lost part of my voice but i'll do the best i can i speak today for the defendants federal express corporation long term disability plan the federal express corporation which is the end administrator at the life insurance company which is the claims paying administrator of the matter is here on our appeal from the district courts entry of judgment in favor of mr furia granting his claim for long term disability benefits for a total disability end and overturning at his denial of total disability benefits the lower court did not give any deference at all to this decision to deny benefits as it was required to do despite the substantial and this is fed ex's issue it is issue but i realize you can just say hey it's your burden if we don't think you've met your burden we're just going to let it go but it does seem funny when it just seems it's really inefficient i mean you know it's possible  at now after happened here we now can send it back and you back if you call when that's one possibility goes back and i can't imagine doing this again without looking at the so security record getting all that evidence but i realize they're not the same standards i realize one doesn't control the other but intuitively there's something some seems funny about that so why don't they just pull that record in whenever there's already been so security grant well it's not that easy to get the record your honour's of course it's  point on what's happening the stop security process if you want to invoke that at any stage whether with us or in the courts we want to hear about it now and put them to the choice if they don't want to do anything and it seems they've got a problem when they want to tell the court of appeals that it's relevant to the application and if they as i suspect happens decide well i'll put this all in it's actually a favorable ruling then we have the record complete or at least that part of it but i think this is it's the representation of mr fure representation of counsel it's just argument of counsel and i believe this court has held that in the absence of anything from the social security administration that shouldn't even be considered at all it's not evidence i totally get that i'm just i'm struggling a little bit with why this is that is quite such a brightener for fed ex i can't tell who it's for but i can understand why that's just not a question have you apply you know you say you stand here as told disability i can't imagine why you would ask what's going on for social security purposes and if you get a yes why you wouldn't think it was what you have and if you cases and gathers the information of course they invited mr forward to provide whatever information he wanted to provide he has the burden and there's nothing in the play and that requires federal express cooperation is i get it i'm really suggesting something for future cases i understand it would be it would actually mean if you think back you sort through what judge sutton is asking about i mean if you point look at page twelve the district court opinion you know he just acted on this intuition not saying that's exclusively what he acted upon but there is an intuition that if you're totally disabled on the one thing you're totally disabled on the other reviewers who again it's really hard to keep the doctor's name straight throughout this but you have the two reviewers who say whoa whoa whoa he can move his arms and he has upper body mobility but i want to give you a chance to respond to the what seems to be at least my impression as i sit here that those reviewers did not address evidence from doctors gamli in east that recorded conditions that would restrict his mobility for example ganley in easton both record number of numbness in his legs difficulties with balance and stability i'll just rifle through it and then you can answer they each recorded restrictions on his ability to sit stand and drop it and another doctor  only had full strength and his legs were not bearing weight and so there seems to be evidence that he has difficulty sitting standing driving reaching and it doesn't seem that the file reviewers speak to that mean you could move your arms but then have a difficulty you know sitting in a sedentary position for a long time or reaching you know in a particular way how would you respond to the argument that the reviewers didn't deal with that evidence well the reviewers were looking at the question of whether mr ford who was totally disabled from any in russia patient meeting where he couldn't work twenty five hours a week move his arms then you have evidence saying well yeah you can move his arms he can't reach certain ways he can't sit or stand for long periods that might start to  occupations to the point where he is totally well it certainly would exclude some occupations there's no question about that if your people deal with this evidence i guess is my initial question i think they did deal with it  great body strength it was a five over five which is normal they and there were no well the tests they did have great upper body strength but not be able to sit for more than say an hour well sure and i think they said that he couldn't  for more than three hours and don't hold me to his i'm going from memory a bit and maybe an hour of standing and then maybe forty minutes of walking well you start looking at that over the period of a day and that begins now he even did a second report explaining that saying that without assistance that didn't refer to assistance from other people but he couldn't move by himself with a walker for example and yet to where he needed to go now granted maybe he evidence in the record of upper extremity functionality impairment in the record in the brief we've cited at least three examples two maybe a third the third one is a little bit ambiguous but at least two tests where he had his upper extremities what about the this issue and i don't mean to kind of do you really where you're going in your argument but what about this issue about it being your burden to submit the social security record and why would you want but i don't know that you're required to explain your staff but i think that i think we're sort of interested in how this case ended up where it did what i was thinking when mr morgan was talking about the wal mart greeter you know you go through that process in the social security analysis where you considering other jobs in the national economy and it's pretty hard to fathom somebody to say that somebody can i mean it if you successfully gotten through that part of the process with some of the experts who refer jobs that while they might be available in the economy common sense with the particular individual whose cases under consideration is not going to be hard for them if you've gotten over that hurdle why wouldn't you want the administrator to know about it with the right unfortunately i wasn't part of the appeal process for mr euro so i'm not i can't speak to why the records from you didn't get involved in the administrative and not until the actual lawsuit was filed so i can't speak you know which is why we're back to those old that which did you know i wish it wasn't in the record and i think you know there may still be time so one thing that i found very just very hard to justify because i consider this a pretty close case it seems to me ok i'm not even to give you a second chance in other words it would be on this record the only thing that's not arbitrary and capricious is to grant benefits and i know that has happened before so i'm not saying that's beyond his authority but i think you and i would agree that's the rare case and so why isn't fed ex at least right about that and vice versa they don't get a judgment as a matter of law to send it back you supplement with your social security and maybe i the only non arbitrary capricious thing to do if there is to grant benefits in a case where i do think the treating physicians were conclusory in places well i think you know i think what the district court judge was looking at once why send it back down to the administrator when it's going to waste everybody's time we're going to be back up here in three years mr furious still wallowing with a note of no disability benefits well that he can clearly all showing our the that it's bothering us that the representation is that he got social security benefits and yet we don't really have any evidence in the record i understand your point but that's the reality  learners this is a guy if he stands up straight without a walker it is all over there's no balance he is completely disabled there's no job in work for twenty five hours so there are no jobs where i mean first of all i thought the record didn't say what you said i thought the could have done it had the right do it they chose not to do that they might have known what was going to happen if they did order but if i mean do you think that's thanks to question right because i mean they could have also assumed this is these are just treating physicians making conclusions to explain why they do they didn't do that is that a so security case or is that a plane case that is a risk is just like this ok long term disability is a further with respect to their being physicians i mean they claim that they reviewed the whole record but they state there is no evidence absolutely no evidence of any upper extremity impairment and then just totally contrary to what's actually in the record dr gamli i just cited two or three instances where she actually extremity impairment so it's clear that they're either ignoring what she's saying or they're not they're just not being honest about what's in the record i think that's an important factor in th and finally with respect credibility determinations the doctors for defendants make credibility determinations with respect to his name his pain level they've never examined them that they go on to say  is more than just pain me he is making complaints about pain he has severe pain but he's also got all these other things going on this isn't pain alone so it's pain coupled with all these other things he's got going on but says that i mean you have to have significant objective findings so i mean would you agree that somebody who comes in strictly with complaints of pain is not going to be able to get disability determination i agree  and i understand your argument and that point but what's the upshot of the bladder dysfunction i mean people you know people function like that so why does there any i don't work disagree that they do it is just one more thing on top of everything else the funds or has nothing in the record attention where they said they looked at everything and they said there's not a vaccination of why would be the point about upper extremities that seems to be your major point and then also bladder or other other things where in the report they say he has no such problem and then when you look at the record they could not have possibly read that because or i've strength there are other things that fit that category well the big ones obviously are the upper extremity functionality because that's the theme of the  but not completely not their own and not reasonably explained in other words if our review was so unreliable that relying on the foul reviews as opposed to the opinions of the trading physicians was in fa what you're saying they did an incorrect file review i think not only did an incomplete and not accurate file or do they disregarded the treating physicians find so if if a plan chooses to do a flower view rather than an independent examination and they defy reviewers fail to consider you know pieces of evidence x y and z isn't it the proper remedy to remand for consideration of that evidence as opposed for us to say any determination to say that the substantive determination of the file reviewers is actually arbitrary in light of that evidence because that makes us have to divine the medical import of the evidence that they didn't consider well i think the answer that was you know you don't have to remin question it's one thing to say their decision can't be sustained fed ex just as decision can't be sustained it's another thing to say as a matter of law you get benefits because oh you know you didn't acknowledge the bottom or she didn't  your honor it's i leave it up to you to look at the record very carefully on the issue of to what extent the treating physicians looked at upper body  in their reports wasn't even discussed in dr gamli affidavit the judge didn't bring it up nor did they bring it up but i mean they were there said from ation about this in the record  supplemental security including some allies that want to sort of what you want to put a vocational person and they want to put a vocational person in is that how it works that can happen that well it can happen i don't think it's necessary i think based on i know what i know your view i get that i'm saying hypothetically and sent back because the court for whatever reason decides neither party can win as a matter of law just hypothetically i'm just trying to get a sense of whether everyone agrees what happens on remain and is that if a party wants they decision so that part would be given right is optional other things that might happen the social security record could be submitted could be fed ex could decide not to