not me good morning your honor and may please the court in glen vs metlife and again in bennett vs number the court determined that the plan administrator on reasonably be terminated a claim its benefits in large part because that administrator which had assisted in obtaining in benefited financially from the social security disability determination failed to give the social security to relation to regarding reaching its own disability determination  home case it's before you today is on all fours with glenn and bennett and in fact is more compelling for three reasons first in glen and again in bennett the administrator terminated the of benefits at the break between the own occupation and any occupation period in this case weiner concluded not only that mr calhoun was disabled from his own occupation it later concluded that he was disabled from any occupation second line is any occupation determination was based in large part on a functional capacity evaluation that line arrange for line a pick the evaluator line a paid for the evaluation the court has noted before in other cases that in this c e is about israel liable in objective a measure of claimants were capacity as is reasonably possible  based upon the functional capacity evaluation lima conducted an administrative review and determined that there weren't any jobs available that would pay mr calhoun approximately forty eight grand a year he just because of the nature of his work he'd been a laborer most of his life he didn't have a lot of skills and he was substantially limited in sitting in standing in line also submitted that same functional capacity evaluation to the social security administration the ael j and his decision talks about the functional capacity evaluation you found the evaluation the evaluator to be persuasive in the evaluation to be persuasive finally the third thing that distinguishes this case from going in bennett and that in my judgment makes it a more compelling case is because we have line a zone regulatory settlement agreement that's a document that we've asked the court to take judicial notice of mr calhoun arguably is a beneficiary a third party beneficiary of that agreement and it's certainly relevant to note in this case that line of promised and this was just two or record in the whole argument about that the purpose of limiting cases to the administrative record is at least in part so that a claimant presents all of  evidence to the insurer at the time and can't therefore sandbag the insurer later with the way i if you to give me the chance i would have shown this and this and this this is a this is something that line and knew about so we a surprise line one a surprise to us i didn't discover it until after we filed the appeal that the regulatory settlement agreement was out there so that's why i've asked the court to consider it now can you tell me again you you were describing this weight that's the language in the regulatory so many agreement and then the agreement goes on to talk about how it's affords significant weight and and how it distinguishes this was not presented to the district court correct correct and i'd add along those lines as well i think all the regulatory soman agreement does is put flesh on the bones of this court's prior opinions because what the regular regulatory settlement agreement instructs lynott to do is give it weight and then explain how it should give it way by distinguishing for example and i have several examples in you know reply brief  there are reasons why a decision might differ from the social security decision i argued the morris case up here which i lost in the facts of morse were the  in i think one thousand nine hundred five the social security administration determined that the client was was disabled and subsequently the plan administrator i think that was a cell phone the plan arrange for both the functional capacity evaluation  and determine that based upon that he was no longer disabled the big the court held that the big gap in time and the fact that there was objective evidence that the support of the a change in position was legitimate i've listed several there are several of the treating physician rules with example head to head the ail j in this case relied on the treating physician rule and had there been good competent for perhaps an i am me on the other side of then line it would have been about for example she didn't want to she didn't want him to have a scooter because she she wanted him up and moving she any indication he was only trying when and when she evaluated him or is that the ther seacrest said that he he considered the functional competitive capacity evaluation to be fully credible heave this and there's nothing in the record that shows that he wasn't trying hard when he was tested on what he could do correct correct and dr von also sent him to a psychiatry just can't remember who it was to to assess whether or not he had any psychiatric components to his problem and in the finding was no so the doctor dr bates uses the disabled doctor wants findings are essentially the same as what the functional capacity but doctor earlier and i understand this was before they determined that they but basically she took the position that you know he could he would benefit by pushing himself a little work and then and i think maybe there were others that sort of shared that that he would benefit from pushing himself i can't i can't i would be surprised i mean that's pretty common ok so what about this incapacitated or whatever the language was i don't think anybody disagrees with it and there's a difference between i'm not totally incapacitated and i can work five days a week forty hours a day at a forty eight thousand dollar your job i mean i don't think that setting aside the fact that it's a phone conversation that's well then it's written up and it says that we agreed on the questions well but there's been not done yet it is but but  there's nothing there i think is inconsistent with the position that we're taking here it's a think the only case from this court which is venerable cases yeah you can't just say you can do sedentary work what can you do you go to something all of the evidence after the functional capacity evaluation weina did a transferable skills analysis that t s a right after that and they said based upon the functional capacity evaluation there aren't any transferable jobs he's disabled from any occupation after this there was another transferable skills analysis that was a exploratory which i took to mean if we if we can somehow ramp up his physical status are there jobs that he could do so we could terminate benefits i view that fairly the fair the other two transferable skills that they had considered the social security decision in and we had newer evidence well there's nothing in the record that shows they consider that there was no new evidence so mr county dr trotters opinion track what you're saying to sure what  see demonstrated plaintiff's capacity to perform some said terry work you're just saying that if c e was wrong well no no no i'm saying the f c c was fine and i'm saying that the one after the f c c said there aren't any jobs within his capabilities so of the record of as a whole that he can perform some said terry were correct it says the opinions of the treating physicians that the extent of his pain could not be explained by objective evidence is that true well that's true that's almost always true that's review of is that an unfair description of doctor at milly's file review and doctor bases agreement i think it's unfair to credit dr into milly's review for two reasons number one she thought the she she disagreed with the functional depressive valuation secondly she didn't have the and for the t s a based on that review identify see identifies transfer sedentary occupations does identify those occupations so i take your argument to be well there is evidence in the record it's just not enough if i can make two points not enough and some of the district up if we go back to where the where the discretionary review comes from the courts in gauge of fiction the courts just courts assume for purposes of differential review that one is acting as a fiduciary th one is neutral the line it doesn't have a stake in the gave create i mean i when i first on this court i was amazed at the deference that was accorded in these kinds of cases but now i've been on the court for over ten years and it's pretty deferential well i just either israel man and say oh no it's not that really deferential because it's based on something that let me so let me ask this if i can break in just a minute that the deference is tempered by the recognition that there's a conflict of interest wrecked so i went through the district court's opinion to see if he was if the judge was in fact taking into account the conflict of interest i don't remember when you got to the end if he factored that in is was he still talking conflict of interest at that point or was he simply talking deference was simply talking difference he did he did not consider that one is conflicted and has a financial interest in denying the claim and that with i think the point in glenn or at least one of the points and glenn clearly in particularly as discussed by the supreme court thank you thank you good morning r c i'm dancers to come here today on behalf of like insurance company in north america and i think that after listening to mr mary's presentation what i want to start  with today is emphasizing that this is a case where the differences between the parties positions or in relevant parts are very very narrow we have a functional capacity examination which finds that mr calhoun is capable of performing sedentary work at least some levels of sedentary work and the only difference between the medical evidence that mr mary is putting forth on behalf of mr calhoun is that lynette has been conducted additional reviews of the medical evidence reviewed surveillance video and came up with a two pieces that boost the medical capabilities beyond what is approved in the functional capacity examination that is the ability to work a forty hour week and the ability to drive still conclusive hey what are well the sitting in the standing restrictions we have to remember in the functional capacity exam this is the sitting restrictions fall within the it's the the range that goes up to five and a half hours a day and at the workplace and this standing restriction is two and a half hours and the walking or state stretching is two and a half hours in an eight hour workday and those that appear for those appear in the physical ability assessment form that was completed by the physical therapist mr seacrest and submitted to line along with the seacrest was the one that said he was not able to work no that's not what mr secret said mr seacrest functional capacity examination is the basis for determining that he is capable of performing some sedentary work and if we look at this final to let you know that's sort of the problem some sedentary work the question is how many employers are going to put up with somebody who every hour is going to have to take a minute break or five or ten minute break and just you know go somewhere and lie down or something that that's so some sedentary work doesn't do it for me it all down body else comes along and says well this person said some sedentary work and therefore he can work a forty hour week and dry that's their opinion but it wasn't what necessarily what seacrest looking for your honor if i could direct your attention to the definition of disability in the policy mr calhoun is required to prove the burden of proof is on him he's required to prove to weina that he's unable to perform all the material duties of any occupation for which he or she may reasonably become qualified based on education training or experience and so it's mr calhoun's responsibility in order to receive these benefits to demonstrate that he can't perform any occupation and it's it's not wine is obligation to come forward with evidence that he's able to perform the full array of sedentary benefits for the first twenty four months under the own occupation standard disordered him benefits for any occupation also didn't you benefits continued for three months under the any occupation standard while his file was being reviewed by the special investigations unit that conducted the surveillance video that was taken in september of two thousand and twelve i believe it was when so the clearly first to begin with i have to disagree with the premise that there is any difference any conflict between the allowance of of social security disability benefits in april to april on april twenty thir thousand and twelve and what whynot has determined because at the time that the social security administration's administrative law judge approved those benefits mr calhoun was receiving benefits from wind in order to be eligible for on the first page of the social security decision the administrative judge law judge explains that in order to be eligible for those social security disability benefits and individual  must have a disability or impairment that can be expected to result that has lasted or can be expected to last for continuous period of not less than twelve months and so anything that happens with respect to the application for social security disability benefits or the proof of disability is going to that standard of whether mr calhoun was disabled for twelve months or more and what not one a dozen contests that he was with me but there is  formal evaluation of of mr calhoun that found that he his condition was not improved let me go back to two c crest a moment he's the one who did the functional capacity evaluation  observed that calhoun occasionally could lift or carry certain amounts of weight but could not frequently carry even negligible weight seacrest further observe the calhoun quote exhibits limited tolerance for sustained sitting or standing and limited tolerance for various mobility tasks such as walking stooping kneeling and climbing stairs each of which he is able to perform on no more than an occasional basis and he concluded based on analysis of his performance and my clinical observations i believe that he will require at least one break every hour for five to ten minutes from sustained sitting and his standing tolerance is even more impaired than his sitting for which he tolerates approximately fifteen to twenty minutes without external support or breaks to say ye so there's no question that the and out of out of it us somebody doing a paper review decided that he could work forty hours a week five days a week forty hours a week without any problem is treating consulted and that the answer provided in the medical file review about what the capabilities were was concerned was discussed with dr basie and agreed upon by her and that's you know that's how we get to this you know you know why did judge watson and the district court reach the conclusion that's what he relied on it well absolutely i mean i think that the final review on its own would be would certainly be sufficient under six circuit and other authority let me ask you this doctor basically that the quote i got out of this was dr hansen only stated that she spoke with dr basie and that they quote agreed that he needs restrictions but is not totally impaired unquote isn't there a difference between totally a pair impaired and disabled from doing any occupation totally impaired leaves you just unable to do anything well i certainly  vocational expert testified that walk claimants need for a cane while ambulating eroded the sedentary occupational base his need for a rolling walker to balance while standing at cetera et cetera further eroded the centuri base as his inability to use both hands would preclude him from performing essential functions of sedentary work during that time and so what the ale j is is saying if you if you go back and you read that in order for the a social security standards to find mr calhoun was not disabled he would have been able he would have been required to show the l j would be required to find that he could perform the full range of sedentary occupations the  standard under social security is very different from the standard in this policy in this policy how many social security administration cases if you handled counsellor i don't i don't well we see him all the time so maybe want to try to educate us about social security but we basically know how difficult it is to get an a i j to say that you're disabled from working into a war disability benefit well i think that that and that thing that you just read me what he found i mean this guy is on a cane he's on a walker he can't maintain his balance he's i'm you know what your honor i think that if you re l jay's decision and you you look at the facts that the l j believed to be true and then you compare the facts that the ale j believed to be true and wrote in his opinion to the surveillance video that was taken  several months later it is perfectly clear that the things that mr calhoun apparently testified to before the administrative law judge were not true he testified and the administrative law judge found as fact that mr calhoun was unable to work or unable to walk more than forty feet without sitting down to rest the surveillance video shows that that is not true the administrative well let me just tell you my feeling about surveillance video you don't know and neither do i that after this activity that he turns up on this film thirty seconds here and two minutes there you don't know that he didn't go home and take a percocet because he was in such pain you just don't know that so to put  put that much trust and what comes out on these little three minute or two minute or five minute video things seems to me and they're not in the record are they there's a report as i understand it of w video is in the record is it really saluting i thought that the doctors who were familiar with what the video showed had not seen the video but had only seen the report by the photo facts people that took the videos i did don't i wrong about that question off hand but i believe that they reviewed the video and what i do know to be true is that in these cases the decisions are not made by the physicians the decisions are made by the claims administrator and the claims administrator review like to make about you know five or ten minute video is that the physical activity that in an individual will show in a physician's office visit i think all of us have experienced physician office visits where we go in and you don't necessarily get lawn mower changing out the parts is every bit as valid as watching him climb up on to the exam table or emulate into the exam room and i think that it's also important to note that we've got this video that shows him capable of doing things that he he that the administrative law judge flat out found that he couldn't do in the video he is standing without a cane or a walker he's using his hands at the same time he's operating the jack to lower the riding lawnmower he's holding the jack in his hand he's walking with a cup of coffee all of these things are things that would be inconsistent with the with what the administrative law judge found in this case and it's the it you know it goes to the village idiot of linus you know decision that they had more recent evidence then what was available to the administrative law judge when he made his decision so i you know i think that's that's an important point to remember and i guess looks like i'm coming up on my time i'd like to close by by saying that you know we are what we're looking at here is a very narrow difference between line as view of the medical and what the plainest view is and i'm sure  made plain place counsel may disagree but but that's that's a fact because the facts are pass exams was essential adopted with a cup or a couple minor modifications thank you think your honor i'll be brief i just have a couple of points first of all that to the extent that the video is in the record i'd encourage you to look at it ninety hours of surveillance less than thirty minutes of activity and most of the activity with respect to the the record the dr and to know he called dr basie on five occasions and got office people for the times the fifth paragraph this is this is the full substance of her report i called again and spoke to dr basie we discussed the claimant's history f c e results and the surveillance video and we agreed that he needs restrictions but is not totally impaired never talked about she worth of year finally the the you can't divorce in this case the f c e from the transferable skills analysis that follow the first trance froebel skills  analysis that was based soley on the f c e said there weren't any jobs that's why they determined he was disabled from any occupation the only way they can read the f c e to support their claim is because the f c c is modulating by the lens of the reviewers and doc part modulating through the lens of their reviewers they wrote a transferable skill there are no jobs he's totally disabled finally i would ask the court to look at what line his own representative told the social security administration about m she made a passionate plea that the that no counsel suggesting was fictitious thank you but what's the remedy send a lot i think the evidence i think the evidence is clear in england that you can award benefits partly because benefits are already word so we don't have  the case went back for remained because i think we were at the break when you're the break between the old occupation in the any occupation i think there's a presumption that it should go back for review i think once any occupations been approved and conce then i think the proper remedy barring some evidence that he's improved the proper remedy is is the benefit should be reinstated troubled by your reliance on this initial three months of benefits  after the twenty four months which appears i guess you could look at it i suppose says while we consider this more carefully we're going to give you benefits if you say well no company no insurance company if you give these benefits then you're going to have a higher standard when you look at it more carefully that's going to deter these companies from from providing that kind of interim when it disagree with it m  perience insurance company stop and if it's while they review the any occupation and benefits may stop for months and months and months i've had benefits stop for as much as eight or nine months while they decide he's disabled from any occupation and then they go ok we're convinced and then they rich are actively reinstated i don't think we're we're just waiting you think at all i think what what happened here is they decided it's any occupation and then somebody  line is said yeah this guy's going to be on disability for sixteen years we need to take another look but but our case law appears clear take another look right sure they can always take another look they can take a look at well in the an agency matter that would be no problem i think that's fine your honor except for the real view in the they're reviewing it on to what i would call a jiggered record they got to file reviews that are questioning his credibility the questioning his pain there or that they could have sent him for another for an i me they could have sent in for another functional capacity violation i'm fine with all that well i'm not fine with is we hire you who regards the actual evidence in the record and then says it's not disabled i don't think you can do that under even an arbitrary and capricious standard review the latter part of what you said though suggests that if you're right it should go back he should just work i respectfully disagree simply b any occupation on occupation break i clearly believe that but i think once a line you determine he's disabled award the benefits they can they can go back tomorrow and have a new f c c and say you know what your status no well or you basically say status i think so i think let's just take the case back to the status quo thank you but you're saying that if that there's nothing keeping them from re evaluating as assuming we it right correct term they will they will if they will have paid him for three years in the interim ok thank you thank you