these matters this is the first of three cases that the court is going to hear today involving that plan the issue in the right case involves as all of the claims voluntary plan administrator or for short d p a abused its discretion in denying benefits now in the right case i think that there is substantial agreement among the parties in terms of some of the facts the claim for disability and the evidence shows that plaintiff suffers from a combination of multiple psychological medical and you physical problem the problems include fibromyalgia attention deficit disorder chronic fatigue syndrome bipolar disorder and organic brain disease syndrome now the standard of review is going to be with respect to an abuse of discretion was it unreasonable for v p to die  rice claimed for long term disability benefits under the terms of the plan as it existed at the time of her disability the relevant provisions of the plan are found in the  record at pages three one nine to three to one in this case and for the definition of sas totally disabled and total disability main that because of injury or sickness during the first fifty two weeks following the onset of the injury or sickness the member is continuously unable to perform each and every duty of his or her usual occupation and after the initial fifty two week period the member is continuously unable to perform any occupation for which he or she is or may become qualified by reason of his or her education training or experience it continues the determination of total disability shall be made by the claims administrator on the basis of objective medical evidence objective medical evidence showing that evidence establishing facts or conditions as perceived without distortion by personal feelings prejudiced sources or interpretations any condition diagnosed as or without regard to its designation is equivalent to attention deficit disorder that's one of disregarded in the determination of total disability during the period described into above two meaning for a long term disability as opposed to short term disability benefit organic brain syndrome is not on the list that is correct nor is bipolar disorder your honor with respect to any total disability cost or contributed to by mental illness the following limitations shall apply during the period described into a in other words after the first fifty two weeks in the case of a disability resulting from a nervous or mental condition a b or disorder the member shall be considered totally disabled only if he or she is confined to a hospital or other licensed long term care facility for the treatment of such disability or has been so confined for fourteen or more consecutive days during the preceding three months no question here there was no hospital confined an illness shall be considered a nervous or mental disorder if one of the onus has psychological or behavioral manifestations or results in impairment of mental due to any causes including but not limited to social psychological genetic physical chemical or biological and to the illness has a primary does diagnosis that either is listed in the american psychiatric association stag gnostic and statistical manual of mental disorders or falls within diagnostic codes two nine zero through three one nine in the international classification of diseases one three three one nine i believe that the five color disorder is two ninety six point eight hundred nine that's five ms writes treating psychiatry structure peters and according to her clinical psychologist dr the organic brain disease syndrome is three one zero point eight it continues so now we have an exclusion that applies and then it says benefit shall be payable with respect to the period described two above for no more than fifty two weeks for any disability resulting from a mental or nervous disorder the limitations of this paragraph shall not apply to a total disability due to all simers disease multiple sclerosis amnio traffic lateral sclerosis if i pronounced that correctly traumatic brain injuries schizophrenia or other organic to deny ms rights claim for disability based on an organic brain disease syndrome or bipolar disorder that had codes following within the prescription of the i c g nine where well that's the question was it unreasonable in terms of interpretation let me ask you questions about that in the volume of information that the v p a have before it with respect to that let's answer suggest that that it could be yes it could be no that is correct your honor but if you go back let's assume for a moment that it's yes did the v p a address  it did not because organic brain syndrome has a code of three ten point eight which falls within the d c i c d nine under number one when we look at the we conclude from what you've told us that there was evidence before the e p a which would suggest that leakage from the bursting of plants was medically linked to organic brain disease no doctor made such an opinion there were a suggestion that it could it might or might not half by one of her treating physicians but everybody says that the that he ology was unclear the ultimate conclusion  not be relevant your providing you your argument which we were sitting here today justifies their not dealing with this evidence that is correct your honor so that suggests to me that they did not they did not address this whether it was clear on clear crystal clear or not they didn't address it they did not address that as a basis for denying the claim for disability that is correct your honor ok and the question before this court is whether it was an abuse of discretion for of e p a where we have a diagnosis of organic brain syndrome under three ten point eight and remember the causes are relevant because if you have that diagnosis you must be hospitalized that was it an abuse of discretion to deny the claim for benefits now the last sentence in terms of what the judge levied sad was that any organic disease when it's determined by the claims that minute straighter to be organic should be treated as all simers multiple sclerosis amyotrophic lateral sclerosis schizophrenia and other words that as a class anybody suffering from organic brain disease should be granted disability benefits without restriction after the second fifty two weeks and without regard as to whether or not they have been hospitalized now the plan doesn't say that the plan for this one says it has to be organic which it was yes it has to be degenerative which i'm not sure the administrator found or didn't find it has to be progressive which i think it mistreat or did not touch upon however he did determine that it was not going to be covered by a what do we do about the fact that the administrator failed to make a determination perhaps as to whether it was a degenerative organic disease if you will and certainly did not make any determination as to whether it was not to rule but for judge levy to remain and the matter back to the claims that ministre her to address that sentence what it meant because the claims administrator we can look at it ourselves and that's not what happened here your honor so i only have about six minutes left if i could reserve that for rebuttal and there are any other questions however at this point i don't see any you can certainly reserve it and in the other two cases you need not repeat or argument you can rely upon arguments you've made here ok there are differences if you understand in the last case we did see a different version of the plan that prevents we underst priest the likelihood that participants and beneficiaries under single employer defined benefit pension plans will receive their full benefits that's a starting point that congress announced to all of us and i want to  our three twenty one year honors and i point out one item your honor that as reckoned the plan at e r three twenty says with respect to total disability cause or contributed to to illness alcohol or drug abuse the following limitations shall apply so all over everything that follows is considered a limitation according to the written word of the plan that it has a discussion of mental illness and some limitations include a hospitalization of fourteen days and then if you look three twenty one they also have some limitations and so a paragraph or two about certain diagnosis and classifications and then you get down to the sclerosis amiel trophy collateral sclerosis traumatic brain injuries schizophrenia or other organic degenerative progressive disease as as determined by the claimed administrator i have course want to emphasize this last sentence and this last sentence says that if you have one of these diseases that are referred to in the last sentence all of the limitations go out including the need for the statement that organic brain syndrome that's a general medical term referring to physical disorders that the that cause the deteriorating mental functions or decreased mental functions the plan doesn't say that the disease has got to be degenerative forever that if you started off that one hundred percent of your strength and cognitive powers and  do you degenerate through the disease to say only having sixty percent last and then through that medicine and so forth you can plateau doesn't say oh no that he generation has got to continue down to zero or that it's got to progress down to zero and it seems to me a lot like a sort of a smokescreen for the plan to say well although we didn't mention it in our denials and we haven't given you any anyway to go to  much you generation to now have them argue that it's got to be degenerative and it's got to be a group progressed it without any definition of how much it has to progress  sort of metaphysically impossible to defer to the so called exercise of discretion it as far as we know doesn't exist on the record and why isn't the remedy for that to say ok you have to send it back examined the record and made a finding that there was no discretion exercised may have then frustrated or thought that it would be a meaningless a a senate back at that point if they had ignored so far all these ongoing reports of organic brain syndrome i think if i got the impression that the district court thought that it was enough to fit in to the exclusion of the condition was organic period without wearing my winter to progressive degenerate and if those were separate alternative categories right it that was discretion exercised there's no discretion to be honored or deferred to and it makes sense for this court to confirm the award and choose to use its common sense and experience to say that  think i'll be using up my full remaining six minutes maybe i could take it over to the other ones but i'm sure that that won't be necessary either i would like to just answer some of the questions that the car posed first is organic enough and i think that's what judge levy found in this case and i would just point out to the court as we did in our brief that those mental disorders that have i c d nine codes from two ninety two to ninety four are all defined as for cannick brain disorders and it would make no sense in terms of interpretating the terms of the plan where you have an explicit tick exclusion for codes having organic dysfunctions and having them included and somehow that they could be the claims administrator provide the terms of the plan and it should not be just for mr right it would have to be for everybody in her situation and i suggest that it would be not just for somebody who has a diagnosis of three ten point eight but also anybody in the entire category of three ten which talks about organic disorders the diagnostic codes to nine through three nineteen appear in paragraph a to yes which is i mean it's as if they think i've got mine so it's i've got a color coded so i don't get lost it says with respect to any total disability caused or contributed to by mental illness the following limitations  and what it's what one hundred mental illness it talks about that you must have been hospitalized due to mental illness and if you're hospitalized due to mental illness and unlike the cu considerably more detail on this perhaps than i am but are the listing of the diagnostic codes instead of paragraph a to do t limitations you know those constitute the definition of what constitutes a mental or nervous disorder is all simers listed in those diagnostic codes i have looked at them your honor in it is not the others are not your honor skits are saying that's not necessarily a mental disease and i wanted to answer a charge hawkins question that he posed to me in terms of what was considered by the p s a and the who was the psychiatry este who examined on behalf of the plant examined ms wright i did contact dr perriello and to ask him if he had been able to so the question that your honor posed to me i may have misspoken the issue was addressed in terms of what was the cause and the conclusion that the p s a reached was in the next paragraph she is suffering from organic brain syndrome from an unknown cause they don't know what it was but they concluded that because it fit within the diagnostic codes and she had not