reasons one the court applied the wrong standard of review this case should have been reviewed to nova based on what happened during the remember process and to really regardless of the standard of review the medical evidence in this case only points to one reasonable conclusion so you argue that this court should apply to no standard of review to the medical evidence that is an option that would be our preferred option would be to resolve this case now it's been going on for quite decided that the court should have planted over review instead of abuse of discretion why would we just remand that to the district court to apply what you argue is the correct standard that is absolutely another option i think that the court would have power to do both and there have been cases over the years where the court has overturned a decision below and just gone ahead and said what the th circuit thought should be the ultimate outcome in the case there's many cases where that was not the case where the standard of review was wrong in the court remanded for the district court to apply it correctly in the st instance so i think both are options it's simply a matter of from our perspective the amount of time that is already elapsed in the case so helpless out as to why you think this should be and should have been done over in the district court well should have been to no avail principally because of the conflict of interest that was inserted into the remember process by the direct involvement of litigation counsel in reviewing the evidence and providing the pla increases the conflict of interest but this is not just involving any lawyer this is involving the lawyer who is actively representing the defendants who are not the plane a minister in the litigation which was ongoing the district court still retain jurisdiction over the case and that lawyer had a duty to his clients to advocate for their interests for the defendant's interests in this case so you know what you're talking about is essentially the same as a structural conflict so for the district interceded or short circuited the administrators exercise of discretion and that in fact it was council's decision not the plan of mr his decision is that your argument that is one of our arguments though i argument is not that this is the same as a structural conflict of interest there is the structural cost of interest added to pays the benefits abbott decides who gets them but this is a much more personal and granular conflict of interest and an actual conflict between the lawyers a legal duty to his client and the do sherry's legal duty to a so what do you say to address the declaration that the prime minister submitted that she had already made the decision before she spoke with counsel well i don't think that that is a plausible statement on her part i mean that you can look at the order of events in which this occurred and that would essentially require to her or her to the thousands of pages of medical records coming her own conclusions and then communicated them to pose to the litigation attorney who then wrote them up for her and e mailed them back to her or two but this is arm that out to a rd party vendor to review the medical records for her give her a summary or an opinion and then she reaches a decision this is a person who going around declaration said that she this was the st ever appeal she'd ever reviewed in this capacity i think the idea that the litigation counsel coming to you and presenting you a fully drafted rationale for your decision and then you're going to exercise some sort of independent judgment over that is is unrealistic to expect of a fiduciary in that pacific do you really have evidence that that is what occurred in response to the declaration when she says she she made the decision then spoke with counsel because that's the documents can be viewed there's a reference certainly the e mail that i'm following up after our conversation she spoke to counsel told him her conclusions he drafted for her that would that circumvent her exercise of discretion of counsel drafted it for her if litigation counsel is drafting it i do think that's a problem and i mean i think the fact that literally no changes were made to that draft once it was in the plain administrators hands is further evidence now he did ask which she submitted a declaration that she personally reviewed the medical evidence correct that's what she said yes so how can we how can we simply disregard well for one thing this is an out of i mean this is declarations outside the administrative record in the case is produced solely in response to our motion for judgment and the we did ask under rule five thousand and sixty for an opportunity to depose this person we were not into is a painting testimony about what her conduct was in the case that was denied but we didn't really get the opportunity to cross examine these  statements i think the fact that you know the bulk of the letter was already drafted it's the same letter that existed before the st entire round of litigation the middle section a letter was drafted by the rd party vendor then the rationale was drafted by litigation counsel and it's one thing to have staff help you out with this work but it's quite another to involved especially litigation counsel who has a direct like legal conflict of interest in terms of representing his clients and doing the work if it would have i would think less of a conflict than the structural conflict that exist when the insurance companies are ministering plannin that presumably billing by the hour they're going to get paid regardless of whether the plan  whatever the determination is they have no vested interest in that outcome you're suggesting that as advocates they're going to be so biased in their presentation that they would even consider that zealous advocacy of their client might include advising a client to find a  person disabled i think it's seems to me you're creating quite a bit out of this conflict that seems to be the normal relationship between counsel and the insurance company well so just to clarify there's no insurance company here there's a plan administrator but right but it's similar to and we have evidence that says they did not she says she made the decision and for you to get to did novo review you have to show that things happened that were so outside the norm that the plan administrator did not exercise her discretion that's what we need to know how is that this you know what you're making argument about conflicts except her which seem to exist continually in relationships you find attorneys and clients how does that remove the administrators discretion well i mean our position is that it wholly out of the ordinary to involve someone in the review of a claim who has that kind of other duty to another party that is involved in the matter i mean i have had many cases remanded a lot of times that again counsel recuse daily severe pain and here really the evidence is as good as it can get all of her treating physicians which includes three orthopedic surgeons say she's disabled she had a thorough evaluation by a pain specialist stanford university  said this person is suffering from an incurable degenerative disease and they're just going to have to live with the pain for the rest of their life she's been a value about it as i trust you also thought she was disabled and repeatedly by chiropractors thought she was disabled and it's backed up her accounts of pain which she set forth in her declaration are backed up by objective medical evidence that establishes the existence of a disease that is known to cause pain and in her case it's very significant  vertebrae of her spine is affected by degenerative changes of some kind or another so you're summarizing the medical evidence and so much general terms and one of the factors that the district court considered to be important was the timeline and when certain reports were written and when the evaluation was conducted in as you know the district court concluded that evaluations post july two thousand and twelve were not relevant so what evidence is  did and under this they but they found that there was medical evidence and that includes the m r i is the st round of m r i eyes which all predate her leaving work that supported her account of pain and that rendered her claim credible and they that she had not been examined by him in the last month and that's just not reasonable this is a degenerative arthritic type disease i assume the peer reviewers also haven't examined your client the peer reviewers tha and thirteen functional capacity evaluation occurred during the clean and appeals process before the st round of litigation and is is again documenting her restrictions at that time but since they come from this degenerative disease process one that we have actual images of the best possible evidence we could have images of the disease existing before those evaluations it's reasonable to conclude that the findings on these functional capacity evaluations relate back to that disease process that we know is in place you know it's an attempt as that's just common sounds right now it's a progressive disease obviously is not a light switch right exactly and we don't know i mean if it's a progressive conducted like less than a year later i believe after those m r i s is again speaking to what can she do with this disease in place and the disease we know was in place back in two thousand and twelve and the other thing is you know she had a right under a day to respond to these new expert reports and the only time we could do that is when we got which wasn't until after the claim was denied and remained we were given an opportunity to appeal so i think  evaluating her condition in two thousand and twelve they didn't have a new i mean they weren't providing any opinions on her current condition in fact correct you know i don't think i think they definitely spoke to her current condition i mean the core question in the case is could the other thing is miss corbett chaebol is faulted during the initial process for not seeking enough treatment she couldn't she said she couldn't pay her right that's correct so one of the things we did on remained was because she got medicare through so security she was able to go back and her prior doctor he indicates he's not available for a month and she doesn't seek treatment from somebody else she waits sat chronology correct more or less but the problem is she's not a candidate for surgery there's nothing here to do to resolve this degenerative disease it's just going to happen so the treatment is really just checking up and checking it i mean whether to creditor or not it's a different question but this physician dr keene so there's nothing much more they can do right right that's correct and the pain specialist said look all you can really do is learn to cope with the pain there's no like it and talked about how mr gorbachev was hopeful of finding a cure at this pain clinic and you know the doctor said no it's just not going to happen morning me please the court name is joseph tours are represented defendants wanted to pick up on some of the discussion of the questions that we were asking mr keenly regarding the review process and just to put a couple things in context st off the declarations that we're talking about are declarations that the plaintiff admitted they didn't contest any of the facts on the nd summary judgment motion so they've admitted mr pan in statement of as to what actually occurred during the review process and i think that when you look at ms hand instep aeration it's clear that this was a much more extensive review process than plaintiff's counsel would suggest she received the records according to her declaration in october of tw she had several meetings with her internal staff after she reviewed the file and it wasn't until several weeks after that that she had the meeting with litigation counsel that mr keenly focuses on so her her  declaration and the time period and that and the time that she expended in reviewing these materials that report ever got to actually preparing a decision is much more extensive secondly if you look at the actual referring to that was drafted it largely with one exception i'll get to in a minute is summarizing the review the records or the reports of the peer reviews it's not as if what was drafted somehow identifies new reasons or other arguments it's it is largely a summation of what doctors get low and doctors kalen concluded regarding their review of the records so the the the accusation that there was some structural discussions regarding the evidence in this case the only additional rationale that is contained in this sum ation beyond a a summary of what these doctors had already advised mishan and by submitting their reports is a discussion of the social security war planers don't even try and substantively challenge that on appeal but mishandling and or declaration said i needed to understand and he needed assistance understand how to that the litigation counsel is the one advisor in her rather than a lawyer who's legally sophisticated put in the same position as she is in terms of who surely obligations understood your honor i certainly there was other counsel that could have been involved in this case but again and  did she not go to that counsel i don't have anything in the record that would tell us one way or the other as to why ms hannan opted to confer with the individual who was invited to tell us is there a custom your client has in terms of what coun consulted when counsel is consulted well in the earlier versions of this case your honor the record was that she was being advised by internal counsel but i would submit to your honor the dead that strikes me as the better way to go understood your honor but again this idea that counsel is incapable of sort of advising a client regarding what legal standards are what records rick records reflect i'm not sure respectfully that the litigation counselor internal counsel is any less conflicted if that's the word to use regarding advising the client what's already been recommended by the trick by the peer reviews they all recommended it does limit ask you questions for quite don't quite directly responsive to the argument we heard does litigation counsel have the same for litigation counsel that the idea that litigation counsel always acts in an adversarial context is no that's that was not my question ok i gotta thank you turning to the nd point mr kingly was talking about there were the question of what the relative weight of this evidence would show regarding her condition and it is correct that the the relevant time period to be looking at that  and twelve time period and if you look at that time period if you look at their record evidence that actually existed again it does not reflect this idea that counsel would suggest that she was having ongoing treatment that time period i don't think it's accurate to say that the record reflects wholly one possible outcome which is that she was disabled there is conflicting record evidence when you look at what these doctors concluded both in terms of her condition and possible return to work dates along with the fact that there was an independent medical examination that actually occurred as well during that same two thousand and twelve time period so to the extent that that is and we believe it is the relevant time period for when the condition is to be as sassed we don't think that the record is as counsel suggests you know it's sort of overwhelmingly demonstrating that she possessed a condition that rendered her disabled we think in fact just as the district court properly found there was conflicting evidence in the record and the case law in this circuit is clear if there is evidence in the record that shows that would suggest a conclusion different than what the plan administrator reach status not in and of itself as a demonstration that an of discretion occur especially when as in this case there is conflicting evidence that would support both outcomes again play counsel did not make any effort on appeal to really come to grips with what the district court concluded regarding the scope of the record in this case instead he continues to just focus on those snippets of the record that he believes supports his position that his client was disabled but i would respectfully suggest as the district court properly concluded when you look at all of that evidence and the conflicting evidence on both sides of the scale it was not an abuse of discretion for the administrator to reach the conclusion that this individual is capable of performing a sudden terry position and that the evidence was sufficiently ambiguous as the district court put it that it was not on reasonable cause that is the standard or whether or not that the plan administrator made a reasonable decision based upon the record there is no i think reasonable argument that that conflicting evidence  respond to the two the peer reviews that occurred in during the remaining process and again if you look at the actual reports that were generated they're looking back at the evidence to date already been submitted so again it is it's not as if these individuals were generating new rationales based upon new evidence these individuals were doing what the district court had instructed the plan administrator to do go back review the evidence along with this functional capacity of valuation look at the social security ward and include that as part of your review so that doctors kaylin and doctor get lower not out there looking at new rationales they were commenting on the evidence it had already been submitted from the relevant time period and so this idea that the plaintiff was somehow prevented from presenting evidence is simply not borne out by the record not only did they focus their  by anything we said whatever you want to submit you can submit so i don't think it's fair to say that simply because these reports were generated at the at the at the last step of this process that somehow they contain something that sandbag the plaintiffs here that the regulations do not the the regulations in effect at the time as you pointed out in our appellate brief did not require there to be some additional review or opportunity for a claimant to respond to the records those regulations have been amended so that they're now required to do that so i think it's relevant that at the time period there wasn't anything in procedurally improper by having these doctors review the records in fact that's what we had been instructed to do by the district court and it would have been it would have been  an abuse of discretion in my opinion if the plan administrator had simply conducted her own review without seeking any advice from medical professionals and again the your research regulations require administrators as necessary to consult with medical professionals so i don't think there's anything in the record that would actually support this idea that they were prevented from submitting the type of evidence that they wanted i just wanted to spend a few minutes our cross appeal for fees accomplished by obtaining that remain and the evidence is that they refused to discuss their remains simply because there was not going to be in a company awarded benefits in the district court use they had as a basis for saying well these discussions were very pull him an area and so i'm not going to factor that into a consideration as to what what level of success on the merits occurred here and again we think that that's not proper they were certainly free to refuse to discuss or remain but i don't think they can turn around and then point to that re mand as the success on the merits that justifies a feel for when they had been offered a volunteer remain and can you can you comment a little bit more about what precisely occurred in those discussions the district court seem to think it was preliminary and it's not a lot of information there had had defendants affirmatively offered to the plaintiff's agreement is that was that communicated to them in writing or some other fashion believe the record has an e mail from myself to mr keenly offering to remain and mr keene the response and said something to the and i don't remember exactly but there's in it mr keene lee's response e mail is also in the record where he indicates that he that his client wanted would only consider a remained if there had been an award of benefits and when they alternately obtained in the remainder order was it any better than what you offered i would say it's not your honor we're offering  the district court ordered that we consider the functional capacity evaluation in the social security bitter award that's what prompted the remained so i don't believe that what we were offering which was an opportunity for those documents to be considered is any different from what they obtained on the remapped the only the only difference would be your honor is that they asked that there be an award of benefits pending for their review they asked a district court that also and he denied that relief so i don't believe they got anything out of the  briefing before the district court that was any different from what we had been offering the reman now again in fairness the parties had this exchange and they were not interested in what we were proposing and so there at middleby was not a lot of discussion but the question here is whether that what they achieved was success on the merits in the context of this case i'm not disagreeing that there are cases that certainly recognize that obtaining a room and can under such certain circumstances constitute sufficient success on the merits that a plaintiff would be a war and title to fees simply for obtain that remain and but we think you have to put what happened here into the context of this case and look at the remain and in the context of what actually was proposed and the fact that they had never in their complaint initially they simply sought benefits and we don't think that what they obtained was anything different than it did offer based upon what the record in the case reflects and then my the only other point i'll make has to do with the ten percent reduction again i think we've shown in the cases that the district court simply announcing that there's going to be a ten percent reduction in fees without any further elaboration we don't believe actually comports with this court's requirements that the district court if they're going to adopt a percentage reduction explain in some detail why it is it's ten percent versus fifteen percent versus five percent all all the district court did here in reducing the fees was simply summarize what happened in the case that there  multiple claims those claims were were all resolved in favor of defendants and then simply announces that there's going to be a ten percent reduction in fees we just don't believe that that's consistent with what this court requires by way of rationale otherwise or really is nothing to review other than the simple declaration that this looks like this warrants a ten percent reduction and we don't think that's what this court's precedent requires unless there's any other questions i thank you for your time absolutely st of all this was a offer that was relayed virtually over the phone initially by counsel to me it's very early in the litigation and there was absolutely no substance whatsoever like what the three men look like how long would it take what would be reviewed none of that was discussed all the district court was right to find that it was just a preliminary cohen station and now i confess i don't have the me opposing counsel just mentioned e mails there were some e mail followups in which we said well we would like some benefits if we're going to agree to do this because what they're asking us to do is give up our case was the remand how clear was it the type of remember they were offering it was no clearer than simply saying we would do agree to a voluntary remit there was literally no detail attached so they didn't say remand to consider  social security that my previously been considered right so there's still the order you got was not spelled out in the offer that's quite correct and the order was an expressed finding that they had abuse or discretion which is different from them just voluntarily  i point out they could have done that at any time there is nothing stopping the plane administrator from reviewing these documents during the litigation and writing down her views and presented to the court instead they fought it they said we did a good job they did discovery they did a motion trying to win the case and they lost they took that risk and we litigated the case and we prevailed at that level how do you respond to their argument that you act if we litigated against every man that's not what you wanted he wanted an award of benefits at the district court the district court they say as i understand the briefs they say that you did i asked principally for benefits to be awarded but i did i do believe in the briefs on summary judgment that st time around it was a long time ago we said that the alternative relief for an abuse of discretion would be to or to do what they should have done in the st instance so we were not at all opposed to remain as a remedy it was better than nothing obviously we're here to get the benefits and i mean i want to pursue judge beatty's question and as precisely as i can you obviously were seeking benefits and you obviously preferred benefits over what precisely did you say with respect to remap like you didn't want one or that you preferred benefits and you would accept all we consider that a successful outcome in the case finally just in wrapping up here i just wanted to going back to the merits of the claim come back to a case this court decided called safa wells fargo and it's a case that is remarkably similar facts because it's another back degenerative disease disease degenerative disk disease case and one of the things the court observed in that case was that when one of these claims has been approved which this one was and paid for a period of time which this one was  the court expects the plain administrator to be able to identify some evidence of improvement to warrant subsequently terminating the claim and that's the bucket we're in here but there was no evidence of improvement and for that reason we think that benefits should have never been cut off in the  place and that they should be restored now thank your honour's thank you think both sides for your helpful arguments gorbachev a versus abbott labs extended disability plan submitted and we're now in a german til tomorrow