and it you know way back you know what it was not very much but now it's accumulating what you can help me with on this in terms of in the way that you can spend your time is similar to a case that we had before i mean there's obviously a lot of things wrong with your client and there were a lot of things wrong with him over a period of time of which during that period of time he tried he continued to work even though some doctors told him not to work and it seems that in december it was that summer fourteenth or something that they think's the date for when supposedly we're talking about what was wrong  and so then we have the ninety day period end so that the issue of whether he could go back to work whether it had been resolved or what had happened on the form i think it's an angioplasty and hearing was handled you know how you know how do we get past some of those things that seem to resolve differences of opinions or differences of doctors or what his condition was the  the findings of fact that were signed by the trial judge were almost a rubber stamp of what the defense submitted in fact in my opening brief i'm pretty sure it's now been brief because sometimes i get caught up between the the opening and the reply i even call that intention i said if you and i cite the exact page and i say it's almost word for word so basically at that point in time that the test is particularly close scrutiny of those findings not deference and when the reason this appellate it took me so long and the reason this appellate review so long is because i had to go through and show that there is no support there is no such neutral evidence there is no support for those who goes to fight for example the word recovers the courts misused there is nothing in the record that no medical records no no opinion of any expert that says you recover this is the case your honor where is your honor said he suffered they've admitted i believe least he suffers from serious heart disease th yes there's no dispute that the job is stressful that was admitted for the first time at trial there's no dispute that or can there be that workplace stress increases the risk of another cardiac event that's not disputed mr silver followed his doctor's advice i mean that's the common karen prudence rule that even judge now let's talk about in the similar and even in the unpublished decisions of this chord pretty much say the same thing so then we have this social security administration to grant him total disability they find and this is in my grief that the man is credible this is part of this is you know they truly try to well he's not credible because he's doing this and that the social security actually looked at him and they said he's credible and yet they excluded the judge excluded cardiologist to look at him they didn't hire an independent cardiologist to look at his medical records what do they have they have in house cardiologist who looks at their medical records and by the way when they ask for the medical records they ask for them only after december of two thousand they don't go back and say give us everything you want to your history we want to see that to the bypasses we want to see the ins you grand you want to see all this other stuff no they december fourteenth two thousand and three amsterdam plastic is that how it was analyzed or with that analyzed from the fact whether he was recovering from his cardiac problem your honor i love the answer your question but i don't know what we have in this case this is all we have from unit is for very terse memos from the in house cardiologist who apparently goes to the reconcile and it was almost like you take your program on your computer and you look for words they look for good and improved and things of this nature out of context and they they totally disregard union other companies will use the in house people and they start minimizing or even this regarding the decisions of the only the participants cardiologist that with the district court's conclusion that sauber did not provide sufficient evidence to support a finding that he was disabled throughout the ninety day or lemonade period isn't isn't that what we're looking at again the reason it took me so much time in pages to go through this is i had to show that there was no substantial evidence to support these findings which were basically rubber occlusions yes they say well they had bypass but he doesn't have the use i mean they can't these medical records still show that used arteries automatically open up it's just it's just i don't know how anybody can cook could conclude that he recovered in there is no they can't point to anything in the in the record any substantial evidence of medical record to say it's history he recovered  the record you've got them agreeing with dr tonton that he should have cardiac rehabilitation but after the cart at the end he should stay away from work but after the twelve week rehabilitation he can go back to work makes no titian for doing the same thing same doctor pretty not exactly the same thing but pretty close to the same thing in the end they were rejected so we have a situation where we've got dipoles we've got what happened doctor talk and i don't know i don't know what why they said that what the reasons were it is a pretty broad a pretty broad statement you're familiar with all the problems are i'm sorry you're familiar with all the problems that you see i know i just i'm not i'm not familiar with  but this is this has to do with a very specific issue that you know i have to say over you know that i mean they really don't have very much wrong with them or there are indications that you know there's interpretations that he does are faking or they're over and pain or whatever this person a how is this person not just sample during a good he doesn't seem like he's very well at the end of the ninety days and if you're talking about just the angioplasty ok did you recover from the entry of plasty but if he also listed heart disease how is he better for his heart disease thank you appreciate the opportunity to address your civic concerns coronary artery disease is not as a diagnosis in and of itself a disability the trial court found that numerous trial courts and district courts across the nation have so found that cheney is a wonderful example of that many people live and work millions of them perhaps with her coronary artery disease on a daily basis the issue is whether that disease is manifesting itself in a way that precludes you from working and in looking at it the district court looked at test results objective test results conducted by pla  from the parties reviewed a twenty six hundred page administrative record which the entirety of which is not for the support that was designated as part of the record on appeal these issues have been briefed explored and examined thoroughly by the underlying court i understand that the that the standard of review here is clearly erroneous with close scrutiny to the record because the court adopted you know findings eye to two points to raise with regard to that issue specifically that the findings were adopted because they were based upon the court's observations and comments over a three day period of trial that's one issue and the second issue i've already mentioned which is are quite lengthy and i wanted to point out to the court that in applying the standard of close scrutiny and looking at the record that it may need to since it was designated on appeal may need to look to the remainder of the administrative record that is why i raised and not to suggest the out for an independent medical examination at that point counsel pointed the court to the fact that an angiogram is the only definitive example of whether there would be a blocked artery query whether that's true because there are there is the skin y particular trial court is not does not shy away from independent medical examinations and another case of the walker case which was approved by this court it was an arrest a case and during litigation the trial  appointed a medical expert for purposes of clarifying and helping the court to better understand medical issues the court being that unnecessary care and made a finding to that effect and furthermore it's not just dr condition and that was after second angioplasty in may of two thousand and one when social security has to do with depression right yes i only point to it because we're talking about what is the medical evidence with regard to that as to depression whether that was just a line condition specifically the court made findings with regard to the social security administration's report that it relied on an awarding  benefit in the court to look to those but found that the report was based upon plaintiff's kind that he had started taking medications for depression in right after his procedure in just over two thousand the court look to see what medications he was taking before and way or another that he couldn't work obviously surgery on the gentleman well was he asked to address that issue i mean how can we have don't we say from that whether you can work or not if it's not i think i think what needs to be looked at i times has raised that dr cell and not addressing the issue should be an inference in favor of plaintiff because he shouldn't have had to address the issue the reality is that doctors sell then addressed other lifestyle changes that plaintiff needed to make the fact that he didn't address the specific issues you know maybe says nothing and certainly doesn't say the opposite it's ok so that's ok so is there anyone that that is being used to support that he cannot work that actually saw him no your honor they're based on record reviews but again when you're talking about someone who is recovering from an angioplasty and again you never said he doesn't have coronary artery the decision was that think the thing is that is very troubling to this corky is that this is a very sick man and he persisted in working when he probably should not have been working and to say that he can go back to work under stressful conditions he's had how many open so heart surgeries at least to how many angioplasty procedures you just kind of define  case where there are two separate periods of disability with a period in the middle of non disability and that's been units positioned but certainly when he went in for substance procedure in may two thousand and one he can became disabled the up the telephone call dr talking and said please show me what it is you're relying upon to determine that he cannot handle stress as that of this ninety day elimination period during this relevant time period dr talking said look at these reports from may of two thousand and one they're going to show you small vessel just a disease that's why he can't handle stress now other issues that already been looked at as kenya that's one thing that might indicate that you can't handle stress ok inability to exercise because not reveal in the court found and review those reports itself the court similarly found that did not reveal the doctor talking playing specifically small vessel disease so you know i never said you know you're always going to be able to work with this with this condition and i think that the district court below grappled with the same concerns that the court is addressing here today but it did so thoroughly it did not do so in a dismissive manner it considered all of these issues thoroughly in fact on the last ten trial the court that i've identified six issues as i as i understand them they're all issues because plaintiff has made them issues and i want additional briefing on those issues because they may well affect my decision in this case plaintiff was given every opportunity to prove his case partly to the trial court below and was unable to do so again and a multiplicity of  conditions if those conditions are stable if they're being treated if their wealth controlled does not necessarily mean coronary artery disease is just a fling the final the final point i do want to make  court also should consider whether someone who doesn't make a claim for a particular condition is that you know it's inspiring to to consider these additional conditions some of which were addressed in the administrative record and by the district court  results were normal that it in fact was abnormal that's not accurate to echocardiograms were done one was a resting echocardiogram one was a stress like ok both interpretations were contained in the same itself specifically shows that final injections in both arteries revealed a widely paid site without evidence of residual stenosis it does show that they had to take a couple tries at one of the arteries but they were both successfully spent at that  doing it and you focus on the stress factor and certainly plaintiff was on notice of what the issues were for purposes of appeal that's our concern with a sufficiency of a denial letter do you have a target at which to target for your appeal can referenced or have to do with the appeal of an adverse benefit determination require two things first that the records be requested and then they have to be thanked of course and secondly that everything that is that needed to a claim administrator has to be taken social security age twenty one of my opening brief talks about the records that social security had referring to as heart disease and one little snippet of the bottom deterioration likely under stressful situations in consistencies none claimant appears credible no significant improvement can be expected even with treatment given history of so overal january hospitalization the maybe hospitalization and that's three but there's a fourth one it's not a hospitalization excerpt of record page eleven sixty three october of two thousand and one dr tonkin still responding that mr silver is not well enough to go back to work next the records that counselor first knew i didn't make a big issue here because it's all in my brief they closed the record for us and they kept it open for themselves those in my brief two and finally your honor i didn't mention it but i would like to mention it that i don't think remand is appropriate here i think the court's got the whole record this means we had close to five years now in fact he was only eligible for five years of disability to begin with because he's goes out when he's sixty or sixty one whatever it was you only get paid sixty five it's only five years so we go back down it's going to be another five years or whatever it's going to be and he'll be dead so united states of america versus title and one zero five five zero zero nine zero