and although i think this case has been extensively briefed by the parties it really is a pretty straightforward simple case the issue is did he receive a full and fair review and also were at those denials of his claim reasonable and i submit to the court that they were not reasonable and that he did not receive a full and fair review comes i ask a couple basic questions my understanding is that the first eighteen months of long term disability is judged against whether he could perform his existing job at intel is that right that's correct ok and then after that period of time that it changes to a more generalized look at the labor market that's correct your honor ok thank you one more question if i might am i right that the first twelve months of short term disability counts against the eighteen months of long term disability that's correct ok so for long term disability there's a six month window assessed against  and he just needed to be unable to do his prior occupation at intel and then there's another six months that is that is the issue really today because even though it changed over the long term disability from short term disability there was still another six months where he needed to be just unable to do his prior job in tow right so for that six months if i could ask i guess now you've prompted one more question for the first twelve months i read it the same way he just needs to be able to not form an existing job for the next six months he also needed to not be able to perform his existing job but for the next six months he's also got to meet this higher standard of what constitutes a disability requiring  of it right that yes ok that is one thing that is different which is i have not seen the short term disability plan because i didn't represent mr rooted in that case but from what mr nadler said in his briefs apparently there is no objective medical finding requirement for the short term plan looks like he needs needed a doctor's note or something but not very much but but be that as it may it it's not the standard that were applying today for the next six month period right at least with regard to the objective medical findings were i do feel that there is conflict and there's inconsistent decision making is that that intel and aetna found him disabled and unable to do his job until for twelve months and then when it changed over to the long term disability plan  suddenly the claim was denied obviously based initially on the lack of objective medical findings and there's two issues that i that i think are important in if i can address the issue with the heightened scrutiny i've obviously submitted some evidence of conflict and evidence of bias in this claim in the arista litigation world as the court is aware there's really very little or limited discovery that is allowed and so i believe that even though there is no inherent structural conflict of interest in this case because i made the decisions i do think that mr rood's evidence of a bias as it relates to one of the doctors which doctor you very this is determined that she had it's not so much the number of claims of you richard root review three hundred eighty cases for in two thousand and eleven the larger issue is that about eighty percent of the time she found that the claimant was either not disabled or had no functional imitate what is and what is the usual rate there's no usual right there what's the significance of that number the significance of that number to me is that i think that it certainly should raise an eyebrow or a skepticism when i mean if if most doctors find people disabled fifty percent of the time she's eighty eight percent of the time i think you know i get the logic there if we just know she's done it eighty eight percent of the time without any other kind of reference i don't understand its significance well it's again in the significance to me is that i think it suggests a high number and i don't i don't you know we're not allowed to use expert testimony or expert evidence and interesting cases and so we were interested she found him not disabled from an internal medicine point of view did she find him to say she found him not disabled from an internal medicine point wrecked is there any disagreement about about that  i don't i don't necessarily have a disagreement with that what i do even if she's biased you don't really disagree with her well we should do what i think though is implausible and on a reasonable about her opinion is that mr root had an eighty pound weight gain due to an adverse reaction from lyrica so he would wait approximately three hundred thirty three hundred fifty pounds throughout the time his claim was being adjudicated and she did not feel that that warranted any type of limitation or any issue at all with regard to functionality i think that's implausible i think her ultimate opinion was implausible as well she basically determined that mr rood could do very heavy work which as defined by the dictionary of occupational titles means lifting up to one hundred pounds for a third of an eight hour day and frequently lifting fifty pounds which is up to six hours out of an eight hour day i  think that's unreasonable and that's where i look at her statistic regarding how often she sides with an insurance company or founds i shouldn't say it that way i should say that the percentage of time that she finds that a claim  not disabled to me i think her opinions in this case are pretty telling that at least should allow the court to raise some level of skepticism with regard to her opinions one of the other doctors d surgeon he actually found and said that due to this weight gain and presumably this is an internal medicine issue right this is weight gain due to an adverse medication reaction and dr bohman didn't even address it in her  her report but dr katz the vascular surgeon although he said from a vascular standpoint mr root is not limited he also did comment on the fact that due to this weight gain this eighty pound weight gain he would have difficulty working with was he would have is opinion about the weight gain but didn't say anything about the difficulty that he would have working and instead selectively reviewed the part where he said that he could go work from a vascular standpoint again to me that is i think that's is going to get up in a minute and say that your client didn't offer evidence of the social security disability finding that he obtained what is your response to that did he did he offer a yes your honor so on that issue i think it's important to note that intel and  d and basically instructed mr ruef to file a social security claim earlier in the process and in fact referred him to an organization for representation the timing on this is somewhat unfortunate mr rood was approved by social security which means by the way that they found he was unable to do any job not only his prior job but any job day in and day out and that decision came out on january twenty seventh and his denial was on february third a number of days later what we said did they have it did behave they did have it well it's in the administrative record and i faxed it to on february third so they had it at at one in the afternoon my time to have a proceed you're for you know reopening a reconsidering are they didn't iran or and that's another thing that troubles me about the decision making is that i did not my office did not receive as denial until two weeks later until february seventeenth although it was dated february third and there's really never been any explanation for why it was received two weeks later to me maybe i'm too skeptical but it suggests to me that maybe the decision wasn't actually finished on february third it might have been finished at a later date and mailed it which is what the significance of the of the social security decision anyway the way i mean they have different standards don't they they do your honor they have an objective medical findings requirement but i think the significance of the social security decision is that in its final dial when etna determined that mr rood's claim that certain of his diagnoses word document it with objective medical findings at that point i think the analysis was mr root's functionality in other words he had he had gotten past the issue of the objective medical findings requirement and now the issue was ok was he able to do is pass a job at intel that's where i think the social security decision is relevant because for the first six months the question was was he able to do is past correct your honor yes that's that's correct that's the significance of the social security findings we agree with you that they should take that into account what would we go from there well then what you if that if they should take that they didn't take it into account i think at least that they did not intel did in their quality or if you they they reviewed the social security decision and they had him sign a release so they can get information on the social security claim there's no question that intel in their quality review clearly reviewed the social security claim and then they really dismissed it in one sentence based on the terms were different than the social security requirements of quite how do you really who does or doesn't really review the substance of the decision tho really they they don't your honor but this is in this is some evidence of conflict in other words intel looked at the decision and made a decision when they decided that it is review was appropriate and it was reasonable and consistent with  plan they made a decision because at that point intel could have referred they did need to change the decision they were not the answer to the judge still remains a question yes what they're doing essentially is a review to make sure that the hoops were done through the rules were followed so so and so forth but not looking at the merits if you will sort of a procedural decision rather than an merits rightly isn't that fair i agree with that and i think from a procedural standpoint to answer your question your honor initially about what do we do if they should consider it well then you would want to remain the case back  to reconsider the denial in light of the social security yes and maybe the other evidence i mean there's a number of other procedural violations that i've identified in my briefs but i'm running short on time now i'd like to save some time for about oh but i think the real man would be a full review of the claim again not just of the social security decision because there's a number of i'm going to measure it if you're how we craft the order would we say go back and consider the social security and what else all of the evidence that was submitted along with any new evidence that he may wish to submit ok thank you thank you you've got about three minutes left on evidence of the plan administrator determination on abuse of discretion standard and then the question becomes well do you have to be skeptical about that in any way and clearly if this were a jury decision instead of a appellate department and it's definitely not a jury decision i'm not suggesting that it is but if it were a jury decision what you have in front of you is you'd have basically the opinion of dr marion who says i've looked at the m r i and i've looked at the x rays and i'm not seeing anything here you also have the opinion of dr dean or who was one of the treating physicians can i can i interrupt is a fair summary why isn't it a fair summary that it first they said there wasn't objective medical evidence and then they said ok there is objective medical evidence but doesn't really rise to the level essentially where we would expect that it would influence impact mr wood's ability to function to to the extent they can't do his job i think that's almost a fair summary but i think at denial phase which is not reviewed when doesn't really matter because it's not the final review stage it's not the founder of usage but in all fairness the ninth circuit does say if there are glaring inconsistency between the review at the initial stage and the review at the appellate stage that ought to make us all suspicious so for example in the honda motors case the type of the type of differences were glaring right you had a denial initially based on the fact that there was no weight gain and in fact and i'm sorry no weight loss and in fact there was a fourteen percent loss of voice the weight that the person had experienced in that case and you could see that right in the medical charts and then they do an appellate review and the post review completely shorts the question of whether or not there's weight gain or weight loss and instead says well there's no evidence of cancer h i v those are massive glaring differences there's a tremendous amount of consistency between the denial the first stage in the trial the second stage namely the evident the denier at first through its clinical reviewer and then second through its appellate body looked at the m r i and looked at the x rays and looked at the opinion of two of the claimants treating physicians and said that we're favoring that evidence because that is the type of evidence that meets the definition of of objective medical findings in the plan and so whether it was at the first stage or the second said forty times per year but did he say international travel i'm not sure that he said internationally there are a few times per quarter but i you know so that's forty eight times per year but didn't he say international travel and how is that consistent with brief travel i didn't understand that so if you and i'm just going try to find the page for you in the record where this occurs the i believe it page one seventy thank you sorry that that's a different point sorry because i want to get to the right point ok if you look at both appellant's brief on page thirteen and page one seventy two of the record you'll see a report by dr foote you'll see notes from dr fan tobe where dr phantom says that  he travels frequently but then he specifically says this report was in may two thousand and nine he specifically says the last trip was in december of two thousand and eight so the only thing we know for sure would have my question is different counsel his supervisor was asked what's this guy's current job require and i think you said one or two times a year and my question is this wasn't in international travel and how is that consistent with i think you said forty eight times per year ok but that's one or two times your quota but i don't as it may i'm trying to get at whether it was the international travel i don't believe there's anything in the record about whether the supervisor specifically said the word international or not ok so that's an answer to my question and i appreciate that how did at nasa decide what standard to use to decide whether this was a sedentary position please so it relied largely on the department of labor's dictionary of occupational titles it put that together with the fact that his supervisor in a form that's at page two eighty  said that his job is largely to provide customer support for i t projects recognising that that involves sometimes walking from one place to another to provide the support to different people does the plan say we're going to use this definition for sedentary or that definition for sedentary the plan does not what the plan does say about this to avoid specifically the type of  f expert testimony that the claimant tried to provide here is the definition of objective medical findings specifically excludes studies of the labor market and the like so here's my problem it seems i'm looking at the six month period of time when he was assessed about whether he could do his current job and i think in less i'm misreading the record if i am by all means the whole point is i want you to tell me what i'm missing truly his current supervisor i think said pretty clearly we've got this testimony about the one or two hours of walking and the hour of standing each day and i think the dictionary of occupational title says that sedentary equates to sitting most of the time walking or standing for brief periods of time and walking or standing or required only occasionally so again i think the game changes we're talking after eighteen months but how is his expert's description of his job duties consistent with this just definition from the dictionary of occupational titles i don't know that there's but that there's a big difference between the two so for example you can see from page what you could see from page one seventy of the record which is the pitch i misquoted earlier ok was that assumed that he sits for six hours walks for one hour stands for half an hour and climb stairs for half an hour and we also know that from dr agnew's report at page four thirty eight of the record dr agnew the orthopedic surgeon found based on reviewing the m r i eyes on the x rays that he'd be able to stand for three or four hours and walk for three or four hours which no matter what were you ascribe to the the type of job whether you call it sedentary or lights and terry i think the key to all this is that the reports of dr agnew and dr marion found that he could stand and walk for far in excess of what anybody says was required of that job dean or had stated that he could walk with a normal gait that was his own physician's findings and that was in february of two thousand and ten you may recall in the i and again you can see that page three ninety seven of the record and then you'll see that in dr marion's report and dr agnes report and i believe these are at pages four forty three and four thirty eight of the record they both analyze that standing m r i and find no incapacity so with that i apologize and i'll take whatever question you have should have considered the social security finding if it had received it in time no i don't think it should have this wholly irrelevant has no relevance whatsoever this court has actually ruled about intel's plan in hamma versus intel court it's an unpublished decision that three seventy seven federal appendix six seventy four  and ten that even when intel had the social security administration's determination in front of it it need not consider it because of the grave differences between the standards that apply in the intel plan and b eleven forty four and the jump site to that part of the cases at page eleven fifty two in there the what happened with the social security report there unlike this case where intel never didn't receive this or security report before maybe they did maybe they didn't it's not clear the records pretty unclear about that count i think that the i q a r found that intel had not received the report at the time ok that's hardly an objective and then have i'm sorry what were the facts in the hammock case that you just told us about in the hammock case the appellate review were did have the social security determination and this court found that it was under no obligation to consider the social security determination because of the of the differences specifically between intel's standard namely the objective medical finding standard and the social security administration standard which looks at virtually any medical evidence at all where i began and if i can do some a quickly so i don't need to use all of my time i don't feel a need to do that but if this were a jury trial and it's not but there is a finding of a finding of fact below it is being reviewed in on an abuse of discretion standard and so typically when you have conflicting evidence on the record the appellate court's job is to see whether or not there's enough evidence to support the jury's finding and that's it and if you and if it does then that's the end of the question so here it's almost like that but it's clearly not like that because it's not a jury that makes this decision it is an insurance company and there's not testimony in court instead there is expert testimony that submitted only in writing and so the question on the table is always is there some degree of skepticism that we should apply to this that's far more serious than something that a jury would decide because we know juries are neutral and insurance companies are not nevertheless the glen case teaches us that especially where there's no structural conflict and there is not in this case everybody agrees with that  there's there's not much need to move the needle the only place where there's any degree of skepticism skepticism at all is with dr bowman because dr bowman for whatever reason is retained by at an effort for quite frequently the nolan case this court said that certainly the district judge needs to consider that the fact that somebody has and that and the district judge can't ignore that you'll find at page nine of the record of the literally the final paragraph of the district court's order just before the conclusion the court says that i don't see much here with dr bowman but we did consider that evidence in applying the standard of review so i think the district court did exactly what nolan teaches  that it's supposed to do namely consider the fact that dr bowman has some amount of some question marks associated with her no one says you can still decide this on summary judgment and so i think it was proper for the district court to say that given that bowman was an internal medicine doctor and given that just like in this case internal medicine isn't necessarily a driver of disability the fact that there are a lot of denials doesn't necessarily mean bias it could mean something else and i forgive me but i do have one more question i absolutely or i should have asked it earlier i did ask earlier whether you whether the plan says we use the dictionary of occupational titles and i think you answered that question  fact so i have i have a remaining issue about whether the plan administrator look to the definition of sedentary in the dik dik dictionary of occupational titles and assessed his current job against that or whether they looked at another job description and said the job mr bute has is closest to job xx it seems to me in one place they seem to do want to one place they seem to do the other  the pages one seventy one seventy nine and four forty seven you will see that in addition to asking the supervisor for information that mr rood was asked to complete an eight page questionnaire to help understand what what his position consisted of and and in addition to that there was the review of in my time zone and addition of that there was the review of the dictionary definition so it was the supervisor of the eight page questionnaire to mr rude and then also consulting the the department of labor's definitions so it's the definition of seven terry as opposed to the definition of a comparable job title in all fairness i don't think they approached that way i think they were trying to get at what exactly does your job entails what are they really have to assess that against something so they figured out what his current job required if you will and then the question is this did they assess it against that sedentary definition or against a comparable job title definition is that the part you're not quite sure on and no i'm something i'm not quite sure i don't think they approached it that way i think i don't think they were focused on phrases like sedentary versus light i think they were focused on can you do your current job and specifically how many hours of standing is your job how many hours of walking is your job how much must you lift at your job and then they measure that against the doctors reports which specifically analyzed the m r i s and gave conclusions about how many hours you can sit stand or walk so i don't think i don't think the conclusion was we're looking for sedentary we're finding sedentary or relooking for sedentary versus light duty i think it was if you put it to follow up on the the line of questioning i think there's a couple of important issues with regard to how they how did they categorize mr root's job and i think the court has some questions were  insightful that i believe that's part of the problem and one of the procedural violations that occurred is that i they didn't consult with any vocational expert like mr rooted to determine the impact of this travel and how often was the travel and did that change this job from being but everything counsel just said makes sense to me if we're talking about i think of ever talking about whether he could do his current job it's just that for long term disability after eighteen months by definition the plan isn't looking at his current job then it's really looking at the labor market right right but but for those six months though it was the issue as to whether or not he could do is current job at intel and i think that's where they misclassified his job they they used a really the dictionary of occupational titles because it defines it is set in terry but the dictionary of occupational international travel where the only the only indication that we have that it was international travel is the first time that he went to go see dr fan so his pain specialist he talked about how he had was traveling to israel a few months prior and almost wound up in the hospital due to chronic pain so that sitting in the coach seat i think i talked about that yeah there's a reference yes there's a reference in the functional capacity evaluation where he was having great difficulty because of a size six five three thirty to three fifty he was having a very difficult time travelling in coach and then there's that record about travelling to israel but there isn't a representation that i could find in the record to get the little muddy but i don't think that idea was that he could or that he was required  his current job to require to travel this frequently internationally i don't think it was only the records clear on whether or not the one to two times a quarter mr rood told mr dean my vocational expert that it was approximately once a month nobody ever called mr a to find out how often he really was traveling but it's not clear whether or not all of that trouble was international if i could just address of the time remaining i think the security correct right and then order that they review the claim to determine whether or not he meets the next definition of disability the any occupation definition of disability i think that's the most reasonable resolution of this case  the final denial that there weren't in fact objective medical findings once mr rood was over that hurdle then it became a question of functionality what was he able to do what was he not able to do that's where the f c c the plan allowed him to corroborate those objective findings with the f c c which i haven't really addressed but really was dismissed and that's where i think the social security finding comes into play or honor because i think that is what in an independent agency found that he was unable to not only do his prior job but any job for us drew for you we would have to find that the plan administrator abused its discretion because they fill in the blank because what did they do a number of reasons i think they misconstrued the plans terms with regard to objective medical findings on the initial denial i think they selectively reviewed mr rood's evidence and minimized it they misclassified his job they didn't explain at all what weight they gave to dr katz his opinion about he'd have difficulty working they failed to consider the social security decision it would have been easy for them to do so i mean even if we even if we assume that they didn't issue the decision on february third they had they had the decision that day how difficult w them to simply say look at it and tell me that they were going to take additional time to consider the social security i would have agreed to that with no issue there are many things that they could have done because they didn't they have use their discretion and that's why i think he's entitled these benefits they think you