proceed thank you reliance standard unfairly interpreted the medical evidence in this arista disability insurance case by basing his decision on irrelevant evidence outside the time frame that issue by demanding objective medical evidence of inherently subjective medical conditions and by approaching the medical evidence selectively the district court begins its statement of the medical evidence in this case by citing eighteen medical records proffered by reliance standard which predate the disability date in this sort of case an insurance policy under the arista statute we begin with an elimination period in this case ninety days you can't work you have to prove you're disabled for certain period of time it's called the hole in the nation period reliance standard begins its argument saying she didn't prove she couldn't work for six months before the elimination it's because it has nothing to do with what's going on in the interim for example in horn land which came out in two thousand and seventeen and alexander h which came elimination period the elimination period is ninety days and begins on the st day of total disability consideration of basically the wrong elimination period six months before you're disabled while you're working to try to prove you can't work makes no sense at all it's literally impossible to prove you're disabled while you're working that's what this insurance company did n this is one of her primary disabling conditions instead they're saying you didn't prove you have obstructive sleep apnea you didn't prove you have cardio my op a theory she never claimed to be disabled by these conditions and that's when their rationale for saying she's not disabled is that she's not disabled by medical conditions she never claimed to be disabled by the reliance motion for summary judgment doc in one thousand page nineteen is arguing that she did not rely on the opinion of any physician who treated her between january one in august th two thousand and seventeen for a disability case of begins on august th two thousand and seventeen next an entrance of improper motive may be based on insurers failure to fear if fairly interpret medical evidence as potter this is two leading the wrists a case says that onerous administrators decision must be based on a complete administrative record that is the product of a fair claim evaluation process i don't see how a case where the court itself is relying on ns outside of the relevant period while she still working can be a fair claim of all you wish the insurance company disregarded our clients treating physicians like trevino who did a positive t in the country and st louis given her a positive tilt table to us we have an i am me from another tampa doctor named pamela no well these are in the ministry of regular said and you can read i'm there i'm not going to bother with it and then the insurance company says we're calling for a treating physician will because we're sorry treating physicians i've been doing this for twenty years i was there when black and decker versus number came out i understand there is no treating physician rule i would never say there's a treating physician rule however nord also says plan administrators of course may not arbitrarily refuse to quote it claim it's reliable evidence including the opinions of a treating physician supreme court justices are not idiots they don't say you may not consider a treating physician and that's in nort also in caviar and he which came out last year this honorable court said unto reliance on its own physicians and discounting the claimant's evidence of disability renders  insurance decision that a claim is not disabled on reasonable i mean it's common sense you don't get to ignore the treating physicians were simply saying that social security which has this regulation saying treating physicians are worth more does not apply in orissa litigation and everybody who does is most also in cross which is twelve years old and do reliance on its own physicians and discounting the claim as evidence of disability renders an insurance decision that a claim that is not disabled on reasonable all we are calling for in this case is that the treating physicians be dealt with and that we not ignore them here we have a reliance on an elimination period that would start six months before the lusty work policy still working which makes no sense at all demanding that we prove disability of claims were not of medical conditions were not claimed to be disabled by their met st medical expert adds language isn't in the policy she requires a new condition or reproducible evidence not required by the all t v policy which would exclude material evidence of disability of fibro my algebra migraines epstein barr and other medical conditions which are inherently subjective one of my leading cases creel was a migraine case the court said it was arbitrary and capricious to demand objective evidence of inherently subjective conditions from now till eternity i cannot provide you with objective medical evidence of migrates or based on the client claimants subjective complaints which the doctor then uses to demonstrate that the client is disabled and prescribes accordingly for example they're trying to work on blood flow in the brain no because migraines are caused by restricted arteries and veins and someday maybe there will be objective medical ailments migraines which will asked fifty some odd years we've been treating migraines because people say i get flashy lights i get tremendous pain i have to weigh down it's what the person's us this is true of a great many disabling that of course conditions nobody is saying it's wrong for an insurance company demand objective evidence in itself it's wrong for an insurance company did manned objective evidence where it can not be gotten this is true according to oliver or cisco colo which vacated the who said she wasn't disabled by dysautonomia without submitting or to a toll table to us so that she was not disabled by migraine headaches because he felt she had a normal neurological and general examination if i min come into my office i say you have a normal general and neurological examination how did i conclude you don't have migraines migraines depend on what your medical records say or what your doctors say and what you say have nothing to do with the examination because i can't look at you and have any idea what's going on inside the pain in your head which she was working as an executive and she was always able to push through it this is another problem you cannot say that because somebody who was able to work with a disabling medical condition in the past they cannot become disabled by it in the future also that sentence in the letter that they denied or with says well we have can ologist miss right may not be able to return to a previous occupation this is an occupation disability case for long term disability the of premium denial admits what we're arguing about and how long term disability case that she's disabled from her own occupation when i bring that up they say oh yeah but that statement against interests is not wrong conclusion because we relied on the wrong medical evidence but the denial letters from reliance all refer to the august th two thousand and seventeen as the beginning of the elimination period and the district court itself honeywell said in her decision that right quote had to prove that she was totally disabled for ninety consecutive days from august th two thousand and seventeen again that's the right period of time the reason that we cited some earlier records is just five way of background and the fact that yes it was mentioned that she was seeing new doctors well that's doctor shopping and that is important that if a person doesn't like what their other doctors are saying and they go to different doctors to get a more favorable opinion that is something that is relevant and it's also worth noting your honour's that this arguing about relying on irrelevant medical evidence  one her own doctors refer to your prior treatment records as well and councils are saying that they relied on improper evidence but also if you look at the district court's decision on page fifteen this argument was made to the district court the district court was told by mr kaufman that we're relying on the wrong dates which we warrants and the district court knew that that argument existed but still recognized august  thousand and seventeen as the beginning of the elimination period and contrary to counsel's argument the court did not did not include those records in its analysis it was only briefly mentioned in about two or three paragraphs in the factual section never in the court's analysis therefore when counsel argues in his reply every that reliance does not contest that the district court substantially rely on irrelevant medical evidence in reaching its decision yes we do we do object and that is just a flat out wrong statement for counsel to me and there are a number of these statements that are made internal medicine doctor and therefore dr trevino by the way did not perform eight table tests he performed what's called a poor man's still table test and then because he knew he was no specials referred the claimant here to a neurologist and that are all just performed the pot's test the tilt table test and that doctor referred to by a doctor who trevino said that she's asymptomatic doctor stated that her heart rate went up when she was discussing work issues it didn't go up as a result of os that is the important information council also argued that reliance required ject of evidence we required objective evidence of impairment no matter what a condition is there courts of all required objective evidence of and on pages twenty three and twenty four of the district court decision numerous cases from this court are cited there for this proposition we have never ever argue that she had to provide objective evidence of a diagnosis as counsel is now claiming there was another incorrect statement by counsel during his argument and he made this in his reply brief that we argued on ph eighteen of our br that that she was claiming disability from cardio my off of the in sleep out you know which she has never claimed well if you look on page eighteen of our brief cardiomyopathy in sleep out you don't even appear in fact if you look at our entire brief you will not find the words leave the word cardiomyopathy sleep out me as mentioned just once and that was in the context of her own doctors sending her for tests all of which came back negative and all of their examinations so yes we referred to the fact that her stress tests that her doctor sent her to her seven day monitor her doctor center to all came back negative and her doctor did send her for sleep study which came back negative for council to let that on to us is simply wrong her own doctors ask for these tests and again the do not support the claim here the district is using the district court conducted  review of the medical evidence here and it applies it actually acknowledged all the arguments that were being made and applied the law and found that the evidence overwhelmingly supports the decision to deny the cla sell a performing test that was a year and a half i believe after the claimed onset date and his council of knowledge is the elimination period have to be satisfied is ninety days so this is a log after the then reese the ops inclusions say but she can do vigorous exercise in one part of her to do it by to seven days a week so this is the conflicting evidence that reliance standard was facing and under this court's decisions then that can be considered arbitrary and capricious so we didn't just look at what her doctors said even though it didn't support it we also had dr park prepare a report and dr park reviewed the records and said that so in that this court encourages and what dr martinez was impairment is not supported she has full time people believes of working based on is examination and his review of the medical records so there's a lot of support and a metal loss to find a case where there's been so much support or a record where court has found that it's the no one wrong let alone arbitra matter of fact this school the district court said based on all of the evidence the decision was not even the noble wrong and if it's not an overall wrong clearly can't be arbitrary capricious now i'd like to address some of the other points that are made by counsel counsel criticized dr park for saying that there was no new and reproducible impairment well that the new part isn't part of the reliance standard never base this decision on that so while the doctor may have said doesn't mean the denial was based on a new the fact that there was no new condition so that's irrelevant and the doctor also said there was no reproducible impairment well that's just another way of saying that there was no objective evidence supporting these claims and again this court in numerous decisions that said that there is nothing wrong in fact objective evidence is simply no way saying you need to provide proof because you can't just have a claim based on complaints subjective complaints because if you do everybody's payable and that can't be the standard especially under the deferential standard of review that applies here counsel also refer to doctor well to the the late life waiver of premium statement that ms wright may not be able to return to her prior occupation may it didn't say yeah it said may not be able to and that was in the context of the life claim why because the life claim has a different definition you have to look at that letter in context and it was responding to the arguments made by mr kaufman and the letter said well the reliance letter said no under this this life waiver policy there's a different standard you have to be unable to form any activity of war any type of work to qualify for life waiver of premium and reliance said but that's not this  that's this language here so under this language while you may not be able to work in your prior occupation it doesn't matter for the life waiver premium so this isn't in mission against interest in fact this report of dr sorry this letter in the life waiver of premium happen after the decision was closed on the long term disability claim it's not part of the record in the long term disability  and it can be considered in connection with the long term disability claim so this is entirely irrelevant there before i address the additional i would ask if the court has any questions counsel argued at one point again counsel flips arguments that he has made and tries to attack her alliance with it he argues that reliance referred on an outdated criteria from based on trigger points  in its arguments this isn't true in fact what happened as discussed on page twenty six of the district court's opinion counsel argued that reliance should have sought out trigger point evidence and what we are g district court recognized was its plaintiff burned to prove disability and provide evidence and he wasn't doing so so now he flips his own argument on to us and says that we rely on an improper standard that's just fal and the argument that's just one of the many arguments as i said were counsel is stretching what is actually in the record in what has been argued by reliance in its distorting it in ways that are impermissible here so there are other issues in addition to the dizziness which has not been established there was also a claim based on cognitive problems there are ways to test cognitive issues and none of those tests were perform here and every doctor said their psychological or psychiatric evaluations were normal and every doctor said that the neurological examinations were normal so she simply did not support her own claim and as for the the claim of heat the same doctor who did the official kill table test and said it was asymptomatic ms wright told the doctor that she did not have a t v and that she did not have difficulty walking contrary to other arguments that are being made here i just in conclusion again the district court had a thorough analysis it did not apply in the wrong time period and apply the correct one as stated in the decision as far as when the disability claim arose the district court said that the evidence here again was overwhelmingly supporting the denial of benefits and this is why counsel keeps making arguments that are not supported in the record and attacks on reliance that are unsupportable because the evidence here did not come close to supporting the denial of an office so with that i would ask the courts to affirm the decision of the district court and if there are any questions i'd be glad to respond to them whatever a premium decision employees ltd us but hartford doesn't want to have an admission against their interests which is by definition what that is when you true if you say i shot him the likelihood that that is true is greatly enhance that's all i'm saying the fact that you may wish to consider it outside of the  record is because it is screamingly more likely to be true when they say something like that then if not if you think it should not be considered you three have black rose at the th circuit level them should not be considered with respect to all cheating with respect to not one iota of or a bottle in their brief read the brief i made this argument in mind initial brief their rebuttal their response brief does not say a word about this argument i hear counsel discussing it in an oral argument when you were in the brief they completely skipped this argument i would argue that's because the court does indeed begin its discussion of the facts with references to eighteen medical records before the elimination period begins part a medical conditions for which the claimant is not claiming disability dr park does demand new reproducible evidence which is adding language to the policy levy does say well she was able to work with that before which is not permitted in disability insurance analysis you have to look at what she's saying now i have nothing further to say unless you have