and the claims administrators determination that miss cobb was not totally disabled within the meaning of the plan because the evidence in the administrative record at the time those claims and appeals were decided supports only one ell i think ultimately it goes back to the plain administrator with an order to pay benefits through at a bare minimum march one thousand and sixteen which was the last date that the podiatrist indicated he had records available for review but really more realistically through may twenty sixth scene which is when the irony physician had concluded that a return to full time work might be possible but that would be with her remained to conduct further administrative procedures consistent with the terms of the plan that that we disagree with your claim of procedural error and find that there was no abuse of discretion in denying disability benefits after whatever that period is and with the only those decisions and the remedy for that abuse under this court's precedents would simply be a remained of the plan administrator with orders to apply the planned terms and the plan terms would permit miss caught to submit new evidence administered in abuse its discretion and a finding that she would have been fit for work after an april day or a may day no it doesn't stand for the latter part of that proposition it stands for the finding that if you find that the plan administr who has discretionary authority has abused their discretion that the court should not stand in for the plan administrator and and do the work of applying the plan terms necessarily that the court should most likely remain and and the  case to the plate administrator with instructions to comply with the plan terms that's both savile and it's also the it was also the court's reasoning pennebaker which is a long term disability his as well and that's the remedy for abuse of discretion now the one problem in this case is that the ministry of record cuts off when they deny the appeal in april two thousand and twelve sorry twenty sixteen and obviously ms cutts medical history has developed significantly since then and so one of the things we are trying to achieve from a scot in this case is the opportunity to get back into this claim and prove up her disability in a way that would be more thorough than she did on her own when she was not represented  back with a directive to comply with the to the planet ministry did to comply with the plan terms then that would necessarily lead to another hearing where you can then present current medical evidence yes because it would be a finding by the court that the plan administrator had not complied with the plan terms and not in the benefit claim and an instruction to open that claim up and then the plan turns themselves heavy claims procedure and a risk of course provides back on offer what constitutes a fair claims procedure that would permit the claimant to submit additional evidence supporting her ongoing excuse me disability even if that disability didn't exist at the time the of disease from which you now suffers didn't exist or hadn't even been diagnosed at the time of the original plan decision it would be the planet minister's job to make that decision in the first instance that is the plan a minister's job to look at that evidence and decide does this relate to the disability that you had in february and march and april of two thousand and sixteen and maybe the conclusion is not and there's going to be other evidence as well i mean you can see from the s disability benefits play in this court's review it should simply be used to show that one of the factual bases of the district's opinion has been is no longer true and that's contrary to basic sort of principles of the administration of justice it should not be used and it is not our position that it should be used to find that the plan administrator abused their discretion because obviously it was not before the plane administrator when they reviewed the it's so hard to get benefits under the social security disability administration i would think that would be one factor to be considered but since we're talking about an earlier period what role would it play even now were we descended that certainly well one thing this low security judge found was that his cause complaints about pain were justified by the objective medical evidence and that's all that is very relevant to her claim in two thousand and sixteen that she was disabled by foot and back pain agreed that she had very credible accounts of pain that the objective medical evidence was consistent with them so there is relevant material even to the decision cedric made on the current record and  do believe said it would have to if they're still the claims administrator which i don't actually know but the current claims administrator would have to take into account the full findings of the administrative law judge all of the claims administrator were retained a number of experts who issued opinions that made it clear that at least at some point in time your client was not totally disabled the claims administrator did it consulted with three medical for medical experts one was the i mean provider had commission the i me and the i mean provider is the doctor who said four hours of work per day maximum twenty minutes max sitting in a row which adds up to two hours and forty minutes of seated work they also retained the podiatrist he did a file review and it was their podiatrist who concluded no standing work duties at all during this period of time and they also retain two other physicians to do file reviews the clean bill report and the marty davis report both of which we think are just very unpersuasive they don't address the contrary findings of the examining physicians and dr mar comply with a severe restriction on her seated work pass it he and a severe restriction understanding workability and hours are the balance of my time for the  of miss caught as of april twenty sixth based on the record that was before cedric at the time the answer to that question is no such we did not abuse its discretion says rick reached a reasonable conclusion based on the record before it that withstands the piece of discretion standard under the terms of the plan ms caught needed to be totally disabled meaning continuously unable to perform any occupation for which she was qualified ok i realize as a mass of information about this i hope you'll forgive me to look at my notes here because some of this is medical in nature and i don't know this off the top of my head but the one that stated accurately as i understand it when cedric initially denied her claim it pointed to a lack of objective medical evidence in the form of and quote no exam but in response to that she sent a supplemental medical records from dr marcy davis who found tenderness at the c c y x and noted significant guarded gate the findings or abdurrahman is to support your inability to perform any occupation now those are mutually inconsistent they got some evidence from these people i just quoted and yet you said there was no evidence had were not sufficient to render her unable to perform any work in any occupation dr low's records show as we point out in our briefs that in a treating physician statement that she provided specifically on the end the occupation period for benefits that she was expecting a market or fundamental change in this cuts condition where she could return to perform duties in her own job as well as other jobs within three to six months three months from november is february two thousand and sixteen but big coun aren't there treating physician and expert physician reports when taken together that that demonstrate that for a period of at least several weeks the  was totally disabled because of an inability to comply with both sitting and standing requirements at the same time no your honor when you look at dr kling bell's report she was the doctor that decided they tenth twenty sixteen without any restrictions but a counselor i guess perhaps michael you know i have the same question there's no question that ome physicians say something different that happens all the time but under the plan you're obligated cedric is obligated to respond to and it dress the claims that are made in this case i don't find where they did that in the void i got other ones later but right now the ones i just mentioned i don't months but that same record also says that slow improvement may occur so you can have to look within the context of yes there's this projection but at the same time progress may not happen as expected so i think that the second part relates to any jobs or other jobs and dr lowe's statement with regard to slow proof that may occur relates to whether or not ms caught could go back to her own job the second part of the form which relates to other jobs does not have a qualifying statement it also shows that dr low had initially checked the box for one to three months crossed that out put three to six months as the date when a change was expected to occur where she could recover sufficiently to perform duties and so i'd like to ask you the same question i asked opposing counsel if we were to disagree with you with regard to some finite period in february or march and find sedwick abused such work abused its discretion in failing to provide benefits for that period would there need to be  for anything other than directing the payment of benefits for for that period as opposing counsel has the south a case that my colleague head cited to does talk about a to the district court with instructions with regard to sending it back down to the plan administrator do you believe that it does need to go to the district court there are although this court looks at the district court's decision on the law to novo the district court's decisions with regard to findings of fact which occurred here where we had crossed motions on rule fifty two that the decisions on findings of fact are treated with the clear error standard and believe that the district court should be given the opportunity to revisit this case if this kit case were amended by this court inconsistent recommendations ones that you should not sit for longer than twenty minutes at a time well as the other ones you can't stand how do you do that i think you have to look at the time period  yes but that's not that those are not the facts before the court dr low's statements with regard to sitting and standing from notes in october of tw fifteen we're conformations that subject obtained based on the i am needs assessment that was for ms cotts own occupation period you also have  under under review here in this lawsuit is the benefit terry and that was after that was for the any occupation period dr tokens reports were done on appeal  and doctor told me reports in the march thirty first report states that miss kotch would be able to perform duties in any occupation for which she was qualified however she must do so in a seated position at that point there is no condition and no one is a pining on her ability to sit and stand at that point the only condition that seems to be at issue is could perform her own job and also i wanted to know that dr matter ready had a pine that she could go back to work with restrictions as of november twenty fifth teen to her own job the report further goes on to state that ms caught us expect to go to be able to go back to work full time within six months there is a statement towards the end and this is at our twenty nine where dr many ready o pines return to full time work should occur after her fracture is fully healed there's some talk in the report about a potential cock six fracture four days later after that report there is an x ray in the record and it's at s e r sixty eight where the x ray of the cox six showing that there is no fracture so piecing that x ray with dr med it readies opinion as to her ability to go back to work who benefits financially of these claims or that's not part of the record your honor and in a third party administrators situation the administrator is paid a fee not based typically on whether or not they're denying claims that was not an allegation made by plaintiff in this case  no your honor in fact the claims regulations frown upon that the claims regulations i'm referring to are the ones that aren't all the problem so i mention the claims regulations there are department of labor regulations govern this field and there found that twenty nine c f r twenty five sixty point five zero three dash one i'd like to address some of the issues regard regarding the social security administration finding the decision of the social security administration that was from september of this year was not just outside the administrative record but also based on a disability onset date that was after this lawsuit was filed the disability onset date was july of tw also different disability it is a different just a different combination of medical conditions for which miss cot got social security disability benefits if you would know the social security administration decision includes miss cuts cancer diagnosis which as we know from the record occurred in march of two thousand and seventeen which was after this lawsuit was filed this is a case about a snapshot in time in april of two thousand and sixteen where subject was deciding the appeal and deciding it based on the administrative records that existed at that time i think your time is  review and the effect of conflict of interest there is no what's called a structural conflict of interest alleged in this case between the few light that is the fiduciary itself that made the decision does not have a conflict of interest that does not actually change the standard conflict of interest is one factor among many to be evaluated when assessing an abuse of discretion so the standard of review stays the same it's abuse of discretion review that takes into account the totality of the circumstances they just happens to not be a conflict like that's not one of the circumstances in the case of being on the record about that right now in this case counsel opposing counsel so that if we do this side to remain and we should remain on to the district court not the plan administrator word seems different from what you told us do you agree with her or disagree no actually i do agree with her that it should be remanded to the district court with instructions to the district court to remain the claim of the plane administrator and to consider plaintiff administrator and i to be clear i don't know that cedric is still the claims administrator that could have changed so that we do which is needed i figure that sort of stuff out one final point that i wanted to make was with regard to dr low attending physician statement which is where this notion that there was a three to six month into supported recovery window comes from and the district court and cedric sort of adopted the most parsimonious possible interpretation of that document we don't need to speculate what dr low's opinion was plaintiff attempted to submitted evidence a letter from him in the course of her motion proceedings from march of twenty seventeen where he put forth his opinions about her work status at that time and he found that she'd still have the same limitations he had recommended back in november twenty fifth and that should have been admitted like we did not get an opportunity to respond to the additional medical evidence that was generated on appeal and under a