constant severe lower back pain which rendered her unable to sit for extended periods of time and based on that argument is that she is precluded from working in a sedentary occupation there's significant and luminous medical records into consideration all of the records all of her subjective accounts of pain which we feel that due does clearly demonstrate that she is incapable of working a sedentary occupation incapable of sitting for six hours a day eight hours a day and it's the records from doctors if we have he never actually stated that she has a full time work capacity that she has that full time sedentary work capacity to work you know hours per day no doctors actually no doctor has treated her has actually said that she has a capacity to that she has back pain and like cramps or possibly causing other problems if that's a relation of symptoms i'm asking you if you can point to me to some factual inaccuracy in the district recognize that he only had a one time contact with her and wasn't the district court a little more concerned and gave more weight to the other treating doctors who had  had multiple times with her and over a number of years wasn't that in essence what the district court decided that is correct your honor but as i stated there is several other doctors as well who support the position that her client was totally totally disabled there's dr roger there is dr johnson and then dr alper and who all stated that she was totally disabled totally disabled but not really addressing and the very broad term in the insurance policy which is capable of doing any work for which she is qualified or could reasonably become honor but i don't believe that that's not a requirement of the policy to specifically state that she can be said it's a really after that twenty four months pay  standard to get that next level of long term disability right and that's a very high standard and no one really testified as to any work for which she c file that show that she has painted aggravated sitting and cannot sit for six hours a day and it doesn't specifically state that unfortunately none of her doctors specifically said that she's unable to sit for six hours a day eight hours a just couldn't find those answers in the medical records and i think that's what's where he ery drawn or i mean i believe that there are there is evidence as not to civic like you stated but at least there is evidence to show that she is totally disabled and incapable of working  in any capacity even a sedentary capacity and i believe the district judge failed to give you no consideration to her subjective complaints of pain that there's very credible reports of pain but all the medical records very report he when she first had the accident he did some surgery on her and treated her pretty long term and he said that she was not totally disabled that with restriction she could do and he never stated that she can work she has the capacity to work full time in a sedentary occupation and he did give her restrictions as far as lifting i believe in bending and stooping but he did not specifically say that she has a full time working class city and i've got a few other good points i want to bring we are requesting that the court consider the social security administration disability award i know that was not brought to the trial judge's attention but it was not applies to determining whether you're eligible for social security benefits is it the same as determining eligibility for long term disability under this life insurance policy other similarly out of there are exactly the same but we leave the standards are similar enough where it is a relevant decision and that social security administration judge heard testimony from our client heard testimony from a medical provider regarding her severe diagnoses and  admitted those awards post administrative record thinking on in upholding linus claim determination it did not the district court made the only reason determination that it could based on the evidence and the facts that it had before it the plaintiff agrees that the standard for a ellate review is clear air this is a high bar it is not enough for a plaintiff to show that there just are court could have rendered more evidence or accepted more f the standard is clear air it's not whether the facts are subject of all to one way or another rather the gist or course decision has to be more than maybe wrong or probably wrong it has to be firmly wrong and this is because the district court has the closest understanding of the record here the district court did the work it in reality i mean we can look at all the same documents of the district court has to i mean granted he he was operating under de novo review or operating under current but we do have all the records and front of us shrew at this level however it's not enough for plaintiff to show that of the district court should have looked at more of her subjective symptoms or more of the medical records at this point we're looking at what the district court determined did the district court make an error in finding that plaintiff did not satisfy her burden of proo and that's an important point because the plaintiff in disability cases bear the burden of proof to establish disability disability isn't established by a medical condition or a diagnosis alone  the district court honed in on the right issue it was looking for proof from plaintive that she was disabled functionally disabled under the policy she can't just point to a medical condition or a diagnosis or test results in the important fact here that makes it different from many ressa cases is that she didn't have the support from treating physicians to actually establish a disability and has any occupation standard line of paid benefits for two years and his own office patient stannard it found that she couldn't do her own occupation as a sales manager at macy's however the any occupation standard is a much higher bar whereas plaintiff did not have any treating physician support from any disappeared that any disability survey cation on the other hand the district  that two other physicians not even associated with line a doctor version and doctor sophia who gave restrictions and limitations that were consistent with sedentary work at pass bergy was playing this long time orthopedist he treated her and did her surgery and this is a time period two thousand and ten all the way up to two thousand and fifteen he found and he gave restrictions limitations consistent with santeria capacity and then we go to dr sophia dr sofia is a worker's compensation appeals court appointed neutral and he over the course of four and a half years evaluate the plaintiff in a worker's compensation setting over time she evaluated her he gave his opinions and he's an orthopedist he's someone that also gave her restrictions and limitations consistent with physician plan to follow the workers compensation claim for disability due to hypertension based on stress to relate her back condition that's what dr alton was looking get over the surgery that can be an indication that isn't she still taking i don't lose any evidence in an administrative record and i want to get to that point of the timeframe as well miss isn't betty submitted a late father's claim the actual disability date isn't march of two thousand and ten it took her until two years later two thousand and twelve to actually submit a claim to  and once she submitted that claim she withdrew it mediately after and why would that be she said she didn't want to have the hassle well it certainly has been  they still looked at the claim in two thousand and fourteen when she recently in a claim they asked for the records from her for training physician dr berger she looked at the records they actually paid her claim for two years but at that point about the time frame is that in two thousand and twelve is where we're looking at the time period to operate a time period because that's where the change from and it only occupation to any occupation occurs so when we're looking at mrs mclaren his condition in two thousand and sixteen two thousand and seventeen and in two thousand and eighteen where she testified in front of the administrative law judge that's not determinative of whether she had a disability back in two thousand and twelve and in fact the social security award which cannot be considered because it's not only outside the scope of the administrative record that was before lyta it's outside the scope of the district court right and i'm wondering why we should remain in this to the district court and let him consider that such a security determination given that it found that she could not employed in the substantial gainful employment which certainly seems to equal your standard your clients and there's no precedent for  factor but it's not it's not determinative at all to know if you thought it was completely irrelevant why would you raise it the only reason i could see you putting that fact in is to influence us to think she wasn't  disabled as the social security administration defines it right there are a lot of facts i put into that opening brief i didn't mention at all in my reply brief and the district court never mentioned it in his district court opinion including the fact argued to district court no not at all including the fact that the planes that the the reason why this this or this is social security award came in in two thousand two thousand and fourteen which is four years after her start date of when she was injured on the escalator at macy's in two thousand and ten so it's in order for this court to remain on the case it would have to find a procedural hook in our to get to that point in the motion that the record can't be supplemented with on a very it's you needed a very equitable very stream circumstance in order to send us back to the district court and in this case the plaintiff didn't even satisfy her burden to show that she was disabled from the any occupation standard she had an attorney at that pellet level administrative  she had a chance to provide the information provided letters from the doctor's side you might have seen in other cases provide support for her doctors but she did it and she said she provided disability slips in the workers needed no doctor said that she couldn't say no doctors gave her restrictions of potations and from that standpoint i don't think it's appropriate to give the planet a second bite at the apple based on new evidence that happens  in the worker's compensation setting in fact if if you look at the form have to fill it out it's it there's a form from dr roger in that that's the doctor that they're referring to where he feels he checks off the form but there's another section of the farm where i actually ask for restrictions limitations period there's a lot of boxes to check out he never he never gave any of that information was that pretty limited to check in the box was it for a particular time period as i recall right there it's a there's a section where he could say that she could return to work there's a section where she is if he can say that he she has a return appointment and then on the bottom of the farm has actual work restriction limited restricted work without constant pain in her left leg yes she didn't satisfy her burden of proof to show she could not she bears the burden of proof and the fact that somebody has objective objective findings and subjective complaints does not necessarily mean that they cannot perform any occupation that's why they need the certification from the physicians i want to let me ask you a little bit about the labor market survey supposedly within a certain radius of sixty miles there were some i q patients in jobs that she could secure as an assignment could take order scheduler and some other positions like that and i guess i'm curious as to how that plays into this argument under the policy she has to be unable to perform the duties of any occupation for which she can be qualified or is qualified by her training experience and so in conducting that part of the vocational analysis myna obtained vocational reviews and of ok and of occasional survey labor market survey and they did find those occupations that were for what she can qualify performed with her restrictions and limitations that were provided by the workers compensation appeals for neutral dr sophia and her treating physician d physically open i live in yucca valley i'm looking at the radius you have to show that the job is a great job market in those jobs are available for me and also that i've hired all that that somebody would actually hire me but  those are not the requirements and the ninth circuit law what do you say about the transferable skills analysis evaluation that was done was the point of argue that that's really not helpful to the defense line of found occupations that she could be qualified for there's nothing wrong with the actual transfer of a skills analysis the plane's client can perform and with out to those that specific job to the description we don't believe that the trial court or the defendant can reasonably conclude that she can perform those centered occupations i believe the labor market survey is  severely flawed in that respect and other a point would be the social security award defense counsel argues that there has to be extreme circumstances to include that evidence and we argue that in this case there are extreme circumstances because this is my client's last chance to obtain the benefits that she so desperately needs if she's precluded then shal forever be precluded from receiving her disability benefits thank you