an abuse of discretion standard applies when the arrests a plan grants the administrator the discretion to review to determine eligibility for benefits as well as to interpret the plan terms because the pellet review of the district cour should be affirmed if it's reasonable which means that supported by substantial evidence the court's the cases indicate that substantial evidence indicates that more than a scintilla of evidence less than a preponderance of evidence of the standard and family the court that standard wasn't yes wasn't meant here yes sure certainly your honor mr johnson as we set forth in our brief with a computer program for commerce bank shares which is a regional banking organization with presence as in the can same thing with areas his job entailed no physical work whatsoever it basically was a mental job he was an i t professional for the company and provided there i t services is mental work involved complicated tasks involve problem solving share a lot analysis and creativity as part of his status as an employee he was entitled to receive the long term disability policy that's granted to the similar under the resupply on a commerce that policy more were here about to day is defines disability when he is when prudential determines that you're unable to perform the material in substantial duties of your regular occupation due to sickness or injury and they made that determination correct they did make that determination here your honor that is correct however that determination is in error the policy further indicates that sickness is defined as any disorder of your body or mind but not an injury and in this particular situation i understand your honor unfortunately these are cases are somewhat facts and fact intensive and i'd appreciate the fact that you've read you're familiar with the facts but some of the facts i think need to be pointed out is that in the revealing of mr johnson's l benefits he there was a meeting that was held by prevention all in march of two thousand and fourteen in which their own internal physician at indicated that mr johnson's he believed that mr johnson's cognitive abilities at improved but it's not clear if the claimant ha adequate abilities to accomplish is worth that statement is is is important in this case your honor because it's that statement that you see that it's if he's got some sort of cognitive disability or targets of deficiencies that before us is the terminations from later that's correct and under this policy it's incumbent upon the claimant to it's to show that disability  fact that we believe that's exactly what happened because when you look at the reviewing physician dr ewing psychologist dr dennys report he indicated in his report hit it was in his clinical opinion that mr johnson had some level of cognitive cognitive deficits that affected his daily life this is the equivalent of what is a sickness under the terms of the policy the questions remaining natural that one of the severity of the cognitive what is what about the soon was probably what the company in some respects relied upon the concern that the claimant was milling grain in the testing that that's that's true obviously we deny that your honor but dr denny also indicates that the presence of milling dream does not necessarily  johnson was also a lingering dr did he also stated that he could not rule out cognitive emotional deficits when he stated that he's not able to say that mr johnson is not functionally impaired and fact the district court even recognized that openly doctor and he could not of find one way for the other whether mr johnson was functionally impaired so what was left for the insurance company to look at simply was that you have a reviewing doctor who is a psychologist that conducted one day a test in determining that said he still has cognitive deficits which is the first part of the policy that needs to be determined whether a disability exists the severity of which is what dr dany simply couldn't determine simply because he believed that mr johnson was feigning his attempts at the test of mr johnson obviously denies this but what is very clear from doctors the news reporters that he does find some evidence that there's cognitive deficits and again it fits the definition of sickness under the terms of  what the insurance company did not do at this point is it did not notify mr johnston that it would need further evidence on his ability to obtain whether he could do the former material and substantial duties of his job i e what is the severity of his cognitive impairment mr johnson has always maintained from the very beginning that he is unable to perform those duties in fact this is the exact same evidence that was used by the insurance company when the nationally awarded the benefit was or any evidence in the record  report indicated that she did not believe he was feigning conditions and fact she's the only one that indicated that his cognitive in inabilities affected is the ability to do daily work so the only evidence in the record on the appeal is  that there was an illness and the only evidence for the growing whether he could continue to do it with you or whether he could do the his duties was by the one of the treating psychologist who stated that he couldn't and which what's important i think in this honor because we get into whether it's a reasonable interpretation or not and what is satisfactory or not to the insurance company is that at the beginning when they awarded the l t d benefits the only evidence that they looked at in determining whether mr johnson could perform those duties was his own statements there was not any empirical testing there was not any any any testing that indicated one way or the whether his mental capacity was such that he could still perform these high level computer function what they did is they disregarded the exact same evidence that they relied upon in the type of evidence that they relied on when they initially granted the l t d benefits and refused to accept that in denying those benefits b and  because under both scenarios at the beginning at the germination it was clear that there was a sickness that occurred the question was what was the severity and again the severity is measured on its terms of this policy with regard to whether he could perform the material and substantial dut previous employment which you know when you're in your rebuttal you can continue now if you like or you can reserve i'll probably reserve if that's ok thank you please the court your honor as you're familiar with and as you have identified this is an interesting case a very clear standards of law a very well established precedent by both the supreme court and this court as to what applies in this case and there's simply no question that the district court made the right decision here under that well established precedent the arista plan which as we all know is the only thing here giving mr johnson the rights any benefits at all it's very clear that he maintains the burden of proof at all times with regard to showing that he is unable to perform the functions of his job her dental in fact gave mr johnson the benefit of the doubt immediately following his surgery after he filed his claim and asked for additional evidence providing him benefits it made clear to him at that time that when they provided him those benefits that they were going to request additional information seek information from his physicians seek information from the neuropsychological testing that he underwent and would continue to review that information while they again gave him the benefit of the doubt and paid in the claims they then went through that process and looked at both the neuro psychological tests that he submitted the only one of which that supported that he and fact had any substantive cognitive impairment occurred at the same time that he had the surgery that's a question here they then continued ongoing medical review internally asking for additional information including the outside first neuropsychological test that we've spoken about with regard to dr jenny dr wata who played as counsel referred to in fact opined that it was necessary to have that  psychological testing to try to get an understanding of what was going on with plaintiffs with plaintiffs cognitive abilities because the records that he had submitted simply didn't support his position that he was unable to do his job at that time plaintiff in fact  underwent the test the neuro psychological tests to be discussed and in fact showed that there was no evidence of cognitive disabilities that dr jenny could include prevented him from doing his job and in fact there was a conclusion that based on the extreme test results that there was in fact likely milling during that is simply not evidence that the plaintiff here was meeting the standard under the policy and as a result potential terminated his benefits at that time based on that evidence and response and contrary to what counsel said potential  plaintiff what is our standard appeal letter that describes what additional information he could say met at that time if you believe there is contrary evidence to support his disability would you would you give him notice to provide i'm sorry could you repeat the question why did you tell him he could provide  evidence yes it says you may submit with your appeal any other written comments documents records or any information related to your claim medical or evidence or other information to support your position such as copies of therapy notes any additional treatment records from physician any actual test results it was very clear that he could submit any additional information of that nature that he believed supported his claim was that he was not blindsided i would argue that whether or not we can fully complied with a very clear and well articulated a risk to regulation which very specifically identify what we needed to tell him here and so it was very clear in this case in which he was in fact represented by counsel oftentimes before he would come in a case where the insurance company is proceeding and just interacting with whatsoever subsequent to that point in time they were when he denied his appeal after he failed to cement additional evidence that can contradict a doctor denny's appeal or doctor to any analysis they told him that he couldn't of can complete a second appeal if he wanted to he chose not to do that was no evidence that the plaintiff actually suffered sufficient cognitive disability to show he could not perform the duties of his job while counsel continually focused on the notion that sickness alone was somehow sufficient under this policy to show that he was entitled to benefits the reality is that he had a burden of proof under the clear case on the circuit to show that he was unable to perform the stansell duties of his job so if he'd gone and got a vocational expert to do testing to show that he couldn't go back and do the type of computer work technical work that he done previously and got an additional statements from his treating physicians that these thinking limitations on him that would have you saying that would have put this case in a different posture i'm saying prevention would have considered that evidence and would have had there had physicians consider what evidence was supported if he were able to produce sufficient evidence to convince credential to continue and would he have been terms and that's typically not reimbursed with regard to the book ational testing your honor though as to this particular case this is not a situation of counsel knowledge where there are physical limitations on the plaintiff that were clearly articulated or the individual in many cases we come before the court where there's a bad back or some sort of physical limitation and those are question though you have to be had swelling in the brain due to see this correct john or he did have hydrocephalus and we certainly do not  that plaintiff actually had a surgery to address the condition and it is there was evidence in the record from the physicians hired by by both the plaintiff initially from his m p t as well as the physicians credential hired that indicated that they would expect that type of surgery to relieve the pressure on the particular issues that were in place here in fact immediately following the surgery plaintiff's own wife when spoken with the net m p t physician there articulate that she thought he was doing better and it improved so all of those things would go to the fact that this was a condition that in fact one would expect potentially to improve and plaintive produced no contrary evidence to suggest that it hadn't and so at that point in time given the burden of the policy always rest of the plaintiff credential appropriately denied and terminated his claim had plaintive come forth with different evidence than surely it would have been considered as is appropriate and required under arrest for potential to consider in way that evidence but that's not what happened here the plan to produce merely a therapist note that said she believed he was some cognitive deficit but because the plaintiff's behavior on the test scene there wasn't sufficient evidence that that was in fact what was occurring as a result the plaintiff didn't meet his burden under the policy of coming forward with sufficient and wonders one wonders ho whatever it's called germination that there was no lingering correct john or in fact there's a second m p t that came after that and response to the appeal that had the exact same conclusion from a different independent you're a psychologist who is board certified who administered a battery of page report by doctors are they administered numerous tests to try to determine whether or not they were in fact functional capabilities and in regard to dr jenny's tests they said some of the results from mr johnson would only have a two out of ten million chance of clinical support for that notion and self to to be quite honest i think dr jenny and doctors are here we're trying to give the plaintiff the benefit of the doubt he chose to not respond either in response to the initial claim determination or in response to the appeal determination the obligation under farley and finley and this court has always rests with the plaintiff to come forward without evidence he simply didn't do it and as a result potential is obligated to follow the terms of its plan that was that it was administering for rebuttal we believe that in fact mr johnson was blindsided by what had happened with dr than in the determination of guilt he benefits there's absolutely no record in any of pretty intros documents indicating that they informed him in advance that he was there to be tested to determine his cognitive abilities in order for them to turn in substantial duties of his job in fact all dr deanie could possibly do would be to determine whether he was continuing to be sick under the terms of the policy dr deanie it was not a computer programmer and did not have any vocational abilities whatsoever to determine whether mr johnson could perform the material substantial duties of his job it's not a case of where the person can lift his arm or not and have objective evidence in order for viewing corder anybody to your honor and then in our position it has been met the question is where that burden satisfies prudential and in this particular situation your interpretation of what satisfies them has different standards and differing in measures at the beginning they accepted one thing at the terminations they did in fact mr johnson was blindsided by the germination because he was term benefits were terminated retroactively when he got his terminations without any indication saying we think you might have had some problems on this past test we want to test you for further abilities would you please submit to another test it did nothing like that all it did was simply say based upon dr denise report your your benefits are terminated that's essentially what it said if you've got anything to the contrary let us know well and he indicated that some of the answers to that were somewhat inconsistent with the amount of cognitive disabilities and problems that he would find if he was adding but that didn't seem to bother prudential they went ahead and list and  took the the evidence and continued on with the disability claims up until dr denise conclusions but again dr denise conclusions are one we believe based upon credibility of whether mr johnson was mullingar or not so  suggesting in a way that companies are stopped from taking a different position later in this man's life not at all not at all but i do think that in that situation especially in a situation where you have a mental injury where it's just impossible to determine that that person can perform their prior duties mentally related job duties such as what he did here's a computer programmer by a doctor the only thing that that can be determined is dot and simply say that he set for these gotten better not that he can still perform those johnson coming forward with other evidence to show that he was not i'm a linger how do you how do you counter that how do you counter a doctor saying we think you're not being truthful with your responses and with your effort at our testing  because if you then took a vocational rehab test and he passed or he didn't ask which would be the necessary case in this situation not pass the insurance companies just as apt to say well we don't think you were given us enough effort in that one either so based upon our satisfaction standard we don't agree and it's particularly problematic when you have a mental injury type of the case because those are the people that are most vulnerable in society that been able to come forward and say i'm still mentally disabled you're forcing a person to attempt to prove a negative when they can when you require a mental mentally injured person to come in and prove that they're still mentally injured it's simply an impossible standard to bear so for these reasons we believe that the decision by credential insurance company in terminating the of the benefits was not reasonable was not supported by substantial evidence in that all that was in the record was the fact that mr johnson was still sick and the over the only other evidence in the record