please the court my name is current chandler i represent the appellant marguerite my client miss kibo suffers from massive m s the issue in this case is whether she was disabled under her own light occupation this is appeal races two issues first whether the district court erred in finding no material difference between a sedentary and light occupation the second was whether it was error to refuse to admit the declaration of dr anderson instead the district court adopted a circumstantial inference without a basis for doing so to find a doctor of a doctor anderson found no evidence of significant impairment the declaration declaration directly rebutted that inference and silver versus executive cart this court held that it was appropriate to reverse for clear error where the district court's opinion did not reflect  clear examination of the record and to whether there was a disregard of significant evidence there is both in this case every physician who provided a disability assessment said that miss cable bill was only capable of performing a sedentary job but her job was a like chop which leads us to issue number one this is not a case where where we are arguing whether the occupation was sedentary or light nor is it a case where the material duties of her occupation were disputed rather the issue in this case is whether the district court erred in holding that the only differences between a light occupation and  occupation where the lifting can crop requirements we know that this is true and there are material differences between the two exertional strength occupations a light occupation requires parking to a significant degree up to six hours a day and this is consistent with her job description stating that sixty five percent of her duties were an outside sales in fact that precipitating events to her disability were to faults which occurred while working for the bank outside at the back she had to attend civic and community as test for job under department of labor criteria determined she had a light occupation now argues that the court reviewed the record and determined that the differences we this is the clear error let me ask you this if i may i understand that in order for her to get coverage for the long term disability she needs to show that she has been disabled within the meaning of the policy by february twenty two thousand her attending physician completed an intending physician statement that stated that she could only perform a sedentary occupation he said but further restrictions were climate control and reduction of stress  climate control part is really not focused on that but when her job requires outside sales activities sixty five percent of the time and heat exasperates her condition then she do heavy medium light sedentary and he said sedentary sedentary and then we have we also have contemporaneous medical records which consistently document fatigue she has falls in two thousand and eleven that's correct and it's not some point she quits work excuse me here and she went out on leave in february two thousand and thirteen at that time dr anderson's records documented severe fatigue and i thought she'd gone i thought she could work and then she returned to work from for about fifteen days fifteen working days from march to april and then she went out again in april now in november or december she tried to return to work that's the date i'm looking at that's two thousand and twelve two thousand and twelve so all of these all these dates are prior to late february two thousand and thirteen date at which point she has to be disabled that's correct could just quote from the district court's opinion it stated these findings that substantiated impairment which were only optical in nature and that is untrue do not indicate that  work which only differs from sedentary work by requiring exertion equivalent to ten pounds of force more frequently and an upward capacity of twenty pounds of exertion so basically the court is saying the only difference between a light and a sedentary job are the lifting requirements but this is not true they that is paid only wrong there are material differences between a light and sedentary work light work requires walking or standing up to six hours a day a physical requirement that could not be performed because in this city and we know that from her job description this is consistent with that classification a classification of light work was based upon department of labor criteria the d o t job description the explanatory trailer defines light work based upon the d o t job description has an explanatory trailer which define sedentary median light and that is based upon social security regulations and i would suggest that to the court to the extent that this court is reviewing the district court's interpretation of sedentary versus light based upon that department of labor criteria this court's review would be that up to no vote now at now argues that the trial court appropriately deferred to the opinions of the treating physician this is not true there is no disability assessment in the record by dr anderson the authority cited by at and the trial court where deference was provided to a treating physician was one the treating physician provided an assessment of an inference that was not substantiated by the records and that leads me to issue number two whether it was error to refuse to admit the declaration of dr anderson is this case was tried down paper reviewed by dr cohen dr cohen's report supported disability because he also said she could not only do sedentary work the nurse review was have little credibility because she initially initially igs evaluated the case based upon the assumption that it was kind of bill's job was a sedentary job when the vocational report came back and said that it was a light occupation she merely substituted the word light for sedentary in her assessment there was no no evaluation of the additional duties that were required by that standard of our can pace now initially the district court found ambiguity in the record regarding the history section of the m r i and he  seventeen plaques and it was characterized as moderate disease burden the amorites were not performed by dr anderson but two radiologists the district court requested briefing and possible evidence regarding the history section of the m r i kibo off with the declaration of suzy bash one of the outline and one of the radiologist outlining how she customarily filled in the history section of the m ar anderson without a basis for doing so and that is had excerpts of record page twenty one footnote eleven it attributed findings to dr anderson which did not exist he said the doctor scene did not find significant impairment and then he footnoted made a reference in the footnote to regarding the history section of the m r i the district court stated that it then preferred the evidence of dr ad anderson and that it could not ascertain that quote mild city consistently noted in his records was disabling this error was two fold there was no basis for tracing the history sections of the m dr anderson and there was no basis for the district court's conclusion that dr anderson did not observe sensical impairment if i can interrupt for a moment quote the district judge made a mistake and in his initial order he thought that if she was disabled as of march two thousand and fourteen her long term disability benefits would run from that date and he's later informed she has been disabled by february two thousand and thirteen  how did that mistake creep him i mean who quite this is a smart district judge me why is he not absolutely aware when the disability has to begin i am not sure your honor this this  plan has a kind of unusual provision in my opinion most plans require you to be disabled on your last day of working and then you need in that limitation period this plan provides that you can your coverage will continue if you are off work for up to a year or until you are terminated and miss kibo coverage did not terminate until february two thousand and thirteen because at that time her the bank had been conducting a job search and it determined in february two thousand and thirteen that it could not place her in a job with her physician's  a declaration such as that we offered from dr anderson because it is an explanation of a clinical term m good morning honors that kleiner on behalf of the appellee life insurance company and i request the courts affirm the judgment the judgment is supported by the district court's factual findings and credibility terminations those factual findings incredible credibility determinations represent a logical possible and permissible interpretation but i'm just puzzled by one thing that at the beginning maybe you can clea that she couldn't do sedentary work then they would be correct that she wouldn't be able to do light work and if she can only do light work then she would be able to perform the duties of her own occupation which is classified as a light occupation classified by home but when you look at what her occupation is under the light classification and you also that if you look at what she actually does rather than some abstract classification i'm not sure and describes accurately what she does because she's got a lot of work outside of the office she travels a lot she solicits business a lot i'm not sure that coincides with the definition of light i agree one hundred percent and well then how can you say to them if she can only do light i mean she can do in job i don't think that the point is can she do her own occupation that's right and it's whether it's sedentary whether it's light you have to look at what her own specific requirements of her job are because these these classic patients are general and they don't apply or the court here in terms of responding to your question i don't want to be categorized in terms of light versus sedentary because the court found she could do her own occupation not that she met the definitions of like it would seem to me that that would be to dispose of the mother because the job that she actually did seems to me like it would be more than require more than a creep abilities someone who can the district court here looked at the specifics of her occupation and specifically her church air travel her outside sales work and came to the conclusion that based on the evidence provided that there wasn't enough evidence to show that she satisfied her burden to so that she could not do her job and when you look into the the portion of the findings of fact that deal with the two thousand and fourteen i there's a discussion in there that talks about specifically the job that the job requirements are requiring travel the fact that she fell when she was with a client at a museum those and basically her or her requirement that she has to emulate and to do the various requirements of her job and the district court in going through a new detailed analysis of all the medical records found that for the first time in two thousand and fourteen which is after the plan expired that the falls on the record took place in two thousand and eleven isn't that right that is correct and also following that she went to go see her treating physician dr dr anderson and he didn't he basically know that she was still healthy individual  healthy that's a that's a broad sort of compassing definition it puzzles me that her company basically terminates her on february twentieth two thousand and thirteen because it concludes that they can't find another job for her that's consistent with their limitations why is that itself not evidence that she can't do a prior occupation women in the they're looking to replace or in the job that she is doing they're looking for something else that she can do working for the company taking her out of the job that she has been doing and the policy pays her long term disability benefits if she can't do the job that she's been doing and the company itself has concluded that she can't so isn't that evidence of disability that satisfies the terms of the policy no you are some my in the think might be getting a little outside of the administrative record here but my understanding is that she took a leave of absence and yes and during that leave presumably her company filled her position and had someone else in that position when she comes back to work that position may or may not have been even open so the the bank is basically saying that we're trying to find something else that would work for you based on your conditions the only thing that they had available was a much lower paying job which she did not want and now in december of two thousand and twelve she gets a doctor who says you know you really can't go back to work and she moves in with her parents do you have that on the record you have on your hand yes if you are and i have trouble looking at this record seeing that she wasn't disabled within the meaning of the policy she's basically in and out of that work for a year before february two thousand and thirteen because of a physical difficulties and the doctor says  two thousand well you know you shouldn't be working she moves in with her parents i don't get it i mean it seems to me that there's plenty of evidence that she just can't do the job and the issue here looking at the you know none of the standard of review and reviewing the findings of fact of the district court whether or not there is a clearly erroneous and whether or not the there is no other permissible interpretation of the facts at issue so in other words we wrote notes for her saying that she could go back to work and she did try to go back to work and then when she is returns to work she's reprimanded for a serious violation of bank policy when she gets back she also was asked i just she just spiritual or not she was actually in about her desire to go back to work and she basically said i'd like to go back to work but i can't as i'm uncomfortable there and so you have these other facts which also lead to that to the the other side of the coin here which is that maybe she isn't not going back to work because of a disability but it's because she's not comfortable there she received a reprimand and that was a place where she no longer wants to work the question for you about the treatment of her or the consideration  depression i believe the district court concluded that the depression was i think depression and not necessarily linked to her diagnosis seems to me that she at least energy summit evidence that her depression was due to her medical condition and i was wanting to talk about how the district court addressed that argument that she made well the part of the district court talked about the fatigue in terms of depression versus and s and ultimately the position that was being put forth in terms of disability was that she has m s and she has fatigue as a result of it and the district court came out and said i can't say that the  is a result of v m s from versus the depression which you goes to the credibility of the church determination that necessarily the fatigue isn't something that is contributing to her disability because it could be something that's temporary and version of the depression i recall something in the record that she submitted a declaration or some sort of paperwork so jesting that no the reason why she was depressed was because of her and this and that i don't recall the district court addressing that declaration might remember that correctly it was a personal statement that she submitted in conjunction with her appeal and did the district court ever talk about that personal statement and the district court talked about her subjective complaints and talked about those in the context of all of her treating physician doctors and ultimately said look when you're she's making these statements in terms of her subjective beliefs as to her ability to work and when you look and you compare those to her treating physicians records who've been treating her since two thousand and say i've reviewed the personal statement and here's why i don't think it's credible in his findings of fact i do not recall any where he specifically refers to a personal statement but like i said he does refer to her subjective complaints and he also talks about those subjective complaints in the context of doctor thinks independent medical examination where he discredits the independent medical examination because a lot of that is based on her subjective complaints and he then goes back again to  dr anderson's records to say that that's not consistent with what her cheating physician is saying even after the independent medical examination took place if it could be shown that her depression was a product of her am mass and that fatigue caused maybe both by the depression and the m s directly prevents her from doing the job but if we take as a as a present promise from my question that the fatigue is caused by the depression is caused by now what's that do to us if we think that the fatigue is sufficiently disabling she can't do her job if you're assuming that the fatigue is disabling which is  is depression itself a disease and if it's disabling is there disabling within the meaning of the policy the depression can fall within the meaning of the plan there are different requirements and notations i think can remember this plan has a mental health limitation sometimes there is a cap on the amount of disability that would that would run from a mental health limitation like a two year cap for example as opposed to a mass which would have the two year period and then until she retires older  court properly exercised its discretion to exclude that that declaration ultimately this this arose in a question as to whether or not where the information in the history on the m r eyes came from and this declaration kind of came in almost through the back door so to speak because it is addressed the definition of what is my old fatigue now it didn't go through what is it and what's the information is within the history sections of the m r i it's so not basis alone it wasn't responsive inconsistent with the findings of dr anderson from two thousand and one where he does mention that she has mild the cheek and she worked for ten years after that point and there's other portion other places in the record where there's references to mild fatigue so if you assume that mil  there was evidence of her depression the medical notes document that she was crying and distraught chute during her examinations that she was prescribed  anxiety and these are subjective complaints but that does not mean that they can be disregarded by at night or the court without a reason to doubt the credibility of the claimant and that is the subject of this court's recent decision into mare versus i b m and i also like to point out that as far as the job whether the bank was just satisfied with her in the termination paperwork t bank stated that she was eligible for rehire and this was somebody who wanted to work and work for the bank she tried to return to work twice and was unable to do so thank you thank you