fair review of her claim and the right to equitable remedies and penalties that should be available against fiduciaries and it is undisputed in this case that the apple these are  questions from the court about our claim for benefits i'm going to let that stand just a minute on the briefs and focus today on two main issues one the issue that is long is there are planned participants especially plan participants receiving benefits then there must be a plan administrator under a recess and to find anything short of that contravenes the very purpose of a recess under one thousand that that to me is the core of the case all right you know i i absolutely agree with you on that and so i defer to your argument on the really points that i think are in the case but someone off to one side to thank you for that so focusing on mrs talbot's claim for benefits the district court erred in finding that reliance was not acting under a conflict of interests w specifically the back home i thought the parties agree that reliance had accomplished of interest at that that was in disputed yes and so i apologize your honor the district court erred in finding that that conflicts of interest did not so taint reliances decision as to completely stripped it of discretion in this case and there are there are several what the district court failed to do is it failed to look at all of the different pieces of evidence of conflict and weigh those things collectively just sharper alliance of discretion and appellate would like to add that the fact that there was not a plan administrator there were not premiums being received should have been one of the threshold issues looked at in deciding whether or not the conflict tainted the decision the district court d two thousand and eight reliance no longer received premiums for that policy so it was affectively a runaway policy you have planned participants receiving benefits but the very thing that that helps insurance companies make money which is premiums were no longer being received insurance companies at the end of the day make money by premiums that they bring in and claims that they pay out so now we don't now claims they don't pay excuse me your honor that's accurate so so with without a plan administrator and without premiums coming in you know once again it really was this runaway policy and so given that fact the conflict should have immediately been viewed with increased skepticism given there's  considered denying her benefits reliance and not even request a social security file and it did not have the administrative law judge as fully favorable determination reliance had the notice of award for social security i would submit that they cared about but once they had that they immediately that was worth forty some of those dollars to care a lot about them correct and that money allow them to actually have their liability on the claim meaning they had paid to date about eighty two thousand dollars and once you took that out it ended up being around three million thirty two thousand dollars so they never had the social security determination th no your honor they never they never knew the determination they have never gotten the social security judge is fully favorable determination they never request that they the file they never asked miss talbot to provide that information as part of the appeals herself through the entire appeals process and the social security determination would have been extremely important for for the alliance to have because their big issue with miss talbot is credibility they questioned her credibility well here we have an administrative law judge who looked at her she went to a hearing heard the thirty one year old at the time talk about how her pain is the ability  and decide based off of her physical impairments under social security is more stringent standard that she was completely well it's a more stringent standard under social security on the other hand of social security as i'm sure you know reliance had their their i am me doctor dr rouse reach out to dr super the treating physician and see clarification but reliance never did that so without the social security file how can we know that expired so forty five dollars days plus forty five dollars days for special circumstances had had her sign a tolling agreement so that they can take as much time as they wanted and that time was not used to get the social security determination talk to dr siebert it was used to secure the nd i am me in for minds that end up being this thirty plus page report basically calling sherman why did that support the payment of benefits in this case well because she was peeling and they decided to pay during the during the pendency of the appeal functional functional capacity evaluation after that evidence reliance approved the claim it was only after the social security determination and when they correct so the fact that we have three i am news collectively coming to the same conclusion that are all bought and paid for by reliance it's like there's two stories going on here there's a story that they're creating that they're paying for and then there's the reality of the record and the real piece of evidence that they should have cared about if they wanted to look at credibility again would have been the social security file why did the i think that under pan a backer of the appropriate resolution would be to award that half it and then and then send it back for a free man but i think that what you mean when you say award benefits because under pan a backer and till the plan terms policy or plan terms are properly applied if then benefits should continue until the insurance company mourning your honour's more time and martha andrews would be half reliant standard life insurance company it's interfacing on the benefit claims i would st like to point out that there has throughout the briefing in the district alleged do world conflict and of course to world conflict can be a factor in these cases and as it is the evidence of the conflict may temper the abuse of discretion standard but as the supreme court said in the glen vs met life case  disabled under the terms of this plan was illogical implausible or without support in the record and i submit to you that is just simply not a close case the file as a whole shows that reliance standard from the beginning had doubts about mr talbot's claim that because remember she she fell down the stairs when she was pregnant she had limited treatment options and after she delivered her child they took a look at the final and said ok well she should be you know ready to think they let her go through her pregnancy and recovery in the they terminated the claim when she said no i'm actually still having problems they overturned that they went through the own occupation period took a little look at it yet again with an eye on me at that point had independent medical examinations presentation and what exactly is going on with this claimant who doesn't have much really showing up in the in the examinations by her doctors in the medical testing that they were able to to so at that point they terminated the claim again over on appeal they overturned it again and again i would submit to you this is what the court wants insurance companies to do they want the insurance companies to go out and get  to get real information that f c was inconclusive primarily because miss talbot was not cooperative for whatever reason but instead of standing on that line stander continued to pay they continued to pay for another howard again sees the same thing now you're seeing a progressive where they're seeing the same thing the same thing the same thing now you could you could submit that you know everybody has a point where the facts might tip for any particular person like well what are we seeing here what is the problem is this person really disabled or not you know you and i or reline standard or i or the plaintiff and i might disagree and when those facts might tip for any one person but at that point they terminated the claim again the got in the car as a way of telling us that she was faking it i mean this is not this is not the ordinary doctor report that i because i'm reading well your honor here's what here here's what i would suggest to you we have two things we have a situation where the presentation the exaggerated presentation the dramatic presentation has been noted over and over again not sure what's happening here that that doctor else's report is harsh so much again as is as it is very she's trying to suss out is there a psychological component is there a lingering component what is the issue here and in trying to determine the presentation overall including the presentation coming in and going out is part of trying to trying to address that and i believe probably an occupational medicine physician that's something that she's used to doing but you know if you find it harsh i'm sorry your honor but again going back to the point the question is whether or not the reliance standard diagnosis provided by dr rao so about well you know she basically is trying to manipulate those around her she's got a personality disorder she doesn't really want to take on responsibilities as a mother and so on that doesn't strike me as within the  area of expertise of dr rouse whether or not it's here's what i would say to that doctor also as an occupational medicine medicine physician has a relatively broad area of expertise because occupational medicine is a pretty broad based area in the context of this evaluation the comments were made in the in the context of trying to determine precisely what was going on with this claim and whether or not she made that diagnosis doesn't change the fact of her ultimate conclusion which was that this that this claim it was not disabled based on the claim that she was making is that what you're asking so it doesn't i'm not sure why it makes the difference she's making she's making commentary she's trying to determine how much of it may be exaggerated in fact i think what she says is it's hard to determine whether some of it how much of it may be exaggerated how much of it may be psychologically  based and i think the comments were made in that context and i think fairly made in that context when you're looking at a claimant who presents the way this claimant what are we supposed to do with the fact that your client really never got he this case but the plaintiff below in here there was and there was never a suggestion that anything that occurred in this case should have required to do novo review all of the arguments below and even i think on the appeal essentially were such that there were errors that should have affected the abuse of discretion review so i did want to make that point right with respect to the just the  social security award this court has said that failure can be something that can be considered in the abuse of discretion review by in this particular case the social security ward was about two years before the final decision there has been no suggestion whatsoever that we did not have the plaintiffs excuse me miss talbot's full medical record and i think that's quite significant so we had all of her full medical medical records through the date of our decision we also had  three i am is that enough to so to the extent that we didn't have that that decision to the extent that that may have affected reliant standards review in some way what we did have is we had three doctors and functional capacity examiner who had also looked at this moment in detail and we had all of her medical records so you know there's mitigation there to that extent so to extent the court wants to weigh that as a factor you know it's shouldn't really be given a lot of weight which is what judge made to us that in her opinion because we had two years after the social security decision maker had seen her to to to do are in fact to our enemies took place after the social security ward is a customer and this may not be on the record and you may not know is it customary when there has been on the ward of social security benefits mouth to get to us all security file it customary at all or well you know what i mean what happens in an ordinary case and putting this case to one side let's say you've got a claim for long term disability and the claimant hasn't received benefits from the full security administration is it customary not to get the just do so security file i think  can't answer that your honor i can't answer that for this company or any company as a matter of custom i can tell you that it depends and i can tell you in this particular case the plaintiff for instance this  detailed appeal letters you know five hundred and six thousand and seventy page appeal letters that would provide quite a lot of information she was very well versed in a citing a wrist a regulations she was very well aware of her rights under arrest i can't tell you whether that is customary for this company or any company i suspect you would have you would have liked to see the social security decision of the decision had been  unfavorable i don't think it's i don't think it's true either way in terms of whether or not the terms of whether i can answer whether it's customary one way or the other i don't think it's customary one where the other to get the decision one way or the other what i can tell you is  analysis by the social security administration is not binding per the decisions of discord and for good i think the supreme court is not binding on our company and it certainly shouldn't be binding where we have information that the social security administration didn't have that reliance was happy enough to take her social security benefits under the policy well we didn't take her social security benefits the in then actually your honor i have to say that that is a that's a separate her ward well not taking the underlying contents to find out what it was based respectfully the plan is set up to off such social security benefits and other types of benefits coordination of benefits  for good reason that i'm not asking whether there's a good reason i'm observing a fact well you're observing the fact that what what you're doing is tying the application of the the one aspect of the plan which is the coordination of benefits to the idea that if we do that then somehow you know we should be reliant on the social security mr ations decision for our own decision reliant but at least  interested well as i said i can't say more than i've said before your honor which is to say that the company knew that she had been awarded the benefits and they took that into consideration but that award of social security benefits had also been two years before and we did our job in fact i would i would say that pursuant to the what courts like to see in these l t v cases is they like to see for instance independent medical examinations over record reviews we did three of those at this case and i think this court actually likes to see more generous decision making over less generous decision just cancel your over your time and i don't think you need to tell us what we'd like to see so the employer employee or yes please according to my portion of my client's portion of involvement in this case is fairly narrow it relates to the issue before this court the only question is whether it should be administrator and i think that's not correct if you look at the statute and under the facts of this particular case that's not true there has to be a plan administrator when there is an active plan and at all times the record reflects it at all times in which was part of ceased also in two thousand and eight and payment tech itself ceased to exist in two at the end of two thousand and ten so while there would have been and there was a planned administrator it previous times the time period in two thousand and thirteen so five years after the plan formally terminated appropriately terminated and under the terms of the plan in fact it says right in the plan that payment tech had the ability to terminate at any point regulations from the department of labor suggest that they have to to a sorry a replacement plan administrator and in fact it wouldn't make sense here because there wasn't anything to administer any longer the plan was to the plan was defunct there was the real lot there was i don't know if anyone other than miss talbot was still on claim but to the extent there were any folks who are were on claimant receiving benefits under an insured policy like the reliance standard policy those folks were protected in that they continued to receive their benefits and payments to the extent that they were found to be payable under the terms of the insurance policy just like they would have if in fact district court addressed that and said there's a point at which that cuts off but secondly i think at some point when it does cut off that they are not entitled to get the planning documents any longer here the operative document information that mr talbot needed was the insurance policy in there are separate claim regulations under rissa to provide for what are called relevant documents in the insurance policy would be a relevant document she was entitled to get that from  standard and in fact she got that is you heard from the chronology not that we were involved in it but she went through three different appeals so this was somebody that had the information needed to argue her case successfully twice and then on the  that ultimately wasn't successful so so we believe as far as it relates to premature can quite frankly too reliant standard as well that there does not in fact have to be applied administrator at this point in time and i think this court decided that i touched on it in the klein case and said a scattershot approach where you just say somebody has to be the plan administrator doesn't suffice you have to set for specific facts proving that the right man ok thank you very much  to review any any decision i have that claims review for the sherry and decide whether benefit should be paid miss talbot was harmed by not having that plan she followed with this company for years and had she been able to look at that document and say i'm going to call a payment tech my employer i'm a c if they will take a look at this that was a right that was contemplated within the plan and she should have been able to to do that was there anybody that she could have called the company still there no your honor though so who is you going to call there in lies the problem there but you're saying that she should have had the plan so she could have made the call but then you're telling me listen mr jones when there's nobody to call while back in two thousand and eight payment act was still a company until two thousand and ten so at least for the st appeal she could have called payments back i say but this is why payment tech as a fiduciary should have thought this through payment tack respectfully but didn't know are there plan participants people still you know receiving benefits people who we need to think about as a few sherry to protect their rights under arrest that and that that was not done and that should have been done and it would have avoided all of this potentially might have a quick question as a social security what would i have not seen the social security file in the very long time but i can tell you that it would have had an a ministry of law judge weighing the evidence and you know you are let me back up respectfully been put in this position in this case time and time again to try and say what like evidence what have you know would have been available if reliance had gotten the file then reliance could know do we really have all of the medical records because that's something the term a nation i believe there was about one hundred at about two hundred medical records that were in there that they did not have and that's part of the record somewhere and i wish i could guide you there but that is to say the medical records in front of the social security administration to some degree were different from the medical records available to the insurance company product correct and they would have been for example some sort of an independent examiner in the social security system a medical examiner some of those and then i think there were some additional medical records provided she did have counsel and that matter and so in that matter meaning the sole security matter fracture are yes by by the end of the claim her conditions had gotten so severe that she was being recommended for effusion so when reliance says you know this is just this morning girl who went out because she felt she was going to have a baby no from two thousand and eight to two thousand and twelve until two thousand and thirteen her conditions on m r i findings were objective lee getting worse it's not the story that they want to see but that's what was happening and that's what the a mystery of law judge found and to have a surgeon say that she should be having surgery that's a that's a fairly significant finding under the terms of the policy when is the what's the relevant date for determining disability it is an ongoing that is to say if figure out at what point do we determine disability for purposes of the policy you would need to determine disability as of the date that she became eligible and was receiving disability benefits so you'd have to go back to those those medical jargon to this day were she claimed that she was unable to walk right any profession and perform the duties of any  employment not just her prior employment because that was the date that would determine whether or not she was eligible for long term disability benefits under the policy proctor on or so that date was that  that date was it was two thousand and nine it was around july two thousand and nine and i want to make sure i understand the significance of that answer  is not a loaded question is just a question question for if she gets worse after that date is that relevant i i think that it's relevant as to reliance is questioning of her credibility but is relevant terms of how disabled she is let's assume we can establish that controversy she was disabled x in two thousand and nine she's disabled x plus y in two thousand and eleven does she get to count the y now that we're past that date that's my question yes yes your honor she does because she's dealing with degenerative conditions that only get worse and so you're telling me then that if she gets worse even  past two thousand and nine but she was not permanently disabled at the time of two thousand and nine you can still count that as that was the answer you're giving me fact that she is much worse now is that the disability that we're looking to my question no because i don't think you can break it out that way i think you have to look at the totality of the medical conditions and eliminate the question as simply as i know how to do it at what point does she have to be permanently disabled in order to get long term disability benefits under the policy as a as a mid two thousand and nine he needed to be disabled for any occupation and she needed to remain disabled right interest let's assume i'm not asking you to concede let's assume that in two thousand and nine she is not permanently disabled but in two thousand and fifteen she is permanently disabled the she can recover under the policy yes your honor she can even though she was not permanently disabled into th yes because that's a pretty good policy because sooner or later i'm going to get permanently disabled you know twenty years after them after two thousand and nine when i'm not the answer and you're giving me doesn't mak intuitive sense but persuade me that that's the right answer well that let's let's save for hypothetical purposes that she was not disabled as of as of two thousand and nine i say we would need to go look at the medical evidence as it existed at that time and we would need to look at reliance is review at that time right reliance found her to have lost and son terri capability is and and they approve the claim miss talbot will be significantly prejudiced now and nineteen if we have to go back and try and parse out at what point she may or may have not but there's no evidence or question i'm asking you put aside the evidence or question and just assume she's not prominent leaves of sable in two thousand and nine she is permanently policy correct so the fact that she's getting worse after determination to the policy has evidently consequence but the fact that she's worse doesn't mean that she gets to look at her permanent state time is up here there's right one quick point because you're very much over and we have a long did it there's no objective medical findings are quire and the policies so they have to find her not credible think you