one seven dash three zero zero zero catherine castor versus eighteen tea umbrella benefit i am number three for argument fifteen minutes per side mr macdonald for the may please the court my name is joe smith all the represent katherine castor we are here today appealing a decision of the southern district of ohio which which i found that ms castro was not entitle to her short term disability benefits the remedy that we seek today is a vacation of the district court's ruling and in struction to send this case back to the plant administrator where belongs to correct very serious procedural deficits the remedy that i seek has tailored what i'm going to say to you today and so as a starting point it occurs to me what is worse is it worse when a plan administrator violates clearly established law it as it works towards the regulations that support the employee benefit structure or is it worse when they read the plan but do something completely contrary and if you're giving this some thought and it's serious is a violation of the law is i believe that the more serious problem is having the plan in front of them but simply doing something different every presents a betrayal at least of what is agreed upon plan terms in the long history of the score have been given one thing and one thing only plain literal meaning all the way back to university hospital versus emerson it's clear we don't give a fancy read to these words they are what they are and in that being violation minima matter what if it's truly a de minimus i don't know how it could be if the plant reach a certain way and you engage in a behavior that is not you know is not equal to what is called for i don't know how that could ever be diminished now i suppose you could eventually rationalize that perhaps this didn't affect this ng but all in all the analysis that the planned mis traitor is providing is not consistent with the promises that are made to who the beneficiaries what specifically are you talking about i'm getting lost in the abstract so in the abstract let's move to the concrete here this planet requires that you are analyze the disability against job duties no it doesn't say occupation it doesn't say occupation performed the nationally in their brief that you agreed yes said terry work that your client agreed and they point to specific pages in the record and in those pages in the record it says and i'm thinking of like one in six it says that it alleges your client agreed that it was sit talk type or sedentary work the judge the par reason very good point was the next point i was going to get to in their brief they do say that the miss tester agrees that we were going she agreed to the phrase sit talk type now my problem with that is very singular miss tester is a home she's home with pneumonia we'll see this and she's just days away did she agree to it she agreed to that but that is not consistent with the plan though and calls for job duties not abstract sit talk type words well but ok so that's a fair point but then in i think it's raiders right report he says job duties and then he describes specifically takes it right out of the plan the language when he talks about the job description of what the case law says they have to consider so why isn't that sufficient certain actually under an arbitrary and capricious review well under an arbitrary and capricious standard you have to demonstrate that there's a logical connection between what is required of the plan and your behavior so your question is very fine and the answer is it's not good enough because it doesn't really embrace all of the duties of the job if you look at the job description  going what about job description doesn't describe very aware the job description describes an intense environment of sales that's what it describes it describes technical knowledge describes persuasion it describes getting customers to buy things that's one of the scribes but in this case that is sedentary work i would imagine under the rule under the under as we use that word and again the plinth doesn't use that word that is a word that is preclude used by us but that is not a word used by the plant job duties that's right  right that if sedentary describes a demand low if we're going to be technical about it the dictionary i would say i'm sorry it describes a demand level so in the dictionary of occupational titles there are heavy medium like and sedentary and this is where the word comes from and its common use so in sudden terry work you sit for six hours your stand for one walk for one you don't lift more than ten pounds regularly un our guys it to a judge in  brief but it sounds pretty similar i think we do sedentary work i think that you would be classified as the highly skilled sedentary worker that is but clearly skilled is debatable oh well your point is that her job description which i recall twenty different items yes is much more mind than just sitting six hours a day and that any person seeking disability leave should have the bind point of the job evaluated see whether that person could meet the requirements as opposed to do you just sit for six hours a day and i completely agree and understanding of the job duties until july fifteenth to show the job description to the reviewers as absolutely the point to to to under to give it to the reviewers and it's actually the plan to acquire it long before they're going to deny that claim in the first place wealth age we should have gotten it from the plane or they are the lawyers should have got it from the employer on day one it's their responsibility to to be honest i can't recall but it's clear the job the job had more even even said wait in their analysis didn't give it a sales function we don't until july fifteenth on she the first time i saw  back off of him you should correct me if i'm wrong because you know the record much better than me is in the district court so because i didn't see it in your appeal letter that she was alleging you tell me if i'm wrong i'm happy to look at it  but and so if that's the case it's hard to allege especially where what he says is and i'm reading from his report dot job description for service representative it includes ability to assist customers w order billing and or collection related issues and he takes that right out of the general duties from a service representative the only position to do so was the position you're referring to dr ritter so even if we look to dr pres what does it include anything from this what does dr conrad conclude caressing conrad correct me if i'm wrong pressing conrad were looking not at her mental health issues as much as was internal medicine and conrad was a cardiologist s and what conrad concluded in the initial review was that she was not suffering from significant cardiac issues such that she couldn't return to work and he and even go awol her own doctor said she could return in february and when he you're correct in all of it except dr khan read even the end of his first report which you have read says this is an unstable environment here and she could relapse and i'm not entirely sure exactly where not quoting here please  is not clear entirely about giving her a clean bill of health you know i think it's really happening in dr conrad report which is the next thing i was going to get to anyway was largely dr kahn read it's an unexplainable kind of event you reach a left ventricle ejection fraction of forty and magically you're ok now that is that is a good sign for miss caster thank god but what about the remainder of symptoms that they were paying for for right this is not just a heart problem this  fatigue the shortness of breath this is weakness this is a lot of things that she's experiencing and this i think it's appeal and i can provide you with the citation sixty three definitely in january of fifteen reflect exactly what dr conrad was suggesting that she is relapse and that she isn't good enough to go back so sixty three is a vital february of fifteen would be her return date and then i would encourage you with the documentation that was provided i might have not complained about it in my appeal letter but most certainly again i would go to sixty three again and take a look at that because even if that is what you're from the time the denial when dr conrad wrote the original report november and the denial comes out in december in january six eighty three represents miss caster is still deteriorating i so i tell me if i'm wrong ask another question ok here's where you should definitely correct me so you could be right able to work and suffering from health issues correct i mean people suffer from health issues in work and i'm not  significant help there are people who have know of conditions that allow for the work that they do given what the work they do allows it right so my point is is apparently told i think it's under men but i can't remember the name but  told the partner of conrad that she was fine to go back yes there's not enough no go ahead i'm sorry so this is a very important point i got remember at that point when that conversation occurs between some other doctor and dr boyle there still is no clear understanding of what her job duties are they don't have a job description until the summer so that is a really valid point all go ahead i'm sorry lead anywhere not even in your letter that her job is stress and there for you talk about mental health here but you don't say her job is stressful and therefore her heart can't handle it i don't see that we made it anywhere so i don't know why the doctors on appeal would evaluate what even even dr conrad when the when the appeal was there he actually got a hold of six eighty three which says that m caster is deteriorating that she has to go back on disability or may have to go back on disability if we can't figure out what's wrong with her so it is maybe i may not have made the most pronounced opinion in my appeal letter judge larson but the documents i provided certainly their job to construct your argument and can it ever be arbitrary and capricious if you don't put it in your appeal letter i don't go ahead it's you raise a very important point and in this plan it doesn't matter there are plans out there that say if you do not raise an argument in your appeal then it is eliminated but even on the nova even on if you did it in court if you don't raise an argument you're saying they have to review everything in speculate what your position is and then determine if you can do the job i think that they have a duty to review the evidence to one thing and if the evidence says that she probably is going to have to go back on disability is that something to sweep under the rug i don't think so thank you thank you your honour's are exactly correct that the recession has an administrative review process during which if there are disagreements if there's additional information at the plate administrator is to review that those issues are supposed to be brought up on appeal here miss caster and her counsel used almost the entire one hundred eighty days maybe even a little more or six months to assemble all of the information to submit it to the  in by that time they had the entire claim file that existed up to that point so they knew they just like the court has now what existed at that time they had the claim notes that classified miss castors job to sit talk type that she told sedgwick about they had the doctor's report that indicated the analysis that he went through if there was a i ask you about the talk type because it just seems like it's perfectly fair to say it said interior work in it's talk type when you're talking about physical disability but mental disabilities relate to something different in kind in so using a more particularized description of the job duties important when you're talking about mental disability in other words i can sit talking type and be depressed and anxious but it's much different if i'm a sales job and doing a sales job if i have those mental disabilities than if i'm answering phone calls and directing them to people in other words if i have t fourteen quite frankly all the way up until the denial or the terminations i should say in december of two thousand and fourteen the entire focus by miss caster and her doctors was on her physical inability to perform a job because of her cardiac issues once it changed and once she changed her period on appeal it was not and they changed it and they were focused on her mental ability to perform her job and yet rader's report does not include a full from description of the job it does not detail every aspect but it is clear that he had so by the time that he reviewed it and by the time the appeal determination took place they had the full job description in the file that was a document that was provided to dr rader to dr present what he said your honor is that the it was a job he said job description for so he references a job description for service representative includes ability to assist customers with orders billing and work collection related issues but it is here yes the other two doctors have the same thing they did and actually dock perec is who was analyzing it from an internal medicine perspective so the exertion level was important to him he commented on the fact that the job description really didn't have physical capacity or exertion information so it's clear that he did analyze and review that as well so ok i mixed up the two reports which he says the job description for a service representative did not include physical requirements so what you're argument he's looking at the physical requirements so that's all he asked to do correct and there is no dispute the appeal is completely the appeal letter from mr macdonald and in his client is completely devoid of any disagreement about the classification or the duties of miss castors job oftentimes we see your hundreds of probably seen other rissa cases and he didn't have to raise at the you have an independent obligation under the rags to consider the job duties when you're considering around it so it makes sense right i mean why wouldn't you have that duty because there was no dispute about your on the dispute about what he's saying i am not physically and mentally capable of performing the job to figure out if she is don't you have to consider the job duties with it at the time of the initial terminations there was no contention that she was mentally unable to perform the job it was only physical and so the classification which she agreed to that she conveyed to said with  job again these are folks that are sitting at a computer in their summarizing the discussion with her that she relayed in and gave a basic outline of what her job is at sit talk type if you look at the job description and judge rice analyze this in his opinion it really in compass is that obviously there's cognitive aspects of the job they are required but as far as the exertion level i don't think that misstates what the exertion level was and that's what  months in the court there talked about the fact that under this plan it's the plaintiffs or the claimants burden of proof to provide objective medical evidence and i would submit that also i especially if there's something unique you provide medical objective evidence what are you purposefully pointing to there well what i was going to add your honor is that i submit that she also has to provide information about her occupation if it's not if it's something unique or it's not encompass in the information that she previously provided i would say that the burden is on the claimant to provide the job as opposed to the burden on you representing how can that be if if he's taking issue with the job duties a great but if he's not taking issue with the job duties they are what they are and they're defined in detail at page two six i can't read your stuff thirteen forty seven of the yeah right getting the page wrong but they're provided in detail so if she's not taking issue with them why does she have to provide anything but my point would be because she wasn't taking issue in council she was represented by a very good a recent lawyer during the administrative review process my client has every reason to believe that there was no dispute or issue taken with the way they classified her job nonetheless they still because there was this other she did change absolutely change your theory of her disability that allowed to do that you're on i think it again depends on the terms of the plan i think here the reality is she was out of work she was not she did not meet the ability definitions of the plan any longer so that the they the plan could have but they didn't could have said your claim for these mental health conditions you were not eligible for if those developed later you weren't at work you were a participant of the plan any longer and therefore you aren't eligible we can't say that will be a post hoc rationalization at this point your honor so we can't add that fact to the case are that she had a number of physical and why the focus might have been the stand type because she had and she had a variety of very serious heart conditions but if you look at all the medical records starting from that but what's happened is the c diff result she has treatment for various heart problems some of the her problems are continuing and her focus becomes much more on the mental health issues so i'm not really sure why the evidence when they looked at it i think the when you actually look at the treatment records from early two thousand and fourteen until december of two thousand and fourteen they don't bear out any kind of significant mental health issues dr murphy was following her primary care physician he noted in march normal mood in our fact normal number on april first states no reports of anxiety or depression but there are other notes in the record there are minimal mentions of it  fairly frequently i thought i thought in december twenty fourth i think it was december twenty second murphy said that she needs to take time off i think was a combination of the conditions until march of two thousand and fifteen because of her anxiety shortness of breath and something else i'm trying to it his office visit on december twenty second of two thousand and fourteen he notes no depression no sleep disturbance no fatigue normal he does a small mini psychological exam each time that exam was normal he did note a complaint of anxiety in it and i think if you look in the context of it she was sure these other health risk or the department of labor regulation that you need to and what the regulation actually says is the fiduciary shall consult with a health care professional who is appropriate training necked experience in the field of medicine involved in the medical judgment so at the time of their appeal submission in june of two thousand and fifteen in i'll your honour's of reddit there the entire seven and a half pages of that letter are devoted to mental health conditions and the conclusion in summary are devoted to allegation your contention that she is disabled from mental health issues so at that time the field of medicine involved was psychiatry or mental health issues they did said we did in fact engage a doctor that was never used before dr pres the regulations do not say that going that extra mile is a violation of the regulation those are the regulations in the commentary section at the beginning set forth that these are minimum standards it would be it would be horrible for claimants and it wouldn't make any sense to punish it claims administrator in the plan for going above and beyond their obligation conrad second report i  think it it's almost exactly the same opinion he were under before your honor and that the that has some significance there was no over bottle there was no is the question was raised there was no response from d disagreeing with his statement that miss caster could go back to full time sedentary work there were no reports from any other cardiologist about her being disabled from cardio cardiovascular issues so there were no surprises in words updated report so one of the suggestions we made is even number one we don't think there was a violation the regulation number two we think there was substantial compliance and number three is a case to say there would be no basis or post what he said page six eighty three the post determination determination by go well that she remained disabled that that was submitted and that was reviewed by dr conrad he did not find that that that review that's the review he says is tainted in other words that doesn't meet the fresh eyes theory and go ahead we also had dr prez who's an internal medicine specialist who talked about the cardiovascular issues as well the just the increase in the ejection fraction her overall increase in her medical conditions and i think when you combine those facts and the fact that again there were some medical records submitted but there's no opinion from was court i feel lucky to have eric as a colleague we've known each other for years and these debates are who they're friendly to a couple observations is it talk type in the plan it's not is it talk type in the job description it's not in the final denial what do you get do you get in advance analysis of job duties then no you don't even gets a talk type then the only thing you get is the job title as just more you pointed out that we i think we all agree that for the physical requirements it is to talk type but for the mental requirements it's something more and the question is did they consider something more and they point to the reports and say of course we did we'd inputs it talk type there we put that this is what her job includes and they use the general duties why is that sufficient that is not sufficient because the plan calls for something different all the time we're talking about to know what it is that something more than one sentence something that manifests the idea of what actually is going on for what she earns and income for it technical compliance sales those kind i just give me a basket full of attributes that tell me that you know what she did because i think it makes a difference judge larson makes a difference especially when we're talking about stress and cardiac issues and sales i mean frankly the people that are calling  happy people anyway but nonetheless we get into this other point here and i've got about two minutes and i am shocked to learn that i have so much power over over over such a week in my appeal that it means so much the next time i will simply ask them just pay the claim i disagree with my colleague profoundly on the idea that miss caster has the burden to supply the job description that's crazy in fact it is confusing you're right he doesn't have  duty to supply the job description but wouldn't he have a duty to point out what abt her view of this job description he can't perform be cause either physical or  mental considering that the only time the conversation comes up is when she's home terribly ill i'm going to say no appeal right what's that so he had an appeal ten months later yes well at the point  time she agreed to sit talk type she was a month into the case the appeal didn't come for another year almost so your so i gather that your opponents argument pretty much is that when to at least two things meet her job do the least at least two things judge number one the first three paragraphs i'm calling into question how seventy can be normal under their standards adopted by such which in their file and how forty is good enough to put her back to work there's no explanation ever i raise that in the first three paragraphs and i'm also providing inside dr murphy's notes dr goals notes that highlight the ongoing problems she has after the denial but with my last six seconds i disagree profoundly that a code of federal regulations violation did not occur i think he's wrong about that and for one very simple reason he's he's trying to argue that if you just have a few extra doctors in your appeal then it's ok you don't violate the regulation and i think you do if you do what's said we did hear what they did was they absolutely divided those doctors didn't they look at the final denial at fourteen fifteen fourteen sixteen fourteen seventeen you're going to see that what you have is reliance on dr conrad from a cardiac perspective what was it the first time dr conrad's ritual port the only thing you can do is a cardiologist from a cardiac perspective miscast or never got fresh eyes from a cardiac perspective and that's why they violated the rule the remedy for that violation is clear the rules say that if you engage in that behavior you deprive the  claimant my time is up a full and fair review under under the code of federal regulations the remedy under vendor clock and the remedy under moyer versus metropolitan is clear of remained remain and remain thank you for your argument