been here all week and so you will have to have to speak up there's a bit of an echo we just can't compensate for absolutely honors you know as my client dan deemer was a hardworking fifty three year old career software engineer for i b m when by two thousand  his chronic severe degenerative disc disease which impacted him diffusely from the top of his neck all the way down to his hips require that he take morphine three times a day flexeril a muscle relaxer and other euro logical significant pain medications in order to control his debilitating pain now there's no dispute in this case that dreamer has severe degenerative disc disease metlife doesn't dispute that metlife also does not dispute that his treatment regimen including the powerful narcotic medication appropriately prescribed and that he was compliant with his treatment is roberts what is the evidence in the record of specific pain and cognitive impairment there was so severe that would prevent him from working even a sedentary job  sort of qualitative descriptions not very specific with respect to the evidence of cognitive impairment what you have is the sort of in some ways a common sense argument that you're taking thirty milligrams of morphine a day regularly that that's going to impact you cognitively from performing a job that's at the level of what the real impact from morphy may vary from person to person people respond differently i'm asking what's in a record here other than a general description is there anything specific that that would indicate that mr dean was not right what would deem or testified and through his declaration that he was able to as a result of that pain medications focus on very basic things particularly when it came to computer use or you know inputting data and he talks about that in his declaration but the with the the met life determined that he could not work at his present job but they would be able to work in a more sedentary position and his doctors did say that he seemed to be he seemed to be oriented you know time place and right yet you are happy to address that argument whether or not someone has the cognitive capability of doing a job and yes he was a software engineer and they did find him disabled from his own occupation but the any occupation standard is one that he can do begin his education experience and training he is a trained software engineer all of the positions they identified that he could perform still require a high level of cognitive functioning and whether or not you  you are oriented to your time your person your place all that saying is you're not delusional and the cognitive requirements of performing at a level of a software engineer is requires more than just that you know who you are is that the test whether he was able to perform a job a software engineer for long term disability i thought was any the test is whether or not he can perform any gainful occupation and that is just to make sure that we're clear on this when we get to long term disability it changes this is the pointed chin is making and we are wrong about that we're still what's in dispute in this case is the long term disability benefits he was paid under the own occupation standard for twelve months that was a long term disability benefit a counselor question is just is just that it changes to a different standard for long term right exactly  is that even the idea of the occupations that they identify that is one that would provide him gainful employment so any occupation still require a high level of functioning it's not enough that he can just do any job that he can just sit there at a tollbooth for instance and pass out tickets he's got to be able to earn sixty percent of what he was earning before and the jobs that they identify that they said that he could do still have a high level of cognition and so there's the issue of the pain medication but there's also any job that would yield sixty percent of his earlier income and that's what gets to the place where you think he has to use employ a higher level of cognitive functioning because he has to be able to hit that mark is that it yes your honor ok thank you for patience yes so there's the issue of the side effects of the pain medication and then there's also the issue of his pain and whether or not you know how long he can actually sit there and talk about the physical exertion requirements it's not enough that he can just sit still for half an hour at a time he's got to be able to focus and the based on the evidence that's in the record his constant came pain complaints that really are refuted i mean there's no evidence here that h some type of sedentary job but it's but he later clarified and he clarifies and other attending physician statements that demers disabled that given the entire whole picture make up considering his pain and his the cognitive impairments  pain medication that he's not able to work full time and so i really don't think that that can be taken out of context to say that more supports demers ability to do sedentary work because he really doesn't all of this treating physician support that he is disabled by taking you know all throughout demers claim when he's completed the attending physician statements he supported disability what about doctor coming in his notes that he had no disagreement with the conclusions of the june tenth i mean he thought that the recommendations were quote very fair write about but just to clarify your honor it wasn't an i and it was an independent medical evaluation it was a paper review but what he said was that he thought that dr del valley's assessment was a fair assessment and that's it's really unclear what he means only sit for approximately four to five hours intermittently and would need to be able to take breaks if necessary but what dr dale valley did and who had done them completely unjustified when it when she was given evidence that his condition had worsened said that he could sit more than what she initially said when she agreed with dr weedman so it's i don't think that you can take dr we've men's comment in this record that it was a fair assessment because he continued to support disability and he said so as well he also documented in that same record i believe that dinner wasn't even able to sit for two hours in a waiting room at the doctor's office without getting up losing his footing and falling so how he could actually sit and perform even a sedentary type of a position is not supported by the record what what do we do counsel with the additional evidence that she submitted after metlife denied the appeal you know that evidence i believe is properly part of the administrative record for one life actually produced it in th part of the administrative record and the counsel's letter which enclosed all that evidence said you know the doctors said they sent this to you directly right before you terminated the claim this is relevant they considered it and i think by considering that information and conducting a voluntary review they were acting as if i do sherry and that's probably they sent it over to a nurse practitioner to review so that i think they said we're not going to consider a just just to be cautious we sent it over to a nurse practitioner it's not exactly the same way that they treated everything else when you're i don't know that they said they weren't going to consider it they just said it doesn't change our opinion but that that means that they did consider it i mean they did have to get to some extent to decide doesn't change opinion right in the right security context when when a climate submits additional evidence and the appeals council reviews it we consider part of the administrative record that they're both rules don't necessarily apply here do they but you know i'd like to  know there's a case and i don't think aside in the briefs that's kind of vague it's out of the fifth circuit and it's cited with approval and a baby and really as long as the administrator has given was given a reasonable opportunity nothing circa didn't think very much of a good no it  did not but i think with respect to just this point the fifth circuit but you know that let me tell you what my concern ok and then and then you i'll give you a chance to respond so address my concerns so here's my concern my concern is that met life probably doesn't have to consider this they've  closed the record they've denied the appeal you provide them with additional evidence and met life ok we'll just take a quick we're just going to take a peek at it if we now then deem them to subject to the same rule that the appeals council at the social security level is is subject to that is that if the appeals council considers that it becomes part of the administrative record the incentive in the future will be for met life to say we won't consider it we don't have to consider it and we know what the consequences are if we do that is that we're then they were then bound by all of this and so to record it so it won't get done in the next case your honor well life's if i do cherie and this information was submitted literally days after they made a decision  before the administrator for it made a final determination because it's really supportive i mean the supplemental information yes it was updated m r i s that showed some significant worsening but the bulk of the evidence which supports his disability was already considered by met life and so i think that it's supportive and twenty six issue if i may they at the last minute produced affidavits by witnesses that they failed to disclose that the court relying on to say you know i'm not going to apply any skepticism did you have the ability to ask for for instance rule fifty six d relief if they come in in summary judgment or late with something that was earlier what would you have the right to say well wait a minute we need a chance for a fair right to discovery your honor you didn't do that it well yes at the trial court level we did make it so explicit fifty sixty requests but they objected to the evidence and she said well i'm not going to you know permit you to do discovery now it's too late because you didn't take a thirty six in the beginning of the case while discovery was open but there was no understanding is you just said that wasn't a request or did i miss that to get that role there i don't think it was styled as a rule fifty six or without this trial forget it i'm not concerned by how it was styled was there a request at that point to conduct additional discovery i don't believe so no your honor ok thank you for your candor right but again you know there it's their burden to demonstrate that they're not conflicted and rule twenty six a one be one the exception doesn't apply to arista cases just because we're looking at what we call an administrative record nolan in two thousand and nine says evidence of conflict of interest is outside of the administrative record so there's no reason that the rules of civil procedure when it comes to disclosures when it apply when it comes to conflict of interest information do you or should have been given a fair chance to him but if they do what if they do apply i'm sorry but if they do apply what if will twenty six applies then the court should not have considered those affidavits and it would not have served to reduce any type of skepticism that she would it's undisputed that the district court properly evaluated met life's claimed decision under the abuse of discretion standard of review met life in the plan contend that there is substantial evidence in the administrative record supporting metlife determination that terminated benefits for mr damer after twenty four months of paying benefits based on his depression which was limited to two years under the plan is a subject of our review at this point the final denial decision in two thousand and eleven not the initial denial decision in two thousand and ten to the extent that there may be some differences between the two yes your honor the decision before the court is the final brakes up to seven hours in a day being able to lift twenty pounds occasionally thirty five pounds rarely occasional bending twisting and stooping that's part of the findings  weidman found in two thousand and nine and two thousand and ten your honor it is true that dr gordon had different restrictions and limitations that he a pint were supported then dr  and that met life in its final decision letter outlined dr gordon's findings but ultimately it was it was the medical information in toto that met life found did not support disability under the any occupation standard of review but that you say it was supported by you know it was a reasonable decision supported by evidence i'm glad i couldn't find where these limitations which were quite a bit more expansive than what dr not conduct any examination this is a paper review correct your honor it's based on his review of all of the of the testing that was done that showed normal  is and the testing and look and evaluating that based on what the restrictions and limitations would be in his opinion based on his experience in light of those final objective findings and on the clinical observations of his treating physicians as opposed to their conclusions so in other words so to so just to stop there forgive me for interrupting but do any of the clinical object going back to  clinical observations include the caliber of restriction that wound up in the final report at any one of them i'm sorry well i think your response is he looked at the totality but if if if no part of of no piece of the earlier evidence supports that level of restriction i'm i'm i've got the same questions judge chan yes your honor will when applying restrictions and limitations in terms of a weight limit for carrying or in terms of how long a claimant can sit or stand even in examining physician is not observing the claimant sit for a certain period and decide that that's how long he can sit or carry certain weight and deciding that's how much he can carry even in examining physician and his treating physicians are giving their opinion about how long he can do those things in light of what they are observing  individual wasn't observing anything except records and so he got her accounting to go on and we're just trying to not a sneaky question i'm just trying to figure out what what supports that restriction is it what is it well again going back to what the treating physicians are saying they are concluding he has certain restrictions and limitations for example the treating neurologist is concluding that he can sit for five hours he can stand for five hours intermittently during the day some of the other treating physicians dr moore and dr oz bourne concluded that he couldn't sit or stand for more than an hour a day so they have varying opinions with respect to ours is a lot more is greater than between zero and five that's when i asked where does a seven hour that's big difference be able to seven hours means you could work a full day but if you can only sit for hours or five hours even with intermittent breaks that's a pretty severe restriction well your honor the the evidence with respect to what was preventing mr deemer from being able to do certain tasks was that his pain was limited limiting because of his orthopedic issues and the question is for the question posed to the various doctors is what does that limiting pain how does that impact what you can do and you know some of the doctors concluded that he could sit for longer periods before having to move and change positions and frankly your honor it varied from his treating physician to treating physician as well as the reviewing doctors but ultimately the conclusion was that well for dr device device for example she accepted dr weedman the treating neurologists restrictions  limitations and accepted even with those limitations he could still he was still not impaired from it did not accept his oltman conclusion that that mr dimon couldn't work due to multiple factors including chronic pain and depression does not sound like cherrypicking it's i'm going to accept this but not that what's the basis of rejecting the effect of the depression well your honor the plan limits benefits for depression to twenty four months right that's not what that issue here they denied and not based on the twenty is that what happened here they base it on the twenty four months running out for depression we paid we paid for twenty four months for the depression and would probably want to rethink what about the chronic pain right so the chronic pain is what was at issue after the twenty four months the depression was no longer at issue at that point it was the chronic pain and the pain was considered in fact that's the reason for providing those restrictions and limitations in other words the reviewing doctors that provided risk their their opinions with respect to the restrictions and limitations we're basing that on his subjective reports of pain that is what was causing him to not be able to sit for going straight or necessarily have to reject the credibility of mr deem and his supporters subjective description of pain i mean his description as wed to the effect of the medication in the pain were so all substantial that he could work i have assumed that the administrator although not expressly had to implicitly reject that correct ability to perform a sedentary occupation that's where the disagreement lie right and they had to reject his claim that he couldn't even do a sedentary job this is a very of yes great right so i projected the claim t and evidence of pain to do so on a purely paper record is sort of skating on thin ice in terms of the abuse of discretion which what's your is the sixth circuit out of whack are they that's something that we should reject well your hon i think it's not just a question of whether you are looking it pain and that's all the evidence you have and then are you going to have an eye on me to evaluate that when there is additional evidence in the administrative record that contradicts the severity claimed with respect to the pain in that circumstance where there is evidence from the treating physicians from their office visit notes that were contemporaneous with those visits that conflict with the level of severity of pain that's claimed by the claimant then in that case i don't think it would be necessary to have an independent medical exam because you have evidence in the record that directly  that in this record that contradicts the assertion of pain considering almost every treating physician found that he was disabled in part because of pain correct your honor starting with the neurologist  dr weidman again his restrictions and limitations would not have precluded the claimant from performing any occupation so although he concluded generally that the claimant was disabled the restrictions and limitations that weidman provided would not have actually precluded him from performing his if you only look at the physical restrictions but when he said you there are multiple factors here including pain he reached different conclusions on how does that undermine the cl subjective testimony here you said if there is something in the record that undermines ability then it's ok to do a paper said doesn't sound like there's a contradiction there well for example there are contemporaneous office visit notes the cl claimed general cognitive impairment and there are contemporaneous office visit notes that not only find the claimant to be oriented and and  not indicative of left letter g or other suggestions of cognitive impairment but there is no you know no clinical evidence that that is documented in those office visits that would suggest that there was cognitive impairment there is a general statement by the doctor adopting the claimants complaints of cognitive impairment but there's nothing in those records over time that support that there was cognitive impairment that be well there it would have been enough well there are many mental status exams that can be done that's not you know that doesn't rise to the level of cognitive testing certainly cognitive testing reveals whether or not there's cognitive but there are certainly clinical evidence that are short of that such as many mental status exams that are commonplace in in physician exams and even something as simple as doctor observations of patient lethargy or confusion or slow speech that's where an actual exam by the consulting physicians might have been helpful here except there was an absence of any of that by the treating physicians income and those types of jobs in his case were going to be because he had a good job and he had a pretty high income so the question is not in any occupation it's you know the patient would rely on him to operate at a pretty high cognitive level one of my concerns is whether or not the the treating examining physicians were putting that gloss on it or with whether they understood any occupation meant even you know sort of any type of sedentary work with without regard to the level of income he could generate well there was an occupational analysis based on the restrictions and limitations that were provided to assess what jobs were available based on those restrictions and limitations so if there had been cognitive impairment that had been documented that would have been taken into consideration in that vocational analysis not done an analysis assuming no cognitive impairment that that occupational analysis did not did not have a correct ok but but but isn't isn't it also clear in the record that this person is taking morphine every day and nobody disputes that he needs morphine from for his pain you want to there's no dispute with respect to the fact that the claimant was was taking medications not just morphine but other medications the question is whether or not there was cognitive appear impairment evidenced in the record as a result of those medications and there is not while there is a general statement by the claimant and by one of his treating physicians that he was that he was impacted by the medication there is no record to support but what's the difference in a general statement in the record in a record to support i i don't i'm not trying to give you a hard time but i promise me that's in the record so w really want to when i'm talking about a record i'm talking about the contemporaneous office visit notes when the when the claimant goes into his doctor reports what's going on the doctor examines him and makes a record of that exam over time there is nothing in those exam records that support a cognitive impairment now later in making a statement to metlife on behalf of the claimant in giving an opinion about disability at that point the treating physician adopted the claimant's representation that he had cognitive impairment but that was not documented in the medical records over the course of the time what would that have looked like what i mean what would a doctor have had to see the doctor would have just said you seem a little loopy today because well you're on morphine or typically it's not uncommon at all to see in medical records a doctor's observation that a claimant and i'm sorry that a patient is lethargic is confused isn't answering the questions is demonstrating there all of those things are things that are often cognitive impairment have to go all the way to that and you just can't you can't just say gee i just feel like i've got a i've got a bunch of rubber bands on my forehead and i just can't think clearly right now well your honor if that had been if that had been stated by the patient then it would have been pursued by the by the doctor presumably but those those statements are not in the record in those office visit notes those statements by the claimant like you're lot of money i think in one case one hundred seventy five thousand dollars a year on average during this period of time for a couple of years in a row and the other one hundred twenty five thousand dollars a year doing these types of  question is what was done in this case to minimize any risk of conflict ok so two parts to that firstly your honor the question at issue is whether met life is conflicted in its decision making and the fact that in this very record you have a doctor dr goslin a psychiatrist who upon who who similarly had reviewed many claims before had similarly received significant sums isn't any posing counsel right that it's your burden to show no conflict your honor with respect to the conflict the structural conflict is automatically applied as a factor and then with respect if there is nothing more than the structural conflict then you know that will impact how much it's weighed under glenn and a baby the court said that a that a claim administrator may submit affirmative evidence that it made efforts to to to reduce the bias and that was done in this case is that's my question what was done in this case ok so there was evidence in the declarations that met life separates its claims and financial functions so that the claims office in the financial officer  different buildings that the claims personnel are not incentivized financially for making a claim decisions one way or the other questions about these doctors not just the staff  but using these same doctors over and over again to judge chance exactly right that's my concern because i mean i don't see in the declarations where it says we use you know we don't use the same physicians over and over again we limit their  income to a certain percentage or a certain amount and that's the question there's case law on point expressing said skepticism or concern about using the same positions on these cases on the on the defense side or for frankly i think the same question would be could be put to the other side but over and over again that's the point what has been done here will in mid life does not dispute the information with respect to how often those doctors reviewed claims or how often they are or how much they were paid that information is accurate so there is not something in the record where we dispute that information or anything that that that goes to that rather the information supports that metlife considers whether whether the the physician consultant is supporting the claimants restrictions and limitations that result in payment of benefits or whether the the physician consultant is is disagreeing with the treaters and it doesn't support benefits this record itself shows that metlife considers that and evaluates that and in this case it adopted a physician consultant review that supported the claim and paid for twenty four months based upon that meant life or you time me met life keeps records of how often these folks opine that benefit should be provided no it does not no it does not why not wouldn't that be a very easy way to show that metlife is concerned in making sure that they aren't essentially hiring the same type of position to get the same type of opinion wouldn't that just be the very most effective way to make sure you're not in this position today well every day every medical opinion is based on the facts of that specific claim but it's very difficult when we get here and we have medical opinions based on folks who haven't been examined you know just the paper review in it's inherently very difficult for us your honor what i would say to that is if you were looking at an a bold conclusion from a physician consultant that opined that someone was not impaired or was impaired then you could say well i don't have enough information here to know whether or not this is a reasonable decision or not so so the fact that this person makes a lot of money and reviews a lot of claim is very important to me but in this case the decision that i'm sorry the opinions of the medical consultants were detailed they went through and as the district court found they went through a detailed chronology of the medical they considered each of the treating physicians opinions and they either adopted or if they rejected they explained why they were rejecting so that opinion the opinions themselves demonstrate their reasonable notice and so by looking at those it's evident from the record itself that there wasn't a bias because they are explaining the bases for their decisions thank you very much thank you on this robert your time reserved yes thank you your honor i want to make a few follow up points i just want to clarify that they didn't actually pay benefits for twenty four months the twenty four month limitation is not at issue here what happened is that there is an occupation period that lasts for twelve months and it was at that twelve month mark that they decided he was not disabled from any occupation it wasn't because they had exhausted the twenty four months of benefits for the mental illness limitation with respect to the standard of review that's delayed issues using the twenty four of the depression you still at issue because that he wasn't even paid for the twenty four months you know we're not contesting that he was disabled as a result of his depression and that he should have been paid additional time for his depression the argument is that as a result of his physical condition he was unable to perform any gainful occupation for which he is qualified by education experience and training and you know the united states supreme court and this court has made clear that life of bt nolan sloman on tour the court has to apply some degree of skepticism to metlife decision as a conflicted administrator here she applied no discretion i'm sorry no skepticism at all to their decision and in part relied significantly on these last minute affidavits to your question judge kristen about what did you do to minimize conflict really that it was nothing they relied on paper reviewers that they we go to and if there was going to be a you know if there was a dispute as there was between their treating doctors and the paper reviewers who they relied on to discount subjective evidence of pain why is it in  interest to have reviewers who consistently turn down the claims so that they can save money by denying claims well but they've they've they've divided off their financial people from their evaluation people and it seems to me that if metlife comes in to get screamed in court that they're going to spend a whole lot more money and lose credibility in the long term if if they're just routinely doing this well your honor i mean it seems to me there's a real financial incentive in the long term for met life to play this a little straighter than you just characterized right but you that's just not that long term incentive just isn't demonstrated in the way that they've administered my client's claim they relied on paper reviews that just discounted that goes to your claim that it doesn't really go to the question of skepticism the question of skepticism is a structural problem right not an individual problem that this court has made clear in montoro that where you have the paper reviews that discount things like the subjective evidence of pain that relying on them is evidence of conflict and it's an abuse of discretion what we're asking the court to do is follow really a well t path that set forth by the ninth circuit the only somewhat novel issue is the rule twenty six issue which i think that this court you know in line with its decision and no one will say that the rules of civil procedure apply to evidence of conflict of interest and that's what we're asking the court to do here because if the district court didn't rely on the self serving conclusory affidavits i think she would have played a level of skepticism that was much more significant she applied here it would have taken a harder look at dr gordon and dr del valley's opinions because they are not supported and with respect to the cognitive testing they didn't say what they wanted they don't say why it wasn't enough that demur complained that he didn't have the cognitive ability to work if they wanted like was there any clinical observation in the record contemporaneous that shows that kind of  complained yeah i mean there's like a note from dr deborah white men in two thousand and nine where she says you know danielle tells me that the goal is to keep them off of opiate medications he in general has not done well with them in terms of side effects another note from two thousand and seven that you know a door just a patch makes him druggy i mean there's these general statements of how he feels but no one from that wife told him to get a neurocognitive evaluation and so far on this court said if you are going to require that that is your responsibility to communicate that to the claimant so that the claimant can perfect his claim and he was deprived of the opportunity to do that what more i mean he didn't know what else to submit other than to say this is how i feel this is what i tell my doctors and this is what my third party witnesses also attest to as  my cognitive abilities and my experience of being in constant chronic pain and you know with respect to this issue of the i and me i think you know it was just really it's not i'm not saying that in every case that an irony is necessary but where you have a claim of disability that is based primarily subjective pain that and i am means important especially where you have paper reviewers who are trying to discount that and there's really no evidence in the record that contradicts the severity of what he's reporting i mean yes there's you know a statement where the doctor says he's oriented times three but that's their best evidence and that's just not enough