but can i make a couple then curry's mr pellew way i'm sorry may i make a couple of increase regarding that case and your failure to appear short i'm just curious what happened because the clerk's office was desperately trying to reach you would never i think judge coolidge mentioned in his years he's never had a lawyer not appear or that we didn't hear from or we could not contact yes and i'm just curious as to why we were able to reach you or your office when i see you smiling so maybe it was a humorous reason i don't know not can you tell me yes i was ready to appear and when i got up and checked my calendar i misread it and i thought that the hearing was tuesday instead of monday so i said well and i thought it was monday but ok if it's on tuesday then i'll take advantage of that and take the briefs and go hide somewhere for a couple hours and work out without having interruption from staff and phone calls and by the time i discover that i was on the wrong day understand it did not occur to you to call i did call but you called after the argument well i called as soon as i discovered the problem but i think the clerk was you called after the argument but were able to watch the argument live or you watched and i called about ten for about ten thirty in the morning which was just before the arguments started and i just got voicemail i sent an e mail  been presented so i just and then we could not reach you why could we not reach you you couldn't reach me because in order to really focus my preparation your preparation for what were the argument which i thought was on tuesday i turned off my phone and was hiding so that i could have a couple of hours without being interrupted  whatever the reasons that cause this it was the st time in more than twenty years of sitting that i've seen that kerr and also i want to comment that for the other counsel who have other cases it was sort of inconvenience for them because we had to shift the timing of our argument  we'll take that into consideration and determine what if anything else needs to happen thank you for the for your explanation here today so be ready to proceed on this case mr nanki versus hartford life thank you is has a fairly complex medical proof to it and i'm not going to try to go through the details but i think there are some very obvious errors in the trial court the st of which is that the deals with the work in diagnosing chronic fatigue syndrome and it's really the only thing that's of an objective nature for this disease which is listed in the institute of medicine report  he said that that report was sufficient to show objective lee that mr nader was not able to work at even a sedentary occupation so doctor who looked at that report as stock to ray but dr ray's report is problematic because he relies on an absence of significant and objective physical findings dr todd who saw mr neg during that time period over the next year did not tell us to any disability from chronic treatment the trial court needs to consider the inability to pay for the treatment under the regenerator case which was cited and that wasn't  done sorry when you say that what wasn't done the trial court did not take into consideration and evaluating of the medical which was medical treatment which wasn't done the inability to pay for are you talking about the ten month gap yes ok and now you're saying that the doctor should have considered that ten month gap because  mr nanki could not pay for that treatment but i thought there was evidence in the record that mr nigh could possibly up for treatment since he was doing a variety of things like traveling with friends and an other things so like he had i mean at different times he had some funds but he did not have medical insurance and there wasn't a medical reason  at least according to dr early to do any kind of a work up because there were i mean there was anything to dr montoyo who has been following mr negative anything to do there's the lack of funds needs to be considered in that issue and dr todd mis diagnosed spine or the cervical spine so her recommendation for stretching exercises in the records is always associated with this diagnosis that is just plainly wrong i mean it just it just is so all of that needs to be considered and wasn't and then we have d round it was rejected because there was a typographical error in his report where he said i instead of mr nag and while relates to that he had the work will report done so  montoya is a an internationally known expert in this field he has done research on how this is caused by a combination of  defense physicians so it's nice to have a better review it may be that one that  started you know different conclusions can be made but i think it's pretty hard to support as a situation where dr stanford extensively certainly the general practitioners in georgia we're not going to redo that work ah i don't know for what reason they would have to redo it so that's really the key the key work and once you have this virus and the but even then you know off you're going to start adding in activity you have to add it in very slowly because if you don't add it in very slowly you'll crash i mean the primary well ok you're feeling better because you're not doing something so go to work is just asking to make him sick i mean there's nobody who sells his condition improved the recovery rates on this disease is about ten percent  the fact that there is basically the gap in the medical records over a couple year period is not very significant and finally while the cap isn't the only reason that the district court cited to no it's not but it's an important reason it's the primary reason and that's why i'm not saying that benefits have to be granted i'm just saying that the analysis needs to be redone and redone properly and i think also this is a good case to illustrate what i think is the biggest problem occupation i brought mr navy to court and i said you know your honor we should have some testimony but you know the rule it was in this circuit that we're not entitle in round two because the district court i don't think has the authority to do it and i think that's a change that needs to be made here  left to the district court it should be made clear that that's an option well thank you so that's really our brief so that the term a nation of the belfast should be overturned and it be left up to further proceedings to decide whether they should be terminated or not thank you thank you morning honors michael bernanke you for the oracle long term disability plan hard for life and accident company i'd like to start off by noting that the arista disability planning question provides two years of on occupation disability benefits to the insured if they're disabled from their own occupation there after they have to be disabled under the more rigorous any occupation standard now as we all know the district court awarded own occupation benefits to mr naggy through from two thousand and eleven through two thousand and thirteen it was primarily based on a social security award that was produced eighteen months after the decision was made and the administrative record was closed and a social security award which found that mr naggy could actually work in a sedentary occupation but for some unknown reason it determined he could not do his specific job as you know we appealed that decision to this circuit this is what this circuit upheld the district court under the clear air standard and this is what they said although the facts here may be susceptible to more than one interpretation we cannot say that the district court clearly erred in finding that negative condition rendered him unable to perform work comparable to his prior job duties it then cited the ocean garden in case for the proposition that  finding to be clearly erroneous it must write as with quote as wrong with the force of a five week old unrefrigerated dead fish and quote the reason i raise that now it's the same standard that needs to be applied to mr his claim for any occupation benefits on appeal and i think if you look at the record there's literally no basis to overturn the district court's decision during the any occupation period not one of mr now each treating physicians certified him as being disabled neither doctor early nor doctor that is extremely rare in these kind of cases in fact dr todd suggested that if mr naggy had simply complied with her treatment recommendations he probably  fine for instance he has sleep apnea he doesn't wear a c pap mask he has thyroid problems he doesn't take his thyroid medication she suggested his energy would improve if you started a light exercise program he blew her off the nd thing that's important that the district court noted is that mr nag is medical records were really pretty unremarkable during the any occupation period as you noted there was a ten month gap where he didn't seek any treatment mr patten way on a clients because he didn't have the financial resources but it seems to me he just didn't have any problems moreover when he did seek treatment his his his complaints were unremarkable in fact i think the visit to  dr todd in february of two thousand and sixteen he specifically stated his c f s was an active the district court then awarded him benefits under the own occupation standard april of two thousand and sixteen and suggested he might be eligible for more disability benefits under the any occupation standard and he goes back to dr todd starts complaining of chronic fatigue syndrome the rd thing that i think is important is we did have a comprehensive review during the claim we had three separate physicians look at this claim a neuropsychologist an internist and infectious disease doctor they all concluded that mr naggy was able to work in a sedentary occupation and it's important that their opinions concurred with the social security administration doctors who also found that mr nag had the ability of sedentary work now mr pathway says the doctor dura found that mr ninety was disabled that's not w dura said dr dura in his original report basically said mr naggy has full time work capacity i see no reason why you can't do a sedentary job mr now you then belatedly submitted the work will report to us dr dura took a look at that and said look at my opinion doesn't change all this report does it's a snapshot in time and all it does is show he's deconditioned i think actually going to work would improve his exercise capacity then the th thing that i think that i need to point out on this appeal that i think is extremely important is that the only evidence that mr pathway offers that his client was disabled during the any occupation period and that would be between december of two thousand and thirteen through roughly two thousand and sixteen when the district court made its decision is medical reports that he basically arranged for his client to undergo in the summer of two thousand and sixteen he literally flew mr naggy from georgia to san francisco to undergo the work will testing which is a two day testing in which mr naggy basically gets on an exercise bike is hooked up to a oxygen mask and has you know blood monitors attached to his danes and where he pedals a bike for about twenty minutes and then he goes back the next day and does the same thing then the nd thing he does is after that mr nike flies back to georgia seizes treating physician comes back again to california to see dr montoya dr montoya's the infectious disease specialist the originally saw in two thousand and eleven he had not montoya since that time dr montoya i know he went to stanford but he didn't talk with any of his treating mr negative treating physicians didn't review any of mr naggy medical records didn't really didn't understand that the social refusing to engage in regular exercise like his doctors recommended nevertheless he wrote a report saying that i believe my client has chronic fatigue and therefore he should be deemed disabled even if you accept those to reporters which we don't all it shows you is that in july of two thousand and sixteen mr nagging finally had some doctors who was willing to sort of fire him from being disabled he needed to show a continuous disability from december of two thousand and thirteen through july of two thousand and sixteen and he fails to do this and that was the book and argument that mr pad away was arguing about and that the district court rejected you can't simply prove your disability claim which shows which requires an ongoing evidence of a concrete ongoing disability by simply having a doctor look at you at start of the claim then coming back three years later and having another doctor come back and say you're you're disabled at that point in time as well so you know i'd be more than happy to answer any questions you have but under the clear i don't even think we need to use the clear error standard in this case the district court was obviously correct and i would add that when the district court found that mr naggy was disabled from his own occupation again it was primarily based on the social security award that concluded that but also found that mr now  was able to perform sedentary work so i just have one question mr pratt wait mentioned in his oral argument that there's only a ten percent recovery rate from the diagnosis that he has that his client has did the court take that into account or sad significant i don't think it's necessarily significant i mean one thing that mr pathway did which was you know which is which is clever but i think it misses the point it's not a diagnosis policy plenty of people over fifty have chronic conditions basically they may ever flow and just simply because somebody has chronic fatigue doesn't mean they necessarily can't work basically so i do think i'm not from a i don't know if that statistic is true to be honest because what we're looking at is functionality and what we could what we did indicate you know and let me point this out mr now you claim to have chronic fatigue since two thousand and six as mr pathway indicated he work between twenty million sixty two thousand and eleven there's references in the doctor's notes that he was like with that diagnosis either running hiking or walking like eleven miles during on a on a given weekend or something like that so simply because you have a diagnosis it does not result in a disability you have to meet the standard which is unable to perform any occupation it would destroy the premise behind a recess which is inefficient mechanism to so you agree with him that there are no witnesses allowed you know i've had cases years ago in unique circumstances when you're talking about like credibility of documents whether documents were forged or something like that this isn't one of those circumstances i mean you know the problem with allowing a live witness is really to keep them honest you're going to allow us to subpoena records and you're going to allow us maybe to interview other witnesses and call witnesses to contradict them and then it becomes more like a bad faith case than it does in a recent case so i wouldn't say that witnesses should always be outlawed but it should always be barred but it's got to be a really unique circumstance the treatment for this disease is to limit your activity to the point that you don't have the symptoms so you don't expect findings in the medical records and that's what this court held in slowmo and i think the defense view is that the only way you can prove that you're continuously disabled is to go and do more activity which is not recommended as against dr montoya's recommendation when you get really sick from doing too much then you prove you're disabled the problem with this disease is that you can keep your symptoms at bay by limiting your activity and that's what you do so if you don't want to need a doctor you just limit yourself to an hour a day or whatever you can do so how do you prove continuous disability thank case on docket is share master versus us securities and exchange commission that also has been submitted on the briefs so that concludes our docket for this morning and will be and recess thank you very much