may please the court good morning joshua bacharach i represent the defendant appellant reliant standard life like reserve five minutes of time for a bottle thank you this is a receipt disability case and we're appealing from the district court's ruling that the denial of additional benefits repeatedly stated that when reviewing a denial on that basis the court's review is limited to the evidence in the administrative record as a score does explain that serves a lot of important functions one is it cuts down on the cost of reviewing these cases or these claims and it leaves the decision on eligibility to the designated fiduciary from the plan but the district court here accepted new evidence from mr smith and relied on that evidence in not only accepting it as a basis for finding in favor of mr smith but also disregarding the expert report from dr weston on behalf of reliance the court accepted that evidence saying that it was doing so in accordance with the both case in both the force and one of the problems dr westen or he had never seen mr smith and never talked to him i never talked or is treating physicians well maybe i don't or i just had never to rely on dr weston to report her who never once saw this why st of all this court has never said that you must conduct and i am me some circuits have suggested that you should conduct an eye on me but this court has never said that this court has said we're under no obligation to seek out any evidence and in fact in elliot versus airily the court said that you can rely on such a report over treating physicians reports but your comment about not contacting or not speaking with the claimants doctors that's not the fault of d tries within a fairly limited time period within a few weeks but under rissa you have a certain forty five day window to decide an appeal so it's not like we had the liberty of of trying but again dr westen time and time again reached out and there was no response from anybody from dr klein's office so i'd say your honor that in a situation like this if that's a concern it is the claimants fault and again there's individual was was not qualified to serve not only able to serve as a plant manager you have your own plant that gives him a leg up on the permanent no your honor civility did you make the determination he was not evil to serve as a plant manager that is a sedentary job it's not your honor that is a misstatement by council in the administrative record there is a vocational review it is a light duty occupation that's on i believe it's ph three hundred and ninety five dollars of the record council i know said it was the supreme court has said that there are differing standards and this court has said they're not binding wondering if that does it certain point in time and actually your honor i'm not sure i went through the record to be honest and correct me i didn't find the so security decision in there so maybe i can find it so i don't want to say that clearly they knew because they may have i didn't see it but the fact is it's not binding they rely on different standards but let's talk about the evidence your honor when you've got a doctor who saying to doctors who are saying that he's walking a lot he's hunting he's doing well there are no functional limitations identified in any of the medical records when you look at what dr klang said in the administrative record he's doing well he's hunting he's walking seven and a half or eight miles a day did you know that you have triple bypass surgery yes and many people do in return to work there's a decision out of the th circuit like that really shown itself in three strokes did you know that your honor the strokes the doctors treating for that was dr hannan and dr hannan stated that he was doing well as well he had recovered and i i'm not sure was thirty three different strokes your honor strokes can be significant strokes can be minimal the question is whether they have any residual effects on him and when he's hunting there's no dispute that the said he's hunting what they try to dispute after the fact and by the way if he's walking seven or eight miles a day as dr klang stated in his contemporaneous treatment records how is that possible for somebody to work a sedentary job what about dr clegg's corrected statement well that is is this is that new evidence or is it simply a clarification of existing ev it is new evidence because it's not just a typographical error there is some muddled wording in his report the initial reports it's something about fifty half mile track and that's not clear but if you look at remed then for you to ask us to remand it so the new evidence can be considered men if that's done the doctors could dr west and could contact the other doctors it's that satisfactory to you i don't think it is for this very reason you're out of that would be the needs to be reversed the question is what does this court do now your honor brought up the new records it never should have been accepted in the st place but since it was let's look at that oh you have yes it depends on whether you considered a clarification of an existing record or a new record isn't it well he said i meant to say that's not a transcription mistake and he had every my biggest problem with this your honor is that when dr westen called him you know he had no obligation to call dr but he tried three times to reach him so we've given this doctor every opportunity and two of the doctors every opportunity to clarify the record what evidence did  report from consideration at this point it's improper evidence it has to be so the next question is what a doctor hand and say dr hannan simply listed certain diagnoses and then said based on it based on these diagnoses he's officially disabled i don't know what officially disabled means that's not a term in the policy we don't know what standard he applied but more important is this in griffin vs hartford a case that came up came out this year sapulpa this decision from the th circuit the court  held that a doctor can simply say that the person is disabled they have to identify the claimant has to identify objective functional limitations in the record dr hannan simply said here some diagnoses and by the way some of them were incorrect he said that he had uncontrolled blood sugars the contemporaneous office notes said no it was controlled at the time the same thing with dr hussein his report and i beg your honour's read those two reports of hannan and hussein they say nothing they list diagnoses and then say they can't work the question is why they can't work what prevents them and the law in this circuit is clear that they have to explain i think i hear their claim of saying that your ignored evidence there was actually on the record about the pain that he was experiencing and the negative effects of stress were put on his health also referred by the way to the most recent objective evidence which was a june two thousand and sixteen e k g it showed a fifty five percent of jackson fraction which means that there was a normal left ventricle function and that there were no symptoms anymore so yes he did have issues but the most recent testing was almost normal it showed that the valves were clear the arteries were clear at that time and so it wasn't there's no evidence that he had fallen out of the truck dizziness years earlier i believe it was so again what we look at is the contemporaneous records and as far as blood pressure goes and hypertension in september of two thousand and fifteen the same doctor klang said that his hypertension was controlled that's paid for eighty two of the record there was mention of kidney problems in november of two thousand and fifteen on page four hundred and twenty five thousand four hundred and twenty six of the record those kidney problems had resolved mention the blood sugar that was under control so dr i'm sorry judge britt said we didn't cite two or refer to certain medical records and reaching a decision those records dated back to two thousand and thirteen this was a two thousand and sixteen denial so we look at the most contemporaneous records and what those records say is this person is walking seven to eight miles this person is hunting this person every every doctor says he's doing well how could you take a look at that let's look at the subs every doctor says he's doing well you've got three doctors that concluded it was a bottom line rather than unable to work in any occupation well no your honor let's look at the contemporaneous notes they went back plaintiff went back and said can you support my disability claim and these doctors provided empty reports they say nothing they list diagnoses and say that he can't work that is never never the rule on eligibility under the law of this circuit they have to prove why they have to identify objective li functional limitations in fact even under the nov review this court has held that he claimant must come forward with objective satisfactory proof of a disability and here we have discretion and under our discretion we have doctors say and not just symptoms and he's walking about forty miles which is consistent if you look at doctors dr klang saying he's walking seventy eight miles when you multiply that across a week that's about forty miles so we have and there's no question about the accuracy of dr de paulo's report but what did the district court here do the district court said well his condition must have worsened in those few months between dr de pollo and dr clanked absolutely not that's the district court substituting just a few minutes ago there were you know it looks like they weren't all because when you look back to put roots opinion he was referring to two thousand and sixteen evidence wasn't he when he was talking about is in the well the court a there were some  i'd have to look at that specific and i will when i sit down but there were specific records as far by the way i believe that young that was that's during the period of the denial so as we know from d hannan and dr hussein claimant went to them and was asking for the support for the disability claim at that time so that's especially why in a case like this you have to look at the objective evidence so is there dizziness well let's see his hypertension is under control we know that and we have the c k g and the e k g shows he's doing great and all of the doctors are saying doing well and i know i'm running into my time a little bit it's important to point this out we still you know the doc the judge here said that doing well was just boilerplate that's that's just not true a doctor is not to say he's doing well but he can only walk a half a mile he's that impaired a doctor is not going to say he can hunt but he's so he can only walk short distances and he has dizziness and he has all these problems so are you saying that physicians never refer to wellness in a relative in terms of giving the history number i did it was a treatment by a specialist i believe for it i don't know that it listed normally it's a number of blood blood do you have the blood work i don't have that ami but your honor i'd also point this out so if he is having kidney problems how does that prevent him from performing sedentary work so there has to be limitations objective limitations on an ability to do sedentary not light duty not having medium sedentary work and if he's hunting if he's hunting regularly as he wants and he's able to walk as much as he was come on your honor two point i'd like to me st of all i think the chief they're doing well impaired what they were doing when they were in the hospital a few days ago all the means that they are progressing and that them it was multiplicity and then they used you've talked about him walking when you talk about him hunting but those are relatively stress for occupations or pursuits and the dr serious indicated that a lot of the a lot of difficulties use experiencing with his heart and from the strokes and everything are stress related and you know some people as they say the conditions are recur when they are subjected to severe stress and for some people returning to an occupation can provide  occupation which is almost in transit clearly stressful and the most kinds of things the stress wears on people because they have less for their health systems have less margin and i think that's you know i think it's important to just look at the total context of what is presented here and not just sort of russian conclusion that he's a  robust healthy individual with when you have this kind of medical medical history seem to be disputed that's that's all i'm saying saying to you is that i think the total context here very concerning well your honor if the doctors have said that would have been addressed i'd like counsel to point out where the doctor said anything well we're stress roy in his job as a plant manager which is different from a sedentary occupation which they identified as being doing some sort of clerical work even which did not involve stress none there's no indication that any of the alternative occupations involve stress and this court  also said your honor that when you're dealing with stress issues there has to be some proof of it you know you can't just rely on you know for example stanford versus continental casualty company that was a case where there was a claim of if you put me back to work i'm going to become again and this court rejected it saying that it was conjecture and it's the same thing here in fact it's less so here that case dealt with a drug addicted nurse and asked to test this case deals with somebody who would go into any occupation any there's no evidence they provided no vocational evidence that any of the alternative occupations we identified were stressful and i understand you're right your honor there were a myriad of conditions and when you look at the evidence here and i agree doing well may be a relative term but when you're doing well and you're walking as the extent he is when you're doing well and you're hunting when you're doing well and you're saying to the doctors i have no symptoms i have no  china i have no symptoms that's what he told dr klang in the records that's what he told dr de paolo around the time of the denial that's what you have to look at and so if he comes back and says well the doctor said he was disabled again  i urge the court to look at the language and griffen versus hartford which came out last year it's published and this court said you have to provide objective medical function out proof of actual objective functionality limitations and in this case the most recent test the e k g supports us and you read dr hannan you read dr hussein and they say absolutely nothing they list diagnoses and then say that is disable this  repeatedly held that's insufficient i'm not sure if i have any more time left for a bottle but if i do i'd like to reserve it will give you some thank you thank your honour's to butler please the court i'm stuart butler i'm an attorney from north carolina i represent freddy smith and his wife as at applebee's in this matter the real issue in this case is whether the lower court were correct in concluding that appellate reliance abused its discretion in denying freddie and beth smith benefits blatantly ignoring the unequivocal opinions of at least three and potentially five treating physicians and instead rely on its own hired gun and by cherry picking medical records the best evidence we stood up a little closer to the microphone yes world i'm certain yes or the best evidence and i'm sure the court  reviewed it if you have any doubt as to what reliance is what was relying on it will look at look at their nine page did now letter to freddie smith september one two thousand and sixteen detailed letter goes into it goes into treatment as as an appellant counsel reference doing well but one thing they don't do in this nine page to now letter is indicate the two or three medical opinions that are unequivocal from treating physicians that this man freddie smith is unable to perform any any occupation and what about the  the doctor statement and the argument from reliance that there is no explanation in this record of how these conditions cause any particular limitation for example on his movement on his insurance on his gait you know what what would as well that there have to be more than just he has these conditions he's totally disabled doesn't there have to be a causal link some know with all due respect that appellant's position that they have to these doctors that treat this man have to go by and check these boxes that's that's not the reality of modern medicine it's not the reality of what these these folks do they're treating they're treating physicians they are not expert retained physicians they are trying to make freddy smith's life better with his uncontrolled diabetes with his uncontrolled coronary artery disease with the strokes but that's what they're doing and if they don't check a box we don't believe that should be held against fred smith because that's not what they're about the the doctors hannon into saying unequivocally h stated he was officially disabled prior to september one two thousand and sixteen letter the and again dr the lower court correctly concluded that back that it simply cherry picking these these are the statements he's doing well he can do he can do this he can walk yes he can hot they didn't the lower court records three specific this was in if you got it if you can read read what his original report said i'm just going to read it remained active including hunting he is previously going on about fifty hyphen one half mile out the tracks did tend to leave him so or lower extremity so he is back but can do seven and a half miles without corrected his letter to the court's question we would submit that this is a mere is an error caused by a voice activated software for goodness sakes all these doctors now most of them are or that they're there they're dictating their  medical records and things get messed up as we all know one voice activated software and that's what happened to claim in record time we submit corrected his report in said he can emulate about half a mile and well eight miles weekly that's significant and what's more significant is that not replaying concluded his report by saying i agree with dr david stewart ali hussein in my hand and patricia mcgaffigan she's the social to justify their their decision so we believe this is a corrective report of the lower court it's always a question to me about what is new evidence and martin isn't and some times you say well new evidence is anything that the trust is didn't mention right but as you point out sometimes they can knew about it or maybe should have known about it in even though it's not mentioned in the trustees letter of denial if they knew about it or should have known about it zero or whatever they're not under a duty to fish it out that's for sure but if if it was in the universe of evidence that they should have known even though they did mention it is not necessarily new evidence into to the courts inquiry we  appellant that there's of there's a reason that the record needs to be closed some point according to the case or you can't leave it open indefinitely to promote is to promote speedy reconciliation of the claims but this is not a case i would agree that had had mr smith gone to a different doctor or had he gone to the same doctor for a subsequent evaluation that would be a new that would be a new record this is correct that's words stress free options of work how do we square you can hunt even though in a non stressful it is correct is recreational not stressful sedentary  matter but if we believe that fred it freddy smith leads guides jack and he walks when he when he does it so i don't i don't know i don't know how to respond other than other than he told the truth he could have i guess not said that he told his doctors what he was doing ask what you do and he didn't tell them i'm walkin seven and a half miles a day without problems according to the corrective record of dr klein and according to what that's what he says so that lines didn't give you sort of an idea what the jobs they were reporting to be sedentary that he would do well it's in there that they they have a definition of sedentary we that a plant manager he's not out on the loading dock he's a member of the take it off the table that's that's light this is gone from light to seven tours so man a plant manager is off the tape i'm just i'm just trying to it almost ninety percent or more correct yes or less what senator lisa and i'll give the example that i think about is taking up tickets at a movie theater you sit there you take it i mean i don't know i assume that's never taken up tickets at a movie theater  medical records also reflect issues that mr smith might have with the medications he takes which is myriad medications with it for the problems he has so you know to get into a nuts and bolts discussion of what he actually can do and can't do you know i'm not i'm not sure it's all in the record what we do know is that these physicians who have examined him and who who have a far better opinion or we would submit a far better idea of what this man can and can't do it's not like it's two dollars to one dollar is unanimous they all conclude the same thing and the i will say this that dr westen in his his i me he did he did mention three treating physicians that determined he was disabled he mentioned stuart hussein in the hannah but i thought it was interesting and we think words are important we think the words he said this is what this is exact quote from dr west and then in when he went to the regarding impairment is the key conclusion and he and he recited the walking eight miles daily twice  base is part of that opinion on mr smith's apparent ability to walk seventy eight miles a pair so i don't know what was in dr weston's mind but he didn't but you almost wonder if he  help and they'll just produce some sort of boilerplate thing that says he's he's disabled but i can't believe that three different physicians you know almost have to assume bad faith on the part of three different physicians to have to that they all came up with a pretext for war just the less help the guy out kind of thing and then we don't we don't have just subjective complaints of depression i'm not feeling good the man has had three strokes and we would point out it's in the record triple bypass surgery those are strokes are stress related and bot pass surgery and cardiovascular health is stress related yes or and these were real things mr smith the ways and the record he bore thirty one years one like he was a most of it as a plant manager and had there's it's in the record as well glowing reports from the owner of the of the plant who who and mr smith wanted to go back to work and did even after the triple bypass surgery so it's a situation your honour's where we think the medical evidence is not just just balancing the scales is overwhelming and the medical evidence in this case and if you can you can nit pick this doctor didn't have this didn't run this test or didn't didn't conclude this but we submit that it's overwhelming it's actually five doctors if you include stuart and who was previously treating physician and doctor mcgaffigan who was a social security do so all these people all these doctors solving and the appellate who parent we had a right under the policy for and i me decided well we'll just we'll send it to good old daughter weston in florida and i don't know you know we have we don't have the opportunity to find out how much what dr weston does and who he does it for unfortunately but we submit that under the pull factors clearly the conflict of conflict of interest in this matter is is and lower court the lower court found that and the lower court addressed helton and the lower court you know concluded that this this decision was not the result of a deliberate reasoned process and we submit that the lower court was correct  the the appellate mention something about the claim waiting to file this report again and again that's a red herring this was a corrective report from  the court the lower court really had expressed concerns about the fact that dr west and was the only doctor non trade in who concluded that freddy smith was not completely and totally disabled your honour's are in conclusion we submit that the district court properly applied the existing law all the booths and help in law when it concluded that reliance abused its discretion when determining frederick smith didn't meet the definition of total disability under the policy because they didn't stand to evidence and instead a lot of on an inaccurate medical report as demonstrated by the  which they were in possession of at the time they rendered their decision and that they properly and that their own medical determination given its and inherit the westons and relapses inherent conflict of interest and the overwhelming evidence to the contrary that was not considered by reliance was not the result of a deliberate principled and reasoned process  you judge keenan ass counsel for what objective evidence was in support of the conclusion of the doctor's counsel and provide any he went on rambling about they said they treated and they said he can't work but he didn't provide of that conclusive evidence any objective testings or findings that again in griffin this court said you have to present if you're making a claim council also refers to dr clangs report and says that we rely on the nonsensical part but in the very next month's office visit with dr klein he again stated he's able to do eight miles that's after the nonsensical one it's consistent with the earlier one that he can do seven and a half it's consistent with d paolo's statement that he's doing great no end john out no symptoms and can do forty miles so it isn't a corrective report it is a new opinion it's outside the administrative record i don't know how counsel can really argue against that and with all due respect judge wilkinson this isn't within the findings of reliance it cannot be said that they should have known of this opinion this is entirely new evidence it should never have been considered and if the court thought it should be under the barry case and other decisions there's only one thing the court should have done and that's remained so if this court thinks that there was an issue what this c to allow the judgment to stand in this case is contrary to every bit of the law of this circuit on how you review a case under the abuse of discretion standard i think it's also important to comment on the fact that he said that dr weston did nothing to confirm these things well he did how many times to dr west and have to try to call dr klein to get a response or doctor whom and dr hannan and dr hussein and i think in a situation like this where you have the reviewing doctor contacting the claimant you have essentially the arm of the fiduciary going out there and trying to obtain new information and that person disregards you then that has to mean that any findings that there is an ambiguity in those records must be held against the claimant and there must be a finding that they failed to sustain their burden because we did everything we needed to do and one counts as well dr klein got back soon enough no it's not soon enough the record was closed and a lot of the circuits clear when the records closed you can't submit that new evidence you know you said if in the very beginning you're right you're not required to have it i am me but you knew you had a herculean task when you had a unanimous physician saying that he was totally disabled you knew that so when you made the decision that you're go disabled and even assuming that it was seven o eight even with that they still said so so going down in a sense cuts against you because that even if assume they thought it was eighty seven miles and hunting all of that still given this history they said it was totally disabled and you decided not to seek in independent medical evaluation so you're not required no but the law won't do for you what you won't do for yourself and now you come here standing and you made a determination against that very very awesome mountain of experts that who treated him and said he's total it is a menagerie you send i got this and that but they are a burden but this call her clean for you isn't prejudge it here's the reason why if there's no reference to the fact that he's hunting regularly and that he's walk in same seven or eight miles again now if you say well you have to look in we have to take a step back and maybe that's not what was meant that seventy miles i think it was i think that that the doctors did the doctor did rewrite his opinion but then again you have to based on a new record you're looking at so we're looking at the record that existed and at the time when there's references to hunting walk in seven or eight miles isn't it and there's a normal e k g or as close to normal as are kennedy and other records saying his other conditions just that it does just drag out the process all of these there's so many different layers of review in this social security cases and in the these disability cases and the process just drags on and on and no one's ever certain where they stand and i just wonder if we remained on this  fruitless exercise because if you got before you this this kind of medical history and three thousand that are saying he's not you can't undertake any occupation what what is going to change your mind on on remand if in the face of that evidence you've found him not eligible for long term disability payments that's that's essentially your conclusion and it isn't and if in the face of what he what we have before us that was still not enough you know what what's going to what's going to you to reach a different result in your honor i can only speak as to my client and you know to be honest i'm concerned that you think it's a foregone conclusion because i can tell you that many many claims are  d in the face of the three different position opinions and in the face of triple bypass and three strokes he risks they owe did not disability evidence he the man had so should i known the standards a difference but he was on disability through the social security program you had a more short term disability you knew yourself and couldn't do the he couldn't continue to perform the job of a plant manager whatever and discussion about whether that center but it's at some point it just makes me it just makes me think that this case is not boring to reach a different result so why churn it well i respectfully disagree i can tell you that there are claims that every man died by courts where the same decision was reached and there are claims where it was remanded that the that the  a different conclusion based on the evidence and and that's the that's the key is based on the evidence that's before it and here the court relied on improper evidence but i'm troubled by by the court's comment about three opinions versus one because that's contrary to this court's decision in elliot versus airily with this court said that even when there's conflicting evidence that's not evidence of an abuse of discretion and it's contrary to black and decker versus north we could have ten doctors on the one side versus one there's no scorecard kept you you can't divide and conquer with respect to every evidence you have to consider the evidence in its totality and the it is not as if the position the opinion of the three zation just came out of nowhere as the chief pointed out that came out of a context and a history of various medical ailments which were not trivial these are not these are not fabricated all made up conclusions they have a medical history to back them up your honor in the gallagher versus reliance case i mentioned earlier it's to novo review the man had a history of heart disease a history of heart disease  hypertension i believe was a case that i argued more than a decade ago so there are a lot of similar facts he was an older person there was a change in definition to a sedentary standard and this court by the way originally the court ruled against reliance under abuse of discretion standard this court held that was wrong it should have been to no review but then this court held under did novo review it was not a wrong decision why because the claimant didn't come forward with objective least satisfactory proof and that's the point that i'm making here is yes he had this history and i can cite to you cases a life's a case out of the th circuit there are cases within this circuit the hype  to mispronounce the name it's in our brief a case that dealt with the same situation where the person that a history of heart disease and bypass surgery there are numerous cases it doesn't mean the person is totally disabled forever so you look at their activities you look at the fact that they're not claiming that they have symptoms currently you look at the eking g in june of two thousand and sixteen they all support the decision you're very capable practitioner in this area who are and you know that there are cases that go both ways course there are these things and you know that there are cases out there that say you do have to accord some degree of respect to the fact opinion proffered is that of all of the treating physician and it and  the treating physician so they aren't entitled to that little nudge in their favor and so what do you have to do you have to look at here is their doctor's opinion is it reasonable and is it supported same thing on our side that's the thing here so is it reasonable cause it's abuse of discussion discretion was it reasonable for alliance to reach its conclusion well again it's a sedentary level occupation we know he's walking seven or eight miles a day we know that he's hunting we've got all of that they are and what opinion you're on or mention stress there's no evidence that stress was affecting and i can tell you even in medical to forget about lawyers because we say anything right medical journals question whether stress leads to increased risk of heart disease medical journals question whether stress will cause a stroke and so there are cases in iraq that go both ways but i'm looking at the facts in this case and the facts i don't pretend to have in a great background and in medical knowledge that if for you this stand here and tell me that that cardiovascular conditions and heart attacks and strokes and the like are are not related to stress i don't care how many studies you can throw at me i know that whose events are not aided by stress now to what degree the they are brought on by stress i do not know what degree that stress is of a primary cause as opposed to a less than position that and i don't think many position to admit stress has no bearing on these very unfortunate events may not be the sole cause probably is but it's an aggravating cause has to be a rematch in the court considered extra record evidence and under barry that requires a rematch and for us to consider that new evidence and maybe during that remain and they say well you know what that panel said we should do and i am me it's a few years later but let's do it i mean because if anything it would be worse if anything so let's do it i mean now you never know so at the very least i think there has to be a  germ the court until eight thirty tomorrow morning and then we will come down the grief cou