entitled to continue benefits because if you find that years then the claim of ill gotten gains out of counter claim has to go away and so does the overpayment claims because they'll collect your name from back benefits so she's entitled to benefits that's really that's really  e end of the case and there's three parts to the determination as to whether she would have the benefits the first part is we look at only the reason they gave her term in her benefit which was a mental illness limitation and then we look at patterson because that findings of fact after the bench trial she reached the conclusion and this is on in either one hundred six of page two lines fifteen to seventeen point if stopped working for discover in april reconcile that finding with the fact that with with paterson because paterson says if there's a physical component you know you could apply this particular mental illness limitation and in addition to that one fifty six but isn't that the role of the district judge that if the facts are may be disputed he she makes findings to nobody she can believe or credit certain testimony more heavily than others that's the whole nature of read so she made a decision and while she said initially she was going to use the summary judgment standard she and in fact i think did decide on the administrative record know motion on that on the counter claim to be a straight record right when she gets to the end of that she says i'm denying points most or certainly doesn't but there are questions of fact so i can't decide the counterclaims so we're going to have a bench trial on the counter be addressed those issues under that standard we had a bench trial only on the count of times and if if the shot that if she thought there was a question of fact lose claim that should have been articulated and we should have an opportunity advantage and we should have not given the opportunity to make a further argument about why the facts compelled the conclusion that he has a physical element and i think the facts support this even if even if it was a factual finding i think it was a it was a clear clearly good morning please the court my name is christie you know homes from i represent first you know as well as discover i'm going to freely touch upon the issues that were just discussed but we didn't even get to the counter claims in mr cupples argument so i want to make sure i talk about that as well briefly judge bolton absolutely did review the administrative record and decide this case under the procedure set forth inc your navy standard she clearly made credibility determination because of the page limit violation ok it was the way i interpret her order was that we had to refile because the paid letter violations and then with respect to our counterclaims which we had stipulated would also be decided rule fifty two she was only can going to consider that part of our motion under rule fifty six she never said she was going to consider the benefits claim first under rule fifty six it's really unusual in a recent case that you don't have disputed issues of fact administrative record and it would be an immense waste of judicial resources to require us to jump through all fifty six motion before we can get to the merits judge bolton spent several pages going through the the evidence in the administrative record and finding and them favor she expressed we made credibility determinations and we asked her to do that in our motion so plain absolutely on notice that's what we were asking for we made it clear as well in the opposition to the motion to strike and plaintiff had every opportunity both to respond to our motion and to supplement that response when it became clear that we were arguing under will fifty two in cure any that we are entitled to judgment not summary judgment just barely you had mentioned that the court did not the judge bolton didn't consider the social security administration's decision in reviewing the record that's because it wasn't in the record kirani it's clear that even in ada no case the court is generally limited to the administrative record unless exceptional circumstances exist to supplement it but that was not called to her attention on the social security ruling was not called to her attention it was submitted with the papers it was not in the administrative record it was certainly relevant to our counter claims but the social security's rationale was not part of the administrative record because it was never submitted during the claim because it happened after the claim was terminated so we're told that it never was submitted to the  administrator for review is that were you saying that's absolutely correct your honor and the claimant could have submitted that i take it she she could not have because the administrative record was closed by the time she was approved for social security benefits and  does with respect to admitting extra record evidence is reviewed for an abuse of discretion and i've seen nothing to indicate it was an abuse of discretion for judge bolton not to consider this a security decision that was not actually provided to unum during the process unless the court has any further questions on the administrators record and the decision on the benefits i'd like to jump to the counter claims because there's a lot there this case has had a very long history due largely to the counter  attached that's one thing but if you're just trying to get at as sets an individual that that's a legal claim that's a legal restitution claim and not equitable and this is i what we have here is she spent the money she  didn't have it all tucked away in a trust account or a bank account sure and i will acknowledge that representing claim administrators in this area it's like threading the eye of a needle to try and recover such security overpayments and that i keep getting a more narrow but are specific claims haven't been ruled on and i think there are there's a distinction to be made between the money hadn't received claim which is to recover the thirty six thousand dollars overpayment due to the social security payment and the ill gotten gains claim i'm going to start with obama gains because i think there's actually very good support that we don't need to show that that money is still in her profession to recover it goes all the way back to merton's when judge scalia used ill gotten gains as an example of when money could be recovered as other as appropriate equitable relief under resistance choice scheme nothing about montenegro or its predecessors contradicts that and in fact we cited to a few different cases in our briefing where courts have specifically held that when you're talking about an ill gotten gains theory when the claim administrator has been actively in deliberately misled that you don't have to show the money was still in the possession of the plaintiff to recover it so that is sixty one thousand dollars claim that we've alleged and if the court sides with us on that and finds that judge bolton was clearly erroneous and not siding with us on that then the money having received claim goes away now as to the money having received claim i agree with you that m have some very sweeping statements in it but monta meal specifically dealt with equitable liens by agreement and if the court is going to interpret that to mean any time a claim administrator is trying to seek money that the that the claimant has already spent but it leaped over it really implicates some of the concerns raised in the dissents in montenegro and also includes both of those cases have very strong consents talking about the sentence talking about the bizarre result equitable i think it's an equitable to interpret the statute well it's written well and when that's yeah that's unfortunate but that seems to be the what and i think i do wish the congress would make that a little bit more clear but i'm left with what we have and it's it's not totally clear that money having received is so similar to my agreement that we can't pursue it here money having received has been described by the united states supreme court back in the day of the divided bench as equitable in both origin and function and that is we cited the case in our brief that is the atlanta coast rail company versus the state of florida and this was part of the concern that was raised in the canoe descent when you're trying to go back and recreate what was within the province of equity versus the province of law you're talking about very archaic principles that i don't i think in that  some time ago but they didn't talk about there wasn't a specific fund there i don't think either in the head lanny lanny coastline case you're talking about and yeah yeah i think i think your honour's correct it's a very different fact pattern from what you have here which is why we didn't argue the facts more right but that's absolutely right and i think what is significant that was back in one thousand thirty five you have the united states supreme court saying it is both equitable in function in origin and that comes very close to the language you said mancini all of that in order to recover under risk it has to be equitable and i think origin and remedy so i think money having received is a different sort of claim than just an equitable atlantic coastline case sags a cause of action for restitution is a type of the broader cause of action for money had and received the remedy a remedy which is equitable in origin and function