doctors are you to employed by the defendant described the symptoms as compatible with side effects of interferon treatment for hepatitis c the only issue was whether or not she was in fact experiencing the symptoms and whether or not the symptoms were sufficient to prevent her from being able to do a regular occupation and the answer was that if you didn't believe her she laid out in detail case that's where i'm certainly if she didn't come in with statements from her or her coworkers that would be one thing but she didn't do that all she did was say this is what happened to me and from which you can infer that there might be maybe change that every other day with the coworkers or certainly the supervisor she did not come in with a matter of declaration or even a statement of these people could corroborate was she she said she start for several times about this with her supervisor and i understand that we talk about short term disability they should they have the right to have or examined they could have stayed over to be examined from the psychological testing if they wanted to have a liver biopsy and she wasn't claiming that she was disabled because of the hepatitis a liberal biopsy with didn't mean anything or did that this was a temporary condition she wasn't going to a psychologist she would be going to a psychologist or psychiatrist to overcome a deep rooted psychological problem this was a reaction to the drug in fact as soon as she got off the drug it stopped she went back to work the concentration problems of such a degree that she cannot put forth and that's exactly what that kind of testing can do yes but they need not you're absolutely right but they didn't ask what they asked for that  it she responded with i talked to my supervisor and it's all a lot easier for them to talk to the supervisor than for her to talk to her supervisor i mean he's he's worried about is job you know he wants i'm not going to give us i don't know that this is true but generally speaking i determine what evidence is important for us to consider and their excuse for not calling the employer the the supervisor is that that's not the kind of evidence where we want to consider and i don't think they have a right to do that good morning it please the court my name is pam hemminger i represent the police as flexible benefits plan i also like to introduce my colleague jesse cripps essentially this case is one that's before the symptoms you should have independently inducted your own investigation going out into the workplace interview coworkers and accepted lady opinion and lastly you were required intensity of symptoms observed the results of a formal mental status examination or performance based tests of psychological functioning with standardized scores dr weinstein specifically sta cognitive testing indicating any memory loss or poor functional ability no documentation of significant cirrhosis or complications what they're doing is disbelieving herself reported symptoms when she self reported a great so it's not like we know that there are some magic things as for this to me i mean everybody agrees that she does have hepatitis and she is taking medication and medication can cause exactly what she's reporting so given all that  what's really happening is that instead of having her say how she's feeling they want somebody to look at her and watch whether her self report is consistent is right or not is that really what how else  made through exactly the kind of tests that the experts indicated that they wanted that information behind they're there tests your honor functional capacity strength number and there's a psychological test with respect to memory there's standardized scales that they use when someone reports depression depression can be can be slight and clearly non disabl exactly right your father that's exactly right i think it's very troubling if you look at the final documentation at the second level of appeal here are the claimant her physician and her attorney were given three opportunities to provide other answers and there was a clear clear communication by the plan with respect to what they were looking for the final not the final documentation is an eight page letter really and only the first paragraph even had said that she was no longer taking remove aren't because her had a letter and he had cleared up swelling weakness anxiety memory loss and so zero donald and she has been under extreme stress there's no even statement that these symptoms conditions disable her from working within the meaning of the plan to require a player to accept  self reported symptoms of a lay individual in fact would probably be deemed in many cases arbitrary and capricious and that's that the plan wants competent medical opinion with respect to the severity of self reported symptoms how they sit on a standardized scale with respect to ability to work it's certainly not arbitrary  and at the expense she's being asked to go out usually the case as we see with the transition from short term time on term disability and the difference between them and i understand there's no difference in the plan s same same condition plus there is no evidence in the record that some of this evidence was not available from her treating physician there were no medication record look at the look at the reports of the the peer to peer individuals they point to the lack of underlying data further there's no evidence in the record that any of that with respect to the cause of these tasks or that they wouldn't otherwise be covered by her medical plan to argue cost of tests is certainly to consider evidence outside the record and i'm not aware of any as i stand here today your honor but again the volume of the self reported symptoms it does not seem to me goes to the case the court found that in a minor fibromyalgia case which has no objective manifestations that it was appropriate for the for the plan to ask for an assessment of how those he continues she continues to be well he doesn't even state that she continues to be disabled he states only that she has the condition of hepatitis with drug complications it to require an infirmity of investigation simply because an individual self reports symptoms of anxiety and depression is to put a burden on the plan that the plan  language does not require that the plan language a gives the administrator the discretion to require documentation in the form of the plan deems necessary for planning ministr interview the supervisors the privacy issues that that would raise to impose and to invite a plan administrator when someone makes a disability claim to interview supervisors and coworkers in the workplace not only is it costly but certainly implicates all kinds of privacy issues this is not a case like stuff where declarations where were actually submitted although and even in that case i would submit that a plan administrator is not acting and i take a lot of what you said in terms of whether his documentation at least reasonably specific and reasonably directed to others and work it seems to me it is the question is whether his lack of forty five it's the report from lawrence oberstein who i guess is a psychologist and he wrote in order to substantiate that mr wood is unable to perform the core elements of her occupation from a psychological perspective her providers which was a subject of complaints of the play and didn't believe her the trial court itself such case in oregon the trial judge said hey if you don't believe or you could have gone to her believe or just because you know that this was all of able to them if they want to have testing they could have seen it for the test and you see it up and all the time they said people out there are in these functional capacity evaluations all kinds of testing to decided not only to decide not to do it but they decided not to tell or they weren't going to do it and they never even bothered to suggest or why don't you get those guys to give us statements want to use that you know she she's a layperson she doesn't know exactly what's going through their mind eventually you know i don't know with you know somebody it was me it was me and i had no idea i read all the stuff everything's in the disjunctive nothing specific until we got to court and castle started talking we're asking you specifically for this will specifically for that well i never read anything that they were asking for