cigna the insurer of the plan decided to have or examined by a doctor of their choosing and they sent her to dr shaheen he did an examination he wrote a lengthy very lengthy review of all of  medical records and he came to the conclusion that she could not sit more than occasionally which is zero to two five hours and then eight hour day  of this circuit is that anybody that can't sit for at least four hours a day in an eight hour day can't deal with sedentary job and that's so i want to get the chronology here straight and i'm an ask your friend about it too because i think it's important to me at least you get the letter of termination in april of two thousand and seventeen yes and your client appeals right and asks for the file yes the file eventually arrives and it dr she hands opinion in it yes he's examined her and then it has what would be the report if we were in social security but he has a vocational expert's report right that says if she can sit for two and a half hours a day she can do the following sedentary jobs yes then basically after an exchange with cigna say look that's wrong see a money you know and we don't think we need to put additional evidence in the record if that's what you're basing it on ninety days go by we can put aside the procedural issues and you filed the suit in federal court is correct after the  months after the suit in federal court comes down you get a denial of the appeal several months after the denial was on october twenty three and you filed on  she can sit two and a half hours and therefore she can do a job now it's oh yeah that's right the missed what the and then at that point you're in district court right and you say to the judge because dr belcourt purports to be interpret in the records of her treating physicians i have letters from or treating physicians saying that he's got it wrong exactly ok then that and the district district judge won't consider those ok thank you i'm going to make sure i have the chronology right because it it it deals with with several points in the case so given that i go back to a disposition to judge bail road in any case why didn't this for our purposes why wasn't the administrative record closed when you filed your district court lawsuit it was so that your position is that we ought to just review the record up to that point my problems is you're saying my letters are new evidence and you want to take them in but should we also take in dr bell courts my arguments in the alternative i'm saying you shouldn't take in dr bill court because it's not in the record it's a brand new reason that they come up so it is your primary argument is just not sure we can can we the district courts engaging in do novo review perhaps it should have admitted the documents perhaps it shouldn't have but do we have the power to remand to the plan to look at documents that weren't before it when but nobody nobody tried to put these records into the plan proceedings i'm trying to figure out how we would i'm frankly i'm thinking of remedy in this case if you're right what do we do your st position is we should award her benefits yes but what if we do what if we decide just to make the whole proceeding fair and have it reach interventional conclusion how do we do that i think that well i don't always agree with it but i think the law is pretty much that the plume should make or versus liberty life i think it is and they can take as long as they want to review with the record and they can make another as you said i guess the missed the question differently could we send this case back to the district court and say the just record erred different judge now obviously not admitting these additional records he could have as you as you argue and should've looked at them in review and you know boa den should have decided whether the plan correctly terminated her benefits or not and then we'll have a record and we can when it comes back to us we can decide what to do you know the problem with that is these cases never end they just come over and it goes back and back and back  sometimes somebody's got to say to these plans either do it right or you'll lose i mean they they if you look at what happened in this case she was well running out of time but she was and you know you got a lot of time ok she was she was denied disability benefits and reason one and when they realized that that recent spunk they came up with a brand new reason you know and bring to witness a plane to witness a brand new reason plan with the with the instruction that the plan consider the four letters and any other men that we would submit although if we do with this procedurally and that's why i was asking the question we could say everything that happened after own doctor show i mean i have some difficult it makes your fire a finder of fact i would be skeptical of his report but that's not our help me with this judge reels decision a great deal of it talks about all of the other evidence  the record before shaheen before bellecourt saying oh this woman is not so badly off she does all these different things if the records should have been closed after schoene and before bellecourt anything else where does that leave us i mean certainly most of the district judge's opinion seemed to say there is substantial evidence that she's not disabled doctors disagree shaheen said what he said but there's lots of evidence on the other side district court which i thought had real mostly said i've looked at it and most of why you're wrong isn't bellecourt it's the whole rest of the record is that a fair reading of what he's now he said there's four thousand pages opinion is that we've looked at it well how about that ok he looked at it but book would you fail to understand is that four thousand dollars pages it's they're looking in with their doctor saying oh no there's nothing wrong but then they change their mind and say oh yes ok she can difficulty my difficulty with what the district court said is that the culmination of that is that an examination in an opinion by a doctor they hired who said my conclusion reviewing all this stuff the records in her he said she could only sit for two and a half hours a day and one more point the guy that said that shaheen is a doctor and a judge reale he has no medical training that we know idjit well although cigna and i want to hear from the other side let's assume that they had a picture of her playing seven hours of basketball even if the doctor opined she could only sit for two and half hours  could look at that record and say they they they didn't they correctly founder not disabled so it's the fact that we're not doctors doesn't mean that we can't look at objective evidence of that she is she with a film her for six minutes and six days she never with playing anything she just walking around going and getting in a car you don't want us to reverse and remand to the district court to consider the four letters in valu that you just order the judgment ok because i think the i think the evidence is overwhelming the nd is that you say ok that the record is closed with the filing of the complaint can't consider consider the her doctors because as i have an issue anymore and basically it's whether she consider not because that's the reason that they originally denied her the benefits and who should who should then look at that well i of it that's why i'm i've been trying to figure out what what it is you want us to do yeah and it seems to me that one alternative is for us to say look i'm the records that existed at the time your lawsuit was filed the plan a judge exercising do novo review who found that your client wasn't disabled would have been wrong because there's a medical opinion from the plans doctor who examined her that she could only sit for two and half hours a day so that terminations benefits was wrong and that's we're done with it if they want to go back now and claim that she's not disabled that's fine that's one alternative the other alternative it seems to me is to send it back to the district judge and say do this right you know look at the belcourt opinion look at look at these other letters to your reviewing do novo you makes you make a factual determination those it seems to me are are two of our options can i say if you send it back and tell him to look at the bell to the court and tell the judge to look at the belcourt report your actual rewarding signal for holding that report back from me and for not revealing until after the complaint did not sustain her burden of proving entitlement to additional disability benefits that factual finding may be overturned only if there is clearly erroneous findings but none of the challenges th plaintiff has raised here rise to that level st the district court considered all the proper evidence which is the court did not consider two letters that she submitted correct correct so tell me why under these circumstances even if we were only reviewing we're reviewing the entire record without disclosing it to the other side you get an opinion from a nd physician directly at odds with the opinion of the examining physician and never disclose it to the other side under as a matter of fundamental fairness don't they get to rebut that two responses to that one is that the report of belcourt is not completely adverse to the report of  he concludes any that she's not credible shaheen concludes after examining her that she's credible correct correct he concludes that she can sit for eight hours a day she in concludes that she can only sit for two five hours a day correct again in this circuit for hours is the magic is the bright line correct so it may not be entirely adverse to her but you surely couldn't have turned her down based on the she didn't report we did because it's based solely on the shooting reports based on the whole medical record and all the evidence the surveillance the iommi report the medical records so tell me where in this record there's support for the notion that she can sit there support for the notion that the use damning doctors report is wrong says two and a half hours a day is good enough for two sedentary occupations correct was that denial was based on those facts that i was based on those facts you're agree that in this circuit that's not sufficient for hours as the test for armani ok so at the time that you turn you're down you told her you turned her down because of those reasons did you not because of the medical records of surveillance and the require not only didn't say when you went when she asked for the reasons for terminations you didn't say we have a report from a doctor you can only said two and a half hours a day but we think he's wrong you center of the report that said two and a half hours a day is enough for the terminations and the administrative record was  appealed after the term and refused you changed your reasoning did you not when you terminated her you told her she said i want to see the records and what you center was an expert reports that said you can sit for two and a half hours a day and that's good enough and then you got the road and got another nd the nd expert may be right i'm not impugning him for the moment but they never knew about it they knew they never got to then supplement their record with their doctors letters they were never told that it was your opinion she could sit for eight hours a day they were told it was your opinion she could sit for two and a half hours a day we told her that on the up whole letter on the appeal yeah after after she would have no ability to put in the record opinions from her doctor then what she didn't know before that that she had to rebut eight hours a day and she didn't need to her but two and a half hours a day ditch i can't cross that bridge with you your honor and here's why at the time of the up hold because in october of two thousand and seventeen the basis for the op hold including dr belcourt opinions and the eight hours a day and all that was spelled out for her she was then given the opportunity to submit a voluntary appeal within one hundred and eighty d and i would invite the court's attention to excerpt of record page seventeen on this point which is the whole letter and all i'm going to say about that is that the at the time that the nd appeal was  offered ms wagon thing had the opportunity to submit any medical information that she wished to if the initial time now after the up told ok so and who would that have gone to the company life insurance company in north america s decision maker yes but on a because on appeal there's a different decision maker than the original claim but it goes back to the same claim administrator the same administrator who handled the appeal meaning life insurance company in north america so i know i mean i internal i'm asking would it go to the person would you go to the decision maker who turned down the appeal who would you go to a different decision maker inside the company i don't know the answer to that your honor go to the same department i know that so i'm going to go back to the procedural issue ninety days after you terminate her and there's still no decision on need peel she goes to court and files this lawsuit why doesn't that cut off the record at that point in time it doesn't because the period was told when mr fleishman on behalf of his wagon stein told him that told us that he had received the record it was the largest record he had ever seen and he hasn't got a chance to review the whole thing yet but what he did see was dr sheen's report and guess what armani says four hours had to get around that once the participant files an appeal then the company is bound by the department of labor regulations which require a full and fair review they must start over they must look at every document in the file whether it was relied on or not for the basis of the original decision they must run down every lead they must conduct a full and fair review and come to a reasoned decision and that's what they set about to do that's why they contacted dr belcourt to determine based on the entire medical record whether the claim was supported and he concluded forty five days to render a decision doesn't apply once an appeal is final is that w you say no that's not what i'm saying your honor what i'm saying is that there's forty five days the minister can get forty five more if they say they need it and he but you had more than ninety what we did but the reason for that is this tolling issue and it's told when the company is waiting for information that's necessary to complete a full and fair didn't she didn't know i'm trying to figure out when this occurred didn't her council say rather early on when they sent a letter saying you goofed see a money in light of question ok so i think that point why should the record be told when he's basically said i don't think i need to say anything more than see a money well he doesn't know that because he hasn't read the record yet well i don't care what he's done the question is whether equitable to means he's led you to believe that the appeal should be processed yet and what he said is gee i've i've got the record i haven't read the whole thing but looking at this sheehan report you goofed  why i need to do more and you never respond you don't you never say gee it's based on the entire record not just on the c n n you never say we're going to go get a nd report i mean regulations and procedural thousand and seventeen where we explained that we would give him time to finish his review with a ministry of record following your honour's point logical can put he didn't he didn't see he didn't say hold up the appeal while i review the record he said i got a big record here it's got a lot of stuff in it but she i don't think i need to do anything you screwed up sihamoni and you don't respond by saying no no our position is that other stuff in your record shows that dr she and is wrong or we want to do further review you just you don't process the appeal little that we do process the appeal but we're giving him time to make his comments known about the administrative record following your honor's point to the logical thing is it your  understanding that once you did that you could take forever no your honor and exhaust the limb is that the because that you requested was three days later the forty five day extension right correct so i'm to the letter that we're talking say we need forty five more days but in the mean what if one of those forty didn't decide it within that forty five dollars days right that is correct you did not read did you did no we didn't we didn't decide it until ok so if i look at this whole record i see you're saying to him look we're to toll this we're going to toll it i'm not sure you can you can toll it put that aside we're going to toll this and then a little bit after that you say we're just going to extend this whole thing for forty five days and now  saying is while that may be true but the st forty five days don't count that's your tolling argument isn't not exactly on but we get another forty weeks before the nd forty five days start we get the tolling period that's right before the nd forty five day right so your argument doesn't then after that you ask for additional forty five dollars days but we're really arguing to us is that we would have had more than forty five dollars days we would have had forty five dollars plus the amount of time it took us to dispose of the appeal because we had determined there was equitable tolling for a period of time without notifying her that we have determined that i don't think i quite agree with that analysis your honor let me tell you why i think the tolling argument is important when we talk about the scope of the court review in the discussion with mr fleishman the court addressed whether or not the court should agree to accept dr horwitz this report because perhaps the administrator record had closed when the plan to file the complaint which is before when we say the tolling ended but in any event it's he filed the complaint two months before we submitted the appeal decision there is no dispute about that but the question is what is the administrative record and what does it consist of and when and mr fleischmann's argument is that it closes when the complaint is filed even if that's true which i'll explain in a minute why it isn't then the dr bell courts report is in the record at that time and i think there's another case you referenced in mr fleischmann's argument on which judge day i was on the panel it's called another e and i think the idea is that you don't want to set up a situation where the administrator adopts a wait and see attitude well that's just you know see what happens see if they sue us and if they do then we'll run out get some more medical work that was not the scenario here we all this was in place well before the complaint with fire so what why don't you at least give them the belcourt report if your your argument is that the ministry of process still running along and it's timely why don't you give them to belcourt report before you deny the appeal because it iran are the cases to talk about and remember this is the before the regulations were amended so it's under the old regulations and under the old regulations the court looked at that issue from around the country and they said it would and it would result in an endless back and forth between the administrator and the participant and no decision whatever could ever  of pines that she can that she can sit for eight hours a day so it's not if we're just somebody looking at the whole record saying i'm looking at the whole record that she had reports as just that the other stuff says that that would be one thing but he he reaches opinions it's a he's a doctor reaching opinions and i agree your honor and the reason that's important to our cases because he's got to determine as a medical doctor whether dr king's conclusions are supported by the medical evidence he's really the only one who can do that none of us in this room can do that when i have still got the same problem and i know you say she could have come back later but at some point when you have a doctor who's now reach an opinion directly different than the previous doctor that you hired to reach an opinion on this issue don't you have some obligation to go to the other side and say we got a new report if and only if the medical record that the conclusion that dr shaheen reaches is supported by the medical evidence and even then the cases have determined that there is no obligation to do that another case i know the case is determined that i'm not arguing now what the regs say and don't say which you know for better than i it just strikes me as really unfair you know i would agree with your honor but for one fact and that one fact is that we won we upheld on appeal and disclose all the bases for dr bell korth report she could have submitted all that evidence then and submitted a nd voluntary appeal that's where the fairness i think comes in to your h question there was an issue that i'd just like to address briefly in the thirty seconds i have and it has to do with what are we going to do with this case he said the court started examining remedies which for the reasons i described  so the issue is whether or not we should send it back to the district court or to somebody to take a look at these three or four letters that came in in january of two thousand and eighteen and the answer to that is no that would be a futile effort why not only because they don't relate to the issues that are at issue medically because they're conclusory but more importantly to the district court and to this panel the district court has specifically said that it did not inform the analysis ok now whether or not she was here's my problem you said assuming that there is a remedy so now you were swimming that she wins so you're saying there's no reason for anybody to look at the records at these letters i guess that means we just order an award of benefits to her on no your honor means that you uphold the district court and you know you can play it both ways you said now let's get that to the issue of remedy what if she wins what's the remedy and so my question to you is what if we can agree with her that this was not conducted properly what is the remedy there is there's no remedy there's no right i mean it's i mean that's yes and there is no remedy at all even if even if you  regulations and didn't do what you were supposed to do there's no remedy there's a remedy if this panel determines that the district court committed clear error but there is no evidence of the ok i know i think that's your that your primary argument i understand it i may say you're the one who brought this up you could have sat down without bringing it up but you did you didn't so let's assume that we conclude the district court err i know you don't want to go there that was my question to your friend i am assuming the district court rather in error in doing what aired in its judgment only make a district court's judgment which dismisses her lawsuit and we say here's why you are district court and we spell it out i don't know what we're going to believe your honour's that there's no reason to do anything except affirm ok well i guess you did say you did but if you did if you remember the district court with the instructions to consider these letters the district court has already told us what they're going to find based on the order that we already have and find that it did not inform their decision under migrants as that mean your answer to the question though if we vacated we should remain to the district court not to the should be to affirm you know because the remedy assumes that she wins and i think that we the way we that i dug myself a hole and started to climb in and fell in at the bottom was by my use of the term remedy when i had originally intended to th reliance on the i am a report of dr shaking i will not be submitting any medical records so they knew i wasn't going to get this thing about tolling waiting for my records i told them i was going to submit anything else is that letter how long is that letter after the letter that your friend the whole long is the letter no how pretty time oh it's july th right and you did you had you previously corresponded by saying gee i got a bunch of stuff yes but once i review the sheen report i need to law in this circuit slowmo versus honda is that when you have to give me all the records if i ask for them before you make an ultimate decision so that i have a right to sedentary job which is nothing but nonsense and that anybody would buy it shows nothing but bad faith on the part of cigna i mean if this was a bad faith case as opposed to an arrest