doctors saying it's physical therefore it's an arbitrary  how many years do you have to wait for a diagnosis seven years twelve doctors none of them can come up with a diagnosis that explains the condition enough enough thank your own ok thank you for your argument think both sides with the argument the case