please the court i'm jim brunner representing united of omaha life insurance company in this case i'm going to be asking for three minutes a rebuttal time all right this case involves a claim for long term disability benefits under a group disability insurance policy governed by a risk the fundamental question in this case is whether pla failed to prove by a preponderance of the evidence that he is entitle to the group disability benefits that he seeks and who is supposed to consider this great partners as it is  t they share either are they court or both i mean if there's a preponderance of the evidence that septa to the person who is conducting this take issue with that and no one physicians that you did have to examine the plaintiff thing to agree that he was disabled or at least his opinion was not adverse to the pla the record in this case if one goes through it with some care and deconstructs it does not support the claim they claim we claim depends upon three physicians had about seventeen consultations with point and if one looks at his his records what one finds out is that  the months leading up to the decision to then to deny the claim that the doctor manas found in his point of had no back pain plaintive had no tangling in his limbs and this is set out and in those two documents that are in the record which is the consultation notes of dr maas of december for our twenty fourteen and april twenty fift ok i'm sorry i thought you said december thirty december of thirteen december of fourteen ok in april of fifteen if you look further at the records of dr maz in the complaints section of those records and those are the two records i just dated for your honor if you look there you'll see th the complaints of point of are that he has back pain in his neck pain is these other things but if you look at the parts of the records which depend upon examination by the physician  and review a systems by the physician that's where you find the language of no back pain no tingling neurological problems which at best from surgeon he only saw the point of on a few occasions and he stopped seeing him in twenty thirteen more than two years before the final regimes records are again self conflicted there they are contradictory on the one hand he quotes plaintiff as saying that his neck bothers him for instance dr regime in one paragraph says the fellow has a long disorder and then a sentence or two later he says he doesn't have a one d if the court looks into the records those records are unreliable fuller has no medical training whatsoever mr fuller is not a physician mr fuller is not a nurse also mr fuller decided that point of was  totally and personally disabled because he was quote functionally illiterate is contradicted by the fact that plaintive who is of middle eastern origin because it has a middle eastern origin you know counsel the problem i'm having with your presentation is you're going through what various doctors said and  picking out various comments that might not convey the entirety of their opinions but the problem i am having is you're not explaining with respect to these doctors you're discussing  how they are opinion relates to whether he's disabled from the ability to carry out his occupation or any occupation that he could work at it work proceed with the argument but if it might help if you could focus a little bit more on how these opinions can eliminate whether the man can actually  has to show that his medical condition is such that he deserves a disability benefits there is no question in this case that for several years we paid disability benefits  therefore we did not dispute and do not dispute today that he has some disability the question is under the game full employment prom of the disability definition in this case whether he is permanently and totally disabled from performing any gainful occupation and he has to prove that by medical evidence or other evidence that he can't perform any gainful employment now if you end up with three physicians and only realize for medical basis for for that claim and two of them have records which are contradictory and which in part say that he's not disabled from has any ga employment because of a neck problem because of a back problem when you take out from under him the medical evidence on which he has to prove his case if you take out from under him his rehabilitation expert mr fuller and mr fuller's opinion is based on nothing of medical value and is based on a functional illiteracy claim which is contradicted by the fact that mister altshuler me spunk ssion for many many years in this country with no problem the functional illiteracy that is no evidence whatsoever that he can communicate and he works for english speaking employees it's not so so that it's not there on the other hand we've got the issues of social security and and the disagree with you what happened there is we tried throughout the case to find out what we could about social security and for a while we were stonewalled eventually we got some records this show that he had made a claim that his claim of been denied by social security when the ministry of record was closed the lawsuit was filed and we were in this case then after the parties filed their briefs plaintive than trying to submit his part of the record a new document that was not in the administrative record and united objected to that and the this record agreed because of the rule against expanding the administrative record once it's closed so so has it but it came after the briefs were filed and it had nothing to do with our interests in the social security now so security as important as your honour's no wonder calvert because while so security is not binding on what happens in the  girly benefits on the policy area it is nevertheless not meaning once and this case we have an individual who's been unable to persuade social security that he is disabled that he cannot perform any work morning routers they please port my name is randall philips and i'm here for the i'd like to address when the questions judge siler has to do with the standard of review standard of review in the district court was the nova the standard to review for this court is clear error i not the novo and that's because all of the issues as mr brander argued today at the court are questions of fact and weighing of the fact by the district court judge and in this case the district court judge had all of this evidence in front of her the district court judge considered all of these issues in terms of the inconsistency of some of the medical records in noted that in her opinion in the ridiculous pathy all of the evidence of the plaintiff's doctors for physical capacity evaluations limiting him to very limited amount of activities functional activities in their own once for four days that showed how limited his activities were during those four days now because this is a question of clear error also i think it's very important to know that they don't point out their own doctor dr salaam up who was the independent medical doctor that the defendant appellant had examined examined my client and he agreed with the exception of one point and that had to do with lifting ten vs five pounds but he agreed with all of the other restrictions of the plaintiff's treating doctors and not only did dr salaam examined my client but he reviewed all of those same records that defendant now is saying we're unsupportive of my client's condition so what the defendant has is they went beyond  first terminated him in this is on the any accusation standard we appealed they reinstated him based on dr salaam as i am he and then they went out and got another doctor to review the records with very little additional information and another book ational expert to evaluate his vocational situation in terminated him again and they did it by not giving the vocational expert the plaintiff's medical opinions or even dr salaam as medical opinions so the judge reviewed all these things and made this weighing of the evidence and i don't believe that there's any way that there can be a finding of clear error here now one of the thing that i want to point out is that even if we were to eliminate the plaintiff's doctor's opinions we have the opinion of their doctor dr salaam a who can says cuckoo confirms that my client is disabled based on the opinions that he saw from my client's doctors and then they have the reviewing doctor who did not examine my client dr william bore who says my doubt my client is still limited to sedentary activities and we have their vocational expert from u d c miss fall who on her so second evaluation of six five fourteen said that there were only two said terry jobs out there that he might be able to perform one of them was this surveillance security monitor job but you under the dictionary back to patient titles was last updated in one thousand nine hundred seventy seven and we presented book ational evidence of mr scott silver who actually studied and researched that job recently and said that job doesn't exist anymore in the d o t it's listed as a government job that job now is a t s a job perkasie no security job assembler semiconductor and that job according to the defendant's own vocational expert pays a wage of fourteen hundred ten dollars a month fourteen hundred ten dollars a month does not meet the standard of gainful occupation under the policy under the policy as i think judge clay mentioned at sixty percent of the wages sixty percent of the wages is fourteen sixty seven  up so that job doesn't even meet the requirements of the policy to be gainful occupation so even under their doctor's evaluation in their book ational experts a valuation the plaintiff  found are considered disabled under the policy and i'd like to talk to a couple things counsel mention one is mr fuller mr fuller was not submitted as a doctor and he interviewed and evaluated mr mobility ami in concluded that based upon all of the opinions that he was given the defendant's opinion dependence doctor's opinion that he would be unemployable as a vocational matt second point counsel mentions the functional capacity of valuation that is something that wasn't required in the policy the plaintiff the defendant does not identify a policy provision that was breached they don't argue that in the brief they did not raise that in their determination letter and they firm it of lee said in their terminations letter that they provided a full and fair review and that is just another matter of evidence if there was a functional capacity evaluation that would be weighed among other things the fact that there isn't one it's something that's not there that the judge can weigh in favor or against the plaintiffs in that comes standard as well the final point has to do with the social security issue the evidence in the record did not establish clearly whether there was a final determination on social security so we attempted to supplement the record by showing that the initial denial had been appealed to the appeals council and was pending at the pills counsel for social security that's what the judge did not hear defense counsel wishes to again go outside the record to say that there is some further denial and actually it's still pending in the federal district court in detroit  o will entertain any questions that you  united agrees that factual determinations are governed by clear error on the result law at the same time i raise the question if the medical records are contradictory mosse for instance quotes plaintiff is saying i've got neck pain i've got back pain i've got this and that and dr mosse his own review notes say that there is no back pain there is no tangling there is no this that or other thing these are contradictory findings in those notes and if the district court judge never the less ignores those findings ignores those contradictions and relies on that medical record i submit  upon my clinical examination and the e m g findings of the upper and lower extremities i do believe that mr algae army is able to work as a welder he should have restrictions of no lifting of more than ten pounds with no bending twisting squatting more than five times an hour he should continue with his medication regimen i do recommend trigger point injections from time to time for pain at this point i am unable to determine if the restrictions are permanent with our updated imaging studies and an updated indian gene so that's what he actually found as for the f c that was raised because we attempted that is united attempted to have a functional capacity evaluation which this court in the shah case in the huffaker case deemed to be a very helpful useful  way of determining what somebodies disability extent is we tried to have that and the plaintiff refused to show up dr soon mine agreed that it would be