to deal with all this time and you know i'm going to waste a little bit of my time just thinking about something and that is our district courts are backed up something fierce and they have these cases have to go to the district court judge rather than maybe a change in the rules and let's mandate him soon as you streets first or something to help with the backlog i i just say that by way of the fight with respect to judicial ministration and because our judges are so busy and don't have a kind to to look deeply into these things we end up with situations like the mary merkel case that we have here this morning where the judge went off on an issue that everybody agreed was not an issue i suspect the reason that the judge went off on his part time work capability issue even though the briefs on the motions clearly stated it was not a relevant issue in the briefs on appeal to confirm that as well i think what happened is that it came up during oral argument and what i think happened is that the judge in thinking about this matter after taking under advisement probably played the tape of the oral severe asthma tears in both knees degenerative arthritis hypertension heart murmur chest palpitations chest pains episodes of sync hope which have become kind of important in this case was her blackouts or  fainting spells if you will memory loss disorientation chronic fatigue syndrome these are just some of the laundry list of her problems and then alternately depression but it's interesting to note when you read the record in this case that the depression started treatment after she had already stopped working because of all of her physical problems and dr monica in his report was part of the abstract record is  well you know it's an abuse of discretion whenever the carrier fails to engage and as jeff the you just talking about puts that in a good faith bilateral exchange of information you know the sherri obligations and we throw that word around a lot but what are we really talking about in terms of what the obligations of an administrator like liberty are i think certainly we all agree full disclosure is a paramount  ok you know this thing went through five or six years and there was a time period for very short time when liberty question itself as to whether she really was disabled an account of not all problems or a physical problem very brief period of time apart from that very brief period of time fairly consistent view that it w the first couple years disability on account of mental condition all right well let's deal with that issue first of all i don't know what you judge driver mean by a short period of time that was at least eighteen months while payments are being made so for three quarters of the time the payments were being made it was said it was the kember ninety eight through november ninety eight was the period i said i want period during which they questioned whether it was could have been one of the but in truth that was never resolved from the start of the plane it was coming up that was the eighteen month period and they're looking at the claim and they realize you know we've never been able to put our finger on whether this is a mental approved your claim on mental nervous that was not true that was in this representation because as you yourself were just pointed out eighteen months into the claim they still didn't know they just approve without picking one of the other and then when that was coming up to the two year period and let's face face that issue as well you know the self interest issue in these cases where we have situations like i mean the participant is pleading over and over don't cherry pick and piecemeal me with an orthopedist or a cardiologist you need an internist because i've got this global constellation of problems and that's the only skilled person that's in of that's a position to comment on that and it took a long long time before and a lot of letter writing by the merkins before the company finally agreed to do that then they the first report they get from dr massey says this lady can't work more than four hours per day that report disappears from the file i mean you know that it wasn't there when the file was produced at the beginning of this litigation and it's only after i reviewed the file and saw something's missing here that that that document was never reports criticized the second internist was dr massey turn around and sent it to him and he writes back to them this woman is disabled to work from working and the two things that he points out in his letter are number one memory loss and number two at the end of his letter episodes of cinco which of these blackouts and fainting spells now what happens in other good faith bilateral is change of information you should be telling your plan participant what you discovering through the process you just don't write a letter and say here's all the bad things in the reasons why you're playing doesn't fly don't we have a certain good thing why do sherry obligation to open it all up and say look there are some things here that support the claim but we question these that would at least give the plan participants an opportunity to get better documentation from our own internist to deal with those things to work what the findings were of the companies that turn i mean i i do a lot of this work and you see a lot of these cases where i didn't take this file because it involves a great deal of money i took this file simply because i'm looking at it if you're shocked my conscience what they did then deny the claim ultimately quoting verbatim from dr massie's report letter with the exceptional leaving off the last sentence where he says she's disabled for more i mean don't know how much time i have left here and i do want to save some time if i have ninety minutes oh good for now i'll take another four minutes to talk about some other things there are so many other things i'd like to talk to you judge reimer about your decision and safa let's everybody in this circus loves it because what do you talk about basic things if it's not stated in the plan you can't use it to justify denial there it was the question of accommodations to the to the work environment here it's such things as part time work which is a non issue and yet this is what the district court went off on but it's also object of medical evidence now gosh i know that you guys hear about this all the time and it's really a problem in the real world and let me tell you about is the opinion of the treating physician subjective or object when i ask this question of the people in the insurance industry sometimes i hear yes and sometimes i hear no because what is objective medical evidence which isn't in the plan anyway and is never defined anywhere to tell us these things but let's say let's say that it's subjective all of the opinions that the insurance company gets from its consultants are equally subjective how they can say there's no object of medical evidence to support a pla when they're relying on subjective medical opinions of their own revealing that i suppose it has something to do with thanks race and things like that i've always thought that what that distinction means is that there are some form difference between objectivity and subject i think it is sometimes but let's take it this way if a consultant for the insurance company says i don't believe there is any object of evidence to support this claim that's his conclusion and analysis based upon test results or whatever but that opinion is still subjective it's his can anytime we're drawing a conclusion from facts that common where the insurance company says to the treating physicians what object of medical testing what jact of medical things do you find let's look at mary merkins case the primarily disabling conditions as we know our memory loss i think open disorientation there's no way to test for these things they simply happen i suffer from vertigo and praise the lord i don't drop on this floor environment all over here because i never know when it's going to happen i can report that to my doctor the insurance company calls it anecdotal but i mean these this is patient history this is what doctors traditionally have rel you're saying that it had been approved initially for mental nervous when in fact that wasn't true taking taking relying on massey's reports deny the plane but not relying on it for supporting the plane is another example the part time work issue by the way just so you understand and we all know it's not an issue the judge went off on it it happened because of  i can tell you for a fact that opposing counsels of a fine lawyer and an excellent colleague i will leave you as are all the people we get to deal with down in our jurisdiction i'm delighted to say  you know i'm just going to save my time to see how things go here and and follow up as need be t is murky disabled from her own treating physicians and psychiatrist she's disabled because of major depression even though she has multiple physical issues she can't even with sinco work  full time that's what her own cardiologist dr weber said so that's why she's disabled that's why this decision was appropriate first i want to press three points with the court i'm going to talk about the fact that the appropriate standard review to be applied in this case was the abuse of discretion standard as applied by the district court but i think a review of this record will show that even if you were to review it you know mo that the decision of the district court was appropriate secondly i'm going to talk about the district court's proper application of the abuse of discretion standard and finally i'm going to address the argument that the mental and nervous disorder language of the liberty plan is a big us i do want to point out we believe that's been waived as i was never raised at the district court level was never considered by the court and it's hard for this court now to review that when it was never dealt with below the proper standard of review in this case is abuse of discretion there isn't any dispute that in this particular case the plan language invest the discretion necessary in the administrator not only to determine claimed benefits but also to interpret the plan and i did issue consequently unless this court actually the district court and again it's not supported by the record first argument they make is that liberty took inconsistent positions on the basis for paying the disability benefits in this case that's not what the record says when disability benefits were applied for doctor mancha submitted in attending physician statement and that's in the record excerpt of record tab eighteen page sixty five that said she has a number of issues but under the second page it says restrictions cannot work psychiatric issues the record again tab eighteen page three shows in the liberty notes that he specifically said we now have enough evidence to substantiate paying this claim on a psychiatric basis case management not now indicated removed from his client so when this case was originally paid he was paid based on the evidence of a psychiatric disability we the court talked about the september three thousand nine hundred ninety eight note and it's very important to look at medical issues it says c l changed from an end to sickness you know this claim and what you'll see in the record following that is liberty then setting out to contact the treating doctors with that point now say disability is that's when nervous liberty communicates that to mrs markland in february of ninety nine and poll tells her at the same time that her benefits will expire when the middle nervous period is over consistently throughout this claim has usually approved for the twenty four months based on a primary diagnosis of major depression and we can argue semantics but that is what the file shows they had the evidence of a psychiatric issue paid disability with the alternative issue came of potentially another issue it was investigated it was maintained at psychiatric and that's what mrs merkel was told there's no evidence of conflict of interest on that issue the third argument that they make to try to say there's a conflict of interest is an argument that somehow liberty manipulated the independent review process and they make a couple of issues or raise a couple of issues there they say that liberty didn't have an independent medical examination done and therefore that's evidence of manipulating the review they haven't cited to you because there isn't any language in this plan that says you have to have an independent medical examination of someone under any circumstance that's not evidence of manipulation in the review process further during the time mighty ninety seven in ninety nine when those benefits were paid the treating cardiologist and the treating psychiatry again confirmed she was disabled from a psychiatric reason not a physical libertine went before they terminated  work full time based on physical though even getting those doctors to confirm some of the for the benefits were terminated looks to me like it's handling the review process appropriately not manipulating it the last argument seems had wanted answered and he didn't answer them she tried to get him to answer me he wouldn't so even though the evidence was helpful to liberty what did she do she went out and got another internist dr massey dr massey came back and he commented on issues he was even to comment on that's why his report was criticized i didn't ask him to talk about the psychiatric issue they knew from the psychiatric standpoint she was disabled but that was three quarters of his report but what's important in his report  early ninety seven and their own doctor indicated this despite that as being a potential symptom she can work full time so that the next argument seems to be that because all of dr massey report wasn't included in the letter that said for the fifth time we're holding our determination of benefits they claim that somehow that's hiding the ball hiding the record what was put in the letter was what was pertinent they were telling her that the decision had been to terminate benefits because her treatment was psychiatric exactly what dr massey said there was no reason to comment on the stay quote issues because she wasn't having them there was no evidence in the record clinical that she was having and again i think the critical part is her own doctors less than five months before this benefits these benefits were terminated knowing think hope fainting occasionally happens said she could work full time in a sedentary position not just four hours a day and when the letter came out the next day or the two days later mrs merkel asked for a copy of dr massey school report that's produced they really wanted to manipulate the record they would have done that finally they argue that because in the litigation when the claim filed was originally produced dr forbes report was missing is somehow evidence of manipulation of the independent review process that's in litigation that's not in the claim or the appeal handling irrelevant really but more importantly if they wanted to manipulate the record the notes that were in the file indicating that there had been an electric transmission of dr for the report they'd been scrubbed clean as well they work that's how  district court below apply the proper standard which is abuse of discretion as this court knows when you apply that standard you have to give great deference to the district court's decision and unless you find clearly erroneous decision by the cour evidence and not from independent folks prefer mrs workmen's own doctors that says she can work full time sedentary based on physical her depression is what caused finally in place of argues for the first time on appeal that the plan language on the issue of mental a nervous disorders and they give us that he she should be considered by this court again because it wasn't raised below and it's critical here it's not a technical issue because in the line case which came out after the patterson case cited by the plaintiff they said that if you find that the disk the district court had an abuse of discretion for and that's the way they were reviewing the claim they also have that same level of standard when they interpret the language of the plan and here because it was never raised as an issue below we don't have any interpretation by the district court for you to review one way or another on that issue it's been waived and it's important and more importantly if the court were to consider that issue the language in our plan is different than patterson and we don't believe there is an ambiguity and we wouldn't get there in the first place but we never had th in closing liberty respectfully request that you apply the use of discretion standard of review and affirm the district court's well reasoned decision in this case if you decide or are concerned that there is some evidence of conflict splitting the record it's not appropriate for you to overturn the decision to grant benefits because there never was a proceeding below where liberty was property given the opportunity to rebut the tainted alleged taint because this was a summary judgment proceeding would be inappropriate overturn and granted if that's and finally if you decide to deal with the ambiguity issue which we think you shouldn't again that needs to be remanded because we have an opportunity to show why  so surprised by your silence this morning after listening to the earlier arguments where you have so many questions you don't seem to have so many in this case and i don't know whether that's a good bad or indifferent sign but let me let me start with the question of this only depression the records clear and i have not enough time in four minutes to go through every excerpt of records cite but it's covered in detail in the briefs i think both of the the be some both his his abilities thoughts of to find these additional issues this first time we've heard about it it's not in the briefs but let's talk about it just briefly we all know that unmet in this circuit on mental nervous disorders when you have a broad general physical either a cause where the symptom of the disease were physical and caused the disability and a whole laurean part then benefits are payable for a physical disability not mentally and let's go back to that what are the sa then under these cases the mental nervous when the taishan doesn't apply because these are physical symptoms if not actually physical diseases themself sinko is a physical condition ken and the treating internist who writes quote on several occasions fainted should not drive due to cinco in his letters to liberty these think open issues aren't something in the past these are ongoing unpredictable problems with this woman finally her husband writes in june two thousand and its many letters trying to get in i mean we're trying to get them to get to an internist who can look at her global condition wasn't a medical records but even if it wasn't what the participant reports these things to the insurance company and we start talking about fundamental fairness and basic honesty in a bilateral exchange of information at all the that the plan administrator has then it seems quite clear that they have to credit this information and they don't get the stand up and say hey it's not in the medical records because somebody wrote it in a letter to them