[00:00:00] Speaker 04:
Good.

[00:00:02] Speaker 05:
Yeah.

[00:00:02] Speaker 05:
Case number 7125 jail Larson versus Reliance standard life insurance company at L appellants.

[00:00:09] Speaker 05:
Mr. Backrock for the

[00:01:08] Speaker 01:
I represent the defendant's appellants in this case.

[00:01:14] Speaker 01:
I'd like to reserve two minutes of time for a bottle.

[00:01:17] Speaker 01:
This appeals from a disability benefit claim under the ERISA statute.

[00:01:21] Speaker 01:
And the claim in this case grants discretionary authority to the plan reliance to make eligibility determinations.

[00:01:27] Speaker 01:
So the standard of review in this case is the deferential arbitrary versus standard.

[00:01:33] Speaker 01:
Under that standard, as long as the decision's a reasonable one, it must be upheld.

[00:01:38] Speaker 01:
And in this case, the district court concluded that it would be reasonable for Alliance to conclude that the records do not prove that Ms.

[00:01:47] Speaker 01:
Morrison was disabled at the time she stopped working.

[00:01:51] Speaker 01:
The court also twice said in its opinion,

[00:01:55] Speaker 01:
that it was not making a judicial determination that she proved that she was eligible for benefits.

[00:02:03] Speaker 01:
Therefore, there's no legal basis for the district court to have awarded benefits in this case.

[00:02:08] Speaker 01:
That's clear.

[00:02:09] Speaker 01:
This court in Heller v. Fortis Benefits, 142 F.

[00:02:12] Speaker 01:
3rd, 487, stated that it is the claimant's burden to prove eligibility for benefits.

[00:02:19] Speaker 01:
And that's the same even in an honorific case.

[00:02:21] Speaker 01:
It is always the claimant's burden to prove that they are eligible.

[00:02:25] Speaker 01:
And here it's a higher burden because they have to show that a decision against that was arbitrary and capricious.

[00:02:31] Speaker 01:
So how did the district court arrive at this decision?

[00:02:34] Speaker 01:
The court in this case said that it was justified entering judgment for Ms.

[00:02:38] Speaker 01:
Marson because the only decision made by reliance was that she did not prove or that reliance said that she was capable of full-time employment.

[00:02:49] Speaker 01:
And that was not reasonably supported.

[00:02:52] Speaker 01:
But that's wrong.

[00:02:53] Speaker 01:
That flips the burden of proof on its head.

[00:02:56] Speaker 01:
And more important, the district court was wrong, because Reliance specifically said she failed to meet her burden.

[00:03:02] Speaker 01:
While it did say that she was capable of full-time work, on page 2415 of the joint appendix, it also stated, quote, or that she, quote, failed to show that her impairments prevented her from performing all the material duties of a regular occupation on a full-time basis, end quote.

[00:03:19] Speaker 04:
So the basis for the district court's conclusion is wrong, and that sentence... So if we agree with you that the findings so far, that this requires reversal on remand, can the district court then conclude that she is disabled and order a payment of benefits?

[00:03:38] Speaker 01:
Well, that's a two-part question, Your Honor.

[00:03:41] Speaker 01:
The first part is that this court reviews de novo the district court's decision.

[00:03:46] Speaker 01:
So can we do that?

[00:03:47] Speaker 01:
You can do that.

[00:03:48] Speaker 01:
That's the point.

[00:03:48] Speaker 04:
So we can make that judgment?

[00:03:49] Speaker 01:
You can make that decision.

[00:03:50] Speaker 01:
The chief disabled.

[00:03:51] Speaker 01:
Well, you could, but you can't based on this evidence.

[00:03:53] Speaker 01:
We could, but we can't?

[00:03:54] Speaker 01:
You cannot, Your Honor.

[00:03:56] Speaker 01:
And that's why, if you look at what the district court found, and the evidence in this case, there's a reason why the district court didn't find in her favor.

[00:04:03] Speaker 01:
The evidence doesn't come close to supporting that.

[00:04:06] Speaker 01:
The district court said, well, let's get the eligibility.

[00:04:09] Speaker 01:
She has to be totally disabled for 180 consecutive days.

[00:04:13] Speaker 01:
That's the elimination period.

[00:04:15] Speaker 01:
And that disability must start before her coverage ended.

[00:04:18] Speaker 01:
Her coverage ended

[00:04:20] Speaker 01:
March 1, 2008.

[00:04:21] Speaker 01:
And what the district court said in its first decision in this case was that her own doctor said she could return to work in November 2007.

[00:04:30] Speaker 01:
Her own doctors only, she only complained of some mild fatigue when she stopped working.

[00:04:39] Speaker 01:
She didn't stop working pursuant to any

[00:04:43] Speaker 01:
any doctor's instructions.

[00:04:45] Speaker 01:
And in fact, she didn't even see a doctor until 10 days after she stopped working.

[00:04:50] Speaker 01:
And Judge Ballard, I know you gave me a look, and I know where you're heading, so I'm going to address that.

[00:04:54] Speaker 01:
So that 10 days after she stopped working, she did complain of extreme fatigue at that point.

[00:05:02] Speaker 01:
But she said that her condition had improved.

[00:05:05] Speaker 01:
So if it had improved, her prior visit was in December of 2007, and she said that she had mild fatigue.

[00:05:12] Speaker 01:
And as the district court said in its first decision, mild fatigue really isn't a disabling condition.

[00:05:17] Speaker 01:
We also have the fact that her own doctor said

[00:05:21] Speaker 01:
that she was disabled as of March 20, 2008.

[00:05:25] Speaker 01:
That's 20 days after her coverage ended.

[00:05:28] Speaker 01:
And then let's add this.

[00:05:29] Speaker 01:
So Ms.

[00:05:30] Speaker 01:
Marson herself, what did she argue as a district court?

[00:05:33] Speaker 01:
She realized the evidence didn't support her claim during the relevant time.

[00:05:36] Speaker 01:
She argued that she became disabled in April 2008.

[00:05:40] Speaker 01:
She tried to argue that the elimination period should have lasted longer even though she stopped working

[00:05:46] Speaker 01:
in February of 2008.

[00:05:47] Speaker 01:
And the district court correctly said, no.

[00:05:50] Speaker 01:
Your disability has to start before March 1, 2008.

[00:05:54] Speaker 01:
And the evidence just does not support it.

[00:05:57] Speaker 01:
So what we have here is the record in this case just cannot support the disability claim.

[00:06:05] Speaker 01:
And the district court tried to give her every opportunity she could to prove it.

[00:06:09] Speaker 01:
The district court remanded it several times.

[00:06:12] Speaker 04:
Was she partially disabled during the elimination period?

[00:06:15] Speaker 01:
No, that issue was fully addressed.

[00:06:18] Speaker 01:
That was one of the bases for the revamp.

[00:06:20] Speaker 01:
And what Reliance asked a few of the doctors to, or independent doctors, to look at the evidence to say was she disabled either cognitively, psychiatrically, or physically.

[00:06:33] Speaker 01:
And Dr. Deans and Shipko separately concluded that impairment was not supported.

[00:06:38] Speaker 01:
based on these mild fatigue complaints.

[00:06:41] Speaker 01:
Even partial?

[00:06:42] Speaker 01:
Not even partially.

[00:06:43] Speaker 01:
They found no impairment supported.

[00:06:45] Speaker 01:
And that's important because in this court's decision in Padaway versus teachers insurance, this court said that it is not arbitrary and capricious to rely on an independent report like those of Dr. Steen and Shipko.

[00:06:59] Speaker 01:
So if it's not unreasonable,

[00:07:02] Speaker 01:
then it can't be arbitrary and capricious.

[00:07:05] Speaker 01:
And there's even more comments by the district court.

[00:07:08] Speaker 01:
The district court in this case also said that in its first decision, before it remanded it, it said there's little evidence that Ms.

[00:07:16] Speaker 01:
Marson was disabled.

[00:07:18] Speaker 01:
And the court also said that she did little to prove her disability claim.

[00:07:22] Speaker 01:
Now, you fast forward.

[00:07:24] Speaker 01:
She submitted additional evidence.

[00:07:25] Speaker 01:
The court went through all that evidence and said it doesn't support the claim either, because most of that evidence relates to the time after her coverage ended.

[00:07:35] Speaker 01:
And then she submitted these general articles, and the court said that doesn't prove she's disabled.

[00:07:39] Speaker 01:
So the court said in its second decision, the one that's before this court now, that the record is the same now as it was then.

[00:07:46] Speaker 01:
And the record then was there was little evidence supporting her claim, according to the district court.

[00:07:52] Speaker 01:
And the evidence in this case also is that she said, the district court said that it would be reasonable to conclude that she did not support her disability claim.

[00:08:02] Speaker 01:
That means it cannot be arbitrary and capricious.

[00:08:06] Speaker 01:
And you have to look at the language in the Orissa statute.

[00:08:09] Speaker 01:
29 USC 1132A1B, that's the section they rely on for benefits.

[00:08:14] Speaker 01:
And what's it say?

[00:08:15] Speaker 01:
That a court can award benefits due under the terms of the plan.

[00:08:19] Speaker 01:
Well, this court made no, not this court, that court made no determination that any benefits were due under the terms of the plan.

[00:08:26] Speaker 01:
It made a wrong conclusion that we never said that she failed to meet her burden.

[00:08:32] Speaker 01:
So, Your Honor, I do not believe that this has to be remanded.

[00:08:36] Speaker 01:
The district court already made the finding of reasonableness.

[00:08:39] Speaker 01:
and said that she did not meet her burden.

[00:08:42] Speaker 01:
Twice, the court said, it was not finding that this ruling in her favor means that she met her burden.

[00:08:48] Speaker 01:
So what we're asking the court to do is to reverse the judgment of the district court and enter judgment in favor of reliance on the plan.

[00:08:56] Speaker 03:
I guess it's a very strange plan to have a plan that defines partial disability as total disability.

[00:09:04] Speaker 03:
And you have a situation in which the doctor said she can return to work, but if she could return to work only on a limited or part-time basis, that doesn't show that she's non-disabled.

[00:09:14] Speaker 03:
And your recitation suggested that it shows that.

[00:09:19] Speaker 03:
And I take your point that it's her burden, there has to be evidence of

[00:09:24] Speaker 03:
at least partial disability.

[00:09:28] Speaker 03:
But the policy is part of the problem here.

[00:09:32] Speaker 01:
Well, it says during the elimination period, partial disability will be considered.

[00:09:37] Speaker 01:
So yes, it does.

[00:09:38] Speaker 01:
A partial disability.

[00:09:40] Speaker 01:
And the reason being is they offer different types of policies.

[00:09:43] Speaker 01:
And so that language appears throughout.

[00:09:45] Speaker 01:
But some of them, a partial disability does not qualify.

[00:09:49] Speaker 01:
This one it does.

[00:09:50] Speaker 01:
But the district court even said this.

[00:09:52] Speaker 01:
The district court in its first decision said, but what other than the fact that she stopped working meant that she was disabled?

[00:10:00] Speaker 01:
And the court even said the same about the fact that she did return only part-time.

[00:10:05] Speaker 01:
What does that mean as far as her being even partially disabled?

[00:10:08] Speaker 01:
It doesn't prove it.

[00:10:09] Speaker 01:
There's no doctor's opinion supporting the claim during this relevant time period.

[00:10:14] Speaker 01:
That's the problem here.

[00:10:16] Speaker 01:
She failed to sustain her burden of proving.

[00:10:18] Speaker 01:
Now, we did say, we made it clear that she's partially disabled.

[00:10:21] Speaker 01:
She's eligible.

[00:10:23] Speaker 01:
But the doctors, her own doctors didn't support that claim during the relevant time period.

[00:10:28] Speaker 01:
And the independent experts who were reasonably relied on, that's what the district court said, we reasonably relied on it.

[00:10:35] Speaker 01:
They said she did not support impairment from full-time work.

[00:10:39] Speaker 04:
Setting aside all that, but could you just answer Judge Pillard's question?

[00:10:42] Speaker 04:
Why?

[00:10:44] Speaker 04:
I've puzzled over this too.

[00:10:46] Speaker 04:
I'm looking at the residual disability clause here.

[00:10:54] Speaker 04:
If you're partially disabled during the elimination period, then you're totally disabled.

[00:11:00] Speaker 04:
What?

[00:11:00] Speaker 04:
How does that?

[00:11:02] Speaker 04:
Am I reading that correctly?

[00:11:03] Speaker 01:
You are, Your Honor.

[00:11:04] Speaker 01:
And again, it's because there are some policies that say if you are partially disabled, you are not totally disabled.

[00:11:09] Speaker 01:
You have to be totally disabled from each and every duty of your occupation to satisfy the elimination period.

[00:11:16] Speaker 01:
This policy does not.

[00:11:17] Speaker 04:
So if you are partially disabled during the elimination period, you're totally disabled.

[00:11:20] Speaker 01:
That is correct, Your Honor.

[00:11:21] Speaker 04:
And if you're provisionally disabled, you're totally disabled.

[00:11:24] Speaker 01:
If you're partially?

[00:11:25] Speaker 03:
Isn't there two things?

[00:11:27] Speaker 01:
Residual, right.

[00:11:27] Speaker 01:
Residual disability equals partial disability.

[00:11:30] Speaker 04:
Equals partial disability equals totally disabled.

[00:11:33] Speaker 01:
I did not draft this.

[00:11:34] Speaker 01:
I was going to ask you that.

[00:11:36] Speaker 00:
Who drafts this stuff?

[00:11:38] Speaker 00:
Well, a lot of times they're limited by insurance, state insurance departments, and they require specific language.

[00:11:42] Speaker 00:
Really?

[00:11:43] Speaker 00:
Then you scratch your heads and say.

[00:11:44] Speaker 04:
I did a lot of head scratching on this one.

[00:11:46] Speaker 04:
I mean, this is not unusual.

[00:11:48] Speaker 01:
Right.

[00:11:48] Speaker 01:
But the bottom line is that they did see if she was partially disabled.

[00:11:53] Speaker 01:
And they concluded, based on all the evidence, that she was not, that her own evidence didn't support the conclusion that she was partially disabled.

[00:12:01] Speaker 01:
And the doctors addressed the question, and they found also that she was not, that she could do all of her duties on a full-time basis.

[00:12:09] Speaker 01:
And if you could do everything on a full-time basis, that means you're not partially disabled.

[00:12:13] Speaker 01:
OK.

[00:12:14] Speaker 01:
All right.

[00:12:14] Speaker 01:
Thank you.

[00:12:15] Speaker 01:
OK.

[00:12:16] Speaker 01:
Thank you.

[00:12:23] Speaker 02:
Good morning, may it please the court.

[00:12:24] Speaker 02:
I'm Scott Elk and I represent Ms.

[00:12:26] Speaker 02:
Morrison.

[00:12:26] Speaker 02:
I've been representing her now for nine years.

[00:12:29] Speaker 02:
This case has been reviewed by the insurer no less than six times.

[00:12:33] Speaker 02:
It's been had three different remands from the district court and they could never get it right until the final remand when she was found.

[00:12:39] Speaker 02:
Not only was she disabled,

[00:12:41] Speaker 02:
from her own work, but all work, because they finally did a physical examination on Ms.

[00:12:45] Speaker 02:
Morrison.

[00:12:46] Speaker 03:
The district court did not so find, the district court did not find that she was disabled.

[00:12:50] Speaker 03:
Where in the record is your best evidence, Mr. Elkind, that she has shown

[00:12:57] Speaker 03:
disability at all, during the coverage period.

[00:13:00] Speaker 02:
Oh, absolutely, Your Honor.

[00:13:01] Speaker 02:
If you take a look at the dates I've set forth, I set forth each and every finding, and you will see the CT scans are especially important that they repeatedly confirm the same conditions.

[00:13:15] Speaker 02:
Cavernous transformation, numerous varices, the treating oncologist Anthony Felice diagnosed the same diagnoses with the panocytopenia, splenomegaly, and the factor V line of mutation, which causes the blood clots.

[00:13:30] Speaker 02:
Now, just as an explanatory note,

[00:13:32] Speaker 02:
Ms.

[00:13:33] Speaker 02:
Marson doesn't have an ordinary disability.

[00:13:35] Speaker 02:
She has portal vein hypertension, which means hypertension of the liver.

[00:13:39] Speaker 02:
She had a shunt put in and she has a clotting disorder.

[00:13:43] Speaker 02:
So clots enter the shunt and shut it down.

[00:13:46] Speaker 02:
And if it's not removed very quickly, she dies.

[00:13:49] Speaker 02:
10% of the people have this condition die every year.

[00:13:53] Speaker 02:
On top of that, she had renal cell carcinoma at first.

[00:13:56] Speaker 02:
She survived it.

[00:13:57] Speaker 02:
People with both conditions, 25% of them die.

[00:14:01] Speaker 02:
Over the course of a 10-year period, people with just coral vein hypertension, up to 60% die.

[00:14:08] Speaker 02:
This is a very serious condition.

[00:14:10] Speaker 04:
OK, you can keep going, but what I hear you're saying is that

[00:14:14] Speaker 04:
I mean, as Judge Pillard said, the district court expressly said she was not making a decision that Morrison was totally disabled.

[00:14:23] Speaker 04:
So you're asking us to look at this de novo now, right?

[00:14:27] Speaker 04:
Because you agree we cannot affirm the decision is written.

[00:14:33] Speaker 04:
No, you can't.

[00:14:33] Speaker 04:
How?

[00:14:34] Speaker 02:
Okay.

[00:14:35] Speaker 04:
Under the policy, you get benefits if you're totally disabled, right?

[00:14:41] Speaker 04:
Correct.

[00:14:41] Speaker 04:
The district court expressly said she wasn't finding that your client was totally disabled.

[00:14:46] Speaker 02:
Correct, but that's not the correct standard of review, though.

[00:14:49] Speaker 02:
What's not the correct standard of review?

[00:14:51] Speaker 02:
The standard of review was established under Finer, Stone v. Brooke.

[00:14:54] Speaker 02:
I'll just take you from how this began.

[00:14:56] Speaker 02:
That means you have de novo review unless you're afforded discretion.

[00:15:00] Speaker 02:
In this case, the plan was afforded discretion.

[00:15:03] Speaker 02:
Right, so the district court is reviewing it for abuse of discretion, right?

[00:15:07] Speaker 02:
Then you go to the Hamilton and Fitz cases, which state that if the review is unreasonable,

[00:15:13] Speaker 02:
then it cannot be supported and therefore the claimant wins.

[00:15:18] Speaker 02:
That's how the district court wrote this decision.

[00:15:20] Speaker 03:
But it seems backward.

[00:15:22] Speaker 03:
I mean, I think there's something to Mr. Barhart's point that typically when you look at what an entity entitled to discretion has done and you say, is it reasonable?

[00:15:35] Speaker 03:
You're looking for a basis for what they've done and so the district judge is looking for a basis and she says,

[00:15:41] Speaker 03:
Well, they're saying she's non-disabled.

[00:15:44] Speaker 03:
I don't see a basis for that.

[00:15:49] Speaker 03:
But against the backdrop of it being the claimant's burden to show, then the basis is the absence of evidence of disability.

[00:16:00] Speaker 03:
That's the basis.

[00:16:01] Speaker 03:
And there's nothing unreasonable about the insurer making that determination.

[00:16:07] Speaker 03:
So the basis is,

[00:16:08] Speaker 03:
what they characterize as a zero.

[00:16:10] Speaker 03:
And what I want to hear from you is which pages should I look at in your record to identify a doctor telling me

[00:16:21] Speaker 03:
that your client is disabled in some way.

[00:16:25] Speaker 02:
Oh, absolutely.

[00:16:26] Speaker 02:
She was... Which page numbers?

[00:16:29] Speaker 02:
Oh, absolutely.

[00:16:29] Speaker 02:
I'm about to read them to you.

[00:16:31] Speaker 02:
Great.

[00:16:32] Speaker 02:
There was a question given to her main treating doctors, Dr. Kareem Elmog and Dr. Giam Kostas, the both transplant surgeons.

[00:16:40] Speaker 02:
And you will see it's JA3395-410.

[00:16:43] Speaker 02:
Dr. Elmog states that throughout the course of his treatment, it gives a series of findings stating why she's disabled.

[00:16:52] Speaker 02:
Again, Dr. Guillermo Costa did another similar assessment.

[00:16:56] Speaker 02:
That's J.A.

[00:16:57] Speaker 02:
4523 to 30, and he did a second assessment that's 4531 to 2, stating the same findings.

[00:17:05] Speaker 02:
And it's a series of findings of why she's unable to walk, why she has very fit, has extreme fatigue.

[00:17:11] Speaker 03:
Are those references to the revised appendix?

[00:17:14] Speaker 02:
I have to express the court's displeasure at the handling of the appendix.

[00:17:33] Speaker 02:
We had to supply the appendix at first.

[00:17:37] Speaker 02:
We had to supply brand new evidence that was not conserved by the insurer.

[00:17:41] Speaker 02:
And then we had problems, too.

[00:17:42] Speaker 02:
It was scanned multiple times, and with this new scanning technology, it becomes unreadable at some point.

[00:17:48] Speaker 02:
And we were unaware that it had become unreadable by the time it got to the court.

[00:18:05] Speaker 02:
So for Dr. Cream Elmog, the questionnaire is at 388-403.

[00:18:12] Speaker 02:
For Dr. Costa, it's 590 to 597, and then 598 to 599.

[00:18:18] Speaker 03:
And you are in volume?

[00:18:21] Speaker 02:
This is the revised.

[00:18:22] Speaker 03:
Volume?

[00:18:24] Speaker 02:
I don't have the volume here.

[00:18:25] Speaker 02:
I just have the page numbers.

[00:18:29] Speaker 02:
And then Dr. Elmog reviewed Dr. Costa's findings where they actually, where Dr. Costa signed the date of 8-2007 when Ms.

[00:18:36] Speaker 02:
Marson stopped working.

[00:18:38] Speaker 02:
And that's JA-600 and expresses concurrence at that time also.

[00:18:44] Speaker 02:
So not only did they make the series of findings all showing disability, they say it extends to the point on the day she stopped working.

[00:18:53] Speaker 02:
So we have the evidence, Your Honor, whereas Reliance has

[00:18:58] Speaker 02:
used reviewers.

[00:19:00] Speaker 02:
Dr. Dean and Dr. Shipko, I produce massive evidence showing that they are pawns of the insurance industry.

[00:19:07] Speaker 02:
That's how they make their money, by doing reviews.

[00:19:10] Speaker 02:
They're not practicing doctors.

[00:19:12] Speaker 02:
And they have been getting enormous amount of compensation for this.

[00:19:18] Speaker 02:
And that's what makes it arbitrary and capricious.

[00:19:20] Speaker 02:
Dr. Dean, as the court pointed out, ignored most of the evidence.

[00:19:24] Speaker 02:
Then they did a vocational review relying only on Dr. Dean's opinion.

[00:19:28] Speaker 02:
Also, as the court pointed out, they ignored all these doctors' findings.

[00:19:33] Speaker 02:
They had a functional capacity evaluation.

[00:19:35] Speaker 02:
Her doctors confirmed that those findings were existent at the time she stopped working.

[00:19:42] Speaker 02:
And Ms.

[00:19:43] Speaker 02:
Marson is not an ordinary person.

[00:19:45] Speaker 02:
She left a job where she was about to get her master's paid for.

[00:19:49] Speaker 02:
She had a grant.

[00:19:50] Speaker 02:
She was a rapidly rising star.

[00:19:52] Speaker 02:
in her job.

[00:19:54] Speaker 02:
Her co-workers bent over backwards to try to assist her to keep her job.

[00:19:58] Speaker 02:
And if you take a look at her work history, you will see that she worked until she dropped.

[00:20:04] Speaker 02:
She, at the end, she was barely able to work at all, and that evidence also was not reviewed and not mentioned by Dr. Dean.

[00:20:12] Speaker 02:
Dr. Dean did the most minimal of reviews.

[00:20:14] Speaker 02:
It was held to be unreasonable.

[00:20:16] Speaker 02:
The vocational report was unreasonable, and therefore their conclusion was unreasonable.

[00:20:22] Speaker 02:
That means Ms.

[00:20:23] Speaker 02:
Marson wins because that is the law.

[00:20:28] Speaker 02:
If it is unreasonable, she gets her benefits.

[00:20:33] Speaker 04:
What case is that?

[00:20:35] Speaker 02:
Those are the Hamilton and Fitts cases from this district court in this circuit.

[00:20:44] Speaker 02:
If it is unreasonable, the insurer loses.

[00:20:47] Speaker 02:
You have to understand that under this process, the insurer gets discretion.

[00:20:52] Speaker 02:
That means the insurer has all the advantages.

[00:20:54] Speaker 02:
The claimant has an uphill path to win.

[00:20:57] Speaker 03:
The date on, I believe, on this document that you have pointed to as the primary, the 388 to 403, is May

[00:21:09] Speaker 02:
May 7th, 2013, Your Honor.

[00:21:11] Speaker 02:
Is that the first point?

[00:21:12] Speaker 03:
Well, I see May 18th.

[00:21:16] Speaker 02:
Yes, Your Honor.

[00:21:17] Speaker 03:
2010.

[00:21:21] Speaker 02:
That may very well be.

[00:21:23] Speaker 02:
These are the doctors that treated her the entire time.

[00:21:25] Speaker 02:
They know her entire medical history.

[00:21:27] Speaker 03:
Right, but there's a timeliness issue.

[00:21:29] Speaker 03:
Nobody is disputing that she's disabled now.

[00:21:32] Speaker 03:
Isn't that correct?

[00:21:33] Speaker 03:
The question is whether she was disabled during the relevant period, which closed

[00:21:38] Speaker 02:
Which closed on March 1st, 2008, Your Honor.

[00:21:41] Speaker 03:
So a report that shows her disability as of May 18, 2010 doesn't establish her disability.

[00:21:47] Speaker 02:
It refers to her entire course of treatment.

[00:21:49] Speaker 03:
Doesn't establish her disability within the period, does it?

[00:21:52] Speaker 02:
No, yes it does, Your Honor.

[00:21:53] Speaker 03:
How so?

[00:21:54] Speaker 02:
It's a retrospective analysis, Your Honor.

[00:21:57] Speaker 02:
Not by its own terms.

[00:21:58] Speaker 02:
This person had treated her from the day one to that day.

[00:22:00] Speaker 04:
But what in the report says she was disabled during that period?

[00:22:04] Speaker 02:
Does anybody want to say that?

[00:22:06] Speaker 02:
Yeah, Dr. Costa states the concurrence with the FCE dated 10-2408, noting both continuing concurrence with findings in the presence of the same restrictions from... What page are you on?

[00:22:17] Speaker 02:
This is, I don't have the page number, it comes from the JA 4531-2.

[00:22:22] Speaker 02:
We can't use the old... I'm sorry, I gave you the old one.

[00:22:28] Speaker 02:
I'm reading from two pages.

[00:22:29] Speaker 02:
This would be, Dr. Costa, it's the second one.

[00:22:37] Speaker 02:
J.A.

[00:22:37] Speaker 02:
598 to 599, Your Honor, is where this comes from.

[00:22:41] Speaker 04:
And so what's it say?

[00:22:42] Speaker 04:
It states that she was disabled during the period.

[00:22:44] Speaker 02:
Yes, she was disabled from 820-07 forward, and that she had the same restrictions for the functional capacity evaluation that was dated 10-2408, and they were existing at 820-07 as well.

[00:22:59] Speaker 02:
Now, Dr. Casa and Dr. Elmont then expressed his concurrence with that finding, and that is on

[00:23:06] Speaker 02:
that all her doctors who treat her from day one to the current state that she was disabled as of day one.

[00:23:16] Speaker 02:
There's no one else to contradict that.

[00:23:19] Speaker 02:
The only thing you have is a medical reviewer who did a review far after her period.

[00:23:25] Speaker 02:
So you have a medical reviewer who has not examined her, is paid by the insurance industry,

[00:23:30] Speaker 02:
did not review all the medical findings, as noted by the district court, mischaracterized items, he did not review her work history, and therefore came back with the determination, oh, she can work and here are her restrictions, like it's magic.

[00:23:45] Speaker 03:
Can you explain to me on JA 600, there's a handwritten note under additional comments, patient should be reevaluated for functional capacity, current report, to assess her current status,

[00:23:59] Speaker 03:
Is date 1008?

[00:24:04] Speaker 03:
or patient should be revalued for functional capacity to assess her current status.

[00:24:09] Speaker 03:
Current report is date 1008.

[00:24:13] Speaker 03:
Can you explain what you understand that to mean?

[00:24:15] Speaker 02:
Yes, she wanted to have a new functional capacity evaluation done and it was done on June 2nd, 2011.

[00:24:20] Speaker 02:
That's JA 565 to 571.

[00:24:23] Speaker 02:
We did follow that protocol and we did get another functional capacity evaluation and found her at pretty much the same levels.

[00:24:30] Speaker 03:
That's all past the period that's relevant.

[00:24:32] Speaker 03:
So when it says current report is date 1008, what's that referring to?

[00:24:37] Speaker 03:
Because this document is dated June 11, 2013.

[00:24:39] Speaker 02:
He's referring to the 10-24-08 functional capacity evaluation.

[00:24:43] Speaker 02:
That was the original one.

[00:24:45] Speaker 02:
That report is at 559-565.

[00:24:47] Speaker 02:
is what the doctor's referring to.

[00:24:50] Speaker 02:
And he said she could just use a new one at the time and a new one was done, just to show her current abilities.

[00:24:55] Speaker 02:
Because not only did she have to prove she was able to do her own occupation afterwards, you're required to prove you can't do any occupation, which the insurer has found.

[00:25:04] Speaker 02:
But there's been no change in her condition.

[00:25:05] Speaker 02:
If you look at all the symptoms and all the findings, they are identical.

[00:25:10] Speaker 02:
Nothing's happened to her in between that's any different.

[00:25:13] Speaker 02:
The reliance has shown that if she is disabled, if they had done the examination initially, she would have been found disabled.

[00:25:22] Speaker 02:
They have gone to reviewers who did not evaluate her.

[00:25:24] Speaker 02:
In fact, there are psychologists that did evaluate her.

[00:25:28] Speaker 02:
violation of the psychological ethics, not to personally examine someone before you render an opinion.

[00:25:34] Speaker 02:
We provided those ethical rules.

[00:25:36] Speaker 02:
He outright violated them and says he does it all the time.

[00:25:39] Speaker 02:
He doesn't even have an office.

[00:25:41] Speaker 02:
He doesn't have a secretary.

[00:25:43] Speaker 02:
He just takes cases from all these insurance companies.

[00:25:46] Speaker 02:
Same with Dr. Dean, who is a medical director with UNUM, the largest disability insurer in the country.

[00:25:52] Speaker 02:
These men feed on these cases for their living.

[00:25:55] Speaker 02:
They are not credible.

[00:25:57] Speaker 02:
and her own doctors who are transplant surgeons.

[00:26:01] Speaker 02:
We're not talking a primary, Your Honor.

[00:26:02] Speaker 02:
We're talking hematologists, oncologists, and transplant surgeons.

[00:26:06] Speaker 02:
These are top doctors in the country.

[00:26:08] Speaker 02:
They do not see her very often.

[00:26:09] Speaker 02:
They see her when they need to save her life, usually.

[00:26:12] Speaker 02:
That's about it.

[00:26:14] Speaker 02:
She is living day to day.

[00:26:16] Speaker 02:
She is a very sick lady.

[00:26:18] Speaker 02:
She has survived all the odds.

[00:26:20] Speaker 02:
And she's lucky to do that in itself.

[00:26:23] Speaker 02:
And she's just surviving, hoping someday she will finally get paid her disability benefits.

[00:26:28] Speaker 02:
And under the law, it was found that reliance was unreasonable.

[00:26:33] Speaker 02:
That is the law.

[00:26:34] Speaker 02:
If they are unreasonable, under the deferential standard review, Ms.

[00:26:39] Speaker 02:
Marson wins.

[00:26:40] Speaker 02:
If the court did come out and say, well, she's disabled or not, there's the only part in the policy that says if she is found disabled, and it's very important for this court to understand, it says only if the evidence is satisfactory to us is how it reads in the plan.

[00:26:57] Speaker 02:
Why is that important?

[00:26:59] Speaker 02:
Because that clause has been found to be arbitrary and capricious in every court.

[00:27:03] Speaker 02:
What is satisfactory to you, Honor, for me to take you, open up your wallet, and give this woman now hundreds of thousands of dollars that you owe her?

[00:27:12] Speaker 02:
There is nothing that is satisfactory to a lying standard.

[00:27:16] Speaker 02:
And as counsel pointed out in his reply, he showed all the circuit court opinions.

[00:27:20] Speaker 02:
This is a scorched

[00:27:21] Speaker 02:
insurance company.

[00:27:23] Speaker 02:
They litigate everything to the hilt.

[00:27:25] Speaker 02:
They do not like to pay claims, and this is exactly what proves Ms.

[00:27:29] Speaker 02:
Marsden's case.

[00:27:30] Speaker 02:
They looked with an eye which was jaundiced.

[00:27:34] Speaker 02:
She didn't have a chance from the outset, and this is just a huge path of denial.

[00:27:38] Speaker 02:
Now, this case has been going on now for nine years.

[00:27:42] Speaker 02:
Ms.

[00:27:43] Speaker 02:
Marsden has suffered the entire time, and it just shows that Reliance has a very high tolerance for her pain.

[00:27:51] Speaker 03:
Can you, just to help us out in terms of what you're, what you're relying on, you've mentioned 388 to 403, you've mentioned 598 to 599, you've mentioned the 559 to 564, is there anything else that you want to make sure?

[00:28:08] Speaker 02:
598 to 599?

[00:28:10] Speaker 03:
Yep.

[00:28:10] Speaker 02:
Okay, and if you go to the functional capacity evaluations.

[00:28:14] Speaker 03:
The one that's within the employment period I think is the 559 to 64 and we'll hear from Mr. Rosenblatt about that as well.

[00:28:25] Speaker 03:
I mean Mr. Bachrock about that as well.

[00:28:27] Speaker 02:
Thank you.

[00:28:31] Speaker 04:
So

[00:28:34] Speaker 04:
Does Mr. Packer have any more time?

[00:28:37] Speaker 04:
You can take two more minutes.

[00:28:39] Speaker 01:
Thank you.

[00:28:39] Speaker 01:
I appreciate that, Your Honor.

[00:28:40] Speaker 01:
I'm not even going to address the remarks by counsel against my client.

[00:28:43] Speaker 01:
They're absurd.

[00:28:45] Speaker 01:
He's trying to argue hyperbole and unfounded.

[00:28:49] Speaker 04:
Why don't you not address them?

[00:28:50] Speaker 04:
Why don't you not address them?

[00:28:51] Speaker 01:
That's a good point, Your Honor, especially with two minutes.

[00:28:54] Speaker 01:
Your Honor, you asked Judge Pollard, you asked him to identify the evidence.

[00:28:57] Speaker 01:
And he cited two FCEs, one in October 2008.

[00:29:00] Speaker 01:
That's several months after her eligibility ended on March 1, 2008.

[00:29:05] Speaker 01:
The second one was in 2011.

[00:29:08] Speaker 01:
That's years after she stopped working so her coverage had ended.

[00:29:13] Speaker 01:
What else did counsel say?

[00:29:14] Speaker 01:
He said that CT scans confirm that she's unable to work.

[00:29:18] Speaker 01:
No, they confirm a diagnosis.

[00:29:20] Speaker 01:
But she worked with this portal hypertension for years.

[00:29:24] Speaker 01:
So a diagnosis doesn't mean a disability.

[00:29:28] Speaker 01:
There are other facts.

[00:29:29] Speaker 04:
Well, what's your response to counsel's argument that, look, the question here is whether your client reasonably or unreasonably denied benefits.

[00:29:38] Speaker 04:
That's the only question.

[00:29:39] Speaker 04:
The district court said it was unreasonable.

[00:29:41] Speaker 01:
The district court said it was unreasonable because the only decision that Reliance made was that she was capable of full-time work, and the court said that decision's not reasonably supported.

[00:29:52] Speaker 01:
But as I pointed out earlier on her, Reliance also said that she failed to meet her burden.

[00:29:58] Speaker 04:
So your point is, is counsel correct in this language in the district court order that I'm not making a judgment about whether she's disabled or not?

[00:30:08] Speaker 04:
is really irrelevant.

[00:30:09] Speaker 04:
The only question is whether the insurance company reasonably denied the benefits and that's the issue we're reviewing.

[00:30:16] Speaker 00:
Is that right?

[00:30:17] Speaker 00:
Under the Arista Statute.

[00:30:19] Speaker 04:
That's what I just asked.

[00:30:20] Speaker 00:
Yeah, under the Arista Statute.

[00:30:22] Speaker 01:
You're only allowed to award benefits due under the terms of the plan.

[00:30:25] Speaker 01:
Now, under the deferential standard, that means that she has to prove it's arbitrary and capricious.

[00:30:30] Speaker 01:
But if you're now saying that she can get awarded benefits even if she hasn't proven her claim, you're putting a higher burden on us when we're supposed to have a deferential review.

[00:30:39] Speaker 01:
So clearly, that's not the law.

[00:30:42] Speaker 01:
The law is, even in an onerous of cases I've pointed out, a claimant.

[00:30:45] Speaker 04:
Well, but if the district court's supposed to review it deferentially, and I agree that's right, doesn't that mean that the district court looks at the evidence and makes a judgment as to whether the insurance company's decision was reasonable or not, right?

[00:30:59] Speaker 04:
If it's not reasonable, isn't that deferential?

[00:31:03] Speaker 01:
Well, the decision, it should be reviewed differentially.

[00:31:06] Speaker 04:
Right.

[00:31:06] Speaker 01:
But the decision that this court made was not that it was reasonable to deny benefits.

[00:31:11] Speaker 01:
Well, although the district court did say it would be reasonable to reach that conclusion that she did not prove her claim.

[00:31:17] Speaker 01:
But the district court in this case only said that it was unreasonable for a reliance to conclude that she was capable of full-time work at the time she stopped working based on its flipping of the burden of proof in this case.

[00:31:33] Speaker 03:
In the report dated October 08, the doctor says,

[00:31:43] Speaker 03:
She began developing severe fatigue and other illnesses, began missing several work days which worsened in January 2008.

[00:31:51] Speaker 03:
In February 2008, she was given an off due to release by Dr. Elmage because of her chronic illness and fatigue.

[00:32:00] Speaker 03:
That's within the time period, is it not?

[00:32:01] Speaker 01:
Yeah, but that's incorrect.

[00:32:02] Speaker 01:
Those statements are incorrect.

[00:32:04] Speaker 01:
Dr. Elmage did not

[00:32:06] Speaker 01:
take her, in his own words, I took her off work on March 20, 2008.

[00:32:12] Speaker 01:
That's when the doctor took her off work.

[00:32:14] Speaker 01:
There was an exam, interestingly, ten days after she stopped working, and the question is why wouldn't she see a doctor sooner if she suddenly became disabled, but the point is even then the doctor didn't say,

[00:32:26] Speaker 01:
she's disabled and the district court in its findings even said that the first time around said you know that there was no doctor that said that she should stop working or needed to stop working at this time and your honor i know my time is up and i appreciate

[00:32:41] Speaker 01:
Yeah, I appreciate that.

[00:32:44] Speaker 01:
If I may just make one final point.

[00:32:46] Speaker 04:
Yeah, one final point.

[00:32:47] Speaker 01:
I really would urge the court to look strongly at the records that were just referenced by counsel because they do not support a number of the statements that were made.

[00:32:56] Speaker 01:
Most, if not all, of them are dated long after her coverage ended and we think that what needs to get done here is the district court decision was clearly wrong and we ask the court to... Let me just ask you one more question, which is

[00:33:08] Speaker 03:
I think the typical experience is someone's being treated for a condition and the doctors are focusing on the treatment and the person's condition as a diagnostic and therapeutic matter.

[00:33:24] Speaker 03:
And the individual, if she has a strong work ethic, is focusing on

[00:33:29] Speaker 03:
doing work that she can do and resting to recover to the extent that she can.

[00:33:33] Speaker 03:
And when employment ends, it might be reasonable to focus more on documenting support for benefits.

[00:33:44] Speaker 03:
Is there no basis in this record for an implication that an illness that she had that required surgery within the coverage period

[00:33:54] Speaker 03:
was nonetheless not manifest until the work-related medical documentation was finalized after the coverage period.

[00:34:07] Speaker 01:
If her doctors didn't say in November 2007, remember she stopped working August 2007, if her doctors didn't say in November 2007 that she could return to work, and that's a finding the district court made, maybe we have a different case here, but her own doctor said she could return to work, and after that time, all that she complained about

[00:34:28] Speaker 01:
in November and December was mild fatigue, and then 10 days before, or 10 days after she stopped working, she says that her condition improved.

[00:34:37] Speaker 01:
So when you look at all of that, and you look at the lack of treatment, the FCE didn't take place until nearly a year later.

[00:34:45] Speaker 01:
She failed.

[00:34:46] Speaker 01:
The directors don't support it.

[00:34:47] Speaker 01:
And by the way, Your Honor is familiar with the Black and Decker v. Nord case out of the Supreme Court.

[00:34:53] Speaker 01:
We don't have to.

[00:34:54] Speaker 01:
I don't think her doctor said she was disabled during the relevant time.

[00:34:58] Speaker 01:
They rely on these.

[00:35:00] Speaker 01:
There may be one or two reports way after the fact that try to relate things back.

[00:35:06] Speaker 01:
But I really don't think most of them are based on the FCE.

[00:35:09] Speaker 01:
But the fact is, even if her doctors say that she was disabled from August all the way forward from doing anything, my client is not obligated to follow that under Supreme Court precedent in North.

[00:35:23] Speaker 01:
Thank you.

[00:35:24] Speaker 01:
Thank you, Your Honors.