w as well at the time the truly wacko stopped working for v k d she complained that she had experienced a exacerbation of her stomach pain and pain had disability would be mandated if the auditor tax occupation had he means instead of to manage your department yes now properly choose on absolutely not yes ok with that the distinctions between the two occupations could not be more dramatic while of course both occupations had managerial responsibilities and supervisory responsibilities from the nacro perspective the occupation of auditor or even the occupation of accountant requires a c p a the manager department occupation does not require a c p a from a micro perspective the defendant was very insistent that this court use the dictionary of occupational title that's what's in the policy that's what the founders argued to this court so if we look at the dictionary of occupational titles and issues for these various positions the manager department has or has a specific vocational preparation a term used in the dictionary of occupational titles of seven what that means is it takes approximately two years to learn the job the auditor position has a specific vocational preparation  requiring at least four years the job description said that at least seven years of accounting experience was required the accountant occupation have higher levels of mathematical ability and language ability than the manager of any department this is like saying any attorney could be a paralegal for a term in attorney could be a manager and in fact it's for th very reason that the social security administration found that after ms lack of could not perform the duties of her regular occupation or her past relevant work that there were no transferable skill had acquired were not transferable to other skills even though social security discounted a lot of her allegations and found that she was capable of performing a light duty occupation united of omaha made the same mistake here but didn't the social security administration based in large part on the fact that she had that grid rule twenty two thousand two hundred two point zero six i think it is at which factored in her age which required them to find her disabled you're at risk conflating the steps or determination in the social security claim in the step five determination social security employees a sequential evaluation process consisting of five steps first step is are you ready to do you have a severe impairment three do you meet the listings for your return to your past relevant work five is there any other work that you can perform social security made an explicit find it because of various limitations that were documented in the disability determination explanation form that ms lack ohad manipulative limitations and concentration limitations she had some memory limitations that she could not perform her past relevant work the step for finding is made completely irrespective of age age only becomes a factor in a social security determination at step five but even so united of omaha made sort of the same mistake here as far as ability to ability to perform your occupation and this is an own occupation disability policy the standard of disability is when you perform the duties of your regular patient this is not to you statements to her and she gave an opinion that she couldn't work but my question is what is the abstract of the medical evidence that supports dr her since it's there in his report you can find it in the consistent with rheumatoid arthritis she had an elevated sedimentation rate which is consistent with rheumatoid arthritis she had an elevated c reactive protein finding which was consistent with rheumatoid arthritis there's but social security did find that limitations in mentation were factors that supported the conclusion that she could not perform her past relevant work where is that there if you look at the actual document and look at point by point in that document the document specifies the specific findings that lead social security to conclude that miss lack of could not perform for past relevant work in addition to the x ray evidence and the blood tests you have breathing tests you have a cardiac catheterization which in itself was not severe but it did get diagnose some degree of therapy records they did it in initial analysis and twenty sixteen and then the records go through ten treatments and despite ten physical therapy visits miss wacko could not sit for more than thirty minutes her job required at least four hours of sitting she had limitations in her ability to use during outs which was an essential job requirement she worked on a computer all those other specialists did not opine complaints the best evidence that ties it all up is dr hagen's narrative report that she wrote to the insurance company where she went condition by condition and explained put the whole picture together and you've got an individual who's completely disabled and that's what social security did as well what you noted of almost dead on the other hand was they picked off each condition separately and failed to consider the co morbidity of those conditions  united used a third party to find independent doctors and they found two separate independent actors through their independent third party those doctors performed their own review of their records but they that they spoke as experts and having reviewed all of the documentation that they spoke to each other about the various ailments that she was suffering because the record shows that while they listed a number of records that they had reviewed there was no comment about any of those records there's no discussion of the physical therapy records there's no discussion of dr fritz's finding for social security but th would have led them to the exact same conclusion that social security would what evidence that i don't think you're disputing that a third party identified these to actors what's your evidence that they're  may disagree with their conclusion or say that they look at enough but to say it should have come up with an unbiased opinion or evidence that's in the record that these doctors first of all we did when we moved to seek discovery show evidence that dr marks had been frequently retained which is a potential sign of bias but the bottom line is in addition to not looking at all of the evidence and the combination of all the impairments they answer the wrong question they never answered the question of whether mrs lack oh could perform her regular occupation they performed they answered the question of whether she could work but that's not the policy requirement dr marks in particular gave a whole range of functional abilities he may deduct those his opinion is completely inconsistent with the physical therapy reports that document specific ability to  transfer from a chair to standing up which miss wacko could not per do after ten physical therapy sessions and this court has reviewed has consistently going back to the the love versus national relevant evidence it's arbitrary and capricious and i will reserve the rest of my time to i did play any role here in misc lack of trying for social security benefits like happened in the rape or in case they did not it on your honor did they encourage her to it i didn't see anything in the record but rest not provided until the appeal level so the determination here was made totally independent there was no encouragement made and it was a regular occupation first level determination and like and there were one case where the scenario was mandated as a result of misako and the medical evidence that was actually before the social security administration was not such as to contradict my client's medical evidence meaning we can rely on my client took the time to review the social security file and looked at the evidence and finding no reason to distinguish the evidence itself from the determination there was made in this case given the fact that  and less restrictive then the medical evidence that united have on i had gathered and getting mislike of the benefit of the doubt the more restrictive sedentary restriction evidence that had been gathered by my client rather than doctor i regular policy it follows the definition which defines regular occupation by reference to the dictionary of occupational titles and by reference to looking at the occupation not is performed for specific employer but how it is performed in the national economy following kennedy and the plan document role for my client did exactly that it followed the language of the plan documents determination under the policy not necessarily on a i don't believe that the social security administration had the same evidence that my client had in assessing the occupation is that  argument just a few seconds ago he stated she works on a computer all day that is a sedentary occupation and it fits our argument that's exactly what my client assessed the supervisory sedentary occupation and if we look at the accountant job description the dictionary of occupational title for accountant that's a santeria occupation as such we believe that our assessment in this case is reasonable it's was reasonable is that substantiated and it is your honor it just sucks and that there's evidence here that supports that her position was a supervisory position that she was working on the computer all day that she was in management management as a matter of fact and that she had other people under her guided who she supervised and for whom she provided principles and rules to follow she supervised implemented plans but she was not the one at a lower level who was performing the grunt work that's not at all what her job description supports and i believe that miss wacko by pointing to tax auditor is trying to change the nature of the occupation to a more strenuous occupation which is simply not half and that combined with the fact that we are to look at the economy as a whole at the national economy using occupational titles rather than the specific job  crowe accused my client of cherry picking if i look at the medical evidence there's a whole cherry tree in here there are not just a few cherry that we picked there's a lot of evidence that supports my client's determination and while  spread out several pieces of evidence for this court order i submit that those pieces of evidence support that she possibly had medical conditions what they do not support as to what degree those medical conditions impaired here or there my understanding is that there was something that was very much like oh during the discovery briefing however judge alonzo did not consider it a material enough to grant discovery in this case given the fact that just because somebody opinion on a possibly infrequent basis and just because every so often a court may not disagree with those opinions that does not necessarily mean that they are biased and especially in this case i think any i believe my time is almost up and i don't want to go over i thank you very much for your time thank you  the policy wasn't a regular occupation policy it was your regular occupation policy and contrary to what counsel represented to the court they did have the job description in the file it's at page nine fifty nine to nineteen sixty one and in the vocational report that says in god be prepared she begins by saying she had a job description senior manager p k d at zero zero zero zero nine one  respect to the pages that the defendant cited with respect to dr poetry saying that he reviewed the social security report i don't know what report he was reviewing when he said that there was no evidence impairment first of all as the court identified it dr poder did not make any comment about dr much dollars findings limitations with respect to using her hands and arms memory limitations answer yes the ability to understand and remember detailed instructions moderately limited does the individual have sustained concentration and persistence limitations yes moderately limited the ability to respond appropriately to changes in the work setting moderately limited while none of these findings are themselves disabling their devastating to somebody us to work as an accountant and as an auditor and for that reason united of almost heart just completely failed to address the question that the policy said it needed to address could see perform her regular occupation they're not free to choose any occupation they're required to choose her occupation they fail to do so in this case this court must reverse the decision below thank you both very much so nicely argued thank you very much