submitted or pointed out in our post re manned submission and internal appeal of the case and under rissa lincoln is a fiduciary and it's bound to act as a neutral taking in facts and letting the chips fall as they may and lincoln's obligation is to fall off really consider at least awfully consider the evidence that the claimant submits in this case it ignored them completely now remember the framework for the case because although the record is very large we have is the just record had found that lincoln had abuses discretion the for the st time around to the district court and remanded the case of lincoln to solve one question was stephen mor claim as part of that process we go back to lincoln and we submit medical records and in the st round narrative statements trying to get lincoln to focus on steven mo functionality his ability to work at any job even on a part time basis in january one two thousand and fifteen that stuff the all that's a single operative issue here and so we point out to hey lincoln look at the records from december of two thousand and fourteen and early january even to generate two thousand and fourteen and let's st look at the medical records what does it say about stephen morse's ability to function objective measures that one colleges use to assess a patient's ability to live life and to function it's a language on colleges use so that they can talk with each other score in december th was eighty percent which is really good can do sedentary work december thirty like two days before the operative date record generally feels well unremarkable review of symptoms carnacki performance score eighty percent and use walking freely seven days or seven days into january doing well no new complains a different objective measure the economy score is one which means abnormal symptoms invertebrate travels down to texas to a cancer center for treatment all the weapon till august when he does he passes away in september of two thousand and fifteen and even as a august of two thousand and fifteen he's  observed about steve morse is a condition in this january one you know this december to january period in two thousand and fourteen and fifteen a power phrase but basically healthiest sick guy we ever mr morris was and there but unable to work at all you do is ongoing treatment and chronically low counts during this period from october really a cobra twenty four dollars team to when he died in september and lincoln relies on this s statement could be one of three things it could be an opinion that he couldn't work at all it could be an opinion that he couldn't work at his job which was what was that opinion submitted or so so mr mr morris got that opinion from the doctor and submitted it what did he submit it or so no what you're talking about is our repl  our appeal of lincoln's initial denial and that i think what i'm talking about i'm just i don't recall as i was asking about mr morris submitted his doctor statement that he was unable to work for short term disability benefits so that's not what happened there help me understand why not well if what you're talking about is a dr patel donnelley statement that we just quote it let's make sure you are on the same day we talk about that  yes or ok that's a statement dr patel donnelly allegedly made and a phone call to lincoln's uncolored just what we call a peer to peer recall so steve morris did not submit that statement no what if the definition of disability was fortune as policy was you think mr morse in january generally one could have worked out an occupation even on a part time basis she said yes he lakers wella no service no judge came what she said was i didn't understand when i made that statement what he meant by unable to work says own statement on behalf of sort term disability i mean i don't know this right or wrong but it seems consistent with what the oncologist you just described later sad and both seem to provide some evidence that that the story now as a little different so dr spear is this statement is in attending physician statement did it in october remember that's when mr morris was diagnosed and he was very sick and judge if the if the operative day that we're talking about here is october october th then no there's no coverage in the case and we have those all right but he started treatment and all of the evidence around january one was that he had the capacity to do at least part time work and he had a good educational background to do work and so this is where it gets that's important because in addition to the patel donnelly explanation ition we submitted a letter from his employer saying yes if you had wanted to do this work from home telework we would have had work for him to do remember he didn't need to do it because he had a good long term disability policy just just can not thank you m his ability to work it appears to me that you still have an argument under the policy language of the supplemental policy you're right difficulty the one hundred and eighty dollars day requirement so i think it might be a good idea for you to at least spend some of your time addressing that let me let me talk about it so so yes your honor under the supplemental policy is it applying totally disabled and you have been unable to work for one hundred and eighty days the reason i say that not essential the court doesn't even need to go here is because my main argument in this case is how we submitted these seven pieces of evidence that lincoln never even two things requires a deliberate i understood your question i guess if i could tell you this is a friendly question i think that it on my part i it seems to me that in order to cover the bases to have us consider the range of territory here on appeal that you need to none ssion at least a one hundred and eighty day requirement for long term disability in  supplemental policy or you haven't covered all your bases i kind of want to hear everything you know best so we can all of us as a group under the supplemental policy in four years for lincoln to prevail as of january one stephen morse would have had to have been unable to work for one hundred and eighty dollars days because that is the definition of disability under the policy and he was not diagnosed it didn't get sick until october so he had not been unable to work for one hundred and eighty days and i think i'm answering your friendly question well and i'm wondering how good gents trying to go off the rails there i mean how did you address that in the district can you least briefly address the issue exhaustion before that ministre her so i understand i believe the argument at the district and i think you sort of acknowledged below that you could have done a better job of it but you know that you did raise it and we can evaluate that but ultimately of about issue exhaustion before that men are straighter because it seemed pretty clear that this issue never came up before the administrator what were you required to do that i may or may not have been so i will give you that issue that specific legal argument never came up my bigger arista principal point is that they didn't address anything that we sent in our appeal and when you look at the the report of the let me let me just back you up once i get let me ask it a slightly different way or do you agree that there  answers yes yes thank you very much might the point i would like to leave the court with you know as i sit on this st time is j one hundred and fifteen is the report of the nurse that that provides the basis for lincoln's final denial it's really clear from not she never even got our peel she lists our prior appeals pre remote and she doesn't mention any of the seven discrete bodies of evidence that we provided and she doesn't discuss any then course it doesn't make it into the into the denial letter so it if the court upholds lincoln's procedure in this case it's it's unreasonable reasoning processes in my view insurance companies are going to be able to say strictly enforce the policy terms and in this case this particular case to look at this issue as if a finding of total disability on january st two thousand and fifteen meant an award of benefits because it has to look two thousand and fifteen the fact is you know i don't you know i want to get your your word in on that piece if you like but the follow justinian's guidance to your to your colleague can you can you talk a little bit about the supplemental policy and in particular sort of three points and remind you if you don't know keep them but one is issue exhaustion before the administrators or is there any reason to believe that there is given the nature of that proceeding in the lack of any plan language suggesting that there is this to exhaustion nd what your argument is that it was not raised before the district court  exhaustion not issue exhaustion rights of his the sims case from the supreme court in the agency context but so i totally agree that there's administrative exhaustions required there's a separate question about issue exhaustion which is not you d lincoln didn't argue that it is he was waved in the district or didn't find the issue was waived and it was presented to the district core what what why would i or why would this core find the issue asking you mr decker a very simple question what is the date from which we measure for purposes of this appeal the date from which we measure the one hundred and eighty days what m if we find that it wasn't waved in the just record how do we get to the beyond that clear policy language the man didn't know he had a q mile of the t v until october so he clearly didn't meet might but here's here's the here's the challenge and this is you know judge king and i asked own what date right what do we judge it by and we look at the pick fair to satisfy our work rule and it says are not totally disabled own the date the policy takes effect and i assume agree the policy took effect on january st right for that's right you're on what that means and it's certainly not an armchair interpretation of it what that means is is he pick that person is that that's what the pic is intended to do you're on it's intended to not have liggett taking a risk that it can't price for and assess somebody who's on their deathbed you know after fine for but we should find that that mr morris was entitled to an extension of life insurance benefits under the prior point he clearly he clearly was not informs both three and four year on how to how do i know that on three tell me what i'm looking at to figure that argument out now that i just had heard that argument yeah so where how would i know that he's entitled to an extensive life insurance and the prior plan the prior plan has the exact what it's trying to do is say listen if we're trying to figure out which policy this person comes in under right and if they're if they're able to extend on to the prior plan then they're not going to be an insurer on your lickings plan that rather than policy language and the judge necessarily synonymous let me let me make the point another way so it's clear that the pit is trying it is trying to prevent someone from shoot some phone through the gap you know someone who used it was not at work for a short period of time and died before you can go back to it's what it's not what the detailed intent is clear that it's not intended to give someone an opportunity to get something that they would not otherwise fifty nine you have another another suggestion where i could find an extension of wife insurance provision and if you do not have it with the my colleagues in life insurance coverage from rights that accrue from the same plan you can have done what happened here if you chose to convert you cannot convert and keep the group the big group the group  coverage and mr glass just don't that's not no big deal to people it's a huge deal the people the option to convert is extremely expensive you're turning it into a new individual policy so you've got to pay those premiums no one  really choose to convert if they can extend the insurance under the prior plan it ringback would be that makes no sense you want to extend the group coverage as long as you possibly can so if there was no change in coverage said and there are people who can't afford to convert so mr glass is asking you to do is to find that someone in mr maurice's position who can afford to convert is not to can't do household activities this is not going to be able to return to any occupation because because there is there is no remission again as it is a december thirty s he's in the office with dr patel and she's telling him you know we don't even know if there's a clinical trial that you can participate in i am under any taste anywhere where an insurance company said to a person answer to ration well yeah because you've had some good days in between you know doctors you know switch their opinions and that's just not a way thing to to consider the procedural arguments that there is some some requirement to detail every piece of evidence that's not the case gotcha oh when the when there is no exact response so i think that feels as well it looks like my time is up your honour's are there any other questions  he had convert i've no idea whether that's expensive or not it probably is mr doug is probably right but the reality is that's that's what he did and importantly when you look at judge trying goes i'm sorry i'm sorry back back up that you said two different things you it is you think he was not entitled to any extension of life insurance under the prior plan he had converted the policy and he had and that policy had ended and this is exactly w policy i'm sorry the st day prior policy the reliance policy it was coming to an end december thirty one you would no longer be covered every employee of energy systems were offered a chance you can now buy an individual policy he goose chase to go get a letter from reliance say he would not have been eligible for this extension of death benefit under the reliance policy judge trent because of course he wasn't he had converted the problems that the policy has the where where is ok thank you the nd thing is you know i just want to go back and thank you for the questions about issue exhaustion remember i think all of these people claimants need lawyers to appeal these rissa cases with their insurance companies but the vast majority of them are not lawyers and so to require a consumer to make to exhaust legal arguments in his or her appeal back up a lot of insurance company ask what can we do for you and he says i may be able to work again this is january sub generous seven i may be able to work from home do computer work with limited hours i heard the questions  asked of the court would be good because you've used language in several unpublished opinions like there must be a meaningful dialogue and the concerns come you must you know like least fairly address these proclaim an rational and principled decision making process you can't find that word in this claim filed in this record at all so unless there's any other questions the rest on the arguments and on the brief