that those findings do not preclude this court from finding an abuse of discretion and let me explain why there i i believe what your honor is referring to was the second functional miss lennard her lawyers and her doctor to manufacture evidence my point is that it doesn't matter because that second f c functional capacity examination  doesn't matter in this case because prior to that their own doctor did a an examination of miss leonard and found him gave her a score  the on the scale of twelve for functionality that's a sixteen percent functionality ok and that was done by a medical doctor as opposed to the functional capacity examination that  life intended to do which was not by a doctor and which courts have recognized that a functional capacity examination is not effective at all to either prove or disprove pain and let me explain why for example if mr leonard had broken her and he didn't heal correctly and she had after he or and that's why we don't believe that it first thought that the second at sea he was completely unnecessary and that that li my life until almost a year later in august of two thousand and twelve to inquire about the status of her action i'm why why such a delay your it's your position that mr leonard chose not to send updated medical records for the any occupation period and to not appeal her denial solely supply my understanding it's a more strict standard for the second period than it is for the first and you didn't think that she needed to update her  medical records her medical records were up to date there was nothing additional to provide counter what do we do about the fact that the trial court concluded if i remember correctly that you didn't send the notice in in september now i understand you're saying to us you did but the trial court found that you didn't we have to find that was clear error for you to prevail in this case no you do not why not because that finding is completely irrelevant because the functional capacity examination that that was the subject of that authorization is completely ineffective to to make an evaluation of her condition i thought out of the terms of the plan the your client had one hundred eighty days to appeal the decision correct that is correct and that didn't happen here correct well it was our contention that the that we had sent it ok with me that the guy gets back to what i was my question i have and i was about to address that even if the court found that we didn't send which the court did ok we believe that an exception to the exhaustion administrative remedy applies here because met life th guidelines but earlier in the case when your client sought relief and i remember there was a strongly worded letter that i think she wrote i read that letter metlife did grant something correct previously when when when there was when there was pushback against metlife did metlife grant some relief it reopened its investigation yes it did so how can we find that filing an appeal would have been futile when previously when your client took the strong action letter that she wrote in met life granted her some relief how can we say would've been impossible well in addition to all without if the court would look at the actual denial letter that like there was a number of problems with the denial letter first of all the denial letter has the wrong standard in it they said they were denying her benefits based on her inability to do her own job not any job so they mis informed her about the standard second of all they never told her what information she needed but isn't that why you appeal i mean if the standard if they give you the wrong reason that's why you appeal  it of course but but you're trying to make a certain hurdle correct in this case and that life informed her of the wrong hurdle well all the more recent know that you might have been successful on appeal right if you tried  and especially in this case is its own as i think is point out that previously you know in during the prior period they did reverse their decision so i think your efforts to try to argue that it would have been futile in the second period just trying i'm struggling to understand your rationale well the only additional information that we could have provided during that hundred a period was information that metlife kept from the slaughtered they they failed to inform or about did you argue that in your brief here yes idea i didn't see that ok go ahead they failed to inform her about this is findings or give her a copy of his report and she had no she did not have the claims guidelines and she wouldn't have been able to get the claims guidelines until these proceedings and when did you find that out copy of her file it was not provided when did they not provide i'm just saying all these things that i think would have gone if you had appealed their decision might have made a difference and so that it goes against your futility argument i'm not quite sure ok but those were the most significant things the there were no additional medical records to provide at that point and no reason to believe that that you know pretty requesting the records again would have resulted in anything metlife failed to inform miss lennard about the doctor wrote his examination that is the lied by the may two thousand and eleven letter it's in the record at page two seventy one when met life ability is compromise so she was advised that not life was looking out that report i had never heard that this report was not provided to in the file that she was well away or she attended the exam she know what happened there so there were they were not withholding information from his leonard he also said that in our adverse metlife the adverse than a fifty terminations letter in august of two thousand and eleven that they applied the wrong standard that too was incorrect and if you look at the letter in the record it explicitly explained to her that there was a change in the definition of disability and that based upon met life for review they had determined that she did not meet that new definition of disability so i respectfully disagree that they somehow misled her it is also somewhat unbelievable that miss lennard has what is  debilitating condition and she had no updated medical information to provide for met life they made clear in the may two thousand and eleven letter they listed nine bulleted items that they wanted to evaluate in order to determine her continuing titling to benefits and that specifically included updated medical from january two thousand and eleven up through the present it wasn't until this lawsuit was filed was not part of the administrative record it had never been provided to metlife additionally another piece of information that was provided a year later was the source security administration had actually made a determination that she wasn't title to sosa security disability benefits that's updated information that could have been provided to met life during the appeals period and that did not happen so again i think the record  contention that there was no updated medical information to be provided it also belies his contention that metlife was simply asking them to resubmit what had already had they had a functional capacity evaluation that was a year old they were entitled to ask for i've dated medical records they complied with their guidelines which required them to get an authorization from the attending physician before doing that and they never got that i understand that mr humes claims it was sentenced but there's no record of it and district court correctly found that his his contention it was sent him was not credible i want to address the exhaustion issue as well there is no dispute that there was no appeal sent to met life misled or basically has argued that there's two reasons why she does not was not required to comply with that procedure the first was futility s court was very clear the ninth circuit stated the purpose of the futility exception is to avoid having a claimant pursue an administrative review that is demonstrably doomed to fail and we met life's admits that she has not shown it was doomed to fail first she went through the appeals process during the first eighteen months on occupation period met life conducted a  review and even after receiving some questionable medical evidence they reinstated their position reinstated benefits they changed their positions that there's been no evidence that had met life been given the opportunity to can talk and of review that its position would have clearly and positively remained unchanged the guidelines in the record at five seventy four five seventy five they show the process that met life would have gone through had an appeal been submitted they would have taken obtained updated medical they could have gotten an updated independent physician consultant review and that review would have been conducted by persons who had not been involved in the initial claim so met life segments that there is no evidence at all that an appeal would have been futile in this case i do want to also address the argument that metlife failure to comply with internal claims guidelines somehow excused the requirement that she go through the appeals process first it's incorrect that metlife did not comply with its guidelines and i want to get to that point but more importantly the regulation that permits or excuses a claimant from exhausting the administrative remedies is very clear that's at twenty nine section a claimant shall be deemed to have exhausted the administrative remedies available under the plan on the basis that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits this exception has no application here the plan unquestionably has guidelines in place there six pages at seven eighty four to seven eighty nine that show the claims procedures that it has in place for initial review and for administrative review those procedures are designed to provide a decision on the merits and there is no case that holds the procedural irregularity that miss lennard is complaining of the lack of a vocational review would excuse her from the exhaustion requirement on another issue i'm just curious it was before your time and up here why your across appealing if the district court  judgment was in your favor and are just curious why cross appealing on the statue of limitations issue what was the contract contractual limitations period in and correctly possibly alternatively judgment could have been entered in our and on that issue we would you know unless there's this the questions about the merits we stand on our paper somewhat but if we were to dismiss that cross appeal because you're not you're not appealing the judgment you're appealing to a particular ruling which normally we we don't do that here i take it you are going to be we would we can dismiss the cross appeal but you still prevail on the other argument that you've made in your brief to the district work that yes that is correct i briefly want to just last your honor has another question i have no other question i want to briefly review procedures of the plan the plan failed to consider that request for an appeal again that's not the case here that life never got an appeal had they gotten it they would have considered it the case the bill you versus  determination whether in that case was sent out giving the claimant two options you can submit an appeal or you can give us new information the claimant opted to give new information the claims administrator considered that information internally decided it did not change its opinion but failed to advise the claimant of that and also failed to buys the claimant that even though a formal appeal had not been submitted that the time for doing so was running again that's not the case here met life clearly communicated to miss leonard the appeals procedure she understood that procedure because she had gone through it before and neither one of those grounds would provide an exception for her was not medical records a single page letter from a doctor that was substantially the same as the letter that was already in the administrative record from a year earlier and the denial the denial is based on her apparently she can do some medical record review that says that she could have done some job with accommodations the problem is that like never determine what accommodations she could do and whether those accommodations made her on and on employable met life has claims procedures in order to determine that and and that with those claims guidelines required metlife to go to speak with a vocational expert to find out if those accommodations would have made her an employer will they simply did not do that know we believe under the vought versus scottsdale healthcare corporation case that that's another reason why the ministry of remedy would could be deemed exhausted