claim in ruling in the plaintiffs favor the district court can stay committed at least two significant errors in the law the first the court applied the treating physician rule giving got french to the plaintiffs treating physician and that's wrong because two in the the district court decided this whole thing using the wrong standard review yes if that's true and if we accept that position should we just run standard review this recourse the clearinghouse send it back to the district court and say judge apply the right standard for you and then we'll worry about this case no one explain why your honor in the recent ninth circuit decision in jordan versus northrop grumman that case sign on it is three seven the f thirty eight sixty nine the ninth circuit looked at this robert frank approach to standard of review and it didn't change the law but it clarified things a bit more and it said that when the plant grants discretion it is that claim administrator judgment that must be followed and the key part that i find in that course decision is this the court said as long as reasonable people can differ on the question of whether the claimant is totally disabled that decision is not arbitrary and precious now let's look at what the district court here said i think the thing is when i said why should we have the on page twelve of its original decision denying the summary judgment this is the record excerpts page twelve such evidence as dr goldstein's report could justify a reasonable trier of fact concluding that we are these activities of occasional travel and animal refuge work shows that she is physically capable of working for the cool it's already reached that decision in so that a reasonable person could agree with reliance standard decision it's only when the court applied the wrong standard of review and then apply the treating physician rule that the court arrived at the wrong conclusion and as i said since the courts are to reach the decision that a reasonable person would agree with eliason or there's nothing really to re authority plaintiff's counsel he succeeded in confusing the district court he said well look here's a case that the ninth circuit decided earlier called sandy in which the court said this satisfactory proof language does not grant that's right but that's not the language we're relying on subsequent plans contain a specific grant of discretionary authority that reliance has the discretionary authority to interpret the plan and determine eligibility that's the language we rely on it simply makes no sense that you look to what language does not grant discretion instead of what language does the district court here said why don't you just remove that language from your plan well first of all why there's nothing wrong with that ensuring clause language regarding satisfactory proof more importantly we can't ensuring clause language is the same as in contestability language a lot of states require us to have that in our policy are languages there are certain requirements in states regulations that were talking specifically about the would this clause ok and that they're insuring clauses are required in a number of states fellow and then i'm glad you corrected me so you do not now claim that you have to have satisfactory proof language that removing that language violates the law and he states you are claiming that playing i time claiming that the insur consistently you look to whether the language in the plan grants discretion the supreme court of the united states firestone vs kruk has said you want to whether the language in the plan grants discretion this  fine but that's not what you argue what you are arguing is that that this the courts point look you could make this language clear you could have void this problem by making th it couldn't be clearer let me clarify the point that is the insuring clause that is what determines whether a claim and gets disability benefits that is not the discretionary language clause that's not the authority clause the authority clause is contained on page four point of the policy that's page fifty two of the record excerpt and it states and ambiguously unequivocally reliance stand a life insurance company shall serve as the claim for a view fiduciary with respect to the insurance policy and the plan decide whether the proof was satisfactory are two separate issues i'm not asking two separate issues obviously the person to supply satisfactory proof on the policy yes are you trying to say but we have discretion just fine the question of whether this amount of proof says that we will pay a monthly benefit if the following factors are met the question is whether reliance standards decision is arbitrary and capricious does it have discretion to but when it specifically says that we have the discretionary authority in this circuit as hell we have the discretionary authority you can do is of sandy the sandy case didn't have this language your honor this language this authority language wasn't in that policy this was placed in policies subsequent to that not subsequent to that decision but subsequent to the issuance of the policy in sandy sandy only had the satisfactory proof of total disability to us language and the ninth circuit reversing the snow versus the standard case but that doesn't cut it and so when you saw it you know as a flurry of new policies being issued which has specific grants of discretionary authority and this is one so you can say well this language is already deemed not to be appropriate because this language wasn't addressed in sandy it was addressed and we cited in our brief in a to the evidence that we believe supports our position and the lease shows it's a reasonable decision the fact that her symptoms are no longer present the fact that she's not having in china more important we show a stress test that shows scheme that she doesn't have any angina during exertion and we're provided with nothing in return that shows that she's suffering from an actual disability her own doctor say well the stress issue maybe she's disabled because possibly still suffer from problems due to stress but we've cited i briefed a number of cases that said the possibility of future harm isn't a presen too much on business but the question for a lie standard just imagine let's say you went off the case and you think would be the same stressful experience for me i think flying so yes it would be to be perfectly honest but the question for alliance standard and the question for this court is under this deferential standard of review would a reasonable person not would who a reasonable person find that the decision of reliance standard was based on sufficient evidence being a vice president is sedentary and she could do sedentary work the end is that a reasonable interpretation if we say she can do sedentary work and her doctors have said she can do sedentary level she can be sedentary work and he said oh well by being a vice president sedentary that is to say sedentary is a question of physical exertion basically yes so i guess our job is sedentary  every other person who works in a bank is a vice president and so and they have certain terry jobs and they're i guess general motors has some high level vice presidents if you is what we're talking about not knowing now vice president of the orange julius stand because instead of calling folks managers like on the piece they call him vice presidents that's it now your honor because in that case we would look at it and say no that's truly a vocational you would say that's really a managerial position not a vice president position the dictionary of occupational titles doesn't look at the least demanding they look at how it is generally performed in the national cami and the question on that is your honor if if i may s it may be one thing to say you don't look to a particular job meaning a position is located in x town and so forth but if you're patient isn't vice president nobody ever describes an occupation as vice president  to try to say generically a vice president is sudden very end of story that's not a little and it's like a lawyer there are lots of different kinds of lawyers judges there last different kinds of judges are all of them fungible so that in the job as a vice president fits her not necessarily on it but i would point out a few things one is in gallagher versus reliance here in the fourth circuit it dealt with the case exactly on point it dealt with a vice president although he also has some editorial duties and the court under the novo review said that the review was correct that there was nothing wrong with the way reliance standard evaluated that person's occupation what it stop with the title vice president or the title person how it went on to look at the actual description of what an editor does in the printing and publishing industry and i don't see any sign of that here but that both parts of the job well prior is there anything here that indicates the plan administrator what did that what she does in the high technology industry you're out of the problem is there was nothing vocational submitted to us by on her side saying my here's a vocational expert who says my occupation involves x she just said my specific job and again we're looking at her occupation and the term occupation is different then the term job she can do the vice president job or occupation her specific employer gives her some additional requirements that perhaps she can't do but that's her job not her occupation and then dixon says you don't look at it but the more important cars if you're honest agree and i think you have to that we get discretionary authority this interpretation has to be followed in unless it is reasonable even if her or councils interpretation of the term occupation is reasonable as long as ours is reasonable also contra pro friends and doesn't imply it has to be followed but that means you have to survive on the notion that an occupation of quote vice president is reasonable i think that's the question well not the occupation vice president but that the use of the dictionary like a patient upright holds to determine the material goods of an occupation is reasonable and we've cited to the cases that have said it is even under the noble review thank you on case reflects that that they did exactly what they should have done and referring to the d o t job scription and i think that the argument with reliance advances in this case is reflective of what i see to be the problems this policy means that it's a position same general character is the insurers previous job it requires similar training similar duties into that and reliance the insurance company require that an employer give an insured give require the employer to give reliance a description of the job duties and gallagher the entire description that was given to reliance by the employer said that the vice president job was simply quote consistent with such a position and that's why reliance went to the the d o t vice president in the industry well in this case on reliance his own form and it's found in the  record there is part of the information they required with a disability claim was submitted last have the floor of the employer fill out a form and found the record in the supplemental record taking a job analysis and that job analysis also included the specific job description and you got four pages in this case of exactly what they were is required to do and it's very detailed and as the district court found in this case as a matter of fact it's in a supplemental record excerpts pages fifteen and sixteen and the job description is page seventeen and eighteen and what the district court found in this case is that the job description for the regular occupation as defined as requested by the alliance was there was no comparison whatsoever to the d o t job description for it vice president any industry and the suggestion that vice president in any industry which is a sedentary job when you compared it to the job analysis and job scription meant and parent was found by the district court in this case just reflect that it was not the sedentary job we're not talking about a sedentary job number one and the thing that that is particularly troubling at least to me is at the time that the benefits were granted this is how they define regular occupation now that it was to terminate benefits it doesn't want to live by its own forms and doesn't want to live by how that job has been described what it wants to do is go to the department of transportation generic occupation and that is not only unreasonable but it's inconsistent with the terms of the plan which is exactly what the district court in this case found let me turn to the when it was to terminate then fits is that regular occupation simply means anything any price president in any industry but at the time when it was interpreted whether occupations it had the forms which it gave to the employer a employer to find out exactly what the jobs are all about ask for a job description so they look at the term and later what regular occupation really means which is can she return to a job that has the same training or similar training require some more skills has similar material duties and when you now when they say department transportation generic jobs question versus what she really did that's not the same thing i asked the question again you said two things you said the requires them to this is what i should have said was that the manner in which they interpreted the plan is inconsistent because they have already identified how they will interpret regular law regular inconsistent with the way that they interpret the plan at the time that they awarded benefits and that's the inconsistency because on the one hand when did they triplicate differently at the time that there weren't benefits what they defined as regular to fill out the form view maybe they ask them try the father form so they could then go to the problem of labor and find the closest thing to the book that would read the thing we don't know why this what was the form was relied upon by the claims examiner when it reviewed the case to determine whether or not ms where is was eligible for benefits in the first place and you have that recommendations several aspects of the claimants job including and specifically the fact that she travels twenty five to thirty percent of the time including the fact that the job description reflect scratched job including the fact that she manages some three hundred employees and the only place where that information could have come from would have then the job analysis and the job description i understand and which you saying is they awarded her long term disability benefits yes or and they must have awarded them because she met the can't perform the changed two years later well in whatever it was later in part yes yes or in part i'm also saying is that when they awarded those benefits in the first instance in the manner in which the work there were those benefits and the evidence that they had to use those benefits also reflects how they interpret the terms in other words when you get to how they define the term regular occupation which is undefined in the policy they defined it to cover what she did to the extent they could award or long term disability benefits yes are you saying how in the world those bills didn't change so how in the world could they decide now she doesn't get them now that they're terminating benefits or using a different it says feels condition present and documented precludes claimant from performing on occupation of maternal duties of saying and then there are some vice president duties of support t d which i assume told disability and there's a reply that starts with agree with a recommendation now shortly after this the date of this is a camera ten thousand nine hundred ninety eight it's within i think weeks of this that ms will receive a letter from reliance advising her that she's been approved for her long term disability application and it's signed by glenn and the last name escapes me but that letter seems disability i e can you do your regular argue the material duties of your regular occupation we're dealing with the term regular occupation which is undefined and we have cases that the gallagher case in the in our case that specifically states and also involving realize insurance by the way and i would state that what reliance has done in the past is they go to the employer to assist or help them define what that regular term regular occupation means and it means in part that you're looking for a job that has similar duties similar skills so that when you're making the determination whether it be down the road as to whether or not she's still this able to you still have to define the term regular occupation and one of the ways that you look at how reliance is the fiduciary interpreted the term regular occupation in this case and i assume with all other cases is you look at what they actually get what was the information that they requested what were the forms that they sent out what was received day review that and how did they ultimately reach their decision that she was unable to perform the material duties of her rocky regular occupation and in this case it seems very apparent to me that on the one hand they determined that she bit later with i think they could go out and get something else well i would i would agree with everything that he said with this proviso that when the target when the term is defined the term is refined and while somebody's name proves the question then becomes have they improved to the position where they can go back to their regular occupation what is regular occupation mean you can't change what that enough becomes almost you know well i don't i don't even i don't think in this case that we're even to the point on this record where you could say the two jobs that were being looked at here are even close i would give to you that if they were close and then you might and if you're on a purely discretionary she might have them go back to the district court's opinion in this case and it's very clear from the factual findings that he made that in comparing the happened is that reliance never did compare the jobs the d o t job to the job scription provided by the employer to see if there was some commonality to see if there was some even ground and they didn't do that in this case either because it's apparent from the the  all they did was in fact at one point reliance said we understand that you may assert that your actual job is much more physically exerting or much more strenuous then the d o t job but that doesn't matter