the primary treating psychiatrist and specifically to aspects with regard to the evidence that was submitted from dr scheiner to providence in support of my client's long term disability claim  because i think they really are the this is by far and away that the central point of the entire appeal dr scheiner number one refused to provide his progress announce his monthly progress notes office notes from his meetings with my client citing privacy concerns more than privacy concerns because we all recognize that you're waving your right to privacy to a large extent when you file a long term disability claim especially as to the evidence that supports your long term disability claim but also more importantly dr scheiner was that the sanctity of that clinical setting in not disclosing certain things that might have been said in that setting he thought were beneficial to less to lose the plaintiff and kind of the center point for the treatment progress they were making that trust that things would not be disclosed now in addition to that the monthly progress reports that dr scheiner was sending to providence in retrospect what he was doing was taking providence form when the treatment regimen prescriptions things like that weren't changing he would simply photocopy the form change the date rather than redoing the entire form and i would submit as to that issue which i think is a non issue i don't even know why it's significant or important so long as it was accurate every time for bob addressing that disparity between the independent physicians and dr scheiner it in that's exactly where i'm going it's in the context of what dr scheiner knew about what providence wanted he's treating an individual who's getting his long term disability benefits without disruption continuously since mid two thousand  a boat he went into very significant treatment at the hospital following the hospital and then i don't want to get too bogged down on the old treatment history but the progress of the cla was payment without disruption throughout this entire period of time dr scheiner unless you lose the plaintiff at no time felt that the claim was an eminent peril or that they were doing anything other than processing paperwork for the l they're really willing to accept his view and that would be in two thousand and thirteen and that would be the first time of course that sure the red flag goes up absolutely i was speaking about the events leading up to that but even at that point in time that's a great question isn't just photocopying the forms and changing the date is it seems to me are there's plenty of case law that says even when we're deciding these things to know that we look to see whether the opinions of both of the experts are supported by and consistent with the medical records gary hundreds of cases say that in here we have this unusual i can't i don't recall another case where the doctor for whatever reason just says i'm not going to give at page id three thousand six hundred forty two thirty six forty two is the only descriptive conveyance from providence to dr scheiner or less to lucy about the significance of the monthly treatment notes themselves versus these very detailed neared of reports that dr scheiner was giving them i think on at least for many five occasions during the just two year period two page three page reports from dr scheiner about the overall diagnosis promises treatment regimen and everything that's going on we have very significant medical evidence but when you look at this act by dr scheiner this refusal to to provide the treatment the monthly treatment notes themselves you need to put it in context for what they knew at the time what provident was telling them about the significance because at no point in the record the provident ever say the failure to produce these could result in clean terminations or the filter to produce these records will inhibit our ability to assess your credibility dr scheiner and therefore could lead to potential adverse claim results here's what they did say though don't judge me to act i mean let's be a little bit fair to providence here they recognize shiner had a concern and so it seems to me that they they proposed to work out they sent him a list of four i think was for things that they wanted in lieu of the treatment outs and he i don't think he provided all all of that stuff either well here's what they said in this is a get it at thirty six forty two reviewing physician read reviewing physicians noted actual treatment records would be helpful and others are talking about dr brown who signed off on the final claim terminations on appeal then they go on to say if not available we would be willing to review a summary of which includes any changes in treatment dates of services from the start of two thousand and thirteen to present and things of that nature will they had that either either they didn't realize they had it because that note at thirty six forty two is literally within a couple weeks of probably dr shiners most most detailed report in terms of the progress that lusterless ski had made the fact that he the fact that he had major depressive disorder chronic in real reoccurring all these things are in a report within a couple weeks of that letter which i don't know if they crossed in the mail but they're almost at the exact same time so  post hoc reasoning it's not part of their terminations letter the letter the letter is to shine and you say well maybe shiner didn't comply with what they asked for in the letter but because he had already given it  now this is before the denial when then you get denied then you appeal a denial to providence did you point out that in fact that they did have what they asked for not that it matters but i was hired after all of this took place i filed the law did the lawyer or whoever was representing him then point out what you're telling us now that gee no big deal because they already had that stuff no because we're talking about the final appeal denial so it was too late they they  dr brown essentially relying on the me that they did do the one hour i mean by dr dudley upholds the decision to terminate benefits in the game is over so they didn't have an opportunity is the point because the point was never made to them during all appeal problem the things that i'm asking you about i believe occurred before the initial denial he was they were asked dr scheiner was of course asked for his is sure there's no question about that and he said that might have been nice but no duty well then in the way i want to go on to the second question before we run out of time here it seems to me the biggest problem that the refusal to turn over these notes created was that the independent the legibly independent doctors that looked at either did the evaluation to review the notes afterwards said look if steiner is correct then and he's making no progress whatsoever then any psychologist psychiatrist whatever we're dealing with here would have been changing the treatment plan there would have been either more medication more sessions inpatient treatment something and presumably the explanation as to why when he doesn't get better for four years and they don't change the treatment plan it all would have been explained in the medical notes presumably they were explained in dr scheiner summary and that is that he was record too so sometimes people don't get better on these conditions in so dr scheiner what he was doing is maintaining a patient in a very stable environment for that patient so long as he wasn't being plugged back into the very intense daily activities had changed and his mental health had improved that was in a hole in them this process did that occur two thousand  i believe so would have been july approximate he was hospitalized that would have been july two thousand and nine it was in two thousand and ten when he starts making those reports but again in context that's against somebody who's it who is planning to kill himself so he's what he's reporting is that he's able to take care of it his activities of daily living he's not socializing his view after the insured reports that he's gotten much better years to the contrary he doesn't believe that what the insured reported so for ported is correct apparently is that right know i think that in context he did believe that what mr jealous he was reporting was correct and the fact that mr jealous he could make it through a day we haven't even touched on the very significant social stress stressors that are in his life permanently  but the fact that he's been able to come out of this situation were he caught his wife cheating on him or he didn't know if his severely adult the sable son was his son or not anymore the same year they lost his business in the same year that his best friend died in his arms any then he would try it was going to kill him self you could even get through a day a year later he's reporting that he feels one hundred percent better that he's getting through the days able to start working out and eventually starts playing tennis once a week and is trying to develop some some healthy habits in terms of interacting with other people dr scheiner contin consistently reports in his narrative reports that he's unable to socialize with other people he primarily states along with the doctors it has and what the don't seem to jack i think it's perfectly consistent when you look at the history of someone who got a lot better and then got to a point where he became quote stable but he has severe depressive disorder recurrent and chronic and that's the h or disagree and this court has been critical of in their interest in ministry years for not getting an independent evaluation in situations where credibility is really an issue but this is not a situation where there but he didn't do that i say i see you affirmatively respond i won't it earlier said that i realize that after this when he got his last chance there was no response no for the ok that was the end of the end of the correspond scheiner stopped doing that and there's two more to do in response differently what did he do differently we did two things and differently response after they got notice that there's going to need dr scheiner the form differently this time he change downgrades prognosis guarded with no explanation because one of them change and the form that was filled out for eighteen months straight for the captain he was asked the question do you think there will be improvement in the i don't know if you have any more questions for me either i would just point out that in that last letter where they gave dr scheiner one last chance again nowhere in the record are they telling that this is going on and that's really where their fiduciary obligation is to their insured not to dr scheiner to tell your doctors not giving us these records we need these records and here's why and without them here's what's going to happen that upon his meeting the standards of the policy right sure how much would tell us what i mean i just felt unfamiliar with that i mean there's several examples in the code of federal regulations that talk about the denial letter i thought you were talking about the duty to give some advance notice that we might not pay you anymore well i started out by talking about the page thirty six forty two of the record which is the final denial letter where in this one last chance is apparently proffered to dr scheiner it really wasn't last chance for your records it says that they might be helpful or you can give us a summary in which he actually did do about two weeks before that so he reads that he's he just did it give them a very detailed narrative report doing exactly what they asked him who knows when he would have received this appeal than al this appeal to now doesn't go to dr scheiner he goes to  would never have understood that that the fear that the failure of dr scheiner to produce monthly treatment records was putting his claim in jeopardy every other privacy that this man had had already been sent in to you know why would he not want dr scheiner to send his progress now says nothing in the record directly telestial lucy informing him that your doctor's not providing what we want in reading this letter it looks like did exactly what they asked for treatment notes might be helpful but if not send us a summary of what's going on and that's what china did and of the two m to me dr scheiner would have saved himself a lot of effort just sending in the notes that's that's the easy thing to do it's not like he was trying to take the easy road here he's writing these very detailed myriad of reports throughout the record every four to six months basically from two thousand and eleven to two thousand and thirt the in the last thing is well actually your time has expired and we will we of course have access to the thank you we really think that counsel thank you gentlemen for their arguments we'll take here we'll take the review case carefully and issue an opinion