you your honor is my video showing now yes sir i think you just want to make sure they please the court good morning joshua bacharach i represent the pallant reline standard life insurance company and i'd like to reserve three minutes of time for a bottle that are appealing from the district court's decision that it was arbitrary and capricious for alliance standard to discontinue long term disability benefits under the service of benefit plan many of the reasons given by the district court for its rulings are contr to decisions by this court and the way in which the army train capricious standard of review should be applied before addressing those issues i think it's helpful to look at the claim facts and in particular the difference and mr know this condition from the time  started and when they were discontinued a few years later those done to stop it were the things here is there are some reports that say that there has been progress and yet you have two nurses with three nurses one saying i think we probably need a little more information but the other two  know necessarily why that was done i think that judgment has some suspicions but now there's this submitting mr jackson's proposed affidavit but aren't we really can find to be administrative record not at all your honor that's what this court has said in numerous cases that you're confined to the administrative record on with respect to claim facts such as whether the denial when there's medical evidence some for example if a claimant tries to submit decision right i disagree your honor this court stated in post vs hartford that evidence regarding a conflict of interest or a procedural regularity has to be considered but  that was in the context of the beneficiary learning about the conflict later not when it was the plan administrator who had the conflict and who made the record knowing the whole while that it had the conflict and then after it made the record say now we'd like to supplement the record on the notion that we had a conflict the entire time it's things like that creates a special rule school with a conflict to say well since the end is without a conflict get the supplement we should get the supplement to which is quite a windfall to plan it ministre toure's who financial which we sunk to in our grief six hundred and twenty five eathorne seven hundred and eighty eight and page seven hundred and ninety four courts plainly must be willing to consider the evidence relating to the nature extent and effect on the decision making process of any conflict of interest in how it was the court finding that the district court erred in resolving this issue of a conflict without doing any fact fin and that would have favored the defendant so they said the district court should have allowed the district court to do so but your honor i really have to point this fact out which which distinguishes this case especially from what your honor is saying judge phipps this evidence was in the administrative record already regarding the reasons why these this evidence was sent out the medical records were sent to two additional doctors during the  appeal that was there in the record and it was never this happened before the appeal so the claimants entitle to get a copy of the administrative record claimant would have been able to see all that this was not part of the administrative appeal if they had said to us with all these facts available to them hey look you have a conflict here because why did you go get the these two clear reviews when you already had a nurse telling you that he's disabled we would have addressed it this is you know and counsel makes the argument that we raised a post hoc rationale which we did and this truly is a post hoc rationale that was brought up by the claimant could have been brought up in the administrative proceedings and to allow us to not address it then and tire hands behind our backs is wrong well it seems that like you're you're conflating to some extent and the structural for form with the ultimate decision was or drink creationists right well i disagree to some extent because the conflict i mean if there is a procedure regularity where does that get you does that make our case law distinguishes between those as different categories of things that we need to examine right that they are different but they are all pointed toward the same thing and whether there's been a full and fair review it's the claimants well when we look at h switch the day after having recommended reinstatement to then and send send out for another independent medical examination right i am unaware of any authority from any circuit that and not just a conflict of interest i think the question here though your honor is really this if a claimant is allowed to allege something that's before them for the st time in litigation without letting the defendant know that that's an issue how is that fair how is it fair to not allow the defendants of them explain it and i truly do feel that you know if claimant argued there's a conflict of interest because of the defendant did this if they just change those words one of the the same analysis so i'm not sure that just saying this is a conflict this is this vs being a procedural irregularity matters one bit i think once it is raised both sides as stated in how we both sides have to be able to comment on it and to explain it especially especially when that was clear and present in the record was for the decision on appeal but it was never raised by the claimant giving us no opportunity to address it and say neither when it was clear and present on the record are you saying that there's someplace else in his notes or indented a termination letter the notes were present and given to the claimant and his attorney and clearly explain what happened the process these claimed irregularities claim clontz like it was in the record there and it wasn't brought to our attention and if had been it would have been addressed so as it was all just don't work so i guess i guess your position is that your client operates with a conflict of interests and it doesn't have to say anything or address that conflict of interests in any way shape or form unless that's challenge in ministry well the law presumes metlife vs clan is presumed that we operate under a conflict of interest but it's important to note that in glenn the supreme court stated that honestly is just one factor it's not dispositive of the whole here but so i guess i guess i guess i'm struggling if it's presumed that you've got a consulate and you didn't rebut the conflict in the ministry of record how it was their fault for not raising the fact there's a conflict it's the specific issue that wasn't raised we weren't alerted to this your honor how should we know that they're going to claim that there is this conflict or a procedural regularity that influenced the decision when it's there before them but they haven't raised it to us i'm talking about the specific instance so your honor in general yes we're presumed to have a conflict of interest incidents and so in this specific instance why don't you have to rebut yeah that was a motion instead of put the burden on them to raise it if you're presumed to have it it strikes me is it is a little odd to say yes we were presumed to have this concept in this one specific instance the presumption applies and now you say gee they didn't they didn't challenge that presumption strikes me you want to get out from the presumption then the burden is on you and your client to show that in this specific instance we can rebut the presumption when we send this back out the day afterwards and this is why you could put in the information that was in the jackson affidavit but it's not there and so i don't know how you can both get out of that general presumption by saying this is a specific instance out reporting that general presumption in this specific instance your honor that's actually contrary to metlife st glenn it is the court said that there should not be any special procedural rules and in fact the eleven circus address the specific comment that you've made in the case called william and said that you doesn't the burden does not slip to us that the claimant must introduce evidence of the conflict of interest yes there is a conflict and under met life versus glenn the question is how much weight to give to it it's a factor but under metlife versus glen the claimant still has the burden to show that it influenced the decision in this particular case and in this case the claimant did not do so during the claim process did it for the st time during the litigation and did not allow the court then did allow us to rebut an argument that was raised for the st time so you are a judge steps i really disagree with that statement of yours and we had to put something into the circumstance isn't the reason it should have been addressed the very reason that we're all here today that is that is raises a significant question just looking at the about face in decision nobody should have done benefit of benefits termination made because rance him benefits probably not supposed to object to that and say there's a conflict right just that granted then it's strange to object to the granting of benefits and question of when should this objection have been made we're heartless well i'm focusing on the wrong thing or not originally you said that it wasn't fair because they sandbag and raise this for the st time the different court just tease out that point that you made a little further when was the opportunity administratively present to raise it's probably not after the grant probably not immediately following the granting the benefits had to be at some other  that you say that they would have shown them that i believe that there was this request that the denial right there what if after the not after the denial was made they should have objected to th seen it time and again when somebody has requested the records during the appeal and they've said why when was this done and you provide updated notes and this happens frequently during an administrative appeal but i think it's important because what we're leading down the path is that a nurse can overrule a doctor's opinion and that's the specific reason why in the affidavit from mr jackson why he said he had to send those records out for review by two doctors is because it's their role that a nurse once you have either a paper of you or i am me by a doctor we had dr klein's opinion and there's no question about him there's no less procedural regularity there that you then have to have a doctor reviewing the screenwriter's can't can't just peel that back a little because my understanding for it was that the reason for that rule was because if if a nurse does the subsequent review it's more susceptible to challenge because a nurse is kind of reviewing what a doctor did in sort of preserve yourself and insulate yourself from those sorts of challenges you want another doctor to look at it doctor reviewed it doctor and there everything's very very very valid but it strikes me that that's more to defend yourself in a case for you to where you deny benefits not a rule where you grant benefits and so because if the rationale for that rule is to protect yourself against challenge the odds of being challenge when benefits are granted are i think appreciably what i disagree on and i think it's a rule that was based on the fact that a nurse should able to run to overrule the opinion of medical doctor especially a specialist but here but you've got a bunch of doctors are treating doctors who say he was disabled nurse nurse more said she needed more records nurses are not asked to provide opinions because they're there on the nuts ok i mean the thing to sort of pops in your head realize it's not in the record to what extent are that was never argued that there was a an irregularity on that basis but judge inference a good sleep that you raised because there is a distinction between dr klein and these other doctors who were later involved if you forget you push aside those doctors and i'm not saying they should be i think all medical evidence should have been considered and it wasn't but even if you put aside doctor's a are in braithwaite you still have dr klein's repor dr klein's report was prepared his examination and report were prepared before there was any alleged procedural irregularity here and there was no basis for the district court here to refuse to consider it which he did the district court here said we don't even know why dr klein was requested but it was because of the medical records that he was requested to do this and i don't why why was a good question why was this matter said the doctor and this is a point i was trying to get to at the start which i really think is important i think we're trying to in a way these arguments almost put this beneath the threshold of denial will review the focus on this procedural argument ignores the claim facts and the claim facts here really strong because we know at the time benefits stop you can't even walk without falling down he's wearing orthotic six he has to use a quad cane and he's got this neuropathy that is impairing him and benefits are approved but by the time of the final claim decision here there was a significant change his doctors indicated that his medication was working he's walking a mile a day in a pool five days a week importantly he's no longer wearing white braces he's no longer even needing to use that pain that quad pain and dr daughtry one of the doctors who relies on said that he's allowed to participate in moderate for the code claims yes yes yes and so that you have the nurse said that she thought he was still a pair but that's why you then get additional evidence and you explore that evidence and you know in cause seba versus murder the rd circuit said that we do not want to penalize plans for getting independent medical examinations this court recognized the importance of in person examinations over just paper reviews and that was done but the question here arises because for two years the year your client did rely on the nurses determinations that there was total disability at that that was the initial decision there a confirmation of that in august twenty seven teen with the suggestion of obtaining additional pharmacy records recognizing there had been some improvement and then in september that having reviewed the pharmacy records and all of the other records as to his on his medical condition the nurse concludes again these precluded from engaging in any sustained work function and the recommendation is not to send it out for  for an independent medical review or even to go out and get additional records it's it's it seems to be just the standard recommendation to update and revisit in in five or six months isn't isn't it that the fact that there was reliance on the nurses recommendation for two years of paying benefits and then there's suddenly this change in deciding to send it out  nurses consistently have concluded along with all of his treating physicians that he is totally disabled what is it that two years later he says is then justifying a decision to send it out for independent medical review that makes this an appropriate time to do that the fact that he was no longer wearing like braces he was nil his doctor says he's no longer falling down that's the basis for the claim the basis for the claim your  was that he could not even stand without falling down and now he can stand now he can walk he can wreck it you know if this was an overview i don't think this would have been a difficult position for the court to reach again and i fear that it's almost like we're being penalized by procedural regularities that i question here we did what we were supposed to do according to coast seba cosi but the problem by the way in that piece was the they waited until the appeal to request it and i am in the court was questionable was questioning that process but made it a fact has made it a point to say but we don't want to penalize we don't want to persuade plans not to do this sort of activity and what your honor is suggesting goes back undergo seba and penalizes us and makes a claim say gee maybe we shouldn't do these sorts of things but they should they should do it and it almost sounds also like we're being penalized because we pay benefits too long there was a change in his condition in late two thousand and sixteen where he's able to stand he doesn't need without braces and he's able to exercise regularly and we continue to pay benefits and updated records but again a nurse doesn't determine disability and a nurse doesn't determine whether an i am he should take place it was the examiner who decided i want to better picture this because looking at this record he can walk examined their their argument or if you really examined if you really examine their argument and the basis for denial of benefits here they concluded out of whole cloth without any regard to the t description of this job versus the employer's description of the job and they simply held that well it's a sedentary occupation and since he can sit for up to eight hours a day he can go back to work and that's really not of the content of his job he didn't just sit like a bump on a log and and get paid to do that is to interact with clients he had in life financial data and see what the big issue was whether he could get into a car and drive it if somebody can walk it up for well if you will showing that there's been significant progress made over the course of two or three years perhaps the longer needs to some factual questions because the factual questions we are asking your opposing counsel related to in heart whether a nurse can reinstate benefits or decide that there should be benefits to begin with in this case you have some nurses doing so claim by mr jackson that a claim examiner can do that and when you have a differing opinion of a doctor you go with a doctor you don't go within there's i mean do you have any evidence or was any of this but before the district court is to what you know about the processes of reliance for example previous decisions by reliance were based solely on conclusions of nurses to give benefits without submitting to to ability that was their process they had the ability when they're creating the administrative record to put that in there but as an attorney who does a lot of these things my request records i never get the procedures which explain the process by which they made their decision that's not part of the administrative record it could have been in the claim notes it could have been a list that they did in the climate's they have control over what goes in those c i mean if that is i mean it strikes me that an under the standard of review under the under the extraordinary deference it's kind of given in these sorts of decisions that that that affidavit begins to explain the procedure for why these decisions were made it it took centers lingering structural concerns those procedural explanations may may eliminate those as well seems to can isn't doing that moreover they didn't follow the correct procedures because one of the questions or one of the issues that mr bakra tries to raise is they were sandbagged you know but we had no before they make a decision to provide the peer review reports to the claimant to explain or to react to them or give the young doctor to take issue with what the findings are moreover it doesn't help because if you look at the peer of your reports they don't under really undermine the the basis for deciding mr novins disable all they really say they agree with the diagnosis of his treating physicians they agree that he has the stability they agree that he can't stand and walk on a regular basis but they make the same mistake or provide some i guess basis for the winds to conclude that because he's capable of sitting for up to no reference to that but basically there are entailed my understanding of his job he was a financial advisor or were registered represent there's some dispute over what his title was but it amounts to the same thing i get a financial advisor and he hadn't been sure that the investments that he was recommending were compliant with various regulations he had to make sales calls you know whether by car he required some ability there was a co aspect to it the same way that all our jobs are sedentary you have to have some high level competition to perform those jobs and he had them it was sometimes stressful sometimes and i think sheets which would have been difficult given his decline in visual acuity you know spreadsheets i mean think about that if you're lucky enough to have a partner and the advisor think about things that you might expect financial advisor to do description of the job that i just gave you i think is based on the d o t up to i just want to get out from under that being a dispute even if it weren't titled the work of the d l c description it's not all that different it doesn't express say driving but it talks about going out and enter and interacting with clients and it seems to me that the doctors his treating providers were correct in saying that given the limited mobility  see how wiccan's limitations sure he was walking in a pool which was a block with their appearing for five times a week which must to pick an hours he tried to work part time and couldn't even do that with his his compliance with treatment but it didn't improve him to the extent that you could look at his job and the thing that the nurses around him disabled about his really never contested base and he didn't have three different doctors of supposedly independent who have said concluded that he can work and that a standard of review is hi think he can do his regular occupation again whenever definition of the actual question you look at they simply say with certain limitations he can't stand repeatedly it can't walk not that's actually the social security definition but here it's a it's a much more generous decision he said and so it's a broader definition of just disability in the sense that he has to be a yes to be unable to do material duties of his occupation not any occupation that's not a task and reliance ignore the words of its own policy in making this determination benefits are that that kind of argument is only needed after the fact why shouldn't they be able to defend it extrinsic evidence after the fact well st i want to address your your st point about the the extra reports and of and the fact the matter is the judge reviewing this decision is going to look at them anyway regardless of whether they were properly or improperly if you are and again you have to look at the whole report  i believe that rather calmly case where are there cases out there that say you can't just pick out the conclusion of a report you to read the whole thing and the whole report by necessarily what his students possibilities are as to your other question regarding this affidavit is there is no case that says that either the claimant or the insurance company can submit  external evidence going to a procedural irregularity structural conflict yes and it has to be it can be a rule confined to the participant because the climate has no opportunity to to look  into structural conflict and the and the insurance company has no motivation to put evidence of the structural conflict in the record as a practical matter when you're out there in the field doing these ca in the record in the administrative record it could have been in the claim notes they could have provided when they produced the administrative record a copy of a very internal guidance which supported this decision and that didn't happen how are they to know that you are going to challenge their and the legitimacy of the decision to send it out they never give us a check and they they should have known that they should have the foreigners opportunity to we should have had an opportunity to look at those at the time and we didn't there's nothing precluding us to raise a challenge again about something that we didn't know about until the decision was mad so after the decision was you mean how we said look it would be absurd to let people not supplement the record a participant not supplement the record with information they will learn after and so i mean i guess i guess the point though is well what if sided rule because they knew of the conflict in their records should in order to have substantial evidence for the whole record and justify the conflict that they knew about the whole tone if not more than a procedural regular  he was not represented by counsel and they had the right to do it i'm i i don't want to get caught up in the decision to i think the decision to send him for an eye on the was this mischa's because again all the nurses looking a all the records said he wouldn't and he had inconsistent work function and for that reason he couldn't perform material duties of his regular occupation again whichever definition of regular occupation you're looking  the decision says simply without looking at the material dubious of his occupation that because he was capable of saving for up to eight hours a day he's no longer disabled and that's the wrong question and  answers the wrong question it doesn't really get into the material the needs of his occupation and nobody ever connected to various symptoms serious challenge as various conditions and mash them up recovered again because if you're going to confine the review for the most part the presumption in a string of records the the the insurance company here the new regulations only apply to claims that were submitted on or after april one two thousand and eighteen this was a two thousand and fifteen claim regulations have nothing to do with this this claim the new regulations i should say is now trying to add another irregularity and it just does not exist council also said that that none of the doctors including dr klein explained they only said that he's capable of sedentary work and then explain why he couldn't do the other parts of his job this is an accurate especially dr klein is a very very detailed report and says why the doctor believes he can do certain things at certain levels that information is then sent to and misread notices that information is then sent to a vocational analyst who reviews the job requirements or the occupational requirements and confirms that they're able to do that and that was done in this case i think you know counsel saying that we just considered it sedentary is incorrect but on the other hand what is it that he can't do other thems driving counsel mention that there was fifty or cognitive issues that prevented him from or king and yet on january twenty two two thousand and eighteen weeks after the denial there was no mention of cognitive complaints in his own treating so that's not supported councils said that he had a decline in visual acuity well that wasn't even a report of this claim so council is just throwing more and more things here when there is no support and it's not our of the rec and then you have the driving issue and mr noga still clings to that as part of the material duty and it clearly is not not so in mccann vs unum the court addressed that raise the same issue that if there is a definition that includes real national economy that's what's filed that's what's followed and significantly this was never raised this point can be disputed this was never raised that with vocational evidence by the claimant there is no contrie vocational evidence in the administrative records to suggest that driving was a material duty of his regular occupation because it wasn't and worse yet clearly the district court judge believed that it was on page two of his opinion appendix page four reliance admits that no to work in a sedentary occupations and that his job description included the requirement that he must be able to drive to outside locations so the district court rely on improper occupational duty in deciding that mister no goal was disable that's when he's i believe that's when he is is sending it out or around the time are you saying that there needs to be these additional care reviews and i think exactly he looked at it and he proved it so he clearly did it he did it and then in hindsight according to his affidavit he said all of that should have been done now maybe he did know there was klein dr klein's report and then said oh i should have done that because that's not the proper procedure maybe he didn't realize it i'm not sure but that's why under halley there should have been fact finding maybe there should have been a hearing with the judge or at least allowing us to submit our evidence allowing her to contra to contradict that you know the a lot of the times in these cases the claimants fight for depositions or conduct discovery on these sorts of issues but here none of that happen it was just bears argument take it and don't listen to them that much rain or stand white weather needs to be argument or fact my knee high in his affidavit says that it was after entering the node that he realized dr klein had been asked to assess functional capacity during the initial clean review but his notes before making the decision to return benefits indicate  specific note as far as whether when that took place the no you're furring to versus the nurses opinion i'm not sure but that i think the point was well the point is it should have gone to the nurse to at that might be a great point but it seems like a very strange post talked on it if you think that there's something wrong going wrong with have a claims being processed and you're going to reverse course based on this this this new discovery it certainly seems that that would be something worthy imitate in hindsight it's easy to tear through the claim files and say this should be done this shouldn't be done especially by us lawyers or judges because  i great i agree and i'm not talking for two to two microscopical weapons i'm just saying when there is a breach of policy that leads to a complete reversal maybe a little annotation will go a long way  it may have been actually your honor the breach of all see was that the nurse was able to provide that opinion in the st place it should have gone to the nurse and should have gone directly to a doctor and i think i think that explains the the timing of the whole to me at least it looks really really bad not only after an affidavit later once the benefits terminations been made understood your honor and trust me i wish it was in there i do but let's put  aside and you still have dr klein and there's no claim of irregularity regarding that request and it's fully supports the denial and again i don't want to go through all that evidence i discussed earlier especially on her bottle here she only mentions doctor the updated medical records that were provided since the prior nurse reviews and she mentions those other nurse reviews i don't think she was unless i missed it i read through it  a few times to make sure but i don't think she was even aware of dr klein's report because she only was again referring to the prior nurse reviews and then comparing it with the updated records and that is itself a reason why you have to question that opinion if and why a medical doctors opinion is more important especially in this case and especially an independent medical examination and in person examination of the type that was performed here but in just concluding unless there are other questions i think we have two very significant issues here one is there was a finding of fact on a procedural irregularity without fact finding which should not be allowed under the law but also the district court here believed apparently based on these comments that a material duty included dr and it didn't and the basis for this claim again was that mr noga could not stand up without falling down and that was a disability but at the time this record clo he was steady he was no longer falling he didn't need a cane he didn't need to wear braces he was no longer impaired he could do everything in council then explain why she said that he could and that we only looked at the fact that he but she didn't explain why he couldn't perform the duties of his occupation under the deferential standard your court is not allowed to some students own judgment of that of the administrator as the court has faded in dora's show versus harvard it's a narrow focus and even if you look beyond that and you expand things to look at whether this procedural irregularity is significant i don't think it matters because under the facts mr noga failed to prove that he was totally disabled the only other comment i would make is there were actually two all season volved in this case one of which is does have an any occupation standard that's the life waiver premium so there's really no basis at all to claim that he's entitled to that benefit but i would suggest your honour's that there is no support for his claim under the regular occupation test as well  ten minutes before we start the next case