and ninety seven she was out in silicon valley and worked for a company that provided chief financial officer services for start up high tech businesses a could not afford their own she applied for in received long term long and complicated medical history in one thousand nine hundred and ninety two until two thousand and eight she underwent sixteen separate surgeries for endometriosis and abdominal pain on top of that she was diagnosed with lyme's disease in two thousand and four and has suffered from a series of cognizant of cognitive deficits ever since in two thousand and five she was seen to have her behavior medicine clinic and noted to have severely limited in performing intellectually complex tasks requiring higher levels of reasoning math and language skills so i think that a critical point here mr slocum ms doris as i understand it refused an independent medical examination regarding cognitive impairments so right she did in your honor the reason for that is was only had failed to get back to her and respond within the deadlines required by  so she was like quite a gamble reject the cognitive impairment examination she was already been terminated or benefits and we wanted to proceed on with the appeal of that decision and clearly you know by waiting until the last minute and then i would point out in this is in our brief that there was an open ended extension requested by the and it was not a matter of let's get ms doris in here next week and do a observation there i've spent some time with the paperwork is it dr harris it is your ok with dr harris is paperwork and is there a place in it situation that she was dealing with and i think importantly you know judging endl in her opinion she did find the doctor harris's opinions would carry more weight than the going of position reviewers and i was because he had spent multiple visits with her head on going care from two thousand and eight until two thousand and fifteen and so those were clearly i think the interesting thing when you really read the district court's opinion is there's nowhere in that opinion where they say that we have relied on dr harris to say that she cannot perform each and every function of her regular occupation but at the same time we believe looms physicians that they can do that she can do any occupation and i think that's the important point there is that the district court in no way relied upon the room physicians opinions to draw upon the district court relied exclusively of paul on what we think is a misstatement of law is that there was a vocational analysis that was required and we've cited extensively through the tape decision by this court the that comes straight out and says that that's simply not the standard that was what was advocated in the tate case and they simply said that the cour vocational expert dead it it said that he could have possibly met their burden with a vocational analysis or other information shelling that the physical and other demands of relevant gainful occupations are prohibited for her i think that's fair that i or other information which is that court didn't say or defined what that other information was true and i think i over say when i said requiring a vocational expert it's vocational evidence and i do think that is what the district court said was required number one i would say the tape decision says that's simply not the case if you have a physician that says that you cannot perform any work and that's exactly what we have here in our situation number one we disagree with the district court when they said that locational evidence was required number two our position is vocational evidence was actually provided in what's what is important and it's actually cited in the district court's opinion dr harris was asked when when when i'm was making its final disability determination and two thousand and fifteen it's specifically in this is important they did not send  definition and description of her own occupation they sent him the d o t descriptions for sedentary and light work and that's what dr harris reviewed to put reviewed and relied upon and i would respectfully request submit that when you have a doctor looking at sedentary in light occupations those in compas and envelops the any doris could perform i agree that there was not a vocational expert to say these are the occupations and the material duties for which she was reasonably suited i understand that but what we do know even whom physicians say she can't perform beyond a sedentary level we have dr harris receiving not only the sedentary description but the light description those two descriptions in and of themselves  and encapsulate the actual any occupation definition but by definition and so when she when dr harris opines that you cannot that she cannot perform those jobs that isn't any occupation analysis history to talk about i got the sense in looking through the records here and the administrative record that both sides in litigating this case really focused on the st prong here whether or not ms doris could perform each of the material duties of her regular active patient and that the nd and rd of which the district court relied on really had not been the focus of either party throughout the not just the litigation in the district court but at the administrative level as well really that a fair observation so you're absolutely right that is what was focused upon at the administrators level and quite frankly illegal so dealt with at the at the district court level and i'm here to concede that we s discovery we didn't the magistrate court denied it and i didn't appeal that i fully acknowledge that we were not interested in having additional delays quite frankly we're depositions that you wanted and  get documents right well we got the administrative record that's all that's all you got and so you know in one of the depositions that we sought was was the vocational expert because it was unclear to us you know you're saying these are the material duty is of your regular occupation but them were also throwing these d o t descriptions into the mix and so we were left with that best i think a cryptic decision in terms of what we i think that to be honest i don't remember but i think that's probably accurate that's probably accurate is it is it fair to read dr harrison's december  fifteen letter is likewise being focused as judge seen even the kid on whether your client could return to her prior job i think that the materials he were he was provided was based upon what  provided us and i think that the primary thrust of that was addressed to regular occupation however the ultimate conclusion was just as it was d in the tape to sit is that  opposed to the regular occupation that that is i guess what room was getting at is that nd wrong the after twenty four month definition but suffice it to say that dr harris clearly and unequivocally actually throughout the entire of his treatment for seven years indicated that miss doris was incapable of performing sedentary in light work and again by definition that includes all of the jobs that she is reasonably  and suit for by definition could you explain for me what your position is on this twenty percent less than prior earnings point in particular the the role that you think plaintiff's volunteer work may serve in satisfying that retirement so so there's yes so on the twenty percent option there's really three things  that have to be proven two of which are the district court agreed with number one is that the opponent could not perform each and every material duty of a regular occupation which is what judge and and that she's currently earning at least twenty percent less per month than a pre indexed disability earnings so those two things are quite frankly proven so what we're left with is a comparison essential e of her regular occupation the material duties of the regular occupation and comparing those to what her volunteer work is so it's simply a matching up of what those material duties or is it your position work that's good enough i think that that i think what you're asking for is you know kind of that outer liar situation where where those things i guess i would say i don't know because that isn't the case here  i would say respectfully that for work with art on the square as a treasure doing the invoicing the banking preparing the financial statements there is a just on its face a clear overlap with the material her job and about how many how much time was she spending a week on that not much not many hours it was clearly a part time one to you know with art on the square there were some weeks you know when that when it's only once a year so i would say probably a few hours if you spread it out over over the year but it's very intensive writing before and after the art show but i guess i point out on that your honor if the language of the policy itself controls d on that and that talks about full time or part time it doesn't say substantial part time work a minimum of x amount of hours there's no you know language your understanding would seem to make that pretty easy to qualify for somebody who's able to volunteer for it as long as those material duties match up ok as long as those match up i think and that's what's clear here is that they do match up well as to revile interior was at the zoo right and that was up to about five hours a week she was doing she was doing docent work at the zoo she also  court jacqueline hearing on behalf of the defendant you know life insurance company of america the district court acting as the finder of fact in this case carefully weighed the evidence and determined that doris failed to satisfy her burden of proof to establish disability and entitlement to benefits under the plan the district courts fact intensive decision is subject to review for clear error and that decision is not clearly erroneous it reflects a plausible view of the evidence and should be affirmed to obtain reversal doris has to establish a clear error in the finding and yet which she has asked this court to do is to simply re weigh the evidence and come out in her favor and there certainly evidence on both sides in this case and judge yandell carefully weighed what that evidence was and made a determination based on her weighing the evidence and that decision must stand and less it is not plausible in light of the entirety of the evidence and even if there is a nother plausible alternative even if doris's position is also plausible if the district court view and findings based on the evidence are plausible that subsists that gets past clear error review and that's the standard that applies here it's not a real weighing of the evidence it's not anything that unilife did or did not do during the administrative proceedings it's not an arbitrary capricious case it was didn't kno review by the district court which required the district court to make an independent decision based on its way of the evidence and those facts findings are reviewed for clear error is what impact on us that you did not raise the twenty percent less absent in the policy as an affirmative defense you raised the any gainful occupation prong but not the twenty percent less option if you wait dip because of that no your honor because it's not an affirmative defense it's doris's burden to prove that she qualifies under the policy it's not an affirmative defense that unilife has to prove that she doesn't qualify for benefits so it's not an affirmative defense it's an aspect of doris's burden of proof and you agree with the assessment that it really looks like both sides focused on that st prong that she cannot perform each of the material duties of her regular occupation and that the other two prongs were a little bit sideline yes and i i certainly did because my client had five different physicians that said she is able to perform her regular occupation so i thought that was number one very good evidence that she fails to satisfy the regular occupation and of course if she doesn't satisfy regular occupation she doesn't satisfy any occupation but regardless of what the parties chose to focus on doors still has the burden of proof and she can choose to focus on different elements or on different aspects but that doesn't relieve her from her burden of proof if she wants to qualify for benefits under some portion of the policy she has the burden to establish that and she cannot simply choose not to focus on that and then on a peace plan around and say ok i should be given an opportunity to do so for opportunity to do that was in the district court when the district court was doing its independent review of the evidence and in the district court doris didn't present the district court with any sort of evidence or argument about what the duties were of any court to weigh at what point that evidence becomes sufficient i think that additional evidence the district court certainly pointed to you could have had some vocational expert you can have a vocational expert identify what her well i mean what's the phrase any gainful occupation for which you reasonably fitted by training education experience could be virtually the world right and  i'm trying to think in for example in social security disability analysis we deal with that through a burden shifting or process is it your view that it's the plaintiff's burden to come forward with evidence that excludes the world of  occupations i don't think that i don't think you'd ever have to exclude the world of occupations i think there would have to be enough evidence for the district court to find that you have sufficiently established that you are unable to perform those other occupations for the bottle would always have to be coming from the insurer saying ok here's one that we think you can perform right once she meets that burden i think that would be true that there would need to be some some or duties of any gainful occupation for which i am reasonably fitted by training or education or experience for that this i just left to the district judge's discretion well it's that it's a preponderance of the evidence standards and that would be  standard what the standard is for what specific evidence would be required to meet that i think that would be a case and fact pacific scenario no standard up to the  wouldn't say no standard but i do think it's a case decision to give me some help yet what would have been sufficient here i think a few things that would have been useful for example the vocational and alice's that the district judge suggested in addition in this particular case dr harris never quantified any specific functional limitations or restrictions for doris all that he offered to the district court and all that doris offered to the district court was a blanket conclusion of she can't work you know there wasn't this best the fight she can't lift more than ten pounds she can't sit more than ten minutes she's gone through this neurocognitive testing that shows she's got memory problems that she has problems with fatigue concentration and memory there simply wasn't any quantifiable evidence all of those things would would assist in meeting the burden if you have a vocational analysis you've got some specific medical functional limitations versus simply what woods which dr harris did it is alternately offered the district judge simply the legal conclusion that the court was supposed to reach she's disabled she can't do any occupation are you saying that dr harris's evidence would never be sufficient to meet that prong or that the district court weighed other factors and didn't estimate that prong put full weight into dr harris as a pain i would not say that it could never be sufficient i think you had judge yandell determined that doris was not able to do any occupation i would be in a very difficult position in front of this court to argue that that was clear error because it would have some plausible support in the record but there's also plausible support to the contrary and to suggest that any time a treating physician offers a bare conclusion that the claimant can't work that it is implausible for the district court to find to the contrary then we might as well not have judicial review because the court has to have the district court has to have the ability to balance all of that evidence and simply because that is fair conclusion opinion don't position doesn't mandate that the district court find that sufficient to satisfy the plaintiff's burden of proof i read dr harris's opinion i may be i'm mistaken but i tend to read it as focused on whether she could she could return to the prior job that was i mistaken in your view that you know it he's not for it so one of the things she has on a resume is she has before d she worked in some of the more advanced in a general position so she worked as a staffer carol so i'm thinking well the she have the she have the ability to work perhaps  he's looking at evidence from fifteen years ago back in time you know part of that report that mr slocum referred the court to the references how she was working so many hours that it was interfering with her treatment well that's back in two thousand and one and there's absolutely no dispute that she has functionally improved as of two thousand and fifteen when benefits were discontinued pleasantly and also looking though at his treatment of her over the course of time yes but when he's offering his opinions there's a lot of information he's pulling from fifteen years ago rather than focusing on what specifically is her condition now mean that's where you read the december th two thousand and fifteen letter i think it's kind of a here and now letter it just doesn't get to the locational capacity he specifically references in that letter how her long hours were making it more difficult and interfering with her treatment while the only time she was working those long hours was back in two thousand and one i don't disagree that there's some information in there about the president but he seems to be mixing all of that together which again i do think undercuts some of the ultimate opinions in the absence of other supporting evidence because there are normal examinations from other physicians and frankly most of dr harris's examinations were normal the clinical findings were normal what he's citing to is what doris is reporting to him and that's a perfectly acceptable thing for a doctor to rely on but when we're talking about was the district court clearly erroneous in deciding that that failed to meet doris's burden of proof that's a different issue and the district court's opinion here is is well supported and plausible based on the evidence who's hearing i'd like to take you back to the twenty percent provision in the policy yes or no i understood you to be saying you don't think your job presenting that her theory to the district court let me just ask you how you understand that provision as applied to hold that sort of a cleaned up hypothetical but of a person who is no longer working at her old job which is like mr or ms doris is history but who is working let's say one afternoon a week as a volunteer treasurer for the civic organization and i think it and that's it exactly the type of thing that would need to be factored in how many hours what are you doing is it in fact part time work treasure or half time volunteer good enough to qualify it might but it get it would depend upon view not earning because you're choosing to do volunteer work versus choosing to work in a paid position where there would be other found you obviously are that well in the entire concept of disability is that you are unable because i'm familiar with the concept of disability but i'm also looking at the policy provider right and the policy provision requires that whatever your impairments are that they're all because of a an injury or sickness so it would have to be positive injury or sickness that the earning a reduced ok she's got a pretty good record that she can't work full time and judge randall didn't seem to think that she could work full time in her old job so that would satisfy those facts would amount to one of the material duties of your age your occupation on a part time basis right it might i guess and doris specifically argued that she was not able to work even part time so i don't think for example working an hour a week qualifies as part time performance of material duties otherwise balancing your checkbook for a few minutes going to mr for i understand why you might think it ought to be interpreted that way but how do we get that out of the policy i think we get that from the idea that you are performing your regular iraqi duties of your regular occupation or another occupation on a part time or full time basis that definitely suggests some continuity in what you're doing that you're actually performing every patient one afternoon i mean you're talking about somebody who is more disabled than somebody you describing or contemplated and you're saying no that's that would not qualify i think it that's a hard question to answer in a vacuum your honor i mean it really is i do think the policy suggests more than that and the reason why is we're talking about material duties of an occupation and to suggest that working one hour a week is performing occupational material duties i don't think satisfies what what disability means is that and because of the the one hour a week the tiny portion put into it or because of the work that's being done both potentially because i certainly think if i were standing here saying we cut off somebodies benefits because they were volunteering one hour a week and therefore they were capable of working everybody would find that to be arbitrary and capricious were high i know you had your honor and i believe the court has so you know and that's why i do think there's some balancing in it becomes a a fact specific scenario and the policy certainly by suggesting it needs to be people are part time work doing material duties not just job tasks but performing i q patient material duties if you're requires more that's a very elaborate gloss on some pretty sparse policy way which i have to say thank you for your attempt to address it so anything else you want to tell us other than the the district court's opinion is not subject to the there is no clear error here and her findings are clause a bill in light of the entirety of the evidence the decision should be affirmative thank you talking about a procedural safeguards that's built in and the case law i understand this court has not adopted halo but we have a situation where we have a dyno voe review so the only remedy for a procedural violation would be mak relied upon a physician saying that the person could not work and that was enough it wasn't that they needed a patient doesn't and in your honor i will i do want to point out all employment i agree that there were some where he was focused specifically on any occupied regular occupations but there are at least three or four specific instances where dr harris clearly said that  perform any work and that's exactly what is aligned with tate judge handle found that there was no evidence on that issue and she was simply wrong about that thank you counsel thanks to all counsel cases taken under advisement