decision on finding that first you know life insurance company did not abused its discretion in terminating her benefits under her employer's disability plan and the basis for the court's finding was that first y had reasonably relied on the opinion of a physician in connecticut who reviewed newspapers records the decision should be reversed for two reasons first the district erred in giving effect to the plans discretionary language in light of the california insurance commissioner's opinion that the language violates california insurance law they have the opinion it's just an opinion right this is not a statutes not took it issued an opinion letter affirming its longstanding policy of not approving insurance policies that contain discretionary clauses and the opinion letter stands on its own it does not say it applies prospectively only in fact the commissioner has said in his amicus brief in this case that the opinion letter merely restates the department's longstanding policy that such provisions violate california insurance law now there's a second action and that is the withdrawal of approval of several insurance policies containing discretionary rangle and including the policy that the the notice to withdraw provable applies prospectively only to the policy in this case we agree with that what does not apply perspective only is the department's opinion that the let policy language violates state law is there any is there any california case that i can read that says that by the california insurance commissioner giving an opinion through his counsel that says what he thinks ought to be that that is there after state there isn't a the thing that seems to  me that seems to me to be the crux of your argument if we go under california normal contract law the common law one could argue that some contracts are illegal because they're declared illegal by the state but under common law one would have to find some state court california stake or which would somehow suggest that this opinion by the commissioner is law i've not found any court that says that in fact i've found california cork would say it's good advice it's good what we might think about but we're the ones who declare the law and we don't declare the law and therefore the california commissioner can withdraw insurance policies can suggest that certain insurance policies thereafter are not any good but as far as trying to set the law in the state of california i got nobody saying you can't well the statute authorizing opinion matters authorizes the commissioner to interpret the law and section one of two nine one point five of the insurance code which is the statute that the commissioner is interpreted in his opinion letter authorizes him to make the determination whether policy language conform and he's made the same kind of an opinion previously and determined that this was ok until he got to this point where he decides to issue an opinion and say it is well the commissioner never issued an opinion saying that discretionary language was acceptable solely and that was the sole then it was acceptable under the common law there were policies that were approved under section one of two ninety one point five initially in the early one nine hundred ninety s and the commissioner said that at that time the effect of the discretionary language on the claims decision under the policy it was not something that the department understood the new york insurance commissioner has explained that rather well he said we originally approved these policies because we believed that the discretion granting language was merely a recapitulation of the insurers right to deny claims to decide claims once we learned that the discretionary language actually undermines the promise to pay benefits on the occurrence of the stated condition the commissioner stopped how can the state then make that contract illegal in some way you can go back as former is dartmouth college case where you cannot  the government cannot declare a contract illegally illegal if it is a legal one it's made how can the state agency convert a legal contract between  the state consistent with the viability of the contract law the clarity illegal the commissioner's entitled to say what the application of one to nine one point five is to the the question before this court and this returns also to your question regarding the effect of the opinion letter is whether that policy provision is and forcible in the sense that it confers discretion here the commissioner has said that this language violates section one of two nine one point five now if the court the problem comes in i hate to interrupt you but the problem comes in that i've not found any california court that suggests that just because the commissioner says it it's there for illegal under california law i found a law to which say give him deference his opinion has some weight to it but it doesn't say anything where it is absolutely by court found illegal and in fact i have sound just the opposite i found that they say no no problem person back to billy we'll go with what we have to do but backwards giving it i have fact to policies already issued and approved prior to his have done under the same circumstances which is that the woodward's court looked at the opinion letter and this is state court considering and a recess section five zero two eight one b claim just like the claim in this case because of course state court review have we had any head on collision in the in the california courts between that is zire companies offering these kind of plans and the commissioner's position in other words or the commissioner said you can't do this in the state of california with that clause in that policy and the company has gone to any court and said he can't do that  insurance company sued the commissioner over the question of the notice of withdrawal of approval of hartford's policies that's the hartford v garamendi case that proceeded in the superior court  public system is that right now actually that's not correct after judge moore and denied the request for a petition the petition for writ of mandamus the the party settled so that judge has pointed out in his brief that because he is the department had this longstanding policy making refuse for a second when you say the california supreme court has not spoken to this issue you mean whether you  prevent a company from doing business with a court has said has met that the insurance commissioner's opinion does not have the force of law yes i'm sorry i meant that the supreme court i just want to be clear i know what you me the standard that was applied in this case was worthy of a court refers to as untempered abuse of discretion or if you after a baby the court would need to analyze the factors that force the new baby to determine the degree of skepticism with which you know just his decision should be reviewed before i talk about the factors that support skepticism under a baby that i'd like to briefly address the merits of the district court finding that the clear that he has a major disagreement with ms bader is treating physicians over her diagnosis and her treatment his letters do not his letters support that she is disable so for example syndrome and depression and he continues that mistake is not improving because her symptoms are not responsive to the medications used so because there is nothing in the plan that requires that a participant be disabled dr bally's opinions that he assessed total disability in other words he just asked whether ms beta could work at all because he said that ms beta there was no documented abnormality to keep her from working on at least a part time basis and that's page four nineteen of the administrative record he went on to say there's no evidence in the clinical notes that allows an objective reader to conclude that disability exists so when the only way to harmonize those two statements that she could work on at least a part time basis and that there is no evidence of disability is the dr of values believed he was being asked to assess total disability total inability to work but this plan does not require total disability everyone agrees that ms beta can work on a part time basis but the plan does not require total disability it never mentions the term total disability instead baby would lead us to this conclusion which is that it's an abuse of discretion review but a more skeptical and thorough review of the decision based on what we would have in front of us and therefore on a more thorough and skeptical view considering all of the record if i find that the district court gave careful consideration to all of the involved plaques and all of the arguments phrased by bolts fives that the district court's decision that it's extensive and detailed questioning during an argument demonstrate a careful of valuation of all of the facts contained in the ministry of record and that you know me and gauged in an ongoing good faith exchange of information then how do i get by the discretionary review because the district court evaluated the evidence with no skepticism as it as it was required to do under our which was a lot of time under a baby the district court would been required and this will be required to review the facts with skepticism and to take into consideration factors such as you know history you know history that's been documented by other courts as stated in our briefs parsimonious claims handling a baby requires that to be taken into consideration that's evidence that you know has repeatedly denied benefits to deserving participants it would be required to look at  the decision to repeatedly request information from his beta rather than going to her health care providers these facts are evidence that would support a high degree of skepticism on to novo review scuse me on abuse of discretion review and the the commissioner's ruling itself says that it's that it's prospect of only the statute which the insurance company the insurance commissioner relies on provides that it can only be a perspective withdrawal district court didn't apply body because it didn't have the benefit of it but it did perform a very very careful scrutiny of the record both during a lengthy for  in the administrative record which she believed showed a conflict of interest and the court considered all of that information at that time this well so so even though a body had not been decided at that your honor because the body decision makes clear that there's no there's no sliding scale as has been has been applied in another circuit court so there's no there's not ten different standards of review that are applied what a body made clear is that where a plan grants discretion under firestone that discretion to be applied now the question is how carefully is the court going to scrutinize the administrative records so perhaps it can be  case explored every one of plaintiff's arguments both during the argument for the arista trial the extensive brief and i think there were nine briefs in this case before judge she valued at least nine and that also included the summary judgment motion where all of the issues in the administrative record and the arguments the plaintiff was making were addressed at that time as well so the question would be under a body certainly there's there's  and i believe that there was there were there were documents regarding dr balance and the other other reviews that he had conducted and i believe that there were  whatever the opponent did make the claims that were argued here about the parsimonious claim handling and i do not believe that in the summary judgment motion the court directly addressed those arguments that were made and instead focused on the issues the arguments that were being made with respect to the analysis in this case what should we make of the fact that the social security administration determined that she was in fact disabled not much your honor at the inn in black and decker places all the time on appeal from district court through the commissioner of the administration and it's a pretty tough standard and it is but in be able to show that you cannot you are you are permanently disabled from performing any work in the national economy the key or from being a parking contact the social security administration has regulations which provide that treating physicians have to be given deference and the supreme court specifically addressed that issue and said that it did not make sense to apply that kind of standard serious questions regarding whether plaintiff is permanently disabled your honor i think that in that case this is a very very lengthy administrative record plaintiff did have doctors to support the decision so i think that under the plan and i think that's the distinction that he was making there simply that he is not making a general determination he is simply attempting to determine whether the administrator abused its discretion in th permanently disabled one would be and i take it you concede this is not the case that the judge was doubting her credibility i don't think that that's the case what he apparently this thing is that this is a very hard question right yes i agree ok then again why in this circumstance should we not send this back to apply law on  exact current parameters of the use of discretion application in the body case which was not extant at the time the judge ruled the reason your honor simply because i think that judge she eventually has already applied such a heightened degree of scrutiny in this case that although he wasn't applying the a body just vision his sensually gave a much higher degree of scrutiny to the administrative record then he needed to administrator in this case he himself carefully analyzed the record carefully analyzed plaintiff's argument and decided that that ultimately the abuse of discretion standard had not been met and also that plaintiff had had or abuse of discretion does your client agree that these facts that makes the difference on summary judgment presented to the judge i mean to rest of the in those you suggest that they embody arguments regarding if you would prejudice on your client's part yes  those arguments were were made under out what and plaintiff took the position that the record showed sufficient conflict so that such the evaluation applied to no one standard of review and they presented all of the arguments they would normally present in order to have a good novo review and eliminate the of the discretionary review and therefore he would have been full well knowledgeable of such arguments in evidence that we presented regarding universe conflict and of course we could not have until the paid of date we had no idea what they would say we were presenting evidence going to the atwood standard and that standard presented  you weren't able to present prior to a baby well i can only answer that question heart because when we conducted discovery going to the standard of review in this case we didn't have the benefit of a baby to guide  question of how has this particular carrier what is its history in other cases with regard to deciding claims the a baby panel says that's an important factor it was not a factor under at which and it was not something that we argue started unreasonably denying claims and i think that's the core of the of of the of the argument but it's i think it's very important to recognise that this is not it is not heightened scrutiny a baby does not require heightened scrutiny or a larger magnifying glass it requires in the ultimate decision that the district court not fully defer as this district court did and he was compelled to do under  to defer to the decision of the insurer a baby requires that the court view that decision with skepticism judge she apparently did not have the option to do that in this case and a baby requires that he be given that option