pilling from the district courts grant a summary judgment in favor of the plaintiff in this or is a disability case but the issues that are involved this appeal of already been decided by this court in a series of cases in house vs american united life insurance company this court held that it claimants regular occupation is a general occupation rather than the specific job they perform their employer in piling into versus hartford this court held that the department of labor's dictionary of occupational titles also it can't be considered because it's factual evidence the district court's decision in this case is contrary to each of these decisions and is therefore wrong and we ask that it be reversed interestingly enough if you look at the complaint filed by the plaintiff in this case she practically acknowledges that under the terms of this plan she's not entitled to benefits because what if she alleges she alleges that the policy had to restrictive of the definition of total disability to accommodate her situation her situation being she can't be exposed to cold in her job but that's no different from the situation that this court had in the house case in the house there was an attorney and he claimed he was disabled because he was a litigation attorney and that was a stressful position and this court held now your occupation is an attorney it's broader than a litigation attorney and there's is there two significant differences between this case and house by the way first is house was decided under the no will review in this case we have discretionary authority our interpretation as long as it's reasonable has to be followed and if the interpretation in house was deemed correct under the novo review it's impossible for that same interpretation to be unreasonable as the district court held in this case but we also have a definition this policy there was no definition of regular occupation and house but there is here and it specifically defines regular occupation as the way that the occupation is performed in the national economy and it does not look to the unique duties for an employer a specific employer so what happened in this case is reliance has a job description from pico foods it looks it over and it compares it with a dictionary of occupational titles and it finds an occupation of sanitarium and if you look on page eighteen of our opening brief you see that we've laid out a chart and to a t compares if you look at what pico said are the duties that she had to do with them it compares very favorably with what the sanitary and occupation requires and again under pylea and as long as that's in the administrative record and it's a reasonable one it cannot be considered an abuse of discretion so how do we know that this is a reasonable one in this case it was never rebutted by the plaintiff this is an arrest a case she had an appeal right and she exercised it and no where in her appeal that she submit an alternative d o t and say no you used the wrong one nowhere did she submit her own vocational report and say no you did it in correct analysis so it is an rebutted in the record here the d o t that was followed reliance so what we have here is if you compare this situation to house and house the occupation was an attorney not a litigation attorney who was exposed to stress in this case with a sanitarium and not a sanitarium in a checking processing plant who is exposed to coal and if you think about it this makes sense because sanitarium is involved in all food processing but not all food processing involves exposure to coal you take a look at the position of the you know anything in the baking industry there's no cold involved in those from what i can tell so you then have to want to have the district court in this case arrive at the wrong conclusion and it did so unfortunately by disregarding house and other decisions i mention and looking at the law and decisions from other circuits but the problem with that is this in many of those cases that the district court relied on there was no definition of regular occupation which we have here in many of those cases they were doing overall review which isn't the case here but most important we are not in those other circuits we are here in the fifth circuit and it is house that this case should have been decided on but the district court failed to do so and if you look at the district court's opinion that's clear that house was not follow the district court repeatedly referred to her job in a chicken processing plant anywhere in the united states that's not that's not her occupation that's her chop so the district court here also made mistakes because it believed that you had to match up every duty that she performed for employer with a d o t entry and there's only one in this administrative record as i pointed out so the district court then said no i'm going to look at every duty even though that's contrary to house and it actually said that this occupation involves three different d o t s so that tells you something that clearly the court went over broad in its analysis of what is a material duty of an occupation but we also know under robinson that was wrong in the robinson case the district court relied on a d o t that was not in the administrative record and the fifth circuit said no that was erroneous d o t is factual evidence that can't be factual evidence not in the record in an arrest a case and so on that basis alone it's clear the district court here erred mr nichols brief says that the district court u sed a judicial notice to identify the additional d o t remind me i don't remember whether the district judge used the term judicial notice or if that's just  supposition as to why the district court referred to an alternate d o t i don't recall him counsel correctly i don't recall the use what i do recall of judicial notice i do recall that the judge said as the defendant relied on the d therefore it's fair that i do so but that's not the law that's not what it said and robinson again judicial notice doesn't apply to situation we have factual evidence like this i mean if that was the case in robinson there would have been no problem with the district court's reliance on a new d o t but this court held no that's impermissible so if you look at it here we have a d o t which under pile and is reasonable to rely on to determine the material duties they do not include exposure to cold no no evidence was presented by ms nichols during here administrative review to contradict the evidence in this record and the conclusions in this record so when you look at house you look at robinson you look at piling and the undisputed facts in this case there is it's just impossible to conclude that this was an abuse of discretion so how did the district court come to that conclusion i think it was tainted by its conflict of interest analysis as well which is contrary to the law of this circuit so the court took an alliance to task for what it found was a history of misdeeds in deciding cases and it began by saying that reliance should have introduced evidence of its own on the conflict of interest question to show that it mitigated the conflict but that's incorrect from the start it is the plaintiff's burden to show that the conflict influence the decision and in fact in holland versus international paper five seventy six after tooth she has me two forty this court held that when there is no evidence of a conflict submitted like in this case it is not entitled to significant weight but this court the court just in the district court it started with the conflict it ended with a conflict and in between it was mostly the conflict that the court was talking about and its analysis in that regard was incorrect it realize that you cannot look at batting averages in other words how many cases the defendant one versus how many lost as evidence of a conflict but the court did something even worse in this case it only looked at those cases in which my client lost but it over a twenty year period and that's important because over that twenty years there are some big changes in the law that occurred for example black and decker versus nord from the supreme court which held that a the treating physician rule applied social security cases does not apply to orissa cases a lot of those cases were decided on that basis other cases are clearly contrary to the law of the circuit in some of the cases reliance was criticized for not conducting it in person examination but this court has held that there is no duty on the behalf of the plant to do so or conduct any investigation whatsoever some of the cases ironically enough were based on the vocational issue that was before the court and the court said we we have a history of misdeeds based on decisions that are contrary to this circuit's decision house how can it be an abuse of discretion to follow this court's law so when you look at what the district court did it had a conflict of interest analysis that was a rony as and then it tainted the entire decision by the district court and then you look also at the district court's vocational review and it is contrary to each and every one of the decisions from this district court from this appellate court and i think in just wrapping that part up it's important to know the court cited some fifth circuit cases in which the courts did look at the actual jobs performed by the claimants but there's a reason in those cases there was no d o t in the file in the administrative record so that was the only evidence available to the court in none of those cases where there was no d o t did the district courts then go out there job at his specific firm and decided to take another lawyer job and made an application saying that he was disabled and said that while his act occupation was really a trial attorney this is nothing similar  d the situation and this particular situation miss nichols her application said that she was an h a c c p coordinator and they knew she was at a chicken processing plant that the requirements of working in to chicken processing plant doesn't just a pot of pico it applies to every chicken processing plant across the nation maybe the world but at least the nation because of the federal rules that require meat to be  chicken meat to be chilled immediately after processing the defendant at one point in its brief tried to claim that well that really only had highlights twenty percent of her time but in reality it was the opposite what would it be ended up shining a lot of known is that really eighty percent of her time is working in cold temperatures because eighty percent is where it's after the processing after it has to be chilled  on there they've kind of set aside from that said well we just don't know they were very quick to say twenty percent when they thought i guess the chickens get prox us when the frozen and i don't know how they thought that but  anyway it's very clear that she spends a good amount of her time in cold environments which she cannot do with regard to the d o t definitions what they use is and a definition that is outdated they use something that hasn't been published since one thousand nine hundred nine and there are new ones out but there's a good reason for that you can't get them if you're a single person especially with a lawyer you can't just go out and get these old d o t laws or the z o d o t death definitions and they like that that they like to use these unpublished ones where you came from they've got the new ones th r own line but those are different what they like to do is they know these this position is performed nationally they try to say well this is limited to pico but they offer no evidence no one to say that it's limited to pico it's not and no reasonable person could conclude it would that that other churches chicken processing plants they never freeze their meat or chill it even though it's required by federal law and make the absolutely no sense there but that's what they want this court to conclude is that this is that they can use this d o t definition that does not comply with the job that she performed and certainly we can see that this fits and that this court holds that you can use d o t definitions but they have to be reasonable only as the court the district court found this job really gets broken down of that three categories and in their situation it only complied with one of them they  they mention at one point the fact that the jobs don't particularly line up are not that big of a deal and that they the court should not have been allowed to use the d t definitions that it found we honestly don't think the d o t should have been used at all and there we understand that you can use it in situations where something is not performed in the national economy on their not appreciate what the district court did trying to merge definitions because the d o t is vastly outdated but in this particular case the job was performed in the national economy and they could have looked at the job as it you think that's how you pronounce your name and she said well the sanitarium means that you only work in normal working environments and the response clinton says oh no we pulled doctors due to claimed to g medical opinions but that's not a medical opinion there she wasn't giving medical opinions they didn't need a medical opinion at that point they knew she couldn't work in cold environments this was just part of their plan to stop her  notice they cite the court case and i think it's robinson we're reliance did not put forward the d o t did not inform the plaintiff when they denied the claim that they were using d o t and did not put it in that ministry to brecker at that point in their in the court said that was improper but this is a different situation where reliance did put it in the record we know they're using the d o t and i think the court can take judicial notice about the court used two or three definitions to merge them and maybe that can be reasonable but in that situation the court found that by merging those three that the plaintiff could not perform the job on but i think it would be it would be great if the fifth circuit could clarify that issue a little more about these deities because what the insurance companies are doing is they're getting these and jumping to the d o t first not looking at the national condom if where these these jobs are a form because this court has said well you can use m d o t's but it's clarified if there's you know if the job is not performed particularly in the national economy and we cain't i think the words were we can't look at every job requirement that's outside of that that particular job description on there and expect insurance companies to do that but i think insurance companies should be cautioned not to use the d o t as just initial reaction on their to deny benefits on their they need to look at these jobs and national commie with and an example fist circuit judges you look at this if this was the insurance company looking at a fifth circuit judge you're not your position is not in the t there maybe you fall under secretary somewhere for reliance because you take some notes on there they follow just one criteria and they get to classify you as you as a secretary doctors in that situation where they went very broad and then very specific to say well this can only work in a normal working condition and i think that's and much loved answering questions you have and i don't think i have twenty minutes to talk on there but does the court have any questions or thank you counsel said that house is different and factually it is we're dealing with a lawyer versus a sanitarium but what's important is the whole thing in cells in house and what the court said in house was we do not believe that  that the law precludes an interpretation that interpretation here meaning the plans he said houses regular occupation was an attorney not restricted to his own specific job as a litigation attorney with the unique least stressful practice that's the holding and the court's decision in the district court here is contrary to what next when you address the amount of time that the claimant had to be in the cold that's nowhere in the record in fact he goes job description doesn't even explain that it involved any time in the cold council said it was eighty percent that's not in the record there is no evidence of the ministry of record on the amount of time she had to spend in the cold remember she's not in the processing plant all the time because that's not her job she had an office job for part of it she had to instruct other people on food safety she had to review incoming regulations on food safety so council put out a number that is not in the record and is not supported the council also referred to the d o t and he says it's outdated and he said you shouldn't rely on it well that's not what thailand says and pilot is the  and he's asking you to overrule house he's asking you to overrule pilot and this court can't do that and it shouldn't do that because especially in this case there is zero contrary evidence he's telling you you shouldn't rely on  the d o t that the defendant used and it's inaccurate son reasonable it's not it matches up as i said with the duties that were identified by her own employer but counsel has waived any argument against the t because there is no contrary evidence in the administrative record in this case i honestly do not understand counsel's arguments regarding doctors through doctors who was asked does she have or a nose and does that mean she should not work in the cold and dr shu said yes that is a medical opinion the problem is even with that medical opinion doesn't mean she qualifies for benefits under the terms of this policy she doesn't so for him to say that a medical doctor provided a vocational review that is entirely in accurate again councils asking you to toss out the window house and how  the fines a regular occupation he's asking you to ignore the definition in this policy he's asking you to rely on post hoc arguments and in schadler this court held you can't do that if it's not in the administrative record it can't be considered in fact the definition in this policy was regular occupation which is the same thing as in house but in cases such as birch and robinson it said own occupation instead of regular occupation is right right that is correct but to be honest courts have said there is no significant difference between the two that are regular they said if anything and by saying own occupation it kind of links it closer to your own job than regular which denotes something that is broader so if anything the fact that we say regular not only is it in house but it denotes again something much more broader so if you look at the district courts