challenge the may two thousand and fourteen decision was also arbitrary and capricious with respect to the first issue we first have to look at what transpired between the may twenty third teen determination or rather the re approval of benefits in the made two thousand and fourteen terminations in may of two thousand and thirteen at not considered a large volume of medical documentation and decided that the weight of the new information is developed all the time and i don't see where in the law they are precluded from taking a new comprehensive look at the record well the new information subsequent to the determination being made in two thousand and thirteen was an attending physician statement by dr roy who reaffirmed the miss geiger's condition remain the same in that she was totally disabled how many people i mean maybe you can help me on this which doctors actually say she's not capable of so and terry work he may be the full kavya larry matters here roy yes dr roy indicated no work at all that this guy could remain totally disabled it minutely dr feldman did not explicitly say totally point is they free considered and we are as you certainly concede on an arbitrary and capricious type review so when you've got these differing opinions why the plus of course the surveillance video report and the crucial piece of evidence that suggests that there's something wrong with this decision is the nurse review that was done by the nurse nurse tyranny in two thousand and fourteen that preceded the denial nurse t that and then she said we don't know how that discrepancy was resolved yet she just suddenly full dr mcphee as we poured out and said that's the report we're going to follow when her own erris review is that while you were not contending that there was something improper about providing him with the complete record so that he would have the full flavor of the claim the facts were very different by the time d got the claim the surveillance was a year out of date more than a year out of date in the surveillance even in two thousand and thirteen was essentially the same activity that was depicted in two thousand and twelve where aetna said nevermind that's not enough for us to conclude that ms geiger is capable of working at a sedentary job and then when dr good issued his initial report the report is sent to d feldman the pain treatment specialist dr feldman writes a short note indicating there are three problems with this report the most significant problem the dr feldman fled was the absence of any explicit said you would like that he knows there absolutely but he's saying that there's absolutely no indication or he's not saying anything about whether the cervical spine issue is even causing any functional restrictions and he's saying that ms geiger has full use of her upper extremities when her treating doctors are reporting that they're sensory and strength deficits in the upper extremities the closest dr gutierrez comes to even commenting on the significance of the cervical spine issue is when he talks about the surgery that was recommended by dr pharo who are in writes that their rate there's a good prognosis for further functional improvement and then he says based on the risks for post operative chronic pain a return to baseline status is very guarded however so he's indicating that the surgery is necessary but may not reste or full function and then we get to the the issue of the sort of the vocational evaluation where the vocational evaluator comes up with two what she calls fair job matches one of which requires a bachelor's degree which is geiger doesn't have an in fact in the vocational report she indicates that she doesn't even know what misguided years education was even though it's documented in the file and the other job she identifies is a commission agent in produce egret cultural produce when ms geiger's entire professional career was in the telecommunications industry but the standard does allow for jobs that you could be trained to do not just those that you enjoy but this requires training based on the specific vocational preparation of six of one to two years so to conclude that she would be able to earn the me the mean salary which is what the vocational evaluator chose which is probably significantly higher than the median salary immediately is contrary to the terms of the policy which indicates that she'd be able to earn sixty percent the last point that i want to address before reserving the rest of my time for rebuttal is the discovery issue we raised these issues with the district court in we had asked to take two depositions in the case one of and one of the vocational evaluator ms clifton and we indicated in our complaints pacific allegations as to why we thought that those reports were biased and why discovery would be warranted this court has had an extensive length of cases regarding discovery in a recent cases we have the perlman case then we have the semi in case but most recently we have the denison case which recognized that the intervening event is the supreme court's decision in met life versus glenn and based on glenn's recognition that a conflict of interest a structural conflict of interest exists in all of these cases where the same entity is paying the benefits and case that represents where that softening should be misguided her presented specific allegations where she questioned the validity of the evidence that was being used against her and sought leave to take two depositions of good afternoon judges and thank you my name is million to nap and i represent the defendant and police in this matter thank you for your time i'm going to start with the arguments with respect to the summary judgment we're asking that both the decision w me tell you what i thought the weakest part of your position was and that's this vocational analysis first this extremely vague set of transferable skills which struck me as you know kind of plays well with others or something and they're very general secondly these two jobs and the job development specialist for which she doesn't have the necessary academic background in this we're commission agent and agricultural produce job i mean if edna had come forward with something that looked real for the cheesey they're pretty quickly trainable for or already has the training for that would have struck me as more plausible well your honor if i were a sponsor that that as was said previously she can be trained be a education training experience to assume a job that doesn't have to be the prior job that she had so the net is a view that there's no outer time limit for that training so if you you know if she decided she wanted to get a job associate at a law firm she might have to go back and get a bachelor's degree and to go to law school for three years and apply what you know and the maybe she's a recently intelligent woman and she could do that why not yet i don't think the policy provides for any it does not contain any type of limitations as to the time period close at least two years trying to she doesn't have a bachelor's she has some community colleges i recall that she does not have a bachelor's degree and probably this stage of the game that would require i'm guessing two anything that isn't able to make decisions and exercise some judgment really well your honor then i would submit as well should computer skills she was able to deal with people she had skills that were transferable in terms of any type  workplace and the question then really becomes is she in such a position that she cannot do anything within our economy that would prevent her from earning sixty percent of her earnings and then you might have come up with things i mean you've just listed some very sensible criteria but that's not what clifton came up with clifton comes up with this character kill your list i mean maybe we should just ignore it but then then where's the evidence in the record the evidence in the record to support at noah's assessment that there are in fact jobs at the sedentary level that she's able to do what jobs well i would submit that it was through the analysis of in the rebuilt vocational rehabilitation now is that where she looked through the programming and she looked at her transferable skills she looked and figured out these are jobs that she could do that would earn her the wages so i would submit that that is within  was a high wage was it was of in excess of thirty dollars an hour thirty dollars an hour that is correct to sixty percent of her earnings in those four jobs met that criteria there are two other jobs that are that also met that criteria but in any event she can be perform that occupation or on the job training to form that activation and that would be permissible i don't know the policy requires her to find to to find her a job so they just have to say are there jobs within the economy that she could form and they're saying yes these are city so maybe she's walking all over the mall that maybe she's gone in they have these motorized cars that people ride around in maybe she wasn't maybe she was shopping for five minutes and then she was going and sitting on a bench for another ten minutes catching her breath made all kinds of possibilities some of which would suggest that she's really quite capable and others of which would suggest that she isn't so i'm not holding that against you necessarily but i don't see how it helps you either carry objects we don't know what was in the bag i mean it could have been a bag full of popcorn for all i know which would not have really weighed very much your honor that who knows what's in the bag but something very light could back and looked at it they also looked at her medical records all the documentation they had and file the surveillance was just one aspect that was used in order to support their their opinion that her benefits read properly be terminated because she didn't need t test of disability under the plan so the surveillance was one aspect it did show that she could walk within that those restriction whether strictures of the time period that were supported by dr feldman and was also supported reconsider so i think that's one thing without x but that much explanation about why this is suddenly happening well with regard to doctors here in town i think that's evidence of their decision making that the objective we looked at this because they an opinion and i am me from doctor quite and this is all from two thousand and thirteen there was intervening the medical records interviewing surveillance intervening clinic conference a clinical review intervening medical documentation between that time the time something that shows that she's getting worse right some of it shows that her back condition is turning into a real problem i would submit that it was not the question is whether or not even if she had a back of his condition even she had other issues whether defective her ability to work with regard to doctor  think a back condition could affect someone's ability to for i think it could but the question is whether or not in this case it affected her ability there was objective evidence that affected her ability to work dr serious he only had it had for an opinion that she could work the independent this was a result oriented decision with many many holes that raise serious questions about at most objective eighty and whether or not was motivated more by its bias rather than by doing the job it was required to do under rissa it's a hard record to make that argument on because they did reinstated benefit states they seem to be looking at the record and trying to come to the correct decision which is why the terminations a year later is so surprising well that maybe they just looked at it more carefully you know they're trying to give her the benefit of the doubt they reinstate that i don't see that this is a record particularly leaning toward