new initially very well from that surgery but then started experiencing additional low back problems in was referred out again in two thousand and five for a subsequent more serious i think more invasive  employed and she owned a hair salon up to that point in time and so i guess we're going to talk a lot about objective vs subjective here objectively as she was no longer able to handle the the  the mr he let me make the suggestion to maximize your time that you have available i'm not sure we even get to objective and subjective you want to focus on the language of district judge used but this novo review right so we're supposed to look at the evidence in the record and we're supposed to determine whether the provisions in the policy are met right yes or now the policy says there has to be a significant change in her ability to work basically yes a significant change in her functional capacity what do you say is the beginning point in the ending point during which we look at whether there has been a significant change in the window when that's arguing about this insertion of a temporal requirement her i'm just asking you what you say it would be approximately change a change means from one time to another time so what are the two times sure it evolved from one nine hundred ninety nine through two thousand and twelve ok so we look to see if there's been a significant not a change but a significant change from one thousand nine hundred nine to two thousand and twelve that's what we're supposed to do right i can't find any evidence of there being a significant change in terms of the medical records themselves and when i look at the doctor treating physicians opinion that you refer us to understandably i can't see anything in that opinion the tells us why he thought that this woman met the definition in the policy to establish that she was disabled i realize that he says i think she's disabled ok i get that but he has to tell us generally speaking for a doctor to help somebody they would have to say what the basis of that conclusion and or and it would have to be cooperated by the record so he doesn't say why she's disabled and the record doesn't show what that there's really been any change she had she's had these problems for a long period of time she's been able to work either with with some pain or without some pain so tell me what i'm missing where do i look at in the record that cooperates both the basis of the doctor's opinion and anything else in the medical records forget objective forget subjective just we're on the record as a show of change like to start just a half a bridge upstream from that with the letters that were written to my client informing her  had been denied and the reasons for that because if you look at those those two letters denying both initially denying the benefits and then denying the appeal they don't see anything like we don't find objective evidence of your  disability or we don't see a quote significant change in your capacity to work please explain to us how your symptoms have evolved or why they have evolved so that a physician would understand or that specially in the first instance when the individuals are always proceeding on represented would understand exactly what it is they have to submit now to directly answer your question judge mckee again i think it's a very good question it's not a car accident kind of case we're just happened it's a case that evolves over time and we do have in the record obviously and i know you're well aware multiple m arise in x rays showing just disease of various levels in both the cervical in the lumbar spine but what you're looking for is an increase in symptoms well no it's not it's not just an increase in a certain symptom and it could be new things that have happened to her it could be new diagnoses it could be evidence that yeah she could work ok in one thousand nine hundred nine but her pain has gotten worse and it's manifested by request for more drugs different drugs stronger drugs i have to go i have to go i have to take leave because my back  too much i mean we see these cases all the time and there are there is illian different things that happen to people that cooperate their claim of subjective pain that just means they can't work whether you call that a need for objective evidence or not we are looking for something that cooperate their claim of subjective pain that meets the definition in the policy well be very problematic i think if this was sort of a type situation or even a chronic fatigue or that type of a case where it's hard to point to the causation for the pain but in this case when they're doing these repeat m r i is in there looking in seeing that there's disc bulge that explains the ridiculous apathy that is but showing a change in what they see in the m r i stood just concentrate on that front or is it or is it the m r i it's basically showing the same thing from one thousand nine hundred nine to two thousand and again change from when i started and always have she didn't always have this ever we started out you said we look at her condition in two thousand nine hundred ninety nine and we see if it's significantly changed in her functional capacity ninety nine because that's when her put her pain complaints initially started as anybody interpreted we don't read our eyes has anybody interpreted or m r eyes in their notes or reports or whatever to show a change from a to m r i b or c or d or however many there were well in the reports between two thousand and two when the first surgery and then two thousand and five the second surgery certainly they did there was nerve root impingement which was the reason why they had to go in to do the second surgery so we see change there and then what you get after the two thousand and six two thousand and five surgery in six seven eight nine months say with dr j very is that you have up to twelve months of pain relief from epidural injections injections and if you look over time you see that the interval starts to decrease all the way up to getting your second sure so we're focusing now on the language and policy that says there must be a significant change in condition you've handled this case through the administrative appeals process is that correct that's correct and you were asked for additional information regarding very sassed facts of this case that's correct and so was mrs counting the plan as i read there are two decisions never mention the phrase significant change in condition is that your reading that's my reading and you were never asked to submit information on that condition no they focused on whether or argument in this case yes so when you were very little argument whether there was disability or not not whether there was a significant change in condition that's right that's right in so when we started oral argument in the district court thinking that it was going to be about preexisting conditions and whether or not she was disabled nurses giving opinions against board certified pain management doctors the only in primary inquiry was this in this preamble to the definitions which i've made the argument that could could arguably that's not even part of the definition of disability it's an assumption that you had a significant change in your body she did she wasn't born with multiple level this disease it's something that evolved in her body over time to the point where she starts making complaints in ninety nine she had surgery in two thousand and two two thousand and five she's got post laminectomy syndrome bilateral ridiculous apathy in up to two thousand and twelve at the point when she goes out of work she's getting no pain relief is an epidural injections according to dr fitzgerald in the most recent in scuse me in the most recent records and that's when she goes out of work so the change the significant change in her work in her ability to work or her functional capacity happens over years it's an evolving condition the definition of disability there's a preamble that says you've had a significant change in your body that that alters your functional capacity such that colon and then you get the definition of disability you're no longer able to do the material substantial duties of your own occupation and then also i don't understand a follow up and judge argus is question ysaye that the district judge was focused on  prior to that the companies focused on whether she's disabled will hold definition of disability says because of an injury or sickness a significant change in her mental or physical functional capacity has occurred in which you are then i give some examples how how would one determine whether somebody was disabled within the meaning of the policy without looking at whether there was a significant change i'm sorry to interrupt but but yes judge making so to put a finer point on it it was what was required of mutual modest to tell us are you are you not paying benefits here because you are saying that she is not disabled from doing her job because that's what they said in the letters it's quite different to say we don't think you've ever had  change a significant change in your functional capacity judge jonker raised that issue that was the first time that i heard that issue and quite frankly i didn't understand what he meant because i knew this was a woman who was otherwise healthy with no complaints of back pain and with until nine hundred ninety nine when she's forty years old and then she starts gradually having increased back symptoms and problems two back surgeries in the story goes on from there and you know as further evidence the way she was doing continuous p t nonstop from two thousand and two thousand and twelve when she went off work and interval p t before that from two thousand and five to two thousand and nine getting less and less relief from all these modalities until she's eventually getting no relief and judge mckee gives you that pointed out a minute ago where's the uptick in pain medications and symptoms and so forth we also see right down the stretch where she had to be perscribe bike it in and percocet i believe  because her headaches were getting so bad she couldn't sleep at night so there so you say we can find evidence in the record that there was either an increase in or change in the type of medication during this period believe the record does support that yes yes but i believe the my primary point in being here today is what judge targets raised and that is this is an entirely different basis for denial than what mutual of omaha actually relied on in their in their letters so basically in essence you're claiming that they waived the reliance on the part of the definition the talks about a significant change well i'd say more strongly than that i don't really believe that's part of the definition i believe that if you are doing if you're disabled from from performing the material in substantial duties of your job it would be because your functional capacity has been reduced because you've experienced a change and that could be physical mental you know the odd part of that and i'm not unsympathetic to your claim but this is not the first case where we've been confronted with a set of facts where somebody is working in pain and soldiering on and trying to do just the best job they can and then they finally say i can't take it anymore and then the company says well you didn't become disabled you've been disabled a lot and you said and somebody then will say what jeez i should be penalized for having tried to do my best while i was disabled but in fact that appears to be what this language in this policy directs itself to and correctly or incorrectly that's what the policies so we do have to follow the policy and look for a substantial change because that's what it says or we have to agree with you that the company didn't rely upon that and they waive that that that basis for their decision seems to me those are really the only choices but as to the first choice in the context of a review in construing terms against a draft or new favor of coverage i think there's only one way to construe that that phrase about changing functional capacity and that is you have to look at this one person's lifetime there is no temporal restriction it doesn't have to be from when you start work or some other period of time sure body was changing over the years think about the average person who's diagnosed with a mouth it might take three or four years for the diagnosis to even become complete it's a diagnosis of exclusion and then they might work for another eight years within months until alternately they can no longer work so if we're going to put temporal restrictions on or has to be clear in the policy when this functional change has to appear otherwise we have to look at the total person in the total record and here we had a person who was able to work in at least medium capacity owning owning her own salon with no back complaints at all until the one nine hundred ninety nine are you really serious when you say if we look at substantial change we look at whether somebody's body's change from the time they were born to well  they what they claim disability it take your point that they could be ridiculous from infancy on we're all changing every day about what but as to the condition that we're talking about here to look at the record from ninety nine to two thousand and twelve i mean her back has gone out of control first of all anybody who has made mistakes an earlier you cannot be lax in this example there are some conditions that are acute is the word the medical profession would use but there are other that are what are called progressive and usually debilitating and that's a category i assume you're talking about yes your honor and i think if we stick with those two categories that's where this becomes interesting i think because if it's progressive that fits in with the definition of substantial change it's a progressive disease it was x and she was able to work with it and it progressed and it got worse and then she became unable to work it seems to me if that's the facts the facts prove that you went but if but if if if it's not progressive if it's just an intrinsic condition if she was able to work and not only that work under that condition for however many years it was then it seems to me they come back and say she can't see she's disabled from that intrinsic condition because she manifested her ability to work in practice for in this case  how long did she work for this company six years subject to this policy so they say she's not this this this non progressive condition if that's their case couldn't possibly be shown to be disabling because she she demonstrated she was able to work given that condition whatever was for six years if you ever done a lot of back cases i assume yes you were seen intended disc ace get better now over have you had cases where you have chronic back problems and they they list that they last for years and years and years typically after two back surgeries and i bet if we counted them up the record here is going to show probably over thirty to forty epidural injections another series of facade injections and which is an awful procedure she said multiple result of these with all this physical therapy with this level of treatment absolutely not i think it's curious in telling judgment kid to look at this record in find a woman who's treated for this long  in this rap you know consistently over time and there's not one indication in with any treat or symptom magnification or moaning greeting or a woman who doesn't want to work because when you do have people that don't go back to work or are trying to get out of work you always see that somewhere in the record some doctor somewhere along the line says i think she can do more i think she self limiting that type of thing but here doctors are exactly the opposite and i guess one last comment i would before you go too far out on that i mean your doctor that you want to rely upon sensor out for the f c e n e f c e suggest that she may be over reporting her subjective pain or that a subjective pain is not cooperated by the record that's the guy your doctor center well that's he says a lot more than that and i would i would ask you to read the entire report but interesting about the f c e there can't be a more subjective conclusion then she may be the operative word being may she may be able to do sedentary or light work that's what the f c quote quote unquote concluded as these are a snapshot done on one particular day in say very little if not nothing about a person's ability to go back to work consistently over time with predictability forty hours a week we can and we got with regular second vacation time and what i would submit in this is a major problem with f c s is we don't look at how they're doing the next day after they go push pull tug then neil stoop and do these little things so that the benefits to put into the record the evidence that cooperates that you meet the definition of the policy now the problem with all that as you pointed out earlier is a lot of times these people are not represented and they don't know how to do that at present a problem is much much worse than them yes it's our obligation to put in evidence to to verify and support our claim but the claim is carved out the parameters of the claim and what we have to demonstrate that's what mutual mohan tells us you haven't you haven't explained to us why you're disabled focusing only on the second part of the definition had they said you need to somehow have your doctor quantify how you're getting worse or why you're getting worse or why you were able to work in the sendiri job for almost six years and now you cannot well that's something we could have addressed but to blindside or at this point in the process is unfair and it absolutely violates eleven thirty three of us are you wanting  addressed by the fund and they would have to be have to address it would be the relief he would get if you prevail on that particular point that i'm not sure other words we have this issue of was there a significant change vission the decider of that question is and what we review it's a decision from the the plan administrator that's right your argument they didn't make a decision so the relief you would get it would seem to me would be to send it back to them and tell them to make a decision or in the alternative did we respond to the actual requests that they made in terms of when they deny this under section eleven thirty three of the five zero three eleven thirty three of a risk when they have to set forth in detail so the average person can understand the basis of the denial in they did that and we responded to it with a board certified pain management doctor against two nurse record reviewers did we satisfy our burton under the novo review and i think that that's sufficient to warrant benefits and there's no great catastrophe by awarding benefits we still have to prove our claim again at twenty four months and then at any interval that mutual home all thinks is warranted thereafter because you always have an ongoing obligation twenty four months w thought this was a long term that we were talking about well you know this is the in this is this claim a short term disability was was paid and then when she went on to long term disability it was immediately denied with no benefits being paid now the long term policies and then she filed a claim for long term disability insurance with mutual of omaha mutual mommy have actually adjusted her act as the claims administrator for the short term do not believe they were the payer of the benefits and that's a totally separate types of long term one that last for twenty four months and then another after that it's one policy with a bifurcated definition of disability if you go back to that same page with a definition of disability is says you can't do the material substantial substantial duties of your own occupation then it continues in the very next paragraph and says but after twenty four months you must be disabled from the material substantial duties of all occupations to continue receiving benefits that's all under the long term policy correct so we win this one we still we still have to continue proving change will make a huge difference because it's already sedentary work but you could say ok you lost that she can't do this job but she could do some other job yes i got that one of the question i know way over i don't have the denial letters and i know i can find them from the record but i'm sure you're intimately familiar with them you're seemingly saying that the denial letters honed right in on basically the first bullet under definition of disability which is prevented from performing at least one of the material duties  on a full time or part time basis is that what it says yes so your argument is they were just looking at whether you could do the job not looking at whether or not being able to do the job was a result of a significant change good morning your honour's james e brown a representing the happily defendant and united of omaha for let me by way of foot no indicate that the short term disability was handled by the company for which she worked not by my client the defendant united of omaha and i think it was a self insurance situation the the policy says quote disability and disabled means of because of an injury or sickness a significant change in your mental or physical functional capacity has occurred in which you are prevented from performing at least one of the material duties of your regular occupation on a part time or full time basis and be able to generate current earnings which exceed ninety nine percent of your basic monthly earnings due to that same injury or sickness close quote i think mr heaney is right that you got to tell somebody why you're denying their benefits with some specificity right but that's that's the case now he says you only focused in on a portion of the disability definition you didn't you didn't rely upon whether there had been whether that question of disability whether the disability was was a result of a significant change is that jurors at entre i don't think that's true because of what you tell them because the letters to her quoted from the policy quoted the language should i just read the whole definition because the whole definition includes what i just read about significant change in functional capacity i have the documents in front of me and on the first page there is about oh more than a full page when you go the next page have a quote of just what the policy language sets and then there's about four pages of analysis we get to the end that language isn't there it talks about that for example the first opinion says that the documentation does not support the restrictions limitations that would preclude ms kone from performing the material duties of a regular occupation that's a human resource manager therefore no benefits are payable that that's the language of the decision is beginning that is correct think your own but if if your if the point of the risk is to tell somebody why denying their benefits and then let them know that they can appeal isn't it fair to tell them why and so they don't have to guess about what part of the definition they are is the basis of your decision well put the letters do that in the sense of course the definition and then it says that your situation does not satisfy the definition i mean that's what it boils down to that that you haven't satisfied the requirements of the disability definition in this case that's what it comes down to  what judge jarvis is reading to you sounds like it says the portion of the definition that they don't comply with is only the part that you can't perform the material duties not that there's has or hasn't been a significant change is that right or wrong  i assume that that's correct so so whatever if you didn't tell them that you were lying upon the significant change portion than what do you what do you say the law is whether the company is relied upon that and can't now come back and say well gee there wasn't a significant change what i see is that the definition being quoted including significant change in functional capacity and then the company going through the collected evidence that's been furnished to it co s that you haven't satisfied disability requirements under the policy necessarily includes necessarily includes that you have not satisfying significant functional change but for there's the appeal of far right correct was it was this issue of significant change even argued before judge younker before he relied upon that portion of the policy that was the entire argument almost significant change or whether she could do the job judge made a decision that was somewhat different than the conclusion would be the same but the reason it would be different and i believe you indicated in your also in your brief you haven't weighed the other argument but the primary decision made by the fund was of a different variety and you correct but judge judge john kerr expressly indicated that he was not going to decide that because his analysis of significant change in functional capacity was sufficient to dispose of the case and judge yonkers spent virtually the entire substance of his colloquy with counsel and his remarks from the bench talking about whether there had been significant change in functional capacity and mr haney basically would tell us that he's blind sided by that he didn't know that's what you're relying upon and jaco went off on his own is that fair is unfair i don't think it's fair and i don't believe it well with we're talking about the district court at the district court as you know and we know there can be no new evidence there the review is of what the planet misstated did the real question is was there blindsided in this during the administrative review the only reason to dispute that statement by your posing counsel yes i don't see any blank side in this at all in the administrative review of the provisions of the policy including significant change in functional capacity what was was well known to the point is part of the contract was stated in the letters of disposing of the claim and then the appeal for that language is there at all times in this case but the beginning of this process is not meant to be  lost the words of plant participant implies there are documents and if the things missing when we expect the plan to write a letter back saying we need your birth certificate and we need proof that your condition has undergone a significant change is there anything in the record that indicates they have or asked the appellant in this case for that kind of information yes in the sense that they asked for all medical records all records that you plaintiff and i think she was represented by mr hanging on the appeal yes in any event that we want all the records with all the records having to do with your condition in that you believe support your position and that necessarily includes the records on which was based the decision on the significant change in functional capacity not being satisfied here i mean that's what judgment keyed went through in his  again with counsel and in his the spoken remarks from the stand not unfortunately to my knowledge there's no transcript of that hearing in this case because i believe that the playing of assets there not be a transcript but trying to hide something something so i'm just saying you want to pay for it in connection with the appeal i'm guessing that that may be the case here but you're saying that was the substance of the argument absolutely and that was because that's the way the argument was framed by the two lawyers or because yet the judge ocker framed it that way in his questions to mister bouck both because that's how i framed it in the a brief to the court and because the court framed it itself in those terms now in the u s what the court your reefing in the district court did did mr haney claim that you had waived the ability to rely upon the significant change language in the policy absolutely not but to my knowledge that's an argument that just came up this morning and i believe it came up spurred by a question from judge zark so bottom line is you're saying if you read these denial letters in their entirety somebody should have been able to figure out that it was the entire definition of disability and not just whether you could perform the material duties of your job correct your own loss plus i mean the the essence of the definition is significant change in functional capacity what do you say is the time period we would be looking at assuming that is an issue for a more significant change implies that something happened from point a time a to time b what's a and what's  long well if you if on friday you commit and say you can't work you're not looking to see if there's been a significant change from thursday night friday morning or friday morning to friday noon or you know no it's going to be a long you from birth to two thousand and twelve but he realized that probably wouldn't fly so what do you say it is i say is the time she worked for the employer from which she stopped working so it's not one thousand nine hundred nine it's two she worked there six years so it's what two thousand and three thousand six hundred believe it or two thousand and twelve what if someone started working there eighteen months before so now they have to prove a change in eighteen months as opposed to the last five years strictly speaking not not expressly no but you say that it's the period of time within which the policy had been be been in effect and i take it that goes back to two thousand and six you guys insure the whole time you know that this policy went into effect two thousand and twelve i believe but but to be clear if you were a sales person of disability insurance and you sold me a policy that says i had to be disabled during the time the policies in existence if i had a back problem or fibromyalgia or any number of chronic conditions i would be buying very much for the first few years wh first of all we would look at the brothers preexisting condition and if you're if you're telling me of the policy of bought the states a group policy and there's no screening so so so there is a possibility preexisting condition analysis  hypothetical well but the problem is if we make this date short dated somebody starts working somewhere or date that policy goes into effect if people have a progressive debilitating disease as it looks like that's what conditions we're looking at here that somebody changes jobs their risk of being uncovered for disability insurance it sounds like it depends on the language of the policy it depends on the specific circumstances so it could be  when we look at the lack of a temporal issue here there is no definition of how long we look back it seems to me those circumstances come into play in how we interpret that language for him here in fact in in the with the district court at oral argument and in the briefing by defendant in this case half that the district court level was well of those level we looked at the records in and judge jonker looked at the medical records going all the way back to one nine hundred ninety nine and if you look at those records in most of the records are are from ninety two thousand and six for we're going to go back nineteen jobs during this time period in her position was each one was too hard to do with that's why she kept moving to less exertional positions so it doesn't indicate that she's fine and that things changing but if we if you just look at this job seems to meet this employer's the reasonable one that we should be looking at first of all it says is either got to be an injury or sickness now there's no injury here so we have to rely upon sickness and we assume that having chronic back problems would fall within the definition of sickness generally speaking i agree with that and we speak you know so then we look to see if there's a significant change has has occurred and if there has then we look to see if that significant change has caused her to be prevented from performing so on and so forth are unable to generate currents that sequentially that's what it seems to say so i'm assuming your position is regardless of how far back we go during the six year period she's working she can't show a significant change from it at any point during the time she was working for this employer to the time she said she was incapable of working that basically the bottom line of play the game pick up sticks is a more like one stick on top of the other and eventually wants to crashes the whole device down isn't that sometimes the situation when conditions progress i'm familiar with that game i was going to long time i don't think this case is exactly like that well they played if i have a good at all my question is i'm having a little trouble seeing the difference in the rubrics if you could work then you're not disabled on the definition if you're actually working because the definition is your own able to work right and if later you can't work then i don't see how that's different from saying there's been a substantial change i mean if at point a you could work because you're working at point b you can't work because a doctor says you can't work and you let all these reasons are that say you can't work has and thereby and then by definition of substantial change before you could work now you can't so i'm not sure why you to analyze it first in terms of substantial change in ordered and then look at whether you can work why can't you look and say right now they this you can't work four years ago or whenever it was the first year you were working you could work in fact you were working so therefore there's a substantial change if in fact now you can't work let's just look at whether you can't work and not worry about all this substantial change jargon i'm not saying that's what we should do but i meant i'm having trouble seeing what the difference is they have a problem with what i hear your honor saying is that factually there there was no change that could be pointed to medically to explain why this individual  doctor working in the lion's den of this will work well the only thing us she can point to her fact that she says her back or she can't work so the question is do you have to have more than just simply saying i can't work and seems to be have to have proof of that right say i ha of but if you have proof that you can't work now why do you have to worry about whether there's been a substantial change there has been a substantial change because you can't work now and before you could so it's i don't see how the proof is going to be any different you prove that they can't work now maybe you do it by looking for m r i s or maybe you do it by looking for pain test all those ways that you prove it you know once you prove that you've proved a substantial change haven't you i don't know maybe you haven't proved it i'm not saying you have i'm just trying to tilt it at the at the jargon the jargon seems to be sort of focused on something which is jargon i mean a you can talk about whether they had a chance before to address this different way of looking at it but i don't see how it's that much of a different way of looking at it it's just are you disabled now if you are there's been a substantial change from when you weren't disabled but if you're not disabled now there had been a substantial change and in plastics company and she did this job in which she had a clerical sedentary type duties during that period her medical records keep showing that she has the same level of disability that she's had throughout that's fix your period suddenly in the middle of of two thousand and twelve in july of two thousand and twelve she goes off work company then tell it to go off work then ask her to go off work she goes off work and in what she tells us in the claim form which she tells us and the claim form is that i couldn't continue to work because i couldn't drive myself certain places because i couldn't do certain day to day activities in my life and all that the chief used to be able to do but we had to look at the evidence even look at the proof the proof is this she drove herself to medical appointments so she could that you don't know what she may go home and lie down for two hours after that there's just so much we can gather in terms of evidence i mean that speculation which which was a part of the record let's go back to judge roger's point which seemed to be is a good one she's working construes regularly and then all of a sudden she says that she can't work if the proof shows she really can't work and cooperate so that then it seems to me that the significant change caused by a sickness or injury takes care of itself that seems logical to me you agree with that so then it comes right it's really right back where we started forty minutes ago however long it was what is the proof that she that there was a change in her sickness progressive disabling whatever it was that accounts for why all of a sudden she can no longer work now when it comes out and if defendant says there was no such evidence of such a change and it's a burden of proof for the for talking about with mr brown we look back she's working period of time of six years we look to see what the evidence is i'm not going to call it objective or subjective look to sit look at the record was there a change caused by her back condition that meant she could no longer work in that fair i think i really do think you go back a little bit further than the period of time she's working there because you have to you have to get a good understanding of what her overall  condition is but to follow up on judge sarkis this point even if you do start in two thousand and six you start out with a person you have to look at the history a person who has worked her way down from medium level job all the way into sedentary work while she's treating with pain management doctors getting continuous p t injections and all of this stuff i get it but she's doing the sedentary job for six years and in that so what she what is a record show was the change within that six year period beginning middle and out of here the  shows she no longer can take on her pain management doctor who is intimately familiar with her who is a help aided spasm and objectively verified her conditions and is linked to the spasms and ridiculous apathy to m r i findings so that there's positive clinical correlation between what she's complaining of and what he has seen on film it's like these doctors as you know how this works in the clinical setting there they're like human lie detectors they're always looking for especially with pain there was looking for people who are seeking you know treatment who are trying to get pain pills things like that so he's constantly verifying her conditions and she's just hanging on by a thread in the most sedentary type job you can do until finally she can no longer do that again in the proof of it is what he tells us there will be a really good argument if if the record cooperated that if the doctor had just said that i would say oh great argument mystery and if they would have told us that that's an issue we needed to address he would have said that and that gets back to judge targus again got worse or me i don't think he says that she's got worse as well he he previously said she could work yes absolutely he supported her continuing to work as long as she possibly could and does he tell us in this report by direct objective evidence when he talks about the fact that now she's no longer getting any pain relief from this last epidural injection that i've done the last one they did in two thousand and twelve right before she goes out of work she doesn't get pain relief from it and if you go back and look at these cereal injections that she's getting she's getting less and less and less and less pain relief she's needing pain meds now to control her headaches so she can sleep she's getting an uptick in her requests for pain meds she's getting well i guess a little would be absolutely right if she could only work because of the salutary effects of an epidural and then they no longer help her that would be a change and that's and that's exactly what the record shows so is there anything else that we should look for in your opinion other than table back when she's being treated by the physician overlooking what his notes say now what he comes up with later very clumsy language by me and i apologize what i meant when i said on the table was what they put in the first denial letter we don't get a chance to respond the second one in the second one doesn't help in many ways but in the first denial letter where they don't ever even allude to the first part of the definition about this it basically says she's not the sable and you're responded with a letter from her doctor outlining why he believes she was disabled against a nurse and if you want to delve further into what we knew and when you don't have to take my word for it you can look at the issues that we briefed in the underlying court that issues never even discussed change the first time change comes up which is during oral argument from the judge on her but what about it it is true that the argument was she was working and she stopped working now that's change right so how can you say well gee change change never came up she could she was able to work she one able to work that's change now what i'm saying specifically is whether was satisfied that aspect of the definition that you know had mutual mahsud you haven't demonstrated a significant change in your capacity to work ok but instead what we have to read the five page letter to see if we agree with you on that ok