morning your honesty may please the court my name is bill reynolds attorney for appellate john drag it's a drag assess the appellate court to reverse the district court's decision to grant summary judgment in favor of his disability insurance company and against him the case was decided on cross motions for summary judgment the case is by definition an arbitrary and capricious example of a decision the evidence of record overwhelmingly establishes that dreyfus meets the definition of his disability insurance policy because of the long standing neck impairment he suffered for many years due to uncontrolled pain in his neck and arms he cannot tolerate static positions for any length of time he cannot regularly rotate his neck he cannot work along interrupted hours required at this position and he is limited in his ability to perform the other basic physical requirements of his job there is no question between any treating doctor in the record the druggist possesses these limitations and there is no question of his credibility the combination of his pain medications and associated depression and anxiety also produce documented cognitive impairments affecting his memory his sustained attention his processing speed his verbal fluency and his feel loud but we haven't really questioned the availability of discovery here we've asked the court to consider his social security disability insurance decision which came after the final decision of the administrator we believe that that is allowable under this case and it's well it's tenuous whether it be allowed under this current circuit law unless he can show some sort of that they put that the insurance company basically had basically had notice of it beforehand and refused to even acknowledge it they could be entered into the record here the decision came after the final decision was made reliance standard didn't know that is insurance applications of social security disability insurance application was pending in fact they held him to file the application and and says and now if the benefits are awarded they will be able to reduce the amount that they pay him on a monthly basis based on that award that was the basis for us asking for the records to be to be expanded to allow that and in this case to there is a question of whether the arbitrary capricious standard review should refund should actually apply the reliance standard and the district court found that they failed to meet the basic minimum timing threshold for issuing ended and an initial decision of reliance standard should have fish issued initial decision within one hundred five days and there were over two months overdue on that and the penalty from the department of labor regulations is that they are stripped of discretion and if their district stripped of discretion and there's no question that the additional evidence should be allowed in this case well the penalty actually is that a failure to exhaust is excuse what pay lower status while the halo is the second circuit case that we're actually asking the circuit to adopt that there is that basically that any discretionary authority is stripped from the insurance company and so and it proceeds under to novo standard of review  the remedy for the at the point of his initial application would have been ready to file a lawsuit if reliance standard had not issued its decision within the allowable time right he didn't do that he proceeded through the administrative process there was a timeliness just falls by the boards while there is a damage to drag this out at the two months that you had to wait to receive an initial decision he lost insurance coverage he actually was on able to go back to his doctors habbush insurance coverage in january now i know reliance is saying well we would have denied the claim anyway so there is no harm because we're not going to that's why we're asking the court to adopt a low we're basically saying should that there be strict compliance with these and th shouldn't have to hire a lawyer discordant edwards versus briggs and stratton said that there is a balancing act and we don't want to get into questions about whether or not there's substantial compliance with missing deadlines between a month or two months or a day or two days anything like that because it's very spectacular and it edwards the situation was reversed a plan participants failed to meet the deadline to file an appeal and the court said tough you know you have not complied with the regulations and because of that we're not going to grant you anything and and here we're saying the same thing the same that there shouldn't be a two tiered level of damages based on the either the corporation or the individual and it's and there's no question that dr himself should not have had to hire a lawyer just to file an application for benefits that's against what a recess stands for there's a balancing act between cost of the participant and the incentive for the employer to offer these plans and that balancing act is not company or encompass druggists having to hire a lawyer in the event that he may or may not heard that the insurance company may not meet the regulations and i'm not sure what that has to do with the standard interview question well the standard of review is but the question is whether or not if it if the failure to meet the regulations strips reliance standard of its authority we contend that it does and it's a complicated issue essentially if exhaustion is not can file a lawsuit and because they never issued a final decision there's nothing to break discretion and we asked for the same basically the same affects whether or not the regulations specifically says any language the reserves discretion is stricken we basically asked the court to adopt the halo decisions say yes you know why is that a correct interpretation of the regulation it's correct because that's what the department of labor argued in the halo case and they're they said the compliance with the regulations that we we have this here for a reason we've decided that the insurance company has to meet the timing the deadline elsewhere or else the plan participants are not and if we allow them to  basically skirt that obligation as reliance is shown to do again and again we cited two cases in our briefing that just in the last twelve months in the circuit alone are alliance failed to me that it's a problem that happens again and again and we're asking the court to address that here i know that it will overturn precedent but we think that the precedent is we think that that's appropriate and we think the second circuit has it right here he drank it ever offer an alternative to the job description adopted by reliance and it seems cleaner that he have jacking into the use of all descriptions from the dictionary of occupational titles record and reliances never said why that job description shouldn't carry the day dreyfus is also offered on numerous occasions including in his initial phone call the nature and scope of the work that he had to do there's no reason why they have to rely on the dictionary of occupational titles if there was a question of whether or not specific duties in his occupation were required at the national level perhaps but his job exists as job description exists and the way that it's done it seems to be the way that it's done everywhere druggists works for mccormick place he was the only point person to set up the i t requirements for all of the individual vendors at a giant convention he had to coordinate internet he had to coordinate wireless wireless internet grounded internet telephone all of these things he had to keep a number of things in his mind straight they were working multiple conventions at the same time it's a very complex job it's a very technical job and none of is really encompassed by the the occupations that reliance put forth and i think the labor market survey that they did on the on his appeal really highlights that because the findings of the labor market survey seem to be wildly different than the occupation and the dot at the material duties of the occupations that were in that the d o t descriptions this is a job that was the labor market short survey identified a job that was basically medium duty required him to lift and carry fifty to seventy five pounds that's not what he did he says he sat at a computer most of the day we don't dispute that he did have to walk around the grounds he did have to inspect it's probably a light duty job but his problems with you know what he's been saying with his doctors are saying is he can't stand he can't sit and look at his computer and his medications and his pain are causing cognitive problems they're causing him to make you take treatises medical history it's rather surgery three level sponsors it didn't work he went back for procedures and procedures and procedures nothing worked they had a procedure done where they turned the ends of his nerves in his spine to try to deaden the sensation he was feeling that didn't work and then he did a month long intensive pain management program at the r i see that didn't work unfortunately he can't work and no none of the doctors that ever examined him said that he could work reserve the rest of my time thank you  the department of labor regulations are white were mentioned several times during the question that my esteemed colleague presented we agree with accord on the fact that the department of labor regulations do not change the standard of review do not require a standard change in case of a later stage in addition to that we would like to raise the court's attention to the tolling provisions the department of labor regulations specifically documentation that is what happened here and i believe that out in our brief there were certain documents that were requested updated medical records from mr jenkins as medical providers and it took to some extent over days to receive those medical records as a result of that i don't want to ask you something that is running late in this case reliance absolutely refused to back up that claim with evidence of its policies and procedures what is the evidence in the record that reliance minimize the structural conflict here to meet the company opened the door to this type of discovery by claiming that these procedures minimized the conflict but absolutely refusing to back up its claim what is specifically in the record your honor is  first of all the only for all of the claim to independent vendors the payment of independent vendors much rather than physicians and the receipt of reports from physicians that have no affiliation with  this record we thought that analysis every line standard specifically requested two of the physicians that is consulted prior to the denial of mr jarvis this claim which goes way beyond what the department of regulations require my client to do verse and to actually discuss their respective positions to make sure that mr jaggers is fully assessed with regard to the emotional and psychological components of his claim as well as the physical components of his claimed error in the record we find these analysis there would be in the report there were  books report and the discussion is contained in the second report now of course neither of them ever saw mr drake is correct but that's also not but the department of labor regulations require we are supposed to be held to the standard of the department of labor regulations but that should apply also the other way around the department of labor regulations are the gold standard they provide what's a full and fair review my client went beyond what the department of labor regulations required consulted physicians independent physicians no affiliation with relying standard prior to the denial of the claim and consulted two additional ones we think are two the emotional aspects as well as the physical aspect so they claim prior to the final determination and what is significantly more important yonder is relying standard a lot of dialogue here which is not in the department of labor regulations my understanding is it's been discussed with regard to the new ones that are in the air and maybe coming for twenty thousand but as far as the old ones which are applicable to this claim that is not something my client was required to do and it it allowed mr  davis and his counsel input it allowed mr davis's physicians input on the opinions that were obtained even on the labor market survey again something my client was not required required to do so to the extent that we look ok now let me talk about something that your client was required to do i am wondering did reliance refuse to produce the claim file an administrative record in the district court i was to produce there'd been a straight of record we just hadn't done it yet at that point our submission makes it clear that we never refused to do so the court simply agreed with us that that's the only document that should be produced and provided us with a date it was a timing issue possibly on our part but there was no refusal your honor we rely on the administrative factor just as much as the plaintiff does so no there has never been any refusal by my client in any case ever to produce the administrative record yes reliance key and the statistics on how often the claimant meets the social security definition of disability which is awfully hard to do as we all know but fails to meet reliance instanter and my client does not do that and please keep in mind at the time for all sorry yes related to the structural conflict of interest pardon me if i'm not sorry could you repeat your question there was a well i think i'm just wondering if that would be discoverable evidence that would be related to the structural conflict of interest then if it's not why not the statistical information it's not me that's not something my client client can actually meet social security definitions of disability by reliance hence no no you're not disable my kind does not keep track of that but we do consider the approval of social security central portion in a possibility for and trade on and meaning somebody who is not approved for social security disability benefits as a significantly harder time achieving benefits however though given the fact that we consider the social security disability benefit award as being easier to me given the great roles given the burden shift given the treating physicians role that would not apply to my client and the entitlement under the policy it doesn't work the other way around you see it seems to me that mr drake assess a good argument that we shouldn't simply credit reliance claim that it shielded itself from the structural come flick reliance should have to produce evidence that it had appropriate policies of the followed than in this case the district court here relied on cases that predate metropolitan life to conclude that reliance was not required to produce that evidence but  if the supreme court found an inherent conflict whenever and sure both decides whether to pay and then exactly obligated to pay it it just might be time for the discovery rule to change but i guess i give us a good reason why insurers with a conflict of interest shouldn't have to prove that they've taken steps to shield the sometimes a little difficult the current law in the seventh circuit puts the burden with regard to discovery on the claimant to show whether there's a specific conflict of interest or any teens and their record that's the burden that judge aspen asked geragos to satisfy and found that he wasn't able to sammy and see what you have said here what reliances said here is this there is no conflict because of the conflict of interest and hence the weight that this court should give the conflict of interest when looking at the evidence we believe that the evidence that was amassed in this case and favor of and of a denial of is substantial we believe that as a result of the steps that were taken by marc client to ensure a full and fair review which is specifically the dialogue that my client was trying to engage and was engaging in with mr  and his counsel which actually went if you will look at the administrators record three times back and forth with regard to my client submitting the evaluators reports for comment then submitting the a comment as well of submitting the labor market survey for comment to mr davis counsel something again which is not something you have a carrier will do in a certainly not required under the regulations those types of steps minimize the potential for it seemed to the claim determination we don't dispute that my client is a structural conflict of interest that's not something we can dispute your honor but what i what we do advocate for is that in this specific case given the steps that very night and standard has taken given the fact that independent consultants were involved much rather than in house fiza shows that the dialogue was and shared between mr davis and my client with regard to the medical opinions before a final determination was made technically allowing mr dreyfus three additional possibilities of review and to be heard with regard to his opinions those points is what we are raising w court's weight always to go to the weight that this court should give the conflict of interest which exists in this case this case with regard to a discretionary view your honor it is not about a grain meant with the decision it's review of the decision and whether it's supported by substantial evidence and in th rehabilitation stay he was released to go to work he was ok his physician released him to return to work and on top of that it was his own nor a psychologist who appointed that he did not have cognitive deficits and it was his own address some of your points we would welcome the ability to gauge in additional discovery into the matters that you discussed and i think that perhaps a description of what happened at the district court might be helpful when we filed our suit reliance standard immediately engaged at this point the administrative record had not been produced in the seventh circuit the semi in standard has been softened which is the discovery standard but basically the seventh circuit says if you can point to specific instances where it's troubling that there may be a conflict of interest or there's something else that deserves additional scrutiny we'll open up the record a little bit and we'll let you engage in that discovery so we could potentially take it that position of a claims administrator if we could point to somewhere in the record where the claims administrator said i'm not going to consider this or just ignored something and it's very plain but we didn't have the administrative record at that point so basically the district court asked us to argue and point to instances where we couldn't do it and in that ruling is when he said ok no discovery but here's the you know the reliance standard has to produce the administrative record and that's where that ruling comes from i think that counsel says that the four doctors that reliance hired were independent i think the independence is a question for the court she discusses that they discuss the case internally between themselves but no doctor ever called any of this is doctors to ask them why they found the way that they did in fact one of the doctors dr weisberg specifically notes in his report that he was not the you specifically noted that he was not asked to call traitors this doctor said it's that's it they are seven nine seventy six at same think after appeal dr rader and dr freeman neither one of these doctors ever called any of traces treating doctor and that doesn't go to the question of their independence though your argument about the conflict of interests requires you to come forward with some reason to believe that there was more reliance could have done to ensure independent evaluation and i haven't heard nor did i see in the briefs any suggestion about what more could capricious substantive standard i'm talking about the question of independence bits which gets you out of that standard of review if the structural conflict of interest is not  accounted for by the plan and here the plan accounted for that structural conflict by sending this out for independent evaluation to four independent doctors and you haven't suggested that they were not independent i suppose for us to the suggestion that they're not independent as based on the findings of their reports because that's what we're limited to we were unable to engage in any other discovery all i can say is that some of these doctors are routinely engaged  reliance and have come up or other insurance companies and have come up in other cases and we can cite to those cases if you like but the question is really what are they paying for and i think the doctors knew what they were what reliance was paid for and what they're paying for was