and this case at this point i think provides this court with an important opportunity to restate and perhaps refine its holding regarding it court stated in the remain and decision was that the court had found and you have not identified any particular evidence that you could have provided that would be additional and relevant to your client's condition and his alleged disability so what specifically would you have provided had you been asked and how would the administrator have known to ask that for that specific information  initially your honor i would point out that mr kluger was on represented throughout the entire administrative time right but that that's that's the question remains your complaint is in part they didn't ask him for more correct  what is the more that was available to him there were extensive extensive records to be have more records more doctor's something different that wasn't presented i think that what number of things could have occurred as i pointed out on my brief one is they could have contacted his psychiatrist they did initially early on but many many months had passed before the filed and i always some evidence  i was not on the final review that was on a prior review before they terminated his benefits who had the obligation of contacting the psychiatrist well the obligation at least in this is because because what our court said that was mistake was that we did a letter they didn't finish out the sentence is that if you'd like to provide that it was just blank and what they should have said was if you'd like to you could provide additional medical records or additional testimony so the onus was on was on your client to come forward with something so if your client wanted to you had the opportunity here on remain on to come forward with a statement from the psychiatrist but that but that's not what the riemann order from from the scored you didn't it is still your obligation it seems to me to demonstrate that there's some prejudice from the procedural error that was identified if the correct procedure was not found and it wasn't in a couple of particulars under a previous decision then still if everything would have come out exactly the same way then you see you still can't get relief so the question is what specifically would have been different and the and how to how do we know that there was purchase well what the prejudice is because the claim was denied because the question found that he did not document a claim of the effect of medical findings so that would be well you know what that is that's the ultimate prejudice but i think what is the prejudice specific to the procedural defects that were identified in other words if if the result would still be a denial with all the records in the world then there's still no prejudice as i'm farney even though he's and so where where do we go to find out whether made any difference that he wasn't pointed to particular things to bring and was there something there for him to bring in there could have been his doctors addressing the objective ject of medical findings issue they could have done that in a response once but again they were not contacted on the final review by by qwest  that your honor is dr bevan's gas score which is a global assessment of functioning which is an overall level of psychological functioning was it a sixty one he was in a mild level when dr bevan evaluated him on every visit just several weeks before the final denial from quest so an independent medical that all of that was not new was it wasn't all that in front of the decision making the arizona decision for example goes to the issue of the issue of who had the duty to come forward with information when qwest became aware that he was found seriously mentally ill by the state of arizona and also when mr gould in his therapy has just weeks before the final denial said that his fear of death it tends to fade since the since his heart attack he was sleeping fifteen hours a day he was isolating he had severe hopeless yes at that point i think it was ques duty to come forward under this cour case law and to develop the record or to assist him in developing the record and that never occurred so another independent medical examination at that point could have could have fleshed out some of the imperfections in the record again his wife but i mean there's lots of other things that could have been done was quest obligated to do that if we again the our court focused on the fact that they didn't finish that sentence they didn't tell your client what else he needed to do in order to perfect his appeal or to reopen the to reopen the case or what is it that your client would have liked to have done or what else did was he holding at else did he have that he could have produced did he go to see doctors whose records they didn't have or something while they had the records ok so they had all the records that had been amassed what else could he have presented he could have provided detailed narrative letters from his doctors dealing with the with the deficiencies in the record if you're asking me specifically if he has something to submit but he didn't submit i'm not aware of anything that he actually had to submit in support of his case because he he did it detailed letter to them three weeks earlier explaining his case to them and thought that that would be sufficient right and certainly not have had they finished the sentence by saying changed their minds well i don't know specifically what he would have given them because i don't know that he had the i don't know the psychologically he was in a condition to be able to think that through in terms of what he needed to do but he also didn't know what the problem was with the case and intel he got the final denial again in terms of what the issues were and what the deficiencies were so were were asking what it is that he could have submitted but he really didn't know that the record was deficient when he wrote the letter and in  september weeks before the final denial he even said i think you didn't look at this closely enough and i guarantee that if you look at it again with this evidence with what i've laid out that the claim will be approved well three weeks separate arguments one is because of the procedural the facts he is entitled to something and the other is that the decision is just wrong based on what they did have and those those are different require the dialogue to occur when an individual has an opportunity to perfect the record so they can perfect it and that didn't occur here and i know you've asked me what is it that he would submit i can think of five or six or seven things that now could be submitted to perfect the record but unfortunately i wasn't there during the administrative review so what i'm simply asking is that this court if it isn't going to outright reverse and find that disabled then it seems to me that he that the case should be remained it back so that he could be put in the position that he should have been had the procedural defects not occurred well in a funny way what you're saying is that he he had the right to counsel because what you're saying is that the experienced lawyer wouldn't would know that there were many other things that could be done and should be done but is that really a requirement let's say in some other case where there's no procedural the fact a person puts on per se the best information they have and they were denied and a lawyer takes it takes a look and wow well you should have also done the following five things and i would have really strengthened your case but do we engage in that sort of retrospective work or do we look at what the administrator had in hand at the time to determine whether there's an abuse of discretion will my or of my review of the cases that i just mentioned here from this court i think they do look at it retrospectively and look back and say what was the alleged deficiencies what was missing from their record and if there wasn't an opportunity to submit it at the time then they renamed it back for development of the record i mean that's exactly what occurred in the south funky case there was a missing functional wasn't missing it was a new reason for a denial that there wasn't a functional capacity evaluation done and so this court remained it back so that if the claimant wanted to submit a functional capacity evaluation on remand they were allowed to do that on duty to engage in a dialogue i think if a if a procedural irregularity has occurred a person a claim it has to have the ability at some point to be put in a position that they would have been and had it not occurred and i my argument of course is that had they told him and informed him what it is that he could have done which never happens in any of the denials then at least he would have been on notice and would have known what he could argument is the same as it relates to dialogue yeah i don't know that that's necessarily changed you know other than this court found that the procedural regularly or curve in terms of the failure to engage in a dialogue so i don't know that my argument is necessarily different and i'm wondering what the district court wrong i mean well the district court held that question didn't abuse their discretion because  because even though they didn't clearly tell him what he needed to submit even though they didn't share the doctor's reports with them that didn't lead him to believe that a firm mistake had been committed and you can that i but i don't believe that's consistent final denial on february seventh two thousand and seven and at three hundred seventy in the record it does say that  must supply objective findings diagnoses and any other information relevant relevant to the nature and duration of the disability as well as a plan for treatment or management of the problem so and that is unfortunate and i think that's the basis where you think that's cured here i think it's cured in the section that talks about what objective medical documentation is and it lists the type of is additional findings medical records diagnoses your treatment plan medical records and i think when we talk about the procedural irregularity here talking file the letter could have been more artfully drafted in stating that objective medical documentation didn't support disability i don't believe what the plan administrator was saying is that there's anything missing i believe what they were saying is that the objective medical documentation that was supply it doesn't prove disability because it demonstrates that the claimant can engage in all of his activities of daily living there were tests that were supplied that showed that he had adequate he performed adequately on tests of concentration showed that he was given the m m p i and it showed that it was possibly an invalid profile that indicated an exaggeration of symptoms show that he was able to take care of his grandchildren and drive and go grocery shopping and exercise and read and do all kinds of things that the administrator listed in the letter as being is that things that were already in existence were not missing perhaps he didn't understand that he had the opportunity to develop additional things that weren't yet in existence on a more of the claim and then the six months elapsed between that denial and claimants appeal he didn't appeal for quite some time so part of that delay i think is not the administrators doing but i also don't believe that the plan requires that an additional i mean be done on appeal in order to what the plan and what a risk that requires on at the appeal level is that the claimant be given a full and fair review of the denial and the denial was based on the denial in february was based on the i me which at that point was pretty recent during the appeal the administrator sent the file to two additional reviewers to review that file which was part of the full and fair review also during that appeal period mr clude submitted his detailed four page fairly precise detail and he submitted many other documents now at this point to say if the administrator had written a more clear letter that precisely told me that it was the fact that i could engage in all of my activities of daily living that i didn't perform well on these tests and that i presented with normal affectation speech and behavior and trust i might have had my doctor write a letter that more precisely addressed the concerns the administrator had i don't think that's what's required arrests and it doesn't demonstrate that there was an abuse of discretion it just demonstrates that the claimant might have asked his doctors to write their findings in a different manner i think it's it's telling that one of the issues before this court on appeal is the issue of the extrinsic evidence and during the six years of litigation in this case mr coote could did supply or did offer  uminous extrinsic evidence which he would like the court to consider but none of that goes to the issue of whether or not the record was deficient  during that period of time when we're in litigation if there was extrinsic evidence that should have been submitted before the claims administrator to make the record more complete under a body  mr could could could have submitted that and during that time frame the strick luka was represented by counsel and there hasn't been one piece of evidence that has been offered during the six years of those case litigation and i think that demonstrates that even though there was a procedural error that resulted from the in artful drafting of the letter  the reason it was remanded in the first place was to determine whether or not a factual error would tip the balance toward an abuse of discretion so and i'm glad you raised that point because the procedural errors that we're talking about here were addressed by the first panel and significantly pennell did not find that those errors either alone or in combination resulted in an abuse of discretion it was remanded so that the district case was in litigation nobody who was involved in the claims handling practice or mr klute labored under the misconception that he was going to get his job back that was an error that came up and litigation so the district court found that that error did not tip the balance toward use of discretion because the plan does not require that qwest offer a job back or that the plan administrator assisted in finding a job and the social security determination was taken care of by the district court how that was your honor the district court found that that was not an abuse of discretion for a couple of reasons one social security is that he was approved for social security disability in the year two thousand and there is no dispute that the plan administrator agreed that in two thousand mr cooper was disabled so the fact that six years before the denial the plan administrator and social security both were finding him to be disabled the district court did not find that significant and that's a that's another objective medical findings was there is a definition as i pointed out of my brief what are objective findings i don't know that i really know the answer to that i don't know that any one of the court has the answer to that so how did that help mr clued or stand what it was that he needed to submit to perfect his claim with regard to i don't believe the court has ever held that that type of spars reference doesn't give any direction at all is sufficient to meet their duty under this court's cases as a relates to submitting evidence after the ministry of denial i don't believe a bt contemplates that that would be more merits evidence as opposed to conflict of interest evidence i don't believe that that would be permitted because otherwise you would have an administrative review that went on forever even in the litigation so i think there's the other issue is that they didn't tack on a new reason for denying a claim that could be responded to that's the reason why no evidence was submitted following the final tomorrow as relates to the the social security decision that is probably a lesser issue but i think it goes to the nature of the quality of the review that mr clifford has provided that although they knew he was getting so security they told him to file for social security in the process of looking at the records they never asked him very helpful arguments