case which of course was issued slightly after the gun case was decided and discussed the conflict of interest issue what glenn holds though is that the current conflict of interest and implied conflict of interest on which no proof is required to establish as a starting point that a conflict is one factor the two concepts here that are important and ones that are set forth the the it that the court in the glen case articulated was that in looking at the court of appeals opinion the case is that there were other factors present that the court of appeals looked at and that with those were described as procedural and reasonable this that sounds a whole lot like procedural irregularity and in fact that's exactly what the supreme court opined that it was not going to set not going to require district courts to come up with all sorts of burden shifting and procedural rules that the decision on whether the administrator abused its discretion would be based upon a conflict of interest as one factor and then a combination of other factors now moving directly from the creditor case which was decided in two thousand and nine that case cited to an opinion that judge woman will walk in and walk in the walk in case was issued a not too long after the metlife case and in that case and in several other cases the this this court correctly articulated the going to hold it and i'll just read from it very quickly here we are instructed by glenn to give importance to this conflict of interest depending how closely the other factors are grounds that articulation of the standard necessarily means as applied to this case that whatever the procedural issues are if that to the extent that the administrator is alleged to have favored one examiner versus the treating physician or the timing of the decision was not correct that those are factors that can be taken into account and on that point all i would know at that that's that's exactly the record in front of the court of appeals on the glenn case that that the glens decision utilized as an example time going through all of the court decisions but i have six or seven of them from the court of appeals articulating simply that that the court is to look at the district court is to look at a combination of factors would be to hack a case the jones case difficulty all applying or analyzing the issue of what a procedural unreasonable factor might be what issues can affect the overall assessment of the district court's opinion and one of them n i have that decision on the desk of your honor i believe that that that decision looked at simply just another issue the issue there was scrutiny was whether whether the expiration of the time of the timing of the decision would would somehow change the standard review because there was no decision to review i believe that those are two separate issues so with all due respect i try to catch like this i believe what has happened is that there there there perhaps was some uncertainty and there are several cases in the circuit and there cited in the briefs that talk about that the procedurally regularity prong of will but again going back to the beginning going back to the to the glen case it appears very clear that the supreme court's primary holding was that there is only one standard of review for purposes of a decision that is adjudicated under the abuse of discretion standard let me ask you that you think who authorized to know who were the you as i read it and actually took a look at that as well just to see if there's anything out there and there was one case one circuit court case that that kind of identified and there's a compendium out there that talked about different ways in which courts had had analyzed this issue of the standard of review before glatt and it's fair to it's taking what that what the judge cited to you and then looking at the actual holding but that is correct we was a sliding scale case allowing the judge to look at both issues and decide whether there should be a change in the standard view of the supreme court said there was one standard of review that's the way the law of trust works and if the courts want to look at other factors or a combination of factors they can do so but the standard itself does not change i'm not going to discuss the nichols case your honors or the issue of the conflict of interest because i believe that's already been discussed in the briefs what i would like to do the macquarie case which judge woman off authored there wasn't a decision and in that case even though there was no decision made what the what this court held was that because there was no prejudice to the claimant then there was no change in the standard review and as i indicated in their brief there wasn't there was no prejudice to ms macintyre by the delay it's unfortunate it's regrettable we can talk the talk a long time about why the delays were caused and what happened but ultimately the reliance standard my clients objective was to obtain an irony it had to go through three different doctors and multiple delays and locations and all sorts of other scheduling issues to get to the tane that but in the end macintyre did receive a full and fair review and the decision was made thanks let me then pivot to where switched in talk about the district courts consideration of the record i'm going to instance did not consider any of the evidence that reliance standard relied upon in its initial denial of february fifty two thousand and sixteen and several of those which i'll talk about a moment stood undisputed they were obviously reviewed upon appeal and not just feel good in terms of the evidence their reliance standard did rely upon there are thirty three categories one is reviewed by experts in this case there were two pain she cannot work she can't do anything that requires that looks like work and she has a lack of concentration so again i'm not i'm not suggesting that treating physicians letter is not some sort of evidence or it's not some sort of  internal medicine doctor or an occupational doctor to review her to assess her and he did he examined her he concurred largely with doctor signs of evaluation of her condition that she had muscle wasting and weakness in her lower the she had some issues that went back to birth and there with and that are subjective symptoms were were consistent with the treatment but that's a different matter from determining whether she could perform a job at a job in the health care area no he didn't know that that was the residual employee ability analysis but could she work in to get a feel that she was qualified to work in it spite of the fact that she had limitations and she needed to take breaks be this are asking this court to just herman that a failure to follow the timing regulations and ringback by the way it wasn't just the regulation at stake but also it was the plan the plan and bedded everything in policy discretion by the court in maghera did say that but the court also said we don't see any problem here with was how that claim is been handled and we can stage which makes a case different from this case in this case and i are submitted and ample amply supported appeal and the insurance company desert now i think it's also important to talk about the need to make here and didn't really focus on the regulation and either frankly did seem and i think there was a reference to the regulation that the regulation is important if we take no notice of those regulations they are toothless beg to differ seriously differ it was serious harm here my client was living on the money that she was receiving from one can disability and social security she's gone without that long term disability since they cut her off th isn't a little thing that it takes a while to get a decision made this is paying the mortgage getting groceries on the table fixing your car it's significant now it's also suggested they were trying really hard to do the right thing they wanted to get and i mean so that they could get an expert to the right think well that's all wonderful actually it's what they should you should have done it sooner when they didn't have their ducks in a row and they couldn't you have to comply with the claims regulations also in the plan you need to comply with your plan now what am i asking for here i'm only asking that the court not require to defer to this produce theory that couldn't do its job in the time allot within a few days the insurance company which actually ironically has the same insurance companies in this case delivered its appeal decision the nd circuit didn't have a hard time saying a deadline is a deadline you don't have to do all that but you have to make a decision that is the fundamental reason for the existence of the line standards appeals committee to make a decision and to make sure that benefits are paid to the participant who's entitle to benefit and if you cannot do it within the time frame that the regulations and the plan required why on earth are we giving you all this deference to the center but also said what's so hard about this is i a deadline get your decision done that's what you're supposed to do and so what we're saying here is this kind of serious procedurally regularity a complete flouting loading of the regulatory requirements for a timely decision mistake in claiming in writing that the conflict of interest that relates gender has should shift the standard of review that was incorrect under glenn i also want to be clear that it's not too surprising that the district court got analysis that's what the parties argued in their briefs conflict of interest is something we look at if we if we are going to abuse of discretion and that was what was argued and so that was what was before the court when does not address procedural irregularity and i strongly urge the court not to fall into some sort of a trap to say that says glen went why and said nothing changes the standard of review from abuse of discretion because the court loses all authority over the case and not all that much of the authority to decide the case and that's just wrong we'd like the court says hold that in the context of a blown deadline an  obstacle all it says is that when we're in court we get to apply to a review it doesn't it doesn't mean we win hands back and say i'm not going to look at your case too bad you blew it well if we're going at you know if we're going to get lines goodness gracious we should apply get minds to the plan administrator the party that has the authority in the power and the expertise to were to apply abuse of discretion or to know about the evidence here was profound and compelling that mr mcintyre remained disabled and would not have been able to return to any occupation and the contrary determination by the plan whether this court has has acknowledged or that somehow the glenn opinion has not been articulated and followed here i'm looking at a district court case that was upheld by the procedural and reason abilities then the court may just standard to review that case was upheld by the circuit although it not specifically cited i would also like to point out that in a case that your honor judge good or author or was a member but during that time she saw a doctor saying the same amount of times which would reflect that certainly she had functionality beyond what she was claiming to be restricted from and can counsel we appreciate your appearance today in your cooperation with our staff to