proceed to our fourth and final case number 12-2360, cozy versus prudential insurance company of America. Mr. Adams, are we glad to hear from you whenever you're ready, sir? May it please the court. Good morning, Your Honours. My name is Nora Sadams. I'm here representing Beth Cozy, the appellant, in this matter, what appears to be the court's only civil matter of the day. At least for this panel. This case presents a fairly typical fact-turn in arissa-benefits claims. Excuse my voice, I'm having allergies. Jesus, weak, and if I start coughing, I'll grab the water. I'm with you. I'm suffering as well. But in this case, it's like many other benefit claims under arissa. We have a claimant that has a disease or diseases. There's not really a question about that. These diseases cause some sort of symptoms, pain, fatigue. The plan administrator armed with a report from a reviewer, either usually a vocational reviewer or a medical reviewer, acknowledges the diagnosis, but then refuses for whatever reason to credit the diagnosis when determining whether or not to award disability benefits. The examples, I can think of one for each, a vocational would be that they can still meet the restrictions and limitations of the job. Medical would be that subjective symptoms don't equate with the objective evidence available. I think we have both of those here. Also typical in arissa-benefits cases, is in this case the standard of reviews are important consideration for the court
. If the plan has given itself discretion and done so adequately, an abuse of discretion standard of review applies, if it doesn't then the default denovo standard of review applies. Here, Ms. Cozy has two claims, a short term disability claim that was terminated and a long term disability claim that was denied. So there's two potential standards of review that would be applied one to each claim. And I want to briefly talk about each of those. With respect to the short term disability claim, at the district court below, the party has agreed that the claim was not governed by arissa. The short term disability claim was not governed by arissa, such that ordinary breach of contract principles applied to it. I was a little surprised you didn't play a jury trial on that. Your honor, we actually didn't get deep that until, matter of fact, I argued that it was non-arissa all through summary judge briefing, and it wasn't until summary judge and briefing closed that potential filed a brief, they fought that argument. It wasn't until after summary judge and briefing closed that they filed a brief with the court that said, wait, you're right, it is not governed by arissa. My point is, and I don't mean it is criticism, but when you file the complaint, I guess I'm sorry. In fact, I see a lot of erissa claims counsel will often prey a jury trial just sort of out of an abundance of some might say silliness or some might say caution. You never know what might happen, but anyway, I don't know what to do. If I had, before the administrative record was submitted during litigation, if I had figured that out, I probably would have, but it was with is well within the litigation that I did. So, all parties agree that the breach of contract ordinary North Carolina principles of contract construction apply. And the district court, I thought a couple of reaches in order to get to where it got, which was that an abusive discretion standard applied, even when arissa didn't do the term disability claim. What the district court did was in applied a case from the seventh circuit that said, if we can look, even though arissa doesn't apply, if we can look to the four corners of the contract and figure an intent to apply a discretion, we're gonna go ahead and do that anyways, even though it's not arissa. So the court looked at the contract, and the only, well, actually the court just decided without deciding that there was not an adequate grant of discretion in the contract, but I think Gallagher supports that decision. So the court said, I'm gonna take it a step beyond having not found discretion within the contract. I'm gonna go a step beyond and apply a arissa precedent that says, and actually older arissa precedent now, that says, I can look at other documents that are between the parties that are associated, and if I can find discretion there, then I can apply it here
. So what the court did was, it looked at administrative services agreement, based on a arissa precedent that said, other documents came to be part of the plan documents, and it found discretionary authority there. I asked you this, am I right that somewhere in here, Judge Schroder said, even if they novo standard of review applies, for me, the outcome is a bad thing. He did your honor. Yes, so in that light, where does that leave us? It assume hypothetically that we agree with you that for both the short term and the long term, it's the novo and not abuse of discretion. Yes, Your Honor. Where does that leave us in light of the district courts? Well, Your Honor, I think I would almost turn that back if you say even under an abuse of discretion standard, I think Judge Schroder's wrong. In this case, so certainly under the novo review, just looking at the evidence that was presented, by both sides, I think Ms. Kozy has a very strong case for both short term and long term. I'll accept that, a strong case. But where does that leave us? Are you asking us, and I think I know the answer to this, are you asking us, assuming we agree with you that it's the novo, to rule as a matter of law, as they say in the fifth circuit, to render, of course we got that pre-existing condition issue floating around. But I guess my question is, does it go back to the district court, at least go back to the district court, if you agree with you that it's the novo standard, or do we say, well, the judge has looked at it very carefully, it's an aristocrat, it's not a jury trial, he said even if he applied a damevo standard, you see what I'm not asking the question in a very articulate way. I think this court can order reinstatement. I mean, it goes back to the district court in any of it, if we agree with you, because the pre-existing condition issue needs to be addressed. I mean, I think you agree with that. I think that it certainly was not addressed by the district court. I think the appellees would argue that, I think their argument is, and I don't mean to speak to Dr. Carlos, more than capable of doing that himself, I think their argument is that this court can decide it as a first blush. I, in my briefing, tended to disagree with that, and I do think the probably the district court has to have the first shot at that, as a preliminary matter, just on pre-existing. So would it make sense, if we agree with you, I'm just speaking hypothetically that it's damevo, on both short-term and long-term? Are you arguing to us that we should send it back for a do-over under a damevo standard, or are you arguing, don't send it back, please don't send it back, I ask you not to send it back, decide it for yourself, because as a matter of law, she's entitled. To benefit
. We are not, I think that, I do think that this court can order reinstatement of her short-term and order the district court to order the plan and minister to give her disability benefits. The pre-existing condition. On the basis that she's entitled to benefits as a matter of law. As a substantive matter based on her, the evidence that was presented below and is in the administrative record that she's, for example, the fact that vocational reviewer and medical reviewer have agreed that travel is material and substantial duty, and that makes this at least a light duty occupation while their reviewers have said she can do sedentary. At one reviewer said she can do at least sedentary, but I don't know what that doesn't mean she can do light. I mean, if I can run three miles, it doesn't mean I can run a marathon. So all they have in the record is that she can do sedentary, but their experts also say, travels material and substantial and travel makes this light. So as a matter of law, I think the substantive question of disability can be answered by this panel that Beth Cozy is entitled to it. The preexisting condition is the only thing that's out there that hasn't been decided. So I don't know. That doesn't apply to the short term, correct? Correct. And if they're correct that this court can decide the preexisting condition, I think there's no question, and maybe it's a matter of utility to send it back to the district court because I think there's no question the preexisting condition doesn't apply. They can only point to the short term. To anything, it doesn't apply meritoriously at least because the only doctor's appointment they can appoint to in the three months prior to her, the three months of the preexisting condition reply, that doctor's appointment was June 25, 2008, and it simply says that Dr. Davis documented that Ms. Cozy's balance was poor, but that her energy level was improving, and documented her tremor. I don't see that that meets the level of providing medical treatment, care, consultation, services to her. And even if it did, it would apply to balance, not degenerative disease, fibromyalgia, chronic fatigue syndrome, and so forth. I don't think that any merit to the preexisting condition argument, my only hesitation is that the district court judge didn't decide it. But on the merits of the disability, I think that there's no question that my first example, the issue of the light versus sedentary, I think there's also a duperry issue here, duperry versus Lyna case that was decided by this court a couple of years ago, wherein, as I records, the reviewing doctors, Dr
. Hess, the Colbell, credential in the denial letter, and even the district court, all said, look, let me give you specific examples. Dr. Colbell said, Cozy's complaint simply or not borne out through objective evaluation, has said no objective basis to support Cozy's occupational impairment. Credential said only self-reported symptoms, based on these, Ms. Cozy's physicians have indicated she's unable to work. However, the medical data on file does not support that with objective evidence. And that's the key to the case, right? One of the keys to the case is whether there's an absolute requirement for objective corroboration. I would say that the case can be decided one step before that, based on the light versus sedentary. I think this is almost like a fallback, another way Ms. Cozy wins, because I think it's clear by the record that the doctor and the vocational reviewer say, travel is material and substantial, travel is required by this job, travel increases it to something higher than sedentary. The vocational reviewer says light and 20 pounds, which I can't travel to pairs with a 20 pound bag, but I'd just like wait a one shirt for me. But if you go by what they say, it's at least light. And if you go by what their doctor says, Dr. Aiki, she's capable of at least full-time sustainable sedentary work. She doesn't go further than that. None of the reviewers go further than sedentary, but they all put a requirement that they travel. It's like saying, it's just bewilders me, because the analysis seems like it stops. They acknowledge that travel is a material, substantial duty of her job. They acknowledge that that's at light, and they acknowledge that the only thing we have here is telling them it's sedentary. But then they say that's okay
. The analogy that came to my mind is, firefighting is sedentary until you go down the pole. Once you're fighting a fire, you're fighting a fire. And that's a material part of being a firefighter. If it's a material part of being a senior marketing manager to travel internationally and abroad, two to eight times a year, you can't dismiss that and say when she's not traveling it's sedentary. So I think that by itself carries the data as a positive. As a backup, Dupari says, if you have objectively identifiable diagnoses, what she does, she has chronic fatigue, she has fibromyalgia, degenerative disease, and so forth. And if those diseases are expected to cause the subjective symptoms that she's complaining about, you can't dismiss them. You have to consider them. And here, unless the policy says otherwise, and here the policy does not say otherwise, it's very similar to Dupari in that situation. So here we've got a policy that doesn't prohibit reliance on subjective complaints. We've got evidence of her subjective symptoms. We've got evidence that these diseases do, in fact, prevent her from working from her physicians and herself and her written declarations from her colleagues. We've got evidence from her declaration and her Emily and colleagues that about the severity of her symptoms. We've got evidence from retreating physicians that these symptoms are unable to allow to work. So when you combine all that together with a policy that doesn't reject that, you can't ignore that part of it. And that's the core holding in my view of Dupari. And why this is very similar to Dupari from that respect. Another issue that I would draw with the review that's been given is that there's a substantial amount of case law that says, you have to consider the combination of impairments on the person's ability to function on their work capacity. And there's nowhere in the record where anyone hired by prudential ever looked at how does A combined with B combined with C combined with D impact, her ability to function. In fact, if you look at Dr
. Akees report, it's a specific report, chronic fatigue, here's my conclusion and so forth. One after another broken down into my conclusions. I see that my time is up if there are no other questions, I'll sit for a rebuttal. You have some additional time remaining. Thank you, Ms. Stadels. Good morning. Good morning. My name is Pat DeCarlo. I represent the defendants. Ms. Cozy has no lifting restrictions whatsoever. She has had nothing but completely normal musculoskeletal exams, which have noted full strength and mobility in all four of her extremities. The only argument plaintiff has that she can't travel because of a lifting restriction is based on a misreading of Dr. Akees report. Dr. Akees does not impose a lifting restriction. He says in his report, which by the way was drafted an issue nine months before the vocational report came out that he thought she could do sedentary work and sedentary work was defined as being able to lift up to 10 pounds. At no time, did Dr. Akees suggest that she had a lifting restriction? And if there is a lifting restriction, we would expect to see that somewhere in her own medical records
. And it's not there. Ms. Cozy has had evaluations from gastrologist, endocrinologist, cardiologist, at least two neurologists. And they've all come up with either normal findings or findings that don't explain her symptoms. And there's also substantial evidence that beyond just the lack of evidence of a cause for a disability or objective proof for the disability, Ms. Cozy has not always followed the recommendations of retreating physicians. Dr. Miller, the gastrologist, and they're actually two Dr. Miller's in the case. I'm referring now to the gastrologist, recommended a small bowel X-ray, Ms. Cozy refused that. Dr. Athar, a neurologist, recommended a rheumatology concert. What is the relevance of all of this? That she has not followed up with doctors as indicated for treatment that may resolve this question of whether she does have a disabling condition. So I disagree with the argument that this is just, is objective proof required or not? And that's the end of the analysis. Objective proof may not be required in all situations, but it's certainly a relevant factor to consider among other factors. Other factors in this case include not following up what with physicians. She says she's disabled as a result of myelgia. If we are persuaded that the district court seem to require as a matter of law objective evidence, would that be reversible error? I don't believe so because I believe the judge looked not only. A lack of objective, but some of the other factors as well
. And it's important to look at all the factors, not just one. Objective proof may not be dispositive, but it's certainly relevant to the question of whether plaintiff has proven their burden of proof. And the rheumatology is particularly important because that's the specialist who treats fibromyalgia. She was referred to a rheumatologist and decided not to... And let me ask this. The judge said abusive discretion standard applies, but even if they novo applied, the outcome here would be the same. Correct. How do you do that in the context of summary judgment? If... If Ms. Cosie is entitled to all inferences under an abusive discretion standard, and all inferences in her favor under a de novo standard, I guess I'm trying to work out in my mind how you work that out on the basis of a summary judgment. In these cases, generally, are addressed in the summary judgment context, because we're looking at an administrative record. There may be arguments about the implications of what the facts mean, but the facts are essentially not in dispute. We disagree about the conclusions, but what the doctors said at different times is all documented in the record and something that the judge here was able to evaluate. But the judge did seem to look awfully hard and was unable to find objective evidence. Correct. And so, if it's de novo, an objective evidence is not a sine qua non of a disability claim under this policy
. I'm just trying to figure out how a judge could say it's abusive discretion, and he goes through the abusive discretion analysis, and at the end, he says, well, but even if it's de novo, same result. Because under a de novo review, the lack of objective evidence is an important factor to consider. It's not the only factor. Right. But still, if someone has a claim and they have objective proof of their disability, that is a stronger claim than someone who comes in without it. So, if you don't have it... Is it a stronger claim or is it just a different claim? I mean, you know, but one of the things is a broken leg stronger than schizophrenia. Well, there are ways to diagnose schizophrenia, and some conditions have some tests for them that sound a little objective, and a good example is fibromyalgia. The test for fibromyalgia is an 18-point trigger test. That's never been done on Mrs. Cozy. There are some cases where they do the 18-point trigger test. Yes, they've got it. It's somewhat subjective as to whether it prevents them from working. But it's not a situation where their claim is permanently safe from any type of outside analysis. Another example is depression. The doctor looks at the person and says they look depressed. Somewhat subjective, but at least there's some corroboration there
. Here we have a case where that corroboration is lacking. And we really also don't even have a firm diagnosis. We have the term fibromyalgia used, but we have no formal fibromyalgia doses, no treatment for fibromyalgia. So, how could you find that she is disabled under any standard? But the plan doesn't require a diagnosis. It doesn't require it, but it's obviously something that would be relevant to look at as part of looking at all of the factors the courts have said. Of course, it doesn't require it. Right, right, no, it doesn't require objective proof, but can I say that I have to find it? It doesn't require objective proof, and it doesn't require a diagnosis. It requires proof of disability. Right, and it's difficult to do that in this case where she's got no objective proof, no diagnosis. Your client drafted the plan. Correct. So, what are we supposed to do with that? Well, you still have a plan could have required all of that, didn't, and now you come into court arguing, well, there's no diagnosis, there's no objective evidence, there's no requirement into planning that any of that be there. Well, there is a requirement that she meet the definitive disability under this plan. That she'd be disabled. That she'd be disabled. And what I'm trying to argue here is the medical records just don't support that she is disabled, and she cannot meet her burden of proof as a plaintiff to prove that she's disabled. And fibromyalgia is not the only issue to talk about, but which she's not treating for it at all. That is much different than other cases that have said, well, we know that there's no objective proof, but the person's still treating for this, and the doctors say that they have it. This is a situation where if she has fibromyalgia, it is reasonable to ask, why did you not follow the doctor's advice to see a rheumatologist? Why are you not treating for it? And if it's truly disabling, where is the evidence that the fibromyalgia is disabling? It's just not in the record. Another issue that just might be a question the judge could ask, got a trial? If the resident doesn't get to ask that on summary judgment. Well, but we would be at trial limit to the record anyway, and there's no more evidence, no more medical evidence that's going to come in, but you're relying on her failure to do A, B, and C, and that's not in the record, right? Understand as the administrator, you can rely on what's not in the record, but once it comes to court, it seems to me, if you draw inferences in favor of the claimant under a de novo standard in the face of a plan that doesn't require a diagnosis, doesn't require objective evidence, and in light of the fact that you could have had her examine, for example, by rheumatoid specialists, you chose not to, which is your right. There's no legal requirement that you do so. These are the kinds of considerations, arguably, I'm just trying to explore this with you. The judge maybe shouldn't grant some judgment. Well, under a de novo standard. Even in a de novo standard, the default rule is that you're still limited to the administrative record. There is some case law that says you could go outside that special circumstances, but I would submit a trial would be of limited utility if we're looking at the administrative record and the absence of proof that's in the record now is still going to be an absence of proof. But there may be an explanation for the absence of proof. We haven't heard that in the briefing or the argument so far. I'm not sure it would show up in the briefing. It would show up, I mean, she would have to explain why she didn't have this test or that test or this examination or that examination. Wouldn't that be- Well, she also had every opportunity to do that during the administrative process. She could have set letters. She did stand a lengthy statement. She could have included in there. I'm choosing not to follow the advice of my doctor to follow up with a rheumatologist or XYZ reason. We do have an argument, I believe, in the briefing that she couldn't afford, but she saw other doctors. Ah! She couldn't afford it. Well, she has seen- Why did she see other doctors subsequent to that? And the record does not support that. That's an argument
. Well, but we would be at trial limit to the record anyway, and there's no more evidence, no more medical evidence that's going to come in, but you're relying on her failure to do A, B, and C, and that's not in the record, right? Understand as the administrator, you can rely on what's not in the record, but once it comes to court, it seems to me, if you draw inferences in favor of the claimant under a de novo standard in the face of a plan that doesn't require a diagnosis, doesn't require objective evidence, and in light of the fact that you could have had her examine, for example, by rheumatoid specialists, you chose not to, which is your right. There's no legal requirement that you do so. These are the kinds of considerations, arguably, I'm just trying to explore this with you. The judge maybe shouldn't grant some judgment. Well, under a de novo standard. Even in a de novo standard, the default rule is that you're still limited to the administrative record. There is some case law that says you could go outside that special circumstances, but I would submit a trial would be of limited utility if we're looking at the administrative record and the absence of proof that's in the record now is still going to be an absence of proof. But there may be an explanation for the absence of proof. We haven't heard that in the briefing or the argument so far. I'm not sure it would show up in the briefing. It would show up, I mean, she would have to explain why she didn't have this test or that test or this examination or that examination. Wouldn't that be- Well, she also had every opportunity to do that during the administrative process. She could have set letters. She did stand a lengthy statement. She could have included in there. I'm choosing not to follow the advice of my doctor to follow up with a rheumatologist or XYZ reason. We do have an argument, I believe, in the briefing that she couldn't afford, but she saw other doctors. Ah! She couldn't afford it. Well, she has seen- Why did she see other doctors subsequent to that? And the record does not support that. That's an argument. She lives on a golf course community in South Carolina and the record just doesn't support that she doesn't have enough money to see a rheumatologist. But there is evidence in the record that she doesn't think that she has the fibromyalgia and that she thinks that the fatigue is the result of enderol, which is a beta blocker. She's adjusted the dosage. You'll recall that she moved from North Carolina to South Carolina in about mid-2008 and started seeing a new primary care physician down there. And those records, if you read through them, she's reporting only mild fatigue during this important time period. And her theory about what's going on is that the enderol that she takes for her tremors is too high of a dose and she needs to be on a lower dose in order to help with her fatigue. Enderol is a beta blocker. It's widely prescribed. It does have a mild sedating effect. There's no evidence in the record that the enderol had such a sedating effect that it was a prehambitor from work. And in the last record that we have from Dr. Miller, this is the second Dr. Miller, seems to indicate that when they reduce the enderol dosage that her fatigue improved. So we have not just an objective medical case. We have a case where there's a question as to diagnosis. There's no objective medical and there are also very weak statements of support from her treating physicians. She's treated with, as the district court noted, upwards of 15 doctors. Her current primary care physician does not say that she's disabled. The primary care physician she was seeing in South Carolina believes that she's disabled. But if you read that letter, it really is just a regurgitation of miscosy symptoms
. She lives on a golf course community in South Carolina and the record just doesn't support that she doesn't have enough money to see a rheumatologist. But there is evidence in the record that she doesn't think that she has the fibromyalgia and that she thinks that the fatigue is the result of enderol, which is a beta blocker. She's adjusted the dosage. You'll recall that she moved from North Carolina to South Carolina in about mid-2008 and started seeing a new primary care physician down there. And those records, if you read through them, she's reporting only mild fatigue during this important time period. And her theory about what's going on is that the enderol that she takes for her tremors is too high of a dose and she needs to be on a lower dose in order to help with her fatigue. Enderol is a beta blocker. It's widely prescribed. It does have a mild sedating effect. There's no evidence in the record that the enderol had such a sedating effect that it was a prehambitor from work. And in the last record that we have from Dr. Miller, this is the second Dr. Miller, seems to indicate that when they reduce the enderol dosage that her fatigue improved. So we have not just an objective medical case. We have a case where there's a question as to diagnosis. There's no objective medical and there are also very weak statements of support from her treating physicians. She's treated with, as the district court noted, upwards of 15 doctors. Her current primary care physician does not say that she's disabled. The primary care physician she was seeing in South Carolina believes that she's disabled. But if you read that letter, it really is just a regurgitation of miscosy symptoms. There's no analysis of what specifically she can't do. She just resides the symptoms and says that that adds up to a disability. But if you look through the symptoms, you'll see that she says things that are contradicted by the specialists that were referred to. For example, she says that she's disabled because she can't stay awake all day long. She had extensive sleep studies that were unable to confirm why she would have daytime sleepiness, the endocrinologist, the cardiologist, the neurologist, all found nothing wrong with her. Another aspect of Dr. Davis's letters that she's forgetful. Well, she was referred by her own doctors for a neuropsychological exam and another examination by a psychologist. And they found nothing wrong with her cognitively what they found is that she likely has a somatiform disorder where she is not having a physical cause for her fatigue. But stress is causing her a mental issue where she thinks that she has these symptoms. She was also referred to go do psychological talk therapy, which she did not do. There's been no neurological explanation for her alleged dizziness. She does have a tremor, but throughout the records that's consistently described as mild. At one point, she says she can live with it. The tremor does increase somewhat when the enderol dosage goes down, but they seem to have found an appropriate balance for that. And ultimately, no matter what you think about the standard of review, the plaintiff bears the burden of proof in the case to show that she is disabled. And here we have a number of factors that weigh against that finding as we've talked about. There's the lack of objective evidence, but there's also medical records that report mild symptoms. I've seen a number of these cases where the complaints are subjective, but the person is going to the doctor frequently. They're complaining of severe pain and severe fatigue
. There's no analysis of what specifically she can't do. She just resides the symptoms and says that that adds up to a disability. But if you look through the symptoms, you'll see that she says things that are contradicted by the specialists that were referred to. For example, she says that she's disabled because she can't stay awake all day long. She had extensive sleep studies that were unable to confirm why she would have daytime sleepiness, the endocrinologist, the cardiologist, the neurologist, all found nothing wrong with her. Another aspect of Dr. Davis's letters that she's forgetful. Well, she was referred by her own doctors for a neuropsychological exam and another examination by a psychologist. And they found nothing wrong with her cognitively what they found is that she likely has a somatiform disorder where she is not having a physical cause for her fatigue. But stress is causing her a mental issue where she thinks that she has these symptoms. She was also referred to go do psychological talk therapy, which she did not do. There's been no neurological explanation for her alleged dizziness. She does have a tremor, but throughout the records that's consistently described as mild. At one point, she says she can live with it. The tremor does increase somewhat when the enderol dosage goes down, but they seem to have found an appropriate balance for that. And ultimately, no matter what you think about the standard of review, the plaintiff bears the burden of proof in the case to show that she is disabled. And here we have a number of factors that weigh against that finding as we've talked about. There's the lack of objective evidence, but there's also medical records that report mild symptoms. I've seen a number of these cases where the complaints are subjective, but the person is going to the doctor frequently. They're complaining of severe pain and severe fatigue. During 2009, when she was visiting with Dr. Miller, plaintiff reported that her fatigue was on one occasion one out of ten. Another occasion two out of ten, another occasion three out of ten. Towards the end of the year, she reported that it was improving. As I mentioned, she has only concluseary support from some of her treating physicians, not all. She was able to run her own business for apparently up to a year after she became disabled. She moved to South Carolina in mid 2008 towards the end of the summer. She continued to work and the plan was she was going to move back to North Carolina. But she decided in April that she was disabled again, never made the move back to North Carolina. Her press release indicates that she'd been making preparations to run her own coupon business. And so when you add all those factors together, there just is not enough evidence of the disability to satisfy the plaintiff's burden of proof even under a denobo standard. The standard review, there's probably not much I can say that's different than what we put. In the briefing, the issue is whether the language satisfactory to the credential is sufficient for the long term disability pieces. Some courts have said it is. Some courts have said it's not. Gallagher took issue with the phrase to us because it was not clear whether the submission goes there or what satisfactory has to be to the insurer. The language here is different. And courts within district courts within the fourth circuit have been split on whether that that difference is sufficient. And then on the short term piece, the administrative service agreement has clear notice of the discretionary language. And it is incorporated by reference into the short term plan document
. During 2009, when she was visiting with Dr. Miller, plaintiff reported that her fatigue was on one occasion one out of ten. Another occasion two out of ten, another occasion three out of ten. Towards the end of the year, she reported that it was improving. As I mentioned, she has only concluseary support from some of her treating physicians, not all. She was able to run her own business for apparently up to a year after she became disabled. She moved to South Carolina in mid 2008 towards the end of the summer. She continued to work and the plan was she was going to move back to North Carolina. But she decided in April that she was disabled again, never made the move back to North Carolina. Her press release indicates that she'd been making preparations to run her own coupon business. And so when you add all those factors together, there just is not enough evidence of the disability to satisfy the plaintiff's burden of proof even under a denobo standard. The standard review, there's probably not much I can say that's different than what we put. In the briefing, the issue is whether the language satisfactory to the credential is sufficient for the long term disability pieces. Some courts have said it is. Some courts have said it's not. Gallagher took issue with the phrase to us because it was not clear whether the submission goes there or what satisfactory has to be to the insurer. The language here is different. And courts within district courts within the fourth circuit have been split on whether that that difference is sufficient. And then on the short term piece, the administrative service agreement has clear notice of the discretionary language. And it is incorporated by reference into the short term plan document. So if the administrator has discretion, the review would be abusive discretion. Correct. But if he doesn't have any, then it would be a denobo. Correct. That's the bottom line. That's right. That is absolutely correct. And is there any contention as to whether or not he had discretion in this case? There is. There is. Plainiff says that the satisfactory to credential language is not sufficient. Defendants argue that it is sufficient to invoke discretionary review. And I see I have a few minutes to talk about the preexisting condition issue. Before I get into that, I do want to respond to comments that we're made earlier about what would a remand look like if we have a remand. And I think that the issues are different. If you're talking about a remand for another look under a denobo review, is one thing. And the preexisting condition is different. And the reason I think it's different is because the district court did not address the preexisting condition. There is some argument that you would have further development when that comes back up. If it does come back up. Whereas the denobo thing, I think we would end up not in a different situation
. So if the administrator has discretion, the review would be abusive discretion. Correct. But if he doesn't have any, then it would be a denobo. Correct. That's the bottom line. That's right. That is absolutely correct. And is there any contention as to whether or not he had discretion in this case? There is. There is. Plainiff says that the satisfactory to credential language is not sufficient. Defendants argue that it is sufficient to invoke discretionary review. And I see I have a few minutes to talk about the preexisting condition issue. Before I get into that, I do want to respond to comments that we're made earlier about what would a remand look like if we have a remand. And I think that the issues are different. If you're talking about a remand for another look under a denobo review, is one thing. And the preexisting condition is different. And the reason I think it's different is because the district court did not address the preexisting condition. There is some argument that you would have further development when that comes back up. If it does come back up. Whereas the denobo thing, I think we would end up not in a different situation. And the judicial economy argues in favor of going ahead and looking at it under denobo standard if you get to that point. So that we don't have a situation where it goes back. The district judge says, well, I sort of already said that this would be the same under a denobo standard. And so we have a similar order of what we have now. And then we have to come back on appeal. And it takes time. So you're urging us if we decide that the denobo applies, just go ahead and decide to case ourselves. Except for the preexisting condition. Except for the preexisting condition. That's correct. I could just look at my note. I'm sorry to explain what the preexisting is. Even knowing the court may not reach the issue. So what the language says is that a medical condition for which the claimant receives treatment, consultation, care services, including diagnostic measures, or took medicine, or followed treatment recommended within three months before the effective date that conditions excluded. She was re-employed on August 4, 2008. I disagree with plaintiffs' argument that she had continuous coverage because the plan has an actively at work requirement. If you're not working 33 hours a week, you're not covered. And so when her employment terminated and she wasn't working, she was eligible to continue a disability if it was established for the disability under the plan. But once she left and came back, you have a new effective date, a new three month period. And during that three month period, she at minimum had a June 25, 2008 visit with Dr
. And the judicial economy argues in favor of going ahead and looking at it under denobo standard if you get to that point. So that we don't have a situation where it goes back. The district judge says, well, I sort of already said that this would be the same under a denobo standard. And so we have a similar order of what we have now. And then we have to come back on appeal. And it takes time. So you're urging us if we decide that the denobo applies, just go ahead and decide to case ourselves. Except for the preexisting condition. Except for the preexisting condition. That's correct. I could just look at my note. I'm sorry to explain what the preexisting is. Even knowing the court may not reach the issue. So what the language says is that a medical condition for which the claimant receives treatment, consultation, care services, including diagnostic measures, or took medicine, or followed treatment recommended within three months before the effective date that conditions excluded. She was re-employed on August 4, 2008. I disagree with plaintiffs' argument that she had continuous coverage because the plan has an actively at work requirement. If you're not working 33 hours a week, you're not covered. And so when her employment terminated and she wasn't working, she was eligible to continue a disability if it was established for the disability under the plan. But once she left and came back, you have a new effective date, a new three month period. And during that three month period, she at minimum had a June 25, 2008 visit with Dr. Davis, where she was seen for balanced problems, her energy level, and the tremor. So your contention is that a leave of absence terminates coverage. There is a definition for leave of absence, but what it says is that the leave of absence has to be agreed to in writing in advance by the employer. So if the employer says you need to be out for three months, okay, here's where we're going to write that down, you're out for three months. Coverage doesn't end, but if the employment is terminated and there's no advance agreement in writing to come back, then it doesn't continue. It terminates and when you're re-ired, you start over. This is what the plan documents. And finally, and you want the district court to look at that in the first sentence if we send it back. Correct. And unless there are further questions, I thank the court. Thank you very much, Mr. DiCarlo. You have just a few minutes, Mr. Adams. Thank you, Your Honor. I'll go quickly because I have a couple of things I'd like to respond to. First, I wanted to make one quick point on the long-term disability standard review issue. And the reason is because the case came out last month and I think has a lot of bearing on that. The case was called, I have it here. Gross versus Sun Life
. Davis, where she was seen for balanced problems, her energy level, and the tremor. So your contention is that a leave of absence terminates coverage. There is a definition for leave of absence, but what it says is that the leave of absence has to be agreed to in writing in advance by the employer. So if the employer says you need to be out for three months, okay, here's where we're going to write that down, you're out for three months. Coverage doesn't end, but if the employment is terminated and there's no advance agreement in writing to come back, then it doesn't continue. It terminates and when you're re-ired, you start over. This is what the plan documents. And finally, and you want the district court to look at that in the first sentence if we send it back. Correct. And unless there are further questions, I thank the court. Thank you very much, Mr. DiCarlo. You have just a few minutes, Mr. Adams. Thank you, Your Honor. I'll go quickly because I have a couple of things I'd like to respond to. First, I wanted to make one quick point on the long-term disability standard review issue. And the reason is because the case came out last month and I think has a lot of bearing on that. The case was called, I have it here. Gross versus Sun Life. And first circuit case. Yes, Your Honor. I think it does what I presented in the district court should be done in re-looking at the language. I think the fourth circuit is open as to what that language means. And now the first, second, third, seventh, and ninth have found that it doesn't give discretion. And gross does a very good job of going outlining all of that. Just to respond to a couple of points. Mr. DiCarlo stated that the 18 point trigger test has never been done on Miss Cozy. I don't see the results in the record, but there are at least a half dozen references to it having been done in the record. Dr. Hess, which is one of their reviewers, on her review of the records, said, quote, primary care physician noted, tender points consistent with fibromyalgia. That's on A211. In credentials denial, they were referenced or diagnosed fibromyalgia. That's on 1000. That's all I could find in the last minutes. But I know there are a number of other places where it's references having been done. I would echo the, well, I think the court got to in terms of why she has not followed up with as much medical care as Prudential would like. They took away both her income and her medical insurance at the same time. She does live in Myrtle Beach
. And first circuit case. Yes, Your Honor. I think it does what I presented in the district court should be done in re-looking at the language. I think the fourth circuit is open as to what that language means. And now the first, second, third, seventh, and ninth have found that it doesn't give discretion. And gross does a very good job of going outlining all of that. Just to respond to a couple of points. Mr. DiCarlo stated that the 18 point trigger test has never been done on Miss Cozy. I don't see the results in the record, but there are at least a half dozen references to it having been done in the record. Dr. Hess, which is one of their reviewers, on her review of the records, said, quote, primary care physician noted, tender points consistent with fibromyalgia. That's on A211. In credentials denial, they were referenced or diagnosed fibromyalgia. That's on 1000. That's all I could find in the last minutes. But I know there are a number of other places where it's references having been done. I would echo the, well, I think the court got to in terms of why she has not followed up with as much medical care as Prudential would like. They took away both her income and her medical insurance at the same time. She does live in Myrtle Beach. She's also gone through chapter seven bankruptcy. I think that's in the record too, all since this has happened. So I don't think it's a particularly reasonable to ask why she hasn't gotten all this additional medical care. I may have missed her, but I thought I heard that some question as to the reason why she can't travel. But I wanted to note, Dr. Davis, on page 493, her former manager on 498, her former supervisor on 175 and her declaration herself on 83 through 88, all reference her inability to fly, as opposed to just maybe a lithium prescription or I believe was referenced. With respect to the preexisting condition, I've got about a dozen arguments in the brief that I'll rest on, except for the point of saying that, and I don't know if this there's another procedural snag into the case, but that was never decided by Prudential until the final denial. It wasn't decided on an earlier denial. And the gaggley-on-o case from the fourth circuit held that the insurer violated 1133 by raising the preexisting condition exclusion as a new basis for termination during the final claim appeal in as much as it did not give an opportunity to appeal the decision because as it was a new basis for denying, it was also an initial denial in the preexisting condition issue. So it may even, if this court doesn't decide it, the question would be whether it goes not to the district court, but also all the way back down. I see my time is up and I thank you, Your Honours. Thank you, Mr. Adams, and we thank both counsel for your presentations. We will ask the clerk to adjourn court and stand in recess, come down in Greek counsel. This honorable court stands adjourned, sign a die. God save the United States and this honorable court.
proceed to our fourth and final case number 12-2360, cozy versus prudential insurance company of America. Mr. Adams, are we glad to hear from you whenever you're ready, sir? May it please the court. Good morning, Your Honours. My name is Nora Sadams. I'm here representing Beth Cozy, the appellant, in this matter, what appears to be the court's only civil matter of the day. At least for this panel. This case presents a fairly typical fact-turn in arissa-benefits claims. Excuse my voice, I'm having allergies. Jesus, weak, and if I start coughing, I'll grab the water. I'm with you. I'm suffering as well. But in this case, it's like many other benefit claims under arissa. We have a claimant that has a disease or diseases. There's not really a question about that. These diseases cause some sort of symptoms, pain, fatigue. The plan administrator armed with a report from a reviewer, either usually a vocational reviewer or a medical reviewer, acknowledges the diagnosis, but then refuses for whatever reason to credit the diagnosis when determining whether or not to award disability benefits. The examples, I can think of one for each, a vocational would be that they can still meet the restrictions and limitations of the job. Medical would be that subjective symptoms don't equate with the objective evidence available. I think we have both of those here. Also typical in arissa-benefits cases, is in this case the standard of reviews are important consideration for the court. If the plan has given itself discretion and done so adequately, an abuse of discretion standard of review applies, if it doesn't then the default denovo standard of review applies. Here, Ms. Cozy has two claims, a short term disability claim that was terminated and a long term disability claim that was denied. So there's two potential standards of review that would be applied one to each claim. And I want to briefly talk about each of those. With respect to the short term disability claim, at the district court below, the party has agreed that the claim was not governed by arissa. The short term disability claim was not governed by arissa, such that ordinary breach of contract principles applied to it. I was a little surprised you didn't play a jury trial on that. Your honor, we actually didn't get deep that until, matter of fact, I argued that it was non-arissa all through summary judge briefing, and it wasn't until summary judge and briefing closed that potential filed a brief, they fought that argument. It wasn't until after summary judge and briefing closed that they filed a brief with the court that said, wait, you're right, it is not governed by arissa. My point is, and I don't mean it is criticism, but when you file the complaint, I guess I'm sorry. In fact, I see a lot of erissa claims counsel will often prey a jury trial just sort of out of an abundance of some might say silliness or some might say caution. You never know what might happen, but anyway, I don't know what to do. If I had, before the administrative record was submitted during litigation, if I had figured that out, I probably would have, but it was with is well within the litigation that I did. So, all parties agree that the breach of contract ordinary North Carolina principles of contract construction apply. And the district court, I thought a couple of reaches in order to get to where it got, which was that an abusive discretion standard applied, even when arissa didn't do the term disability claim. What the district court did was in applied a case from the seventh circuit that said, if we can look, even though arissa doesn't apply, if we can look to the four corners of the contract and figure an intent to apply a discretion, we're gonna go ahead and do that anyways, even though it's not arissa. So the court looked at the contract, and the only, well, actually the court just decided without deciding that there was not an adequate grant of discretion in the contract, but I think Gallagher supports that decision. So the court said, I'm gonna take it a step beyond having not found discretion within the contract. I'm gonna go a step beyond and apply a arissa precedent that says, and actually older arissa precedent now, that says, I can look at other documents that are between the parties that are associated, and if I can find discretion there, then I can apply it here. So what the court did was, it looked at administrative services agreement, based on a arissa precedent that said, other documents came to be part of the plan documents, and it found discretionary authority there. I asked you this, am I right that somewhere in here, Judge Schroder said, even if they novo standard of review applies, for me, the outcome is a bad thing. He did your honor. Yes, so in that light, where does that leave us? It assume hypothetically that we agree with you that for both the short term and the long term, it's the novo and not abuse of discretion. Yes, Your Honor. Where does that leave us in light of the district courts? Well, Your Honor, I think I would almost turn that back if you say even under an abuse of discretion standard, I think Judge Schroder's wrong. In this case, so certainly under the novo review, just looking at the evidence that was presented, by both sides, I think Ms. Kozy has a very strong case for both short term and long term. I'll accept that, a strong case. But where does that leave us? Are you asking us, and I think I know the answer to this, are you asking us, assuming we agree with you that it's the novo, to rule as a matter of law, as they say in the fifth circuit, to render, of course we got that pre-existing condition issue floating around. But I guess my question is, does it go back to the district court, at least go back to the district court, if you agree with you that it's the novo standard, or do we say, well, the judge has looked at it very carefully, it's an aristocrat, it's not a jury trial, he said even if he applied a damevo standard, you see what I'm not asking the question in a very articulate way. I think this court can order reinstatement. I mean, it goes back to the district court in any of it, if we agree with you, because the pre-existing condition issue needs to be addressed. I mean, I think you agree with that. I think that it certainly was not addressed by the district court. I think the appellees would argue that, I think their argument is, and I don't mean to speak to Dr. Carlos, more than capable of doing that himself, I think their argument is that this court can decide it as a first blush. I, in my briefing, tended to disagree with that, and I do think the probably the district court has to have the first shot at that, as a preliminary matter, just on pre-existing. So would it make sense, if we agree with you, I'm just speaking hypothetically that it's damevo, on both short-term and long-term? Are you arguing to us that we should send it back for a do-over under a damevo standard, or are you arguing, don't send it back, please don't send it back, I ask you not to send it back, decide it for yourself, because as a matter of law, she's entitled. To benefit. We are not, I think that, I do think that this court can order reinstatement of her short-term and order the district court to order the plan and minister to give her disability benefits. The pre-existing condition. On the basis that she's entitled to benefits as a matter of law. As a substantive matter based on her, the evidence that was presented below and is in the administrative record that she's, for example, the fact that vocational reviewer and medical reviewer have agreed that travel is material and substantial duty, and that makes this at least a light duty occupation while their reviewers have said she can do sedentary. At one reviewer said she can do at least sedentary, but I don't know what that doesn't mean she can do light. I mean, if I can run three miles, it doesn't mean I can run a marathon. So all they have in the record is that she can do sedentary, but their experts also say, travels material and substantial and travel makes this light. So as a matter of law, I think the substantive question of disability can be answered by this panel that Beth Cozy is entitled to it. The preexisting condition is the only thing that's out there that hasn't been decided. So I don't know. That doesn't apply to the short term, correct? Correct. And if they're correct that this court can decide the preexisting condition, I think there's no question, and maybe it's a matter of utility to send it back to the district court because I think there's no question the preexisting condition doesn't apply. They can only point to the short term. To anything, it doesn't apply meritoriously at least because the only doctor's appointment they can appoint to in the three months prior to her, the three months of the preexisting condition reply, that doctor's appointment was June 25, 2008, and it simply says that Dr. Davis documented that Ms. Cozy's balance was poor, but that her energy level was improving, and documented her tremor. I don't see that that meets the level of providing medical treatment, care, consultation, services to her. And even if it did, it would apply to balance, not degenerative disease, fibromyalgia, chronic fatigue syndrome, and so forth. I don't think that any merit to the preexisting condition argument, my only hesitation is that the district court judge didn't decide it. But on the merits of the disability, I think that there's no question that my first example, the issue of the light versus sedentary, I think there's also a duperry issue here, duperry versus Lyna case that was decided by this court a couple of years ago, wherein, as I records, the reviewing doctors, Dr. Hess, the Colbell, credential in the denial letter, and even the district court, all said, look, let me give you specific examples. Dr. Colbell said, Cozy's complaint simply or not borne out through objective evaluation, has said no objective basis to support Cozy's occupational impairment. Credential said only self-reported symptoms, based on these, Ms. Cozy's physicians have indicated she's unable to work. However, the medical data on file does not support that with objective evidence. And that's the key to the case, right? One of the keys to the case is whether there's an absolute requirement for objective corroboration. I would say that the case can be decided one step before that, based on the light versus sedentary. I think this is almost like a fallback, another way Ms. Cozy wins, because I think it's clear by the record that the doctor and the vocational reviewer say, travel is material and substantial, travel is required by this job, travel increases it to something higher than sedentary. The vocational reviewer says light and 20 pounds, which I can't travel to pairs with a 20 pound bag, but I'd just like wait a one shirt for me. But if you go by what they say, it's at least light. And if you go by what their doctor says, Dr. Aiki, she's capable of at least full-time sustainable sedentary work. She doesn't go further than that. None of the reviewers go further than sedentary, but they all put a requirement that they travel. It's like saying, it's just bewilders me, because the analysis seems like it stops. They acknowledge that travel is a material, substantial duty of her job. They acknowledge that that's at light, and they acknowledge that the only thing we have here is telling them it's sedentary. But then they say that's okay. The analogy that came to my mind is, firefighting is sedentary until you go down the pole. Once you're fighting a fire, you're fighting a fire. And that's a material part of being a firefighter. If it's a material part of being a senior marketing manager to travel internationally and abroad, two to eight times a year, you can't dismiss that and say when she's not traveling it's sedentary. So I think that by itself carries the data as a positive. As a backup, Dupari says, if you have objectively identifiable diagnoses, what she does, she has chronic fatigue, she has fibromyalgia, degenerative disease, and so forth. And if those diseases are expected to cause the subjective symptoms that she's complaining about, you can't dismiss them. You have to consider them. And here, unless the policy says otherwise, and here the policy does not say otherwise, it's very similar to Dupari in that situation. So here we've got a policy that doesn't prohibit reliance on subjective complaints. We've got evidence of her subjective symptoms. We've got evidence that these diseases do, in fact, prevent her from working from her physicians and herself and her written declarations from her colleagues. We've got evidence from her declaration and her Emily and colleagues that about the severity of her symptoms. We've got evidence from retreating physicians that these symptoms are unable to allow to work. So when you combine all that together with a policy that doesn't reject that, you can't ignore that part of it. And that's the core holding in my view of Dupari. And why this is very similar to Dupari from that respect. Another issue that I would draw with the review that's been given is that there's a substantial amount of case law that says, you have to consider the combination of impairments on the person's ability to function on their work capacity. And there's nowhere in the record where anyone hired by prudential ever looked at how does A combined with B combined with C combined with D impact, her ability to function. In fact, if you look at Dr. Akees report, it's a specific report, chronic fatigue, here's my conclusion and so forth. One after another broken down into my conclusions. I see that my time is up if there are no other questions, I'll sit for a rebuttal. You have some additional time remaining. Thank you, Ms. Stadels. Good morning. Good morning. My name is Pat DeCarlo. I represent the defendants. Ms. Cozy has no lifting restrictions whatsoever. She has had nothing but completely normal musculoskeletal exams, which have noted full strength and mobility in all four of her extremities. The only argument plaintiff has that she can't travel because of a lifting restriction is based on a misreading of Dr. Akees report. Dr. Akees does not impose a lifting restriction. He says in his report, which by the way was drafted an issue nine months before the vocational report came out that he thought she could do sedentary work and sedentary work was defined as being able to lift up to 10 pounds. At no time, did Dr. Akees suggest that she had a lifting restriction? And if there is a lifting restriction, we would expect to see that somewhere in her own medical records. And it's not there. Ms. Cozy has had evaluations from gastrologist, endocrinologist, cardiologist, at least two neurologists. And they've all come up with either normal findings or findings that don't explain her symptoms. And there's also substantial evidence that beyond just the lack of evidence of a cause for a disability or objective proof for the disability, Ms. Cozy has not always followed the recommendations of retreating physicians. Dr. Miller, the gastrologist, and they're actually two Dr. Miller's in the case. I'm referring now to the gastrologist, recommended a small bowel X-ray, Ms. Cozy refused that. Dr. Athar, a neurologist, recommended a rheumatology concert. What is the relevance of all of this? That she has not followed up with doctors as indicated for treatment that may resolve this question of whether she does have a disabling condition. So I disagree with the argument that this is just, is objective proof required or not? And that's the end of the analysis. Objective proof may not be required in all situations, but it's certainly a relevant factor to consider among other factors. Other factors in this case include not following up what with physicians. She says she's disabled as a result of myelgia. If we are persuaded that the district court seem to require as a matter of law objective evidence, would that be reversible error? I don't believe so because I believe the judge looked not only. A lack of objective, but some of the other factors as well. And it's important to look at all the factors, not just one. Objective proof may not be dispositive, but it's certainly relevant to the question of whether plaintiff has proven their burden of proof. And the rheumatology is particularly important because that's the specialist who treats fibromyalgia. She was referred to a rheumatologist and decided not to... And let me ask this. The judge said abusive discretion standard applies, but even if they novo applied, the outcome here would be the same. Correct. How do you do that in the context of summary judgment? If... If Ms. Cosie is entitled to all inferences under an abusive discretion standard, and all inferences in her favor under a de novo standard, I guess I'm trying to work out in my mind how you work that out on the basis of a summary judgment. In these cases, generally, are addressed in the summary judgment context, because we're looking at an administrative record. There may be arguments about the implications of what the facts mean, but the facts are essentially not in dispute. We disagree about the conclusions, but what the doctors said at different times is all documented in the record and something that the judge here was able to evaluate. But the judge did seem to look awfully hard and was unable to find objective evidence. Correct. And so, if it's de novo, an objective evidence is not a sine qua non of a disability claim under this policy. I'm just trying to figure out how a judge could say it's abusive discretion, and he goes through the abusive discretion analysis, and at the end, he says, well, but even if it's de novo, same result. Because under a de novo review, the lack of objective evidence is an important factor to consider. It's not the only factor. Right. But still, if someone has a claim and they have objective proof of their disability, that is a stronger claim than someone who comes in without it. So, if you don't have it... Is it a stronger claim or is it just a different claim? I mean, you know, but one of the things is a broken leg stronger than schizophrenia. Well, there are ways to diagnose schizophrenia, and some conditions have some tests for them that sound a little objective, and a good example is fibromyalgia. The test for fibromyalgia is an 18-point trigger test. That's never been done on Mrs. Cozy. There are some cases where they do the 18-point trigger test. Yes, they've got it. It's somewhat subjective as to whether it prevents them from working. But it's not a situation where their claim is permanently safe from any type of outside analysis. Another example is depression. The doctor looks at the person and says they look depressed. Somewhat subjective, but at least there's some corroboration there. Here we have a case where that corroboration is lacking. And we really also don't even have a firm diagnosis. We have the term fibromyalgia used, but we have no formal fibromyalgia doses, no treatment for fibromyalgia. So, how could you find that she is disabled under any standard? But the plan doesn't require a diagnosis. It doesn't require it, but it's obviously something that would be relevant to look at as part of looking at all of the factors the courts have said. Of course, it doesn't require it. Right, right, no, it doesn't require objective proof, but can I say that I have to find it? It doesn't require objective proof, and it doesn't require a diagnosis. It requires proof of disability. Right, and it's difficult to do that in this case where she's got no objective proof, no diagnosis. Your client drafted the plan. Correct. So, what are we supposed to do with that? Well, you still have a plan could have required all of that, didn't, and now you come into court arguing, well, there's no diagnosis, there's no objective evidence, there's no requirement into planning that any of that be there. Well, there is a requirement that she meet the definitive disability under this plan. That she'd be disabled. That she'd be disabled. And what I'm trying to argue here is the medical records just don't support that she is disabled, and she cannot meet her burden of proof as a plaintiff to prove that she's disabled. And fibromyalgia is not the only issue to talk about, but which she's not treating for it at all. That is much different than other cases that have said, well, we know that there's no objective proof, but the person's still treating for this, and the doctors say that they have it. This is a situation where if she has fibromyalgia, it is reasonable to ask, why did you not follow the doctor's advice to see a rheumatologist? Why are you not treating for it? And if it's truly disabling, where is the evidence that the fibromyalgia is disabling? It's just not in the record. Another issue that just might be a question the judge could ask, got a trial? If the resident doesn't get to ask that on summary judgment. Well, but we would be at trial limit to the record anyway, and there's no more evidence, no more medical evidence that's going to come in, but you're relying on her failure to do A, B, and C, and that's not in the record, right? Understand as the administrator, you can rely on what's not in the record, but once it comes to court, it seems to me, if you draw inferences in favor of the claimant under a de novo standard in the face of a plan that doesn't require a diagnosis, doesn't require objective evidence, and in light of the fact that you could have had her examine, for example, by rheumatoid specialists, you chose not to, which is your right. There's no legal requirement that you do so. These are the kinds of considerations, arguably, I'm just trying to explore this with you. The judge maybe shouldn't grant some judgment. Well, under a de novo standard. Even in a de novo standard, the default rule is that you're still limited to the administrative record. There is some case law that says you could go outside that special circumstances, but I would submit a trial would be of limited utility if we're looking at the administrative record and the absence of proof that's in the record now is still going to be an absence of proof. But there may be an explanation for the absence of proof. We haven't heard that in the briefing or the argument so far. I'm not sure it would show up in the briefing. It would show up, I mean, she would have to explain why she didn't have this test or that test or this examination or that examination. Wouldn't that be- Well, she also had every opportunity to do that during the administrative process. She could have set letters. She did stand a lengthy statement. She could have included in there. I'm choosing not to follow the advice of my doctor to follow up with a rheumatologist or XYZ reason. We do have an argument, I believe, in the briefing that she couldn't afford, but she saw other doctors. Ah! She couldn't afford it. Well, she has seen- Why did she see other doctors subsequent to that? And the record does not support that. That's an argument. She lives on a golf course community in South Carolina and the record just doesn't support that she doesn't have enough money to see a rheumatologist. But there is evidence in the record that she doesn't think that she has the fibromyalgia and that she thinks that the fatigue is the result of enderol, which is a beta blocker. She's adjusted the dosage. You'll recall that she moved from North Carolina to South Carolina in about mid-2008 and started seeing a new primary care physician down there. And those records, if you read through them, she's reporting only mild fatigue during this important time period. And her theory about what's going on is that the enderol that she takes for her tremors is too high of a dose and she needs to be on a lower dose in order to help with her fatigue. Enderol is a beta blocker. It's widely prescribed. It does have a mild sedating effect. There's no evidence in the record that the enderol had such a sedating effect that it was a prehambitor from work. And in the last record that we have from Dr. Miller, this is the second Dr. Miller, seems to indicate that when they reduce the enderol dosage that her fatigue improved. So we have not just an objective medical case. We have a case where there's a question as to diagnosis. There's no objective medical and there are also very weak statements of support from her treating physicians. She's treated with, as the district court noted, upwards of 15 doctors. Her current primary care physician does not say that she's disabled. The primary care physician she was seeing in South Carolina believes that she's disabled. But if you read that letter, it really is just a regurgitation of miscosy symptoms. There's no analysis of what specifically she can't do. She just resides the symptoms and says that that adds up to a disability. But if you look through the symptoms, you'll see that she says things that are contradicted by the specialists that were referred to. For example, she says that she's disabled because she can't stay awake all day long. She had extensive sleep studies that were unable to confirm why she would have daytime sleepiness, the endocrinologist, the cardiologist, the neurologist, all found nothing wrong with her. Another aspect of Dr. Davis's letters that she's forgetful. Well, she was referred by her own doctors for a neuropsychological exam and another examination by a psychologist. And they found nothing wrong with her cognitively what they found is that she likely has a somatiform disorder where she is not having a physical cause for her fatigue. But stress is causing her a mental issue where she thinks that she has these symptoms. She was also referred to go do psychological talk therapy, which she did not do. There's been no neurological explanation for her alleged dizziness. She does have a tremor, but throughout the records that's consistently described as mild. At one point, she says she can live with it. The tremor does increase somewhat when the enderol dosage goes down, but they seem to have found an appropriate balance for that. And ultimately, no matter what you think about the standard of review, the plaintiff bears the burden of proof in the case to show that she is disabled. And here we have a number of factors that weigh against that finding as we've talked about. There's the lack of objective evidence, but there's also medical records that report mild symptoms. I've seen a number of these cases where the complaints are subjective, but the person is going to the doctor frequently. They're complaining of severe pain and severe fatigue. During 2009, when she was visiting with Dr. Miller, plaintiff reported that her fatigue was on one occasion one out of ten. Another occasion two out of ten, another occasion three out of ten. Towards the end of the year, she reported that it was improving. As I mentioned, she has only concluseary support from some of her treating physicians, not all. She was able to run her own business for apparently up to a year after she became disabled. She moved to South Carolina in mid 2008 towards the end of the summer. She continued to work and the plan was she was going to move back to North Carolina. But she decided in April that she was disabled again, never made the move back to North Carolina. Her press release indicates that she'd been making preparations to run her own coupon business. And so when you add all those factors together, there just is not enough evidence of the disability to satisfy the plaintiff's burden of proof even under a denobo standard. The standard review, there's probably not much I can say that's different than what we put. In the briefing, the issue is whether the language satisfactory to the credential is sufficient for the long term disability pieces. Some courts have said it is. Some courts have said it's not. Gallagher took issue with the phrase to us because it was not clear whether the submission goes there or what satisfactory has to be to the insurer. The language here is different. And courts within district courts within the fourth circuit have been split on whether that that difference is sufficient. And then on the short term piece, the administrative service agreement has clear notice of the discretionary language. And it is incorporated by reference into the short term plan document. So if the administrator has discretion, the review would be abusive discretion. Correct. But if he doesn't have any, then it would be a denobo. Correct. That's the bottom line. That's right. That is absolutely correct. And is there any contention as to whether or not he had discretion in this case? There is. There is. Plainiff says that the satisfactory to credential language is not sufficient. Defendants argue that it is sufficient to invoke discretionary review. And I see I have a few minutes to talk about the preexisting condition issue. Before I get into that, I do want to respond to comments that we're made earlier about what would a remand look like if we have a remand. And I think that the issues are different. If you're talking about a remand for another look under a denobo review, is one thing. And the preexisting condition is different. And the reason I think it's different is because the district court did not address the preexisting condition. There is some argument that you would have further development when that comes back up. If it does come back up. Whereas the denobo thing, I think we would end up not in a different situation. And the judicial economy argues in favor of going ahead and looking at it under denobo standard if you get to that point. So that we don't have a situation where it goes back. The district judge says, well, I sort of already said that this would be the same under a denobo standard. And so we have a similar order of what we have now. And then we have to come back on appeal. And it takes time. So you're urging us if we decide that the denobo applies, just go ahead and decide to case ourselves. Except for the preexisting condition. Except for the preexisting condition. That's correct. I could just look at my note. I'm sorry to explain what the preexisting is. Even knowing the court may not reach the issue. So what the language says is that a medical condition for which the claimant receives treatment, consultation, care services, including diagnostic measures, or took medicine, or followed treatment recommended within three months before the effective date that conditions excluded. She was re-employed on August 4, 2008. I disagree with plaintiffs' argument that she had continuous coverage because the plan has an actively at work requirement. If you're not working 33 hours a week, you're not covered. And so when her employment terminated and she wasn't working, she was eligible to continue a disability if it was established for the disability under the plan. But once she left and came back, you have a new effective date, a new three month period. And during that three month period, she at minimum had a June 25, 2008 visit with Dr. Davis, where she was seen for balanced problems, her energy level, and the tremor. So your contention is that a leave of absence terminates coverage. There is a definition for leave of absence, but what it says is that the leave of absence has to be agreed to in writing in advance by the employer. So if the employer says you need to be out for three months, okay, here's where we're going to write that down, you're out for three months. Coverage doesn't end, but if the employment is terminated and there's no advance agreement in writing to come back, then it doesn't continue. It terminates and when you're re-ired, you start over. This is what the plan documents. And finally, and you want the district court to look at that in the first sentence if we send it back. Correct. And unless there are further questions, I thank the court. Thank you very much, Mr. DiCarlo. You have just a few minutes, Mr. Adams. Thank you, Your Honor. I'll go quickly because I have a couple of things I'd like to respond to. First, I wanted to make one quick point on the long-term disability standard review issue. And the reason is because the case came out last month and I think has a lot of bearing on that. The case was called, I have it here. Gross versus Sun Life. And first circuit case. Yes, Your Honor. I think it does what I presented in the district court should be done in re-looking at the language. I think the fourth circuit is open as to what that language means. And now the first, second, third, seventh, and ninth have found that it doesn't give discretion. And gross does a very good job of going outlining all of that. Just to respond to a couple of points. Mr. DiCarlo stated that the 18 point trigger test has never been done on Miss Cozy. I don't see the results in the record, but there are at least a half dozen references to it having been done in the record. Dr. Hess, which is one of their reviewers, on her review of the records, said, quote, primary care physician noted, tender points consistent with fibromyalgia. That's on A211. In credentials denial, they were referenced or diagnosed fibromyalgia. That's on 1000. That's all I could find in the last minutes. But I know there are a number of other places where it's references having been done. I would echo the, well, I think the court got to in terms of why she has not followed up with as much medical care as Prudential would like. They took away both her income and her medical insurance at the same time. She does live in Myrtle Beach. She's also gone through chapter seven bankruptcy. I think that's in the record too, all since this has happened. So I don't think it's a particularly reasonable to ask why she hasn't gotten all this additional medical care. I may have missed her, but I thought I heard that some question as to the reason why she can't travel. But I wanted to note, Dr. Davis, on page 493, her former manager on 498, her former supervisor on 175 and her declaration herself on 83 through 88, all reference her inability to fly, as opposed to just maybe a lithium prescription or I believe was referenced. With respect to the preexisting condition, I've got about a dozen arguments in the brief that I'll rest on, except for the point of saying that, and I don't know if this there's another procedural snag into the case, but that was never decided by Prudential until the final denial. It wasn't decided on an earlier denial. And the gaggley-on-o case from the fourth circuit held that the insurer violated 1133 by raising the preexisting condition exclusion as a new basis for termination during the final claim appeal in as much as it did not give an opportunity to appeal the decision because as it was a new basis for denying, it was also an initial denial in the preexisting condition issue. So it may even, if this court doesn't decide it, the question would be whether it goes not to the district court, but also all the way back down. I see my time is up and I thank you, Your Honours. Thank you, Mr. Adams, and we thank both counsel for your presentations. We will ask the clerk to adjourn court and stand in recess, come down in Greek counsel. This honorable court stands adjourned, sign a die. God save the United States and this honorable court