morning your honor may it please the court to my name is tony mary i represent neil job very with respect to the appeal that we've brought today in this arista matter or appeal principally raises two issues the substantive issue of course is whether mr jerry was disabled in november of two thousand and five from his job at lucent technologies as a software engineer and the procedural issue that we've raised here is whether the district court abused its discretion when it remained  case after it first reached a decision the beginning with the procedural issue of the history of the administrative proceedings that that occurred hears is relevant very applied in the emperor of two thousand and five he'd placed his mental health at issue in that application both with respect to his statements and with respect to the two physicians that submitted statements  denied the claim jhaveri appealed against submitted additional evidence cigna again denied the claim based upon a medical direct review in the key language with respect to the mental health  and let me stop and say here there's a wealth of information supporting the fact that mr drew very is physically disabled but in my view the evidence that he was mentally incompetent to work is overwhelming and so we've kind of focused on that with respect to the cygnus decision on appeal and i quoted at page twelve of my opening brief the medical director said while these limitations being mental were noted we've not been provided with mental status examination findings neuro psych testing or treatment records supporting a cognitive impairment so very pealed again and this time when he  put in the wealth of mental illness evidence that i'm talking about  just one quick short procedural question i think there's some medical evidence that is from the two thousand and seven time period if i'm correct correct how does that relate to the disability time period which i understand to be november of five to six correct and how how should that two thousand and seven evidence the considered by this court well i'm not here to say a hard fast rule that it's irrelevant because i think if you look at it in context for example the fact that he we've got a lot of mental health evidence in two thousand and five in the fact that he continued and was hospitalized and treated for mental illness in two thousand and seven goes to confirm the two thousand and five i think that's fine on the other hand i think he had he developed cancer or some other physical thing in two thousand and seven i don't think it's fair to look at that with respect the two thousand and five claim and when we discussed the social security finding in our brief that he was disabled we did note in our brief that some of the findings from the social security administration were based upon subsequent stuff not if if the court rules here in our favor and the only issue we were up here on at this point is whether mr jerry's disabled from his own occupation as the court's probably familiar second part or the second part of or any occupation occupation i did for that's not before you know it's yet to be determined so it was his occupation i think i know but there he was occupation was a software engineer what do you have to do physically physically the principal problem he had physically was sitting all day and i think the record shows that he worked eight to ten hours a day and there's evidence that because of back problems and stuff he had trouble doing that but there's also evidence the his to treating docs in november of two thousand and five said either due to medication or his his just being physicians who they were they were not you know they were not in not not treating physicians they were not on exam i mesh it's a not examine this this goes up against the problem with the courts addressed on in several other cases as between in our case one two three four five six treating physicians who've all determined the jury's disabled we've got an opinion from from just that says he's not disabled but i haven't examined him and of course the problem with that is in order for the neurologist to make that claim he has to discount dr very spread ability as far as his physical state we do have the administrative law judge if if the court gets to the point of of considering the reman we've got the administrative law judge opinion that said it was credible the problem we have with the with the psychiatry is this court has said so and several of the courts have said you know when it comes to mental illness you can't tell by reading the files you've got to either go by what the treating docs say or you got to examine yourself and that's the thing here cigna in lucent in its plans they could examine him they could send him for a functional capacity evaluation you know how much complicating this i don't disagree with you your honor of judge frost did not find the the physical evidence persuasive so that's why he  part of the problem with the district court's opinion and in fairness to the district court they don't really get many de novo cases the strict courts are used to looking at either differential review in the recent case or they're looking at summary judgment cases and they so they look at the evidence differently and i think the district court here has the language of the court's opinion in several cases both in the first opinion in the second opinion talks about signal being reasonable and signal being this and signal being that i think it would be helpful for the district courts generally to get a clear opinion from this court on what they're supposed to do and in the review not that the court hasn't hasn't  me if i'm wrong in addition to the allegedly disabling back pain that may be the more disabling aspect of message of various medical situation was the sort of the psychological emotional profile he's a software engineer require something i seventy to seventy five hours a week working with these very complex that it's sort of a combination of the physical and the mental and then also how they work together interaction and then in the third component is the medications because there was some there was some because he was taken some heavy duty medications for his back there's there's some references in the medical records to the fact that his meant his medications are affecting his ability we're going to this is a guy that tried to sell the two thousand and eight election on e bay so he isn't all the think that would be regardless of how you come out on this issue i think it would be helpful to make it clear to the district courts what their private lives are i'm i'm not going to say that you there's the is never a good basis for  in the noble review case because there might be but i think in this case cigna had a chance once on two different appeals but specifically on that last appeal they had a shot at the mental illness stuff and so there's no reason for the district listening to mr mary's argument today and that was a totally accurate statement of all the facts i would be convinced however the street trouble with this case and that's why the court below the district court struggled with this case so much is there's a lot of contradictory evidence there is a lot of medical reports that are inconsistent with this analysis we have to start with the plan itself the plan definition and course that's what we're here to to determine whether mr jaber is eligible for benefits under the plan calls for and it is a strict standard an individual has to be just disabled from performing his job for the entire fifty two weeks following the conclusion of a short term disability beginning throughout and at the end and during the early periods yes one of his treating physicians said that he had back issues he also said at times he was improving very nicely he would be able to return to work soon another of his treating physician said he would benefit from returning to work he just needed to get up and move around a little bit in those new evidence in the record that he couldn't get up and move around a little bit so there are other doctors who you know are they making in reference to both conditions of just one well that you know it looking at the case today many years later the mental health issue is mr mary has articulated has taken a lot of the focus in the briefing but when mr j very first applied for disability mental health was barely mentioned it was there were one or two passing references and a couple of the doctor statements but in general it was focused on his back issues that not arise to any serious degree until mr j really lost a lot of money in the stock market in day trading in two thousand and six around august of two thousand and six and the first note in this this is well and you know the  a little bit to a little bit later but they're all i think relevant to the time period but even dr seymour dr seymour his own physician during two thousand during a believe it was in two thousand and two thousand and six adjusted or to late two thousand and five so just to that he would benefit from returning to work so i think the reports the see the struggle that the gun the district court had with this is you have a lot of contradictory evidence and at the time of the initial review there was very little mental health evidence and the court was concerned and that's the court remanded it i think properly not because they wanted to give cigna or excuse me it really loosened because signal system in a straighter this is loosens plans and rissa plan on insurance policy they wanted to not because they wanted to give them two bites at the apple they he with the court didn't feel there was enough evidence particularly on the mental health issue to make a decision you couldn't if the court said opined that if it had to make a decision based on preponderance of the evidence that did not favoring mr j very at that time but it felt that there should be more record developed and mr seem to suggest that you know he's in their opinion he's totally disabled and can sit wall stay in the should not go back to work be used with respect is back in dish and ology and dr grosvenor on july tenth two thousand and six right in the middle of this disability period reported no motor weakness and general because a quick examination was was on remarkable except for some ribs ocean of his back so they both opined that he could do sudden terry and even intermittent light activity work so there were those opinions by physicians who in those cases did examine him and who did find that he was do you agree that the duties of his occupation with sit in one place all day with a couple of birds and and work on computer we would agree it's largely sudden terry but if he certainly we did would not agree that he could not get up and move around occasionally in fact most software programmers do that you need to it's like practicing law you need a mental break once in a while you need a physical brain and that is how many hours a week they have to work in the job requirement was normally eight hours a day forty hours a week like most software engineers he did sometimes work longer but that was not a requirement requirement of the job so if he if he had been able they stem the examining positions and said he could if if he was in enough pain that he could not concentrate on a regular basis but another thing that's worth noting is that his doctors recommended of course of pain management which he did not follow there were there was never clearly articulated why you didn't follow it there was some speculation i think as attorney that he couldn't afford it but at that time you know his coverage doesn't make any sense to us why he couldn't have adopted some routine pain management protocols but we do feel again that the mental health if we go back to the mental health issue there was very little evidence until august of two thousand and six and then what we have is in capsulated of that he was clearly possible lies for approximately three weeks three and a half weeks off and on and that was after he lost a lot of money in the stock market but that was an in capsule it event in there is no the thing the doctor room and dr goldman both pull out of emphasis on in their file review and while yes they did not examine the patient and we understand that that's our doing mr murray made by the same token they unlike all the other treating physicians had access to the entire administrative record they looked at everything and if you look at their reports they review everything including  expert witnesses and ultimately lucent not trying to make light of the issue and this is a serious case but there is not the kind of massive financial incentive plan here other than to honor its own  every did not has not done any of those things other than during for these and capsule events he got examined he got people to support his disability claim but there was a lack of collaboration there was a lack of treatment knows he never took the the minnesota multi phase that inventory tests the well known psychiatric tests that there is there is no progress no that's what you typically find in a mental health claim you'd see somebody getting undergoing treatment undergoing probably supporting comments from his treating physicians and one or two one off examinations in support of his position contrary to that there are doctors who examined him psychologist and psychiatrist who examined him during the same period  found he did not have severe mental issues and was as we don't we were not here to day to say that mr jay every has no back issues nor are we saying that he has no psychological issues however the standard under the plan that he has to be disabled for the entire twelve months from performing his job not for the beginning the middle in the end we can be sympathetic as human beings as we are to his condition you not you know saying that his back his back injury gave rise to some i think fairly minor psychological issues at the beginning he was unable to work it's natural to have issues from that but we see what you know is out on short term disability but the severe to all the severe mental health issues really did not arise until the time he lost money in the stock market and so we're only at the very end of this one your disability period so we don't believe that you can really draw right reference that ok had severe back problems which itself are as significantly contra indicated by the evidence in the file and then that caused all these other severe mental health issues we think there is but again numerous physicians at least three during this period found that his back problems re their minor or a blackboard lacked objective evidence and i think you've got those two discrete events and it doesn't satisfy the definition under the plan for a long term disability i also like to mention just for fifteen seconds we do have an argument on judicial stoppel he mr jaber did not disclose this case in bankruptcy filing in fact after we followed a motion to dismiss the he petition that out to you all to me i was sponsible i think this court has ruled that to that a fact that you alternately are responsible because there is this bankruptcy is another bankruptcy it's only alluded to in the record of chapter seven bankruptcy  that the creditors are have may have or the trustees i should say may have interests in the in the in the proceeds and i think he alternately does bear responsibility in the courts in this most on that basis as well ok thank you again your honor i'll be brief but i need to address the notion that the mental illness wasn't in this case from the beginning i have here in the records in the first record at pages five o eight in five o nine is dr seymour's report the second page five will not and this is a a lucent for his long term disability plan for lucent technologies attending physician statement of disability page two question thirty one please check the appropriate box regarding patient's mental or nervous impairment box checked is a box five patient is significant was the psychological physiological personal and social adjustment ten in five eleven same thing same number question twenty one docs check class five severe limitations so it's simply incredible to argue that this wasn't put issue right from the get go with respect to dr seymour's statement that dr barry could benefit from a return to work he subsequently wrote a letter this isn't one eighty six in the record complaining that signal was taking his comment out of context the last comment i'll make is is the argument was made the jerry's got to stablish that he was disabled throughout the one hundred eighty the limitation period or elimination period that's true in most plans but it's not true in this one section two point four of the plan page five of the original record so that you got to be disabled for the one year period commencing immediately after the twenty six twenty six week period probably somewhere in the forty five thousand dollars range i think it was paid about seventy five thousand and his benefit would be sixty percent but reduced soft by social