good morning may it please the court my name is bennett cohen i am appearing on behalf of plaintiff and appellant susan beach i would like to reserve half my time if i may for for rebutt this appeal arises out of the multiple and flagrant violations by appellee liberty life insurance company of the most basic rule and most basic principle governing arista claims set forth in the arista statute itself section one one three three that is that when a plan denies a claim it must state all of the specific reasons for its denial in order to afford the claimant a full and review outside the court system at the administrative level this court has given additional meaning and logical enforcement to that rule and that principle in this court's harlech harley v blue shield case in which this court held that if a plan or insurance company and i use those terms interchangeably sales to stay a reason a specific reason for its denial during the administrative process it forfeits that reason and cannot raise it in its dispositive motion and the reason is and this court and other circuits have said that it is fundamentally unfair for a insurance company to fail to state a reason at the time of its denial when the claimant still has a chance to introduce evidence to show that that reason is highly misleading or taken taking facts out of context simply untrue and then to raise it in the dispositive motion long after the administrative record it's closed in this case due to the i say respectfully the district court's deeply reasons that included multiple and very specific factual assertions why my client susan b was not credible when her description of symptoms but it's in the gets to the nub of the case which is is the is the rule that you can't give a rely on a new policy provision or is the rule you can't rely on new facts in support of your or the policy reason on wh and i think it's possible to read cases both ways so give me the justification for saying the district court said look you get this is the rule is limited to essentially policy exclusions like courts have found that this court in the month or case that the failure to specifically state that a functional capacity evaluation was needed was a violation of the arista that the in the plan committed of a violation of procedural violation which in fact entered into his ruling that the denial was arbitrary and capricious by stating during the administrat administrative process only that the evidence showed failed to show a physical impairment and then raising credibility of the claimant for the very first time in the denial of its appeal which at at  which time the claimant of course has no way to introduce evidence to counter that that claim so what evidence would you have put on in this case i mean you have the medical records  part of the fixed record in the case it would come in and in any event what what would what would have been different in your presentation if all of those reasons were stated initially but i could give the court a few examples there's  many one of those would be for the first time liberty stated that susan beach took a vacation and this somehow indicates she's capable of work well without waiving our objections to those reasons right there her vacation we would show was a visit to florida to take care of her mother suffering from congestive heart failure in july of two thousand and fourteen and her mother at that time could have submitted a very compelling declaration talking about her own daughter's difficult is the profound profound fatigue staying in her room not helping like she could have when the  e fifty two motions were filed in april of two thousand and seventeen three months later her mother went into a hospice and that type of declaration would have been  another wasn't the evidence of the trip to florida in the administrative record there was a mention of a trip to florida but but what liberty did with its it wasn't stated as a reason for the denial had it been stated as are you know that the administrative records twenty seven hundred pages there's at least twenty seven hundred facts in there you know a new fact on every page the point is that if you raise that as a reason for that then i owe we could present evidence and there's no substitute for evidence to counter the argument expressed or implied that spun from that fact and another i could i could give the court benefit if the trip to florida was in there to begin with was in it apparent at that time that this could be an issue especially given the circumstances of what the plaintiff what miss beach at that time to say well actually i went to florida because my mother was having congestive heart failure and i ended up not being much of a help because of my disability no respect for your honor twenty seven hundred page record there's many many other facts that could have been raised i mean they could mine that administrative record for twenty seven hundred other facts we the ability to not to work the ability to refrain from work doesn't prove the ability to work add  fact that somebody like all of us have maybe had to take care of parents who are who need our help per say in no way shows an ability to work had they stated it and that's what th the regulation and the and the says we're not we can't guess what they're going to do if they could state it in the rule fifty two motion they could stated injured in their denial letter my time my half of my time is up unless a court has other questions i mean i interrupted your answer to chief judge thomas you were talking about what else you would have done and what other evidence and you talked about the trip to florida is there some other one that you'd like to  says you're not disabled because you work limited hours what we would do if they had raised that which they never did as contact or just make it absolutely clear that her understanding of the term total disability was a complete inability to work which is not which is not the law and not the policy provision one another say quickly the liberty makes a big deal it's alleging that susan beach misrepresented facts to or treating doctor as to why she was terminated we have pointed out in error and our opening brief that she always had a good faith belief she would be terminated because of her because of her  difficulty is that this rupture in the midst time people having to cover for her she was the lead person in that lunchroom and when she was gone it was disruptive what we would do that we couldn't do is go to the people who actually change the structure of that to hire an outside contractor to ask them why did you do this and they may say you know we had just too many interruptions we had to get somebody else now that's exactly the type of thing that we would done if the us were raised and down to five minutes i don't deserve you know thank you it please the court my name is susan handle and i am appearing on behalf of the plan administrator liberty i guess in light of the statement started my opponent started with that there was a deeply flawed view in this case probably the best place to start is with the notion of what is a proper review under the law that said that in a recess trial de novo genova review is essentially a trial on the administrative record the trial court under moon is set as trier of fact determine whether the claimant is disabled she is the trial judge is ordered to determine this in the first instance whether the claimant is disabled under the policy based on the whole administrative record is required to determine the persuasiveness of evidence that that's all i think that's absolutely correct and the the district court judge here issued a very extensive ruling but you know the district courts are usually guided by the arguments that counsel make exactly right exact so as i understand it as i understand you know what was in play was whether she was capable of any occupation of working in any occupation right that was that was consistent throughout exactly the same as i understand counsel's argument it's that along the district court you made specific argument that they hadn't seen were not contained in the notice of denial that right there that's the argument that the if well did you then well let me let me talk about that as a rule fifty two motion the court has the job as i was just explaining of determining credibility evaluate evaluating all the facts and as my opponent points out and a vast record twenty seven twenty eight hundred pages the parties the lawyers for the parties in a rule fifty two proceeding submit briefs in this case there were six briefs each side made its own motion for judgment under rule fifty two and each side in its briefs the lawyers were acting as advocates for their clients showing what was in the record what evidentiary fact exist both sides did this to assist the court in making the credibility determination and making the determination whether the individual claimant was disabled under the terms of the policy and that is essentially the arguments of counsel had it been a live trial it would have been closing arguments or opening statements of counsel what does the evidence show and there is not a single bit of authority in the ninth circuit or elsewhere that we could find that says that when the trial lawyer is submitting a brief his arguments on to assist the court in sorting out all of the issues that the court has to sort out on a rule fifty two motion that there is any preclusion from stating the show using the trial record to establish what it is that claim is in their client's interest you would agree though that your client could not have relied on another exclusion exactly right confined to the exclusion the reason you k now the question is is you rely on in the administrative proceeding because they need today and that was the fair notice that they needed to respond how do we comport with the fair notice requirement if you don't tell them them during the administrative proceeding and then they are they didn't present the evidence i would like to present well i think that we have to separate first of all the the various situations here under a body a use some of the case authority that was either by my opponents and the court just referred to her like for example the the claim and was denied benefits it's a health insurance case based on the fact that there he was treated in a residential treatment facility residential treatment facilities were not covered however after the administrative record was closed in fact after or argument in the ninth circuit court of appeals when the ninth circuit asked for further briefing all of a sudden the health care plan the plan administrator started relying on a different provision namely that whether it's body whether it's bradley whether it's list the courts have said that it's switching from provision to provision that is that's what's forbidden could have that name it gives three things it talks about three things one is the specific reason or reasons for yet the adverse determination in your saying that that refers to the policy provision but looking at the record that may make sense if we were drafting a regulation we bets that we might say that the specific reason or reason is the specific plan provision but then roman at two actually says reference to the specific plan provisions on which the determination is based so given that that's roman at two doesn't that necessarily mean that roman at one of the specific reason or reasons for the adverse terminations has to be something  at a higher level of specificity than the specific plan provision and and i think that this situation in our case will provide an answer for so i say to that question in this case repeatedly in all of the various denials correspondence to the claim and the provision is which is which is number two under that particular regulation the plan provision is identified as the the the definition of disability or disabled and it's quite a long definition and it two parts or multiple parts actually it has one that specifically provides to pop a perfect pertains to pilots but it also has and on and in any part it's a it's a long definition but that definition is the policy provision and it is verbatim included in the correspondence denying claims the reason for denial specifies what part of that provision is is not satisfied by the claimant and in each of the letters to the claimant it specifies that the claimant can in fact functionally perform occupations and therefore does not meet the definition of the any och any occupation disability so the plan provision is forbade him and what the conclusion of the plan administrator was is separately state what part of that provision is at issue here and why doesn't why roman at two requires reference to the specific plan provisions on which the terminations is based and you're saying that that's the definition of disability roman that one is the specific reason or reasons for the adverse determination and what you're saying is that that's the definition of at any occupation right and the determination has that has been made that she has the functional capacity right to perform occupation what we do with roman at three a description of any additional material or information necessary for the claimant perfect acquiring an explanation of why such material or information is necessary what does that refer to that refers to situations where for example the client it is unclear whether the claimant provided her claim on time and if you the claim administrator can say if you  have time stamped materials that will show you were your claim was on time so them too as we don't have them in this case for months and in fact in most of these any occupation disability cases and the court is most likely where there is there these are the provisions that acquire the most scrutiny by the court and by the claimant is that the claimant and he and the plan correspond and communicate directly there is an obligation in that claim situation for there to be communications between the plan and the claimant and in this case there were we ask district court goes into credibility and credibility has not been placed at issue previously and they had no opportunity to defend against credibility it's hard for me to see why that isn't a different reason than given so for example  mean that's why i asked the question of opposing counsel what would you put in and the answer was well we would explain the florida vacation and they did have the opportunity to do that i understand the question your honor and and honestly that the the assistance to the court indeterminant credibility has never before been at issue in almost precisely my point yet but it's the nature of do novo review but you made an issue right no it's that if you argue that she was not that the doctor was not credible or the she was not credible in your briefs to the district court we assess both sides and my question is did you in your brief to the district court raise credibility the doctors that her like your trip to florida did you raise that she did and and all sides made their points about what was credible and what was not and that is this point confined to the administrative record and at this point confined to the administrative record i will also point out one other thing and this is important when when we when what is the usual import of whether or not the administrator followed the the the statute whether the administrator gave a reason whether the administrator pointed out a plan provision in the typical import of scrutinizing whether or not the regulations on claim handling were met is in the nature of determining how much discretion the  administrator exercise discretion and the the trial court is trying to figure out how much weight how much difference to give to the administrators discretion those are that's the context in which plan plan provision not properly brought to the claimants attention the effect of that is to turn to denote a review to not give the administrators determination any difference and in your so you saw me ask you this but let's assume that you were restricted to the reason you who gave during the administrative proceeding all of that couldn't raise anything else would you still prevail question of whether the claimant is totally disabled as defined by the policy is a question of fact there is reliable evidence in the file that the court was entitled to rely on that said  she was able to perform occupations that she did not meet the definition of total disability under the any occupation standard so so how do we been restricted the answer would be yes but it would not have been the did novo review this court in kearney says must take place which is review on the administrative record not on the specific denial letters that were provided by the by the by the administrator in the first place thank you you i believe that i believe the court is correct in stating that the regulations are demonstrate that the plan must tell the claimant what specific facts need to be shown to overcome that's not what the regulations specific reasons it doesn't specific facts correct it says actually the plan must provide any information and material that is special surgery to perfect the claim so what is what do you think they're confined to confined to not raising credibility on and i'm talking about the specific reasons that were given what do you think ok in this case why do you think if if we if we accept your argument then hypothetically one of they can find withdrew and rests on its claim that i stated in the denial letter that because there is no lab report or x ray or other quote objective medical evidence she is not to say but now this court in salome and jordan said that that per se is legally invalid and in fact that's to deny a claim on that basis would be arbitrary and capricious that's what they're limited to because those were the only reason know they explained why and it's already ninth circuit law that with fibromyalgia as with some other illnesses there are no objective you know testing there is no objective testing that can either confirm the presence of or there so there it is so that's what we did we address it would you agree in terms of evaluating the record on de novo review and leaving aside the credibility issues could the just record rely on any medical evidence on the record you mean independently look at the record yes i don't believe so and one of de novo review if you can't look at the entire medical record i'm not talking about credibility issues but just on the medical record to determine total disability i  believe the way a risk is written and intended the claimant should have a full and fair opportunity to respond to any reasons that would possibly support a denial or at least that are asserted and in this case and let me just say it that is not this case in this case the district court adopted virtually verbatim in fact forbade him the reasons that liberty stated and did not go out on its own and read the record and come up with reasons that liberty had never stated or suggested but i don't i think it would be fundamentally unfair for the district court to tell us in their decision about certain reasons that the district court mine from the twenty seven hundred page record that it believes prove or support the nile because we may have compelling evidence to address that very point and we were never given that opportunity and don't forget in there's no discovery there's no witnesses everything stops at that one hundred eighty that finite period the record slam shut but the of course the medical records would have come in anyway i mean that's and if it's a novel review i can't  just record look at the medical records submitted by both sides and the arguments made from the medical records and make make appropriate findings because i believe that the novo review conceptualized in conformity with the arista statute and regulations means that simply the court the district court does not defer to the insurance companies interpretation of the evidence it does not mean that it can look at reasons the reasons that it never stated i i think that the the fair adjudication is that those reasons that the court can consider should be the one stated they could state five fifty five hundred but they should beat the record the administrative record should be the record of the reasons that have been specifically stated and to which we have had the opportunity to present evidence to show that those reasons are baseless i think what i hear you saying is that it seems like the implication of your argument is that the plan's rule fifty two brief has to be a copy of its denial letter because otherwise the plan will be going beyond the reasons that it gave for denying the claim is that right no and no i'm not saying that your honor and if you look at well two things hypothetically if the plan said in its denial letter the m r i doesn't show a sufficient herniation i'm just using that as an example the doctor may have a very extensive report explaining why it's not x you know sufficient there may be twenty other reasons but no they just have to give notice and by the way i just want to say one thing in those cases that liberty cited on the part time issue some of those court dealt with whether or not and those cases were by the way were under the abuse of discretion standard they were not applied at this case which is to novo those all of those cases that they string cite in this case and there's no ninth circuit authority on the part time issue so so beach would not have notice of it either through liberty or the law it would be purely an internal standard of liberty and that is the type of the part time thing for example if liberty wanted to or it was insisting or denied that the claim based upon the fact that each had to prove she couldn't work part time under that regulation that they should provide any evidence or any any information to help her or to enable her to perfect their claim they should state at the time of the denial we're denying it because you didn't prove it's part time then if putting aside that you've validity of that because there's no knight circuit case in this court's evaluation would be the no vote just like the court did in bruce v s new york life where the court looked at whether there were two reasonable interpretations but i but you would agree that certainly the medical hirshman that's that's true but in terms of you're saying that the just record could not consider those medical records i believe i'm saying this is fundamentally unfair under the logic of of under the logic of harlech and other cases that for of a luminous medical file to ambush the claimant with specific reasons that have never been for example well those those four or five positions were given to you right so they can those the the four or five p records were put you on notice as to those those will be but they don't put us on notice just at the pacific specific reasons for example liberty contended that beach was beach was not credible because she hadn't seen a rheumatologist or that she was communicating by e mail with her doctor rather than seeing her in person or this other claim that she suddenly changed her description of her symptoms when she was notified of the any occupation definition right no that was my question i mean at least you have to concede that the medical reports referenced in the denial letter could form the basis of the district court's decision specific reasons to have a quote full and fair if you are emphasized full we can't guess what they're going to pull out what they're going to mine the record for and and two and a half years later i think we understand your position and unfortunately my questions have taken taken you