work after suffering increasing symptoms of fatigue joint and muscle pain ultimately diagnosed by her physicians as chronic lyme disease cases like this one frequently turn on pitting the supporting opinion of treating physicians versus the opinions of non examining physicians hired by the plan and certainly in this case there are multiple doctors who support ms brown while the plan did rely on examining medical consultants but even before we reach the question of exertional restrictions and limitations ms brown is unable to perform  and under this plan disability is defined in terms of inability to perform the specific job not not the general walker patient she's on a book perform her job simply on the basis of the medical regime h physicians in their judgment placed her on a long term regimen of i v antibiotics after the claim was originally denied miss brown was informed that she had to return to work that if she did i am i am on asli not certain why it was that the manager would not allow her to bring them i don't know if the manager felt that it would be a disruption to the work i don't know if the manager thought that it was a disruption to other employees that it was just generally going to be difficult in the workplace i'm uncertain why all i know is is that she took them to work and was told that she this is speculation that goes beyond beyond the face of the record my client reported to the defendant to the plan what had happened that that she that she  took the medications with her to work and that that was deemed unacceptable by that that was deemed unexceptable by the manager that was reported to the plan the plan's response was simply that there is nothing in the documentation that the schedule could not be accommodated around a work schedule i would state that it is that it is plaintiff's position that  that statement is is simply untrue there is documentation that it could be that it couldn't be accommodated my client's explanation that the manager wouldn't allow it now it may be that this is a my client reported to the plant to the decision maker that the medications were unacceptable but that it wasn't allowed in the job the i'm in trouble relating to the issue of whether she should have been offered the chance to or the ability to have her i v set work and the question of whether it was arbitrary and capricious to say that there is no objective evidence of her correct i would agree with that i would agree with that state here is about whether there's objective manifestation of the lyme disease apart from the objective manifestation of the fact that she wasn't allowed to have an area if i might elaborate further i think that i have you've anticipated where i was going out of a big get getting right to an answer to their first of all this particular plan doesn't diagnostic criteria is are allowed we certainly see plans that state that for example ridicule office he can only be established by e m t that's simply not not in this plan i would like to require something in the nature of objective findings of the laboratory who sold and evaluated the test she did meet their criteria now i would concede that lyme disease is a controversial diagnosis these days at the same time ms brown's doctors didn't simply take their woo hoo wood for it instead they went with what admittedly may be a minority minority medical view but they're not out of left field they're going with exactly what the exactly what criteria the manufacturer of the test uses and i think that that's particularly significant when we look beyond the question o all restrictions ability to sit and stand and walk and lift and move on to the fact that it seemed that the medication regime itself was incompatible with the who work place as a disability lawyer i see an awful lot of bad back and i see an awful lot of range in which or what sorts of back problems different with it he just will agree to do a backs to the jury on some doctors will do the back surgery pretty quickly other doctors seem to hold a more rigorous criteria before they'll go ahead and do that back so it is true then how do we find the plan administr capricious in that on a good faith basis and in accordance with at least reputable minority opinion  doctors said you need this treatment the plan actually said that she has to follow this treatment if she didn't follow the treatment that her doctors recommended she would be not disabled under the terms of the policy she actually has to follow the treatment her doctors were coming out of left field this wasn't for knology this wasn't the do they was saying in on a good faith basis based upon my medical opinion you need this medication you need this treatment my client then went along with that treatment only to find that the employer would not allow that treatment to go on on in the workplace facility essentially we would be putting point diffs in a situation where if their doctor suggests something if their doctor prescribe something they would have to second guess their doctors and say no no i shouldn't what about a situation where a doctor makes a recommendation a prescription based on come pain convincing pain complaints of the patient that are not objective leave ascertainable i'm not  necessarily the case here but you're it seems to me your argument would in that case required require disability payments because the patient had to do with the doctor said that the patient's doing it in my example based on the surgeons that like an objective basis that's that's what the contract or the plan was explicitly trying to avoid payment for i i think that my aunt answer to that is that my client is objectively on those i v antibiotics the doctor has in accordance with medical practice found that a man found that a treatment is necessary but in my finding is based on relation of the of the patient rather than x rays or something objective like an x ray then the then it's unfortunate that it would seem under the plan that there's no recovery but the plan seems to exclude it's over over exclusive i don't know but it seems to exclude the i think that that would be stretching the plain meaning of the plan to add to it to its logical extreme such that somebody who in good faith and with the good faith of the doctor is going with with the with legitimate medicine and  and seems to be what its plan says you've got to have something objective there that i'm sure i'm confident that i don't know that doctors prescribe things based on pain complaints that are not or symptoms that are only related but have no have no physical or objective because my my my my my my time is up but i would suggest for example that if and an example to get us away from the lyme disease might be depression and an antidepressant with severe side effects if the person is objective lee on the antidepressant we might objective least see the side effects even though the original complaint that led to the prescription may be somewhat subjective and besides i believe the door to have an objective basis for the prescription in this case i think please the court my name is david knox i'm here on behalf of the apple e's in this in this matter and i believe the court has honed in on the fact that there's really only one question before the court today did the a offer a reasoned explanation based on the evidence in the administrative record to reach the decision to deny ms brown's claim for benefits they did even if other conclusions can be reached from the administrative record they are ultimately irrelevant because there is evidence in the record to support the apple e's decision to deny ms browne's klein and the apple has offered a reasoned explanation for their decision it was not arbitrary and capricious as a matter of law as this court has established in previous opinions so the district court's decision was correct and should be appealed there's several items that are not in dispute in this case the first is the standard of review and i think the court has already recognized here that this is being analyzed under the arbitrary and capricious standard of review which dischord recognized in mclean versus eaton is an extremely deferential standard of review it's also not in dispute the contents of the administrative record we're not dealing with a situation where there's extraneous information that's trying to be broad ian we have the record it is complete and the decision in the evaluation is based on that  this situation that was brought up where the claimant wants to take this abbey to work and they've been there that's been raised here so how does that fit into this whole sky well there's two things to look at with a your honor first is the focus of the decision being on the definition of of this within the plan of what constitutes a disability under the terms of the plan the definition as judged rogers of pointed out requires significant objective findings which are defined as signs noted on a medical examination or some type of medical test that or considered significant anatomical physiological or psychological abnormalities and which can be observed apart from the claimant's symptoms so we're really honing in on what is contained in the medical records that shows some form of abnormality that is considered  significant with respect to this regime of medication counsel admits in the brief and stated here in a whirl argument i don't really know why the manager told ms brown that she couldn't come to work that day but ms brown's statement which is the only evidence in the entire administrative record related to this ms brown's statement says that the manager told her you have to follow the company's reasonable accommodation process you're showing up back to work you have a pick land you have a regime of medication that you're saying you have to take we have a process for dealing with situations where you've got medical restrictions or medical limitations or a medical regime that you have to follow and all we're saying is follow the reasonable accommodation process contact your at fed ex what we call the human capital management manager contact them talk to them about what type of accommodation may or may not be needed i was mentioning earlier there may be times during the day that need to be carved out so that you can have some time set aside to administer your medication just follow the equally important on this council is trying to impose a pall on a manager at federal express the the ability to speak as the administrator of the plan that's simply not the case this manager is not a spokes person for the plan this manager is not a doctor this manager is not a trading or peer review physician rendering an opinion as to whether or not ms brown suffers from a disability within the definition of the terms of the plan they're just simply administering their following their responsibilities as a manager to make sure that she follows the plan or  any of the doctors that that examined the claimant there say that there were objective bandings and she had lyme disease i don't believe that there are your honor the closest you would come would be doctors crist and kalyan which were to the two treating physicians for ms brown that made this diagnosis but in going back through the record and looking at what they said about it it's very interesting and i think it's a lumen ending to look at the first two rounds of lyme disease testing in both of those tests one of the doctors i'm presuming it's  not certain on that but one of the doctors hand wrote on the on the test results here this is a negative test result and it was under both the c d c and the standards this is a negative result however because of your symptoms and because of certain indeterminate bans it's not likely that you have chronic lyme disease or it's probable that you have lyme disease so there's there's not a definitive diagnosis in there there's a doctor's educated guess perhaps and the one treating physicians opinion that says based on this negative test result i'm going to say you've got lyme disease anyway that's also important to note that all three rounds of lyme disease testing came back negative under the c d c standards across the board just say in a word what those what are we talking about finding certain chemicals in the blood or what infrared tests of their skin or when what are these tests well the test is set up it's it's too complicated don't it it kind of gets in detail there's a little bit laid out in the briefing about how it goes in reference to the websites with the c d c kind of explain the process in greater detail but they're basically looking for the presence of antibodies in the i believe in the blood or in the blood serum you if i may have to don't don't want to belabor the point much but with the c b c s testing standards there's actually two tiers that have to be followed the first tier looks at a certain range of of antibodies if that test is positive then you move on to these i g g analogy and western blots but you never move on to those until you have positive tests at the tier one testing and other than the first round of testing in which case the tier one came back negative we don't have they never presented the other to or one testings so we don't know how reliable these tests are and in fact the c d c informs us that that  one western blot test which came back positive under the genesis standard it is so far removed from any potential exposure to lyme disease that it's almost inherently unreliable all of that can be taken out however y because what we're left with is a series of tests from the city based on the c d c standard all of which are negative that provides a reasonable basis for the the plan to say there's no objective finding that you have lyme disease and that's entirely consistent with what the with what the plan did here so regard to the treatment it it's seems as i understand this this case that the claim with regard to the treatment is well the treatment itself is objective evidence of some kind of a disability but we know of any other disability being claimed other than lyme disease so it seems as if the claim is sort of being made or maybe explicitly that the treatment having been prescribed is object of evidence that the underlying condition is there and it is therefore arbitrary and capricious for the plan not to recognize that as a basis for finding disability it might just not understanding what's going on here is that we're being argued actually on or i don't know the appellant was arguing it quite that well but i think that is in a just what they are trying to say is the fact that there is a treatment regime must mean that there's some type of condition that's there the problem that they have there is even if there is some type of condition for which treatment is being prescribed it doesn't necessarily mean that there's significant objective findings that the condition actually exists the fact that it's being treated doesn't mean you have the condition that you're presumably being treated for and i think that's what judge rogers was alluding to earlier sometimes you have a treatment regime that is prescribed because there are symptoms here we're not sure if the condition is actually very or we're going to go ahead and treat and see what happens maybe it will improve i mean it's kind of an expanded version of the old adage that a doctor would tell you is you know i come in with symptoms take two aspirin call me in the morning that's is this is an expanded version of basically that statement here and what is interesting with that particular argument is we're trying to say treatment constitutes a disability under the plan or treatment satisfies the definition in the plan of of disability even though the actual test results looking for that specific condition say it's not there and i don't think you can take a treatment regime and use that as medical evidence of the existence of some arm abnormality when the records that specifically test for that abnormality show that it's not there in addition to that there i'm sorry no show that is there's probably say it absolutely in addition of that we are talking about a situation where these two doctors say we're going to treat her for this chronic lyme disease but what we  have in the record is six seven other treating physicians seven other physicians that actually or health care providers most of them physicians one a family nurse practitioner but health care providers that met with ms brown treated ms brown observed ms brown made records of their observations all of them recognize that she states she has these symptoms and she informs them that she's got fevers and aches and pains and rashes and tremors and all kinds of things that she complains off the record from these treating physicians and treating health care providers however don't substantiate any of that her vitals come back normal they don't observe rashes they don't observe tremors and they don't observe fevers so their records indicate there's nothing here the peer review physicians as well kind of give a second layer or a second set of eyes looking at all of these records and in both situations they said there's nothing here that satisfies the definition of the plan dr weinstein when she conducted her review on the initial denial of the claim even had a peer to peer consultation with the treating physician dr wallace who saw her on three different occasions and dr wallace said i can't find anything that's causing all of these symptoms he says i've conducted thorough and examinations he said i don't see anything that shows any record of any problem with her thyroid and in fact subsequent documentation that dr weinstein received said there's normal fire oid with respect to the lime disease even dr charles larkin saw a rheumatologist saw her in october of two thousand and twelve again his physical physical examination was  unremarkable he says i'm unable to diagnose any inflammatory arthritis i question the diagnosis of clinical line disease and in fact i think to follow up on that she really needs to see a specialist in infectious diseases so even he the treating physician question this diagnosis so in the end i think there is ample evidence in the record that supports the plans decision to say there is no  condition here that satisfies the definition in the plan to qualify for short term disability benefits the district court i think made the proper decision here and should be appealed so unless there are any further questions or specialties  i would simply like to make two broad points one with respect to the objective nature of the condition and another with respect to the vocational consequences of the all of the medication regime with respect to the consequences of the medication regime i would submit that there is absolutely no evidence of record to contradict ms brown statement that she was not allowed to bring that equipment and use that equipment at work we do not see the plan consulting with a vocational expert to say hey would this be allowed generally we don't see the plan consulting with the manager herself or the manager's boss w don't see any analysis any investigation on that point at all this court and other courts have agreed that a plan has a fiduciary obligation of investigation a plan can't turn a blind eye to a potential basis for approving the claim once it's pointed out to them and i would also point out that this is question but fed ex fed ex was the one who said that this the this wasn't allowed on the face of this record the other point that i did want to make briefly was that with respect to the question of objective findings the doctors did not place her on she is objectively on the medical regimen and the doctors did not place her on the medical regimen on a on a subjective on a subjective description of  her symptoms but actually on the basis of testing yes i jenny and c d c had differing views on the proper diagnosis of lyme disease but the doctors didn't do this on the basis of testing and this  is for fed ex to disclaim the vocational consequences of the medication regime on the basis of thinking that it's medically unnecessary that is essentially the same thing as saying we're not going to consider the vocational consequences of your lumber fusion because our orthopedist says that you are with a penis was to was to surgery happy and got there too quickly thank you thank you counsel