case is different from those that you have been talking about in the first two cases i believe it's an earlier incarnation essentially fibromyalgia is not excluded from the conditions that may be considered in giving rise to disability chronic fatigue syndrome or anything that's equivalent to it is ex depression would be excluded unless it results in hospitalisation epstein barr virus is mentioned as well and of course this is a case where the claimants from islam and i had a number of conditions all potential conditions some of which may have been excluded from consideration she had and i think it is most unfortunate that she did mention chronic fatigue syndrome she also mentioned something else called chronic immune deficiency fatigue syndrome as well at other points five by dr frederick herman that followed an episode of pneumonia when she was hospitalized for pneumonia in december of one nine hundred ninety four and she was sent to see dr herman who's an allergist and immunologist because she basically wasn't getting better from the pneumonia and he ran some lab tests on her in february of one nine hundred ninety five and that's when he found the i g g sub because of severely impaired breathing was on the prescription i believe so all of these things clearly indicate that she did suffer from an immune deficiency chronic fatigue syndrome as you're probably aware is by definition an unexplained set of symptoms characterized by fatigue you have to eliminate any other known cause of fatigue before you can diagnose chronic fatigue syndrome and  she also has a chronic immune deficiency with all these chronic recurring infections that certainly was the cause of fatigue in her case and the same if you go on the cen plan to ignore your opinion of a more specialized doctor now i go over the opinion the unsupported opinion of a non specialist on said that she was disabled from her job at hewlett packard because he was only asked of course at that point to express an opinion regarding dropping hewlett packard because that was before the long term disability claim was mild direct violation of the claims processing duty which required it's a shall send the claimant for an eye and he in all appeal review cases unless the organization meaning hewlett packard directs otherwise so you know they could so easily have asked dr wood for example and dr lyons who was a psychiatry is to express an opinion about her ability to work in any ninety five on words and when she first applied for short term disability payments in august of one nine hundred ninety six the e p a got her records from the treating dancer who was notes i think some of which did go back to october the previous year but they didn't get his full records and they never asked for them and i mean it's plain to anybody playing the d that she had chronic bronchitis and that was a disabling factor now you know you've asked me well where is there in these records something that talks about limitation of function there's nothing that directly speaks to that other than sane two doctors maybe three that said she couldn't do her job at hewlett packard which by the way is a sedentary job involving sitting for seven hours maybe one hour of walking  because you have to go to the fax machine maybe lifting binders that way you know no more than ten pounds and i think very importantly you look v p a had my client fill a daily activities questionnaire and a job duties to explain in detail how her disability affects not only in her work but also in her daily activities how to fill out a job questionnaire that detailed all of her duties and how she believes that her condition makes an able to perform her job and it says right at the top of that daily activities questionnaire we will take this information into account in deciding whether you are disabled as a matter of law there is no evidence in that file that they ever took that information into account they asked her for the names of people who could speak to her disability and she gave them the name of her roommate i believe sheri anderson and her employer her supervisor valentine no evidence that the v a ever contacted either of those people to find out how what her condition was and how it affected her in her daily living if you look at what she put in a daily activities question that daily activities questionnaire give us the names of people of whom we can speak to and who can tell us about your disability he told her that they would do that and i think having a said that it was reasonable for metlife to discount the opinions of those treating doctors because they hadn't responded and i would say that plays the other way here the e p a should have sent  street here and that was another series that i think another serious error was the fact that in july of ninety seven the only center for short term disability i am eas short term disability review not a long term disability review dr lyons is the only psychiatry as i believe who actually discusses the fact that her depression is not disabling she had been discussed whether that suppression was sufficient food disable my client from her job dr lyons is the only doctor who said it's mild it's non disabling this morning again this is the last of the three cases to be heard today involving hewlett packard's disability plan this is the second time that we are before this court  the last time the court reminded it back to judge carlton and directed him to apply and abuse of discretion standard the court also rejected some of the arguments that i had made regarding the tolling of the running of the statute of limitations that issue is no longer before this court now the question only one before this court today his father is judge carlton deficiency syndrome this is the one that dr regressed to refer to as chronic fatigue immune deficiency syndrome at one point i just would call the court's attention again to the plan where it says that any condition diagnosed as four without regard to its just ignition is equivalent to chronic fatigue syndrome is to be excluded for purposes of long term disability benefits from islam and here contends that the burden in this case was not on her to prove her disability and i think on that score she is wrong and this was addressed by judge carleton the plant itself sas and it said e r six hundred the member shall be soley responsible for submitting the claim form and any other information or evidence on which the memb administrator to consider in order to render a decision on the claim and in this instance remember that from an early stage in terms of her application for disability benefits under this plan she was represented by counsel counsel who took an active role in the marshalling of the evidence on her behalf who argued that evidence and told d p a what he thought on her behalf what's most important conditions are claims as chronic bronchitis on march twenty seventh one nine hundred ninety seven v p a sent letters requesting medical files to dr rosenberg the clinical psychologist and d t are two fifty eight now we do know that some of these files from dr herman were not found in the record before judge  i was asked why i was actually issued in a with c to respond as to why they were missing we don't know why they weren't removed intentionally if they were lost they were lost but what we do know it's almost each and every one of the documents that counsel cited as not being present before as part of the record were first of all part of a digest of medical records that is found in the record if you look at pages e r one ninety seven through two hundred you'll see these letters described in digest i don't know why the letters themselves weren't there i cannot explain that but they were digested more importantly d but we do know that there is a summary of it in the p s records and we do know that dr wood considered we do know that d p h schedule three separate independent medical examinations definition given was you please take that cell phone out of the courtroom right now just walk out i think is the tattoo taste indicated the fact that you may have given the wrong definition to the doctor does not mean that you the planted in the straighter cannot and what at the underlying conclusions with respect to the conditions which may or may not be just stable so the fact that maybe the wrong definition had been provided to dr what should not be in and of itself determinative if you look at the taft case i believe it's the let's look at the mistakes that counsel raised in the reply papers and in his his oral argument he first cites and says you made a mistake because you concluded that she was disabled due to depression and if you look at what dr lyons said you would know that he did not find that she was not suffering from depression that's not true if you go to dr lyons report what he said was is that her depression is to a reasonable medical certitude physiology not psychiatric and with back he concluded that there was no psyche act basis for her fate to not be able to fill the usual and customary duties of her job ah there it is its short term disability benefit also for dr ly so thank you your honor for pointing that he did not find that she did not have to pressure him he found that it was not psychiatric in nature that it was physiology but again the terms of the plan say the illness which has psychological or be so if her depression is caused by social conditions not psychiatric that still falls within the definition of mental disorder and requires that there be excuse me hospitalization and remember that janet currie in denying the claim for benefits also had the reports of her treating psychologist and  am unable to affirm the diagnosis this is under paragraph a discussion i'm unable to affirm the diagnosis of chronic fatigue syndrome has put forth by the patient's primary physician b patient is impaired from performing her usual duties as defined by the hewlett packard documents and so by her chronic fatigue doctor in the good did not make a finding that she was disabled equivalent to chronic fatigue syndrome he found simply i can't say if that's current fatigue syndrome or not it is fifty dr wood who did conduct an independent medical examination decision and tell you receive dr herman's response what happened we know then that a few weeks later and it's an e r to zero seven counsel writes to a v p a saying please hold off reported i don't know why but that was being controlled by counsel from islam and now we finally get e p a gets something and it's from d and it's received in september of one nine hundred ninety eight a year later and what's notable is that she does not address whether she has fibromyalgia or not he addresses the chronic bronchitis and he notes that with respect to her selective i g three deficiency is still unclear unclear and he says that it should cause recurrent infections but her clinical history has not been characterized by that so in other words she prevents medical evidence that her chronic bronchitis that we should be seeing recurrent infections they have not occur that leaves substantially therefore any patient with a low pain threshold less than four kilograms of pressure will if they have diffused symptomatology qualify for this diagnosis the american college criteria do not differentiate from any other cause of a l consistent with this experience her complaint was to a pressure less than two pounds of pressure that would be less than one kilogram on one occasion she complained of pain before any pressure was applied  exaggerated response dramatically undercuts the credibility of her subjective complaint in the context of an individual taking high doses of a narcotic medication on a daily basis for over eighteen months and that's what he was attributing her tenderness to the medication that she was taking for rays that had been taken of her in early one nine hundred to mid one nine hundred ninety seven they sensually showed normal ones we know that she smoked eight to ten cigarettes a day and had been counseled to stop smoking by submitting these reports to dr wood report for example should have been submitted by the e p a a it's not an excuse to say well gosh you know  said yes she is disabled by chronic fatigue syndrome but if you look at his report and it's a three hour five oh true and i have right here this is what he says sorry to the five thirty two says the patient's medical history and the records of the treating physicians clearly documented infectious illness in the anyway in that letter she listed a host of things that were wrong with my client and then at the end she says chronic fatigue syndrome koreans fulfill c d c diagnostic criteria was the only doctor who ever said that my client had chronic fatigue syndrome i disagree with mr bush on this issue of chronic fatigue syndrome it seems to me that for something to be equivalent tobe chronic fatigue syndrome it must be an unexplained fatigue because unexplained is the hallmark of chronic fatigue syndrome regardless of the label so calling something chronic immune deficiency fatigue syndrome seems to me not to be the same thing as chronic fatigue syndrome because the insertion of immune deficiency creates an explanation that negates the unexplained feature of chronic fatigue syndrome it's not a different label i submit for the same thing and d obviously never had dr herman's records because he had he would have seen the history of recurrent infections so his report is actually supportive of lamented in a sort of negative way because he does say if you have this i g g three subclass deficiency you would expect to see a recurrence in factions and i don't see any because he doesn't have the records of them but we do have the records of them and we know that they're there and that is