regulation that bars discretionary clauses in the nice benefit policies the other general issue is about the analysis of the evidence which the respective briefs spend a good deal of time but i think in essence what we have here is the treating physician saying my client is the sable she'll never work again this is a permanent condition  of the evidence is the vocational analysis the play and nine hundred ninety eight a speedy provides that the other suitable employment has to be one hundred twenty eight percent more than what my client was earning and the record shows that the hundred twenty eight percent would be three thousand seven hundred twenty four dollars and is zero one three eight indicates that the monthly amount for males is three thousand six hundred twenty seven dollars not less than one hundred twenty eight percent of that's and that depends on who report you look at there's these agencies and organizations out there that compile statistics which are used a lot of times by insurance companies in cases like this to make these determinations and thi exactly but i mean that's reasonable isn't yes in the cording to those records that are in the vocational analysis is that the pay for males was less than one hundred twenty eight percent and my position was that the one thirty eight figures were less than that amount and i have not been able to see anything in the record will be pointed out that supports that figure of three thousand appropriate things which are very significant and important but a little bit of that is going to relate back to what our standard of review is because if it's the no ball and we think that one report is better than another that's our choice at that point in time if it isn't de novo then it's we look at it entirely differently you know and my concern in this case and a lot of these cases is  that going back is the one nine hundred ninety eight when we had a case called progress we made clear that there's no magic to the word discretionary you look at what the plan did but you don't have to have the word discretionary the plan and that's significant in that i think that there's been a conflation in some of the cases as to what is actually meant by the discretion for example administrator has discretion to interpret it or not and they can't have a board meeting and say i don't think we'll interpret the plant today it stems from the fact that plans sponsor and a lot of this relates back to trust law just like the set lauren  plan and make all decisions and determinations and carrying out its plan responsibilities the company should have the discretionary authority to interpret the terms of the plan what isn't the plan control and manage the operation of the plan and make all decisions in the terminations isn't that the person that sets this up relinquishing all of that they could have retained some of it but isn't that represent a doesn't have to be magic word but it doesn't say in any terms implying suggesting discretion to decide claims that's just not there at all in the pla they always decide claims but just because they have an opportunity decide to claim doesn't give them doesn't invoke the arbitrary and capricious standard under do you know if there is no s whatsoever we know that the administrator decides claims that by itself doesn't give discretion and that there's a case there is no language about deciding claims and there says it makes all decisions and determination that's everything but i agree they can make the decision but now do they have discretion to decide the claims  acknowledge the plan administrator decides claims isn't whether you get benefits or not the key decision for me benefit plan sure is well when that come under all decisions the plan a case where the trial court ruled correctly with respect to the key issues being the standard of review as well as the ultimate claim determination of the terminations of miss williams disability benefits as  ninety eight s p d summary plan description the two thousand and six s p d that was issued by target after taking over from dick hudson corp in the two thousand and ten policy to certificate and as the district court correctly found all three of those plan documents included and express a discretionary authority let's say they differed in your view which one got the issue before us i would submit that the two thousand and six summary plan descriptions that controls the two thousand and ten policy certificate certainly controls with respect to hartford's the delegation of authority to hertford as the claim fiduciary because it was not until two thousand and ten and of course the hartford insured the benefits  issue but i think mr gottlieb argues that showed her she was awarded benefits in the late ninety's the plan at that time said any amendment t plan will not affect established benefits air grow all the later amendments cannot be invoked here to affect her entitlement to those benefits is that i mean what your response to that i would agree with in terms of the citation to the plan language the s p d language in one thousand eight document it did reserve the right to amend or terminate the plan so long as that did not affect the established claim for benefits however i think the district court correctly found that their number one was no change with respect to distended of review and the level of discretionary authority all of the three plan documents throughout the history here have that language had the discretionary language and number two there was no change to her benefits because her benefits were not vested this is a case that would fall under the sprague ruling where because the plan did express leave reserve the right to amend or terminate benefits the benefits are not established in the sense of they are guaranteed or continued or ongoing rather the claimant has an obligation to continue to provide proof of loss in order to be entitled to receive benefits throughout the course of who has the burden of making the determination of whether they medical evidence is sufficient who has the burden of determining that that would be hartfor right i'm struggling with the climb in your briefing that the burden of proof is on the plaintive point me to where how you how you reach that conclusion because when i look back at your records and at the nine hundred ninety eight s p d what i'm saying is that the s p d places the burden on the administrator to consider the factors were it seven eleven in your record to determine disability to decide whether you can perform another job to determine whether it provides one hundred twenty eight percent of the benefit and the only thing in all those records that the plaintiffs has to do is provide you medical evidence how does that place the burden of proof in a legal matter on the plaintiffs it just sounds to me like the plaintive has to submit this but the burden of making that decision and the burden of carrying that evidence is yours respectfully disagree  refer to that record of events number one in the next ninety eight s b d you mentioned that record entry fourteen page seven eleven the claimant is if the definition of disability is if you continue to meet the definition of disability your benefits will continue exactly that's that's where i am and who decides if you continue to meet the administrator does so why isn't the burden yours to show your decision in addition to to the claimant are being required to continue to prove disability that is also fleshed out in the policy with respect to providing satisfactory proof of loss the claim is required to document the date cause and prognosis of a disability and i'm referring to page sixty three of the of record number fourteen the claimant is required to provide evidence of regular care by a physician as well as any other supporting medical information including medical records diagnostic exam and treatment know and then after receiving benefits for a period of twenty four months which we all agree is is this period of time currently in order to continue to be entitled to receive benefits the claimant must establish disability defined as an inability to engage in any occupation which will provide an income greater to equal or greater to  hundred twenty eight percent of the medic of the monthly benefit and again that's at page sixty six of record number fourteen so the claimant is required to demonstrate these factors in order for her to reach a determination that she has satisfied the definition of disability it's your determination i'm just i'm looking at the seven ninety six the reason to your benefit many and is you fail or refuse to provide required medical proof no question that speer job you failed to submit any required medical to submit to any required medical examination or evaluation fail to provide income all of the reasons for ending in  plan documents are not providing requested evidence or making yourself available to be examined but all of the determinative factors are made by the administrator that sounds to me at law like it is your burden to show that this person does not qualify because your making the decision and you are taking away benefits that have been paid in this case for thirteen years i would respect respectively disagree with that analysis to extremes and that is because i would submit that the burden is on her for to evaluate the evidence presented by the claimant in support of her claim isn't that what before us isn't that the very question all she has is what the doctor said there's nothing else that she can do but give you this and say i stand ready to take your tests in meeting your doctor's but you look at that and you might be evaluation so why your burden when you come before this court to justify your decision because there is not an assumption that a claim it simply said mitt's medical records and your documents in order to provide satisfactory proof of her disability right and that's an evaluation that is made by the claim fiduciary but simply saying i am disabled and here are some medical records where treating doctor says i don't have to work anymore is not sufficient that the claimant must provide evidence that there is occupational disability that there's the inability to even perform a sedentary occupation under this this the this sort of neat legal issue with vs standard of review and whatnot is something we could chew on all day but that's a threshold issue and even if we say arbitrary and capricious there's an argument to be made that connection with both the hundred twenty percent issue the documents relied on the female person can you address some of those things because that that goes beyond the standard of review many times in these cases we simply say regardless of which standard of review is africa we find accordingly sir very good and i think that both page one thirty two of record fourteen we submit that that's a reasonable way to determine what a salary amount is and compare that to the one hundred twenty eight percent of the monthly earnings requirement as far as the actual a r one thirty nine and it's here are the statistics estimated main hourly ray is twenty four point zero four estimated maybe an hourly range which is what you said you relied on is twenty to fifty five an hour right i'm looking at your three thousand nine hundred sixty seven on a monthly basis and i wanted to compare it to those numbers so i did the calculation in the maybe i'm not seeing how you numbers match because what i'm finding is that is that the maybe an hour that you say you're relying on translates to three thousand six hundred in eight per month and that falls below your three nine zero eight sixty seven how did you make that calculation to assume the twenty to fifty five works out to three nine zero eight sixty seven because i can't make it work the three no no wait sixty seven george street it's comes from page one thirty two i have it ok and and it's based on in your argument it's based on estimated made in the hourly wage of twenty two fifty five taken from the d l well data it doesn't calculate out well your honor to be perfectly honest i haven't done the calculations and i apologize about the math that doesn't work but the numbers are what are for was based on in terms of the wage and page one thirty two in that column under wage for the supervisor of accounting clerks why do you have let's put that aside i'm looking at page one thirty eight the two thousand and nine census data that is in your report provide and it shows a distinct discrepancy between female and male earning capacity why is that discrepancy not included in your calculation for sixty one year old woman who's been out of the workforce for fifteen years that's a fair question judge tranche and i can't answer that because that's not in the administrative record i can't answer that question directly in terms of the dollar figures the administrative record that there's a distinction a conservative distinction between males and females the monthly maybe and for a female is three thousand and fifty five the monthly made for a male is three thousand six hundred twenty seven which you and i probably know is true in the work world only i wouldn't dispute that  you've got a woman and you've got to say she's going to receive one hundred twenty eight percent of what she can are the statistics in your report show that there's a monthly difference of about six hundred dollars and it makes a difference explained to me how you can justify nori met difference in making your calculation i would submit that that was not ignored and i would say that this this three male monthly made me and are below three thousand nine hundred ninety sixty seven both of them fail to satisfy your plan document requirement in that instance that is one example of numbers that are different but it's reasonable also for her for to have relied on the wage that is listed with the occupation by the department of labor and i submit that that effort reasonably did rely on that number in terms of so that we can calculate and make it work why is it reasonable to ignore the data that distinguishes between the earning capacity of women and i think that that would get down a different road in terms of you have a woman before you and you have documentary evidence and practical knowledge that women don't know this much money in these jobs as men do and you're trying to decide whether you're going to pay disability benefits to a woman i don't understand how it's reasonable to ignore that recognized in the knowledge wage distinction i would say because that is not the definition of disability is the policy provides the policy does not distinguish between gender and that's not what the claims determination was rendered based upon her gender that would be inappropriate with respect to the disability definition policy it's just to be based on that don't relate to the statistics that you have it's more based on her work history her her provision in one of the things that makes it problematic is the exactly the discussion that you're having on the thing because there's medians and there's averages and there's this that and the other thing and the  question that i'm actually coming to is that let's assume a case that we all agreed that the job that they said she could do paid two dollars less a month than she was getting in this ability would it be arbitrary and capricious to ignore that two dollars in other words doesn't this sort of one of those absolute bars if it i that something you self imposed upon your upon yourself thing because compressions can mean well in l a but it can also mean just plain wrong if you're just plain wrong on something there are cases that say that that can be construed as it's not like you had the mens rea to be bad it's just that the facts don't support your conclusion and i would i would argue that in this case the facts do support the conclusion which makes it a rational and reasoned determination that's not the answer to my hypothetical if so your question if i could have phrase is if the job that was found to be something that the claimant could do paid two dollars less th is no different than if the plaintiff or the claimant could not perform the occupational and they can and that answer to it but it does make this money issue pretty important in this case it's part of the definition and i would submit that because about the sense that i'm gathering from where the focus of the questions are is about this hundred twenty eight percent and i think the sense also is that regardless of what the standard of review is arbitrary or didn't  if the evidence doesn't show that there's a job out there in the record of her making the sufficient earnings then the case is decided in my client but it's ther in the dress is in part some of the issues that were presented with here about the vocational analysis and not that it's dispositive but points out that it's a factor of being arbitra if the vocational analysts ignored other evidence of record and only picked up the sedentary job finding from the first in the case and that would be a factor in considering whether it was even arbitrary capricious yet case sounds like it's about medical condition i am me and what not they're talking about findings medical find just citing to us yeah but also talked about the what was the deficient with the locational analysis that was used in that case i understand that but that was analysis based activities that person could do it which is also an issue in your case yes the issue in the hypothetical that was used by the vocational analysis was just the two or three words the i and me says she can do sedentary  work and the rest of it follows there was no effort to consider the other evidence of record which should be done and balanced review