a court my name is james holohan i represent the appellant liberty life insurance company of boston with the court's permission i'd like to reserve three minutes of my time for rebuttal this is an appeal from a final judgment in a receipt case entered by the court in october of two thousand and thirteen which reversed liberty life's administrative determination and awarded ms james disability benefits under group disability policy issued by liberty life to her former employer the court awarded retroactive benefits for the two year period in which the own occupation definition of disability was a political and  it's it's a somewhat unique case because the court the plaintiff here was admittedly suffering she'd been in a motor vehicle accident in october of two thousand serious one i mean what was how big was this truck are you talking like you know f one fifty are we talking eighteen wheeler i think it was a i'm not sure what kind of vehicle was it was a rear end collision according to the police for ninety five miles an hour or two five miles heck of an accident it  seems to be the case although she was not hospitalized she was taken to the hospital and was treated but was not hospitalized and but clearly did sustain both physical injuries and also there was evidence submitted during the administrative review process that he was suffering from psychiatric problems were depression anxiety distress and things like they are not the thing that makes the case unique the district court reversed liberty life's determination finding that standing alone neither her physical injuries were problems nor her mental problems rendered her disabled but that the a nation of those his problems rendered her disabled so that's entirely permissible right i mean doesn't have to be just physical or just just psychological well your honor it's certainly is permissible but the problem in the end i think the thing that makes this case somewhat unique is that we were getting conflicting information usually these cases i'm sure this court sees a lot of them and i had one yesterday and it usually comes down to you've got the treating physicians saying one thing you've got either independent medical examinations or reviewing physicians saying another both the district court in this court exercise de novo review so and the reason for that even though the policy contained the discretionary language that you usually trigger is the more deferential arbitrary  standard this policy was governed was issued in michigan and is governed by some michigan insurance rules that were promulgated back in two thousand and seven  renders discretionary review prohibited and so in the district court the parties agreed based on the appeal ability of those rules that the district court had de novo review so therefore no deference is afforded to the administrative determination i know you're not making that argument here but i mean it i will say it's just odd that michigan law can have the effect of dictating our standard of review in federal court for a receipt claim and that might be something it be interesting to have somebody argue about it some point well it's not not in this case actually your honor it was argued in at least a panel of this court rejected the idea that it was preempt that that michigan rule was preempted by risk on the theory that the insurance regulations or laws regulating insurance and therefore the pre there were within what's called the saving provision of section five fourteen arista i tend to agree with you but i'm not exactly an objective voice on that issue by my own admission but the point is that neither the administrative record decision is entitled to deference and judge jonkers decision is likewise not entitle to deference you're basically sitting in the same position he was in reviewing the evidence based upon a preponderance of the evidence standard and here the thing that i think makes this case different is what happened during the administrative review we were getting conflicting information from the various treating physicians doctor nobody who was ms james treating pain and rehabilitation specialist submitted information and eventually had a conversation with one of the reviewing physicians where he said that from a physical standpoint ms james was inability asking him to confirm that and he signed that letter confirming that was his view that was in february of two thousand and twelve about a couple weeks before the decision was  y denied and up then in addition dr maziar of the treating psychiatry has submitted forms where she was asked to fill out forms saying do you find the person disabled and there was a section of these forms she said and one in december of two thousand and eleven another in january of two thousand and twelve she listed the reason for disability as physical pain c vehicle accident and she listed the mental problems the anxiety and depression as a non disabling co morbidity and in so you had the mental specialist saying the problems physical and the physical physical specialists has the problems mental correct and so what does liberty do it at that juncture it sends the records out for review by both a mental health psychiatry wrist and  a pain in management specialist they do a joint report that's acquired through a vendor that has them you know liberty requested the specialties the vendor selects the physicians and the report comes back from those two physicians saying we don't see anything in the record supporting a physical disability at least to examine her they did not your independent medical examination both by a pain and pain specialist in a psychiatry as the pain specialist that is that report is in the record it was october of two thousand and eleven and he said  didn't see anything in his physical examination of the records that would prevent her from returning to her own occupation the psychiatry wrist had an initial report where he made a similar conclusion then what happened is she actually went back to work for a period of time was having difficulties and went out again and he then did another examination during which he administered what was called a back inventory  which other reviewing physicians later referred to that as a self report and based on that he found that because of her mental condition she should not go back to work and that's probably why she received the short term disability benefits gave her this back test and said she could correct and the later reviewing physicians during the liberty life administrative process looked at that opinion but their views were the bec test that was administered was essentially a subjective self report and would not really provide what they called objective clinical evidence of a mental disability and i mean on the other hand surely dr foreman is aware of that he's aware of the self reporting nature and yet i guess looking at his examination and in understanding of her the whole as a whole he still says she's disabled he did say that and then of course the other objective test that was done on the mental side of it was in june and july of two thousand and twelve at the request of dr inability ms james was referred for a nurse psychological battery of testing because mr doctor in a bit he was saying at that time she could perform notwithstanding her physical condition but these clogged to vitiate is were preventing her from returning to work and when you look at the inventory for example with page two ninety one of the record relative to level of education estimated pre morbid level of functioning her overall cognitive functioning was generally well preserved later on the same page her performance on tasks of learning and memory were average contrary to herself report of memory problems so at this point june july of two thousand and twelve based upon an objective battery of neuropsychological testing which i would submit is more cooperate henson than the beck inventory the doctor foreman administered herself reports of cognitive dysfunction and memory problems are not corroborated i mean it's a tough case because there's you know i as you're very candidly pointing out there are a lot of things on each side what is the biggest mistake you think judge yonkers made i think the biggest mistake is he actually criticized the reviewing physicians for not doing something that they really aren't qualified to do what he credited the treating physicians and i think he said they had an more nuanced opinion because they took into account both the physical one the mental wet when you think about it doctor inability is a pain in medicine and pain management specialist he's not qualified to say th james is suffering from post traumatic stress disorder and yet that's exactly what he says in his records dr missouri on the other hand by our own admission said she wasn't the one putting her out for work it was the physical condition in the mental condition is non disabling co morbidity what what else can liberty do but send the records out unless you could find some doctor that has a specialty in both psychiatry and orthopedic surgery or something you've got a yet you've got to do what liberty does which is you send it out for a door review all but review by what the department of labor requires us to do specialists with appropriate training and you get those he was evaluating the treating physicians and comparing them to the record reviewers is not quite as black and white is what liberty might represent and that is what judge john q did was eat he went through the the hoover calvert kalish analysis in the wake of nord versus black and decker and he compared the quality of the medical evidence that we have in this record and keeping in mind this is a medical record that is pretty short time from an auto accident until you're cut off from submitting records the next round if this court affirms will allow us an additional two years of medical record records with a woman who has underlying rheumatoid arthritis and long standing insulin dependent diabetes which complicates the healing process in her ability to cover from the neck injury in the shoulder injury and the pain that she experiences from those injuries the records will will obviously have evolved so what judge juncker was doing is evaluating the limited records that he has in comparing the quality of the evidence provided in the quality of the opinions provided he puts a lot of weight on whether a doctor did if in person sides i think an argument to be made against your position is that yes both of the treaters say she's disabled but as we discussed earlier the  psychologist says she's not disabled mentally she's disabled physically so that person goes outside of their specialty to say the problem is not in my area it's in the other area in the physical the orthopedic does the same thing she's not physically disabled but i think she's got a mental or psychological disability and and then so that would seem to be on face arguably a reason to discount those treat your opinions because they're kind of getting outside their lane in each instance and then one could argue as is mr holland just did the district court takes potential deficiency and actually treats it as an asset as as a virtue that they took this holistic approach and i mean shouldn't i mean isn't that a mistake by the district court  arguably to say there are more credible because they're opining outside of their specialty well no not in this case especially because i think dr knew biddy alternately does talk more in terms of the physical condition in his in the final letter that was submitted in the physical disability in preventing her you touch on a very significant point and that is the put the policy allows liberty to do is to not just look at what ashima james did in her job as a buyer for g t e but also to look at the national economy and how that position would typically be performed and it's not actually said in your position it's sendiri and light position and there isn't anybody on liberty's team of experts that says she can perform at a like capacity but only potentially at a center of capacity so that's number one or two in terms of getting into what her actual functional capacity is i would argue that a pain management doctor who sees long standing chronic pain issues on a daily basis is qualified to talk about not only the physical aspects of the pain but also how that pain manifests in the average person i have the unfortunate obligation to say that i've been doing this for over twenty years now and i don't think i've ever had an receive case with chronic pain or someone doesn't have depression and anxiety in these symptoms you come very serious in dealing with that and if we're going to say that pain management specialist are only going to address you know epidural injections and inflammation and in things of that nature i think that that cuts very short in terms of what they actually do in the clinical setting they treat the entire person and typically a pain management doctor get somebody who is not a candidate for surgery who's not a candidate for other types of pain relief and it's sort of like the last stop and that's why dr knabb it isn't a perfect position to give opinions about the overall wellbeing of a jeems and her ability to return to her job which not isn't just a light job although she did do a lot of dust and computer work she was required to travel to plants then do plan a valuations at d t e and that automatically puts her into the light side of the job description so there really isn't any evidence to says that she can do the job as performed in the national economy or as she was doing it and i think dr nobody's in the best position in which would judge  under the normal standard is doing is weighing the quality of the medical evidence in in deciding and i think rightly so that the treaters are more nuanced in their opinions and there is absent in your very first comment to counsel for liberty i think is probably the most salient comment that i could make right now and then is it doesn't matter because it if this is a co morbid situation which it surely is it doesn't make any difference for the first twenty four months if she's disabled from her own occupation then she's disabled now at twenty four months they can employ the twenty four month mental and nervous limitation if it applies i don't think it will but if it does or if she can return to other occupations potentially as long as they don't pay less than what she was earning at the time that they will then have those arguments but they don't have them now they don't have them for this case and that's not even before the court what's your biggest criticism of the the file reviewers  assessment i don't i don't have enough time to address a but i'll just jump to one of my favorites ok dr schlomo mendell how in the world can he put in writing that she has no objective verification of these subject arthritis and these other conditions and now she's dealing with it how is that not verification it is if objective evidence was even required because it's surely not under you have the ari at the time of the accident or shoes mary beth manifested post it i guess i'm not sure i understand your question what old but when did the rheumatoid arthritis become out of the the quote unquote objective testing of it that i'm aware of that's in the record was after the accident but first doctor first time that i'm aware there was tested for but it's most certainly not when it began and that's not a condition that starts over night or dramatically she would have had it for years but with her with the accident all the problems she was having post accident that's when they start running some of these things to earth to try to cope with him she gets referred for the first time to a rheumatologist who does the blood work that confirms the diagnosis and gives them an additional angle to deal with some of her complaints dr mendell can make a comment like that that he can completely discard disregard her subjective complaints of pain because there's no object objective verification for it and in addition she's got the m of the shoulder which not only shows a probable level tear which can be extremely painful but this ongoing chronic super spin artist tendonitis that she has the major tendon between your neck and your shoulder is also evident easy for me to say of her conditions is very easy and i see this all the time in my cases to send it out to a specialist who just looks at it from their standpoint and says nope no from within these four corners of my review this person would not be disabled in the next in the next in there's never a coordination between the experts and that's what needs to happen and that's what often does happen is rare fact i would submit that's the unique thing about this case is that there's really no effort to look at the total person and determine whether she's disabled especially in light of the fact that this is during the own occupation period in especially in light of the fact as counsel for liberty just told this panel they found it very curious that these records were coming in and they were confused by them and didn't understand because you know she's not disabled from this standpoint not disabled from that standpoint so apparently they were focused on this issue rate from the start and yet they still made no effort to coordinate and  someone who could give an opinion about the overall status of this one vocational rehabilitation experts things of that nature if their pain management doctor wasn't qualified to do it ok that's  are you your bottom very quickly just to pick up with that last point your honor contrary to what mr he just said look the experts did talk to each other in the first peer review set of reports it was one report signed by both a pain specialist and a psychiatry just the second round of peer reviews each of the respective reports dr lobell specifically said in his report i talked to  dale and about the psychiatric issues and she doesn't think there's disability because of the psychiatric issues that is there or is there anything in their reports that show they're not taking this compartmentalise view of her disability and her instead are stepping back and saying in light of everything she's dealing with is she disabled all right so maybe you know she's seventy five percent of the way there in the first category in seventy five percent in the other and they could you know i mean they could talk to each other and say yeah she's not there and that metric and not there in this one  they step back and say wait a minute i mean when you look at all this that's when somebody starts to go on to walk i think the problem with this case is that when you talk about co morbid conditions physical conditions juxtaposed against psychiatric conditions usually that's not a co morbidity co morbid he is somebody has a cardiac condition and as a result of the oxygen deficiency created by them they end up having palminteri conditions that's where you could see someone saying well strictly from a cardiac stamp point this person's ejection fraction is within normal ranges but in the but then they talk to the  and they say well because of the oxygen deprivation the person can't walk very much that's a co morbid condition the idea of a mental condition being a co morbid condition that would somehow tip the scales that to me i'm not a doctor i don't have that training none of these doctors really have that whole realm of global training the dog the judge younker you seem to be looking for but nevertheless he said in i think he was right standing alone neither the physical nor the mental is disabling but the combination renders her disabled where does that come from i mean some of these folks do say it and i mean there's no law that says you know you cannot have that co morbidity is limited to one physical condition leading to another as to pose to a physical condition leading to a mental i mean there's no law it's  and i mean it does there is i mean that does make sense doesn't it i mean if you are suffering terrible pain and you cannot do twenty different important life activities that you did before then i mean isn't it sort of understandable somebody might be depressed yes but if someone is depressed enough that they can't work usually you're going to see them loaded up on medications it's going to have an influence on their physical condition and yet all the reviewing physicians said the medications were adversely affecting her and there's nothing in the treating records that suggest that medications were in the same thing with medications used to treat pain you load somebody up with heavy doses of oxy code on they're not going to be able to come into work but that doesn't seem to be at work here it's just kind of out of the year the combination renders her disabled what does that assumes the patient going to be willing to take that medication too they may make a to take either but but it doesn't even seem to have been prescribed here in this case but the the point here is that in and i think the most critical and i was rethinking about my initial on your most critical point  answer to the question that i concluded with all my direct was you were too i think judge younger made his biggest mistake he didn't really even talk about the nearest psychological evaluation results he mentioned them in the beginning part of his opinion when you read that report there not to me seems like a critical piece of objective evidence that was not not given not only was it given the proper weight but it wasn't even given any weight it seems by the district where i thank you thank you both for your very helpful are your case to be submitted