In this case, Ben Glass Law represented the claimant, a coal miner from the southwest part of Virginia. This is the oral argument in the Third Circuit Court of Appeals.
This court hearing focuses on the challenges faced by a disabled coal miner from Southwest Virginia navigating ERISA and long-term disability cases. We discuss the essential fight for benefits, examining the fiduciary duties of plan administrators and the journey through the district court and appeals process. We'll look into the complexities of vocational evaluations and the importance of accurate job history information, exploring how legal precedents impact the outcome of benefit claims.
We also delve into the nuances of vocational reports during the oral argument, specifically the impact of misidentified job titles on claimants' lives. The hearing examines how such errors can affect the credibility of employability assessments, and how computer-generated reports and personal discussions converge in the legal process to determine an individual's future. We explore the role of the court in reviewing these cases, with a focus on vocational mistakes, peer reviews, and the importance of medical evidence in ensuring fair outcomes.
The latter part of the hearing discusses the use of social media posts as evidence in benefit denials and the legal responses to unjust decisions. We provide a straightforward look at the judicial process and its impact on individuals, emphasizing the importance of fairness in decision-making. The court hearing concludes with insights into the conclusion of a hearing and the subsequent steps, aiming to leave attendees informed about the legal battles within our system."
These public domain recordings are brought to you by Ben Glass Law, a national long term disability and life insurance firm headquartered in Fairfax, VA.
By making these recordings into a "podcast," we've made the listening easier for claimants, attorneys and claims adjusters alike.
If long term disability or life insurance benefits have been denied, we'd love to review your denial letter and give you a strategy for moving forward. This is a free service and you can go here to begin submitting your denial letter.
In this case, Ben Glass Law represented the claimant, a coal miner from the southwest part of Virginia. This is the oral argument in the Third Circuit Court of Appeals.
This court hearing focuses on the challenges faced by a disabled coal miner from Southwest Virginia navigating ERISA and long-term disability cases. We discuss the essential fight for benefits, examining the fiduciary duties of plan administrators and the journey through the district court and appeals process. We'll look into the complexities of vocational evaluations and the importance of accurate job history information, exploring how legal precedents impact the outcome of benefit claims.
We also delve into the nuances of vocational reports during the oral argument, specifically the impact of misidentified job titles on claimants' lives. The hearing examines how such errors can affect the credibility of employability assessments, and how computer-generated reports and personal discussions converge in the legal process to determine an individual's future. We explore the role of the court in reviewing these cases, with a focus on vocational mistakes, peer reviews, and the importance of medical evidence in ensuring fair outcomes.
The latter part of the hearing discusses the use of social media posts as evidence in benefit denials and the legal responses to unjust decisions. We provide a straightforward look at the judicial process and its impact on individuals, emphasizing the importance of fairness in decision-making. The court hearing concludes with insights into the conclusion of a hearing and the subsequent steps, aiming to leave attendees informed about the legal battles within our system."
These public domain recordings are brought to you by Ben Glass Law, a national long term disability and life insurance firm headquartered in Fairfax, VA.
By making these recordings into a "podcast," we've made the listening easier for claimants, attorneys and claims adjusters alike.
If long term disability or life insurance benefits have been denied, we'd love to review your denial letter and give you a strategy for moving forward. This is a free service and you can go here to begin submitting your denial letter.
So for 28 years this guy it was by ho. It's off to work. I go first in the rock quarries of Virginia and then in the coal mines of Virginia. If you looked at a medical manual of musculoskeletal orthopedic injuries, he's got one of everything Okay which?
Speaker 2:what is status quo? Yes, sir Anty, look like when we send this back if we thought it is an arbitrary decision.
Speaker 1:Yes, miller versus American Airlines says that it's an unlawful termination of benefits and you say that was unlawful. We reverse that. You bring him back to status quo. You order the payment of back benefits.
Speaker 3:Welcome to the podcast. This podcast is brought to you by Ben Glass Law, a personal injury and long term disability law firm with headquarters in Fairfax, virginia. Listening to oral arguments is one of the best ways to both learn and stay abreast of the substantive and procedural aspects of practicing law. By putting these public domain recordings into the form of a podcast, ben Glass Law has made it easy for the public to access these recordings. All commentary that is not part of the actual court proceedings is that of the show sponsor.
Speaker 1:The background is that we represent a coal miner from Southwest Virginia, spent most of his adult working life in the rock quarries in the coal mines of Southwestern Virginia, working for a major coal company. When he became disabled, they paid him for three years and then they, in our view, are arbitrarily terminated his benefits with, in my opinion, some sham paper reviews. The plan required us to file the case in the Western district of Pennsylvania, so another way that this company, in my view, was screwing its employees and we lost there and the judge didn't even hold a hearing. So that was a little bit unusual and so we took it to the third circuit court of appeals, where I think we've done pretty well and I think we're going to have a reversal. You may skip it entirely. It really has nothing to do with marketing, but if you'd like to hear me work, if you'd like to learn a little bit about ERISA and long term disability and what goes on in those cases, then I think it'd be worthwhile. It was an interesting, spirited argument with a very active third circuit panel, and while the stress of preparing is high, once the whistle goes, I'm in my element and this was fine.
Speaker 1:So enjoy today's broadcast. Good morning your honor. My name is Ben Glass. I'm here on behalf of Timothy. He goes by Keith Mullins. I'd like to reserve three minutes of time for rebuttal. Erisa gives plan administrators huge power over the financial future of long-term disability claimants. With that power comes a lot of responsibility, a huge responsibility, and the responsibility is to act like a fiduciary. So let's.
Speaker 2:You'd agree, wouldn't you, that there's an enormous amount of discretion vested in the ERISA fiduciary right? I agree, and that we are. We can only overturn that decision if it's arbitrary and compretious, yes sir, which we have equated to abuse of discretion and, essentially, irrationality.
Speaker 4:Yes sir.
Speaker 2:Okay, then explain why it would be irrational. Even if you thought, even if we thought, that it's wrong to look at Dr Patel and Dr I hope I'm saying these gentlemen's names, right, my hands evaluations of your client, that's not the best way to have done it, but these are two pain specialists and they looked at this and they examined the record and they thought, yeah, no, he's. He may still hurt, he still got limits, but he can do stuff. What makes that an irrational or unfounded decision?
Speaker 1:Yes, sir. So what this court has said is we look at either structural irregularities there are none in this case and procedural irregularities, and the biggest and I've got seven procedural irregularities in our brief to talk about. I'll talk about maybe the top two, rithriga's time allows. The biggest problem in this case is that the plan decided that Keith Mullins met the definition of disability for four and a half years, and the last three of those years were in the own excuse me in the any occupation period. So then, when the plan says to paper reviewers, give us your opinion, and the paper reviewers make hair splitting judgments about the ability to sit, stand, live, without ever having laid eyes on this claimant and with nobody judged or no one ever saying hey, we, the plan, have determined that he meets the definition of disability for three years. So the question to ask the paper reviewers is what has changed? Number one, and how do you know?
Speaker 2:There you go, you've hit on something significant. Can you? If I'm not mistaken, didn't the Supreme Court say in black and decker that administrators do not have the discrete burden of explanation when they credit reliable evidence? They don't. It sounds like the argument you're making is they needed to explain more in order for this to be rational. But the Supreme Court seems to have said they don't have to explain more If the evidentiary foundation is a credible one, like two doctors skilled in the field. They don't have to give you any more explanation than relying on those people. What do we make of black and decker?
Speaker 1:I think that what we have to look at is the evidentiary foundation, right, because you have conclusions by these physicians. And remember, a fiduciary is supposed to be curious, a fiduciary is supposed to be neutral and the fiduciary should be saying, okay, I hear what you say. You differ from the treating physician about how much he can live, how much he can walk, how much he can stand. Show me, because I'm a curious fiduciary, show me in this record, in the actual medical records what has changed.
Speaker 2:So your argument is they owed you more explanation, but that's what it sounds like you're saying. They I might be misunderstanding you, but it certainly sounds like you're saying they should have done a better job of explaining this. And that's why I'm asking about black and decker, because it seems like black and decker is saying they don't have to do a perfect job of explaining this. That's not the basis on which you lower courts should be deciding these cases.
Speaker 1:So I will agree with you that they don't have to do a perfect job of explaining this.
Speaker 1:They do no job of explaining this. There is simply a conclusion reached about things like sitting lifting capacity for work capacity in light of this gentleman's pain, with zero explanation. I don't think black and decker. See, if the only thing in the world was that we get a paper review, we get a report and that's good enough, then these cases are never litigated.
Speaker 1:There's nothing for a review in court to look at and to think about and to start to say to itself what's the fiduciary, the plan acting as a neutral here and my point is, my biggest point is someone should have said because when you look at Dr Patel, who was the first reviewer, he says this gentleman had sedentary capacity all the way back to the last day that he worked, and somebody at the plan should have said this is what this court has said in Miller versus American Airlines and then more recently in a case called Noga I think Noga or Noda this court has said when the plan has made a decision and, in this case, stuck with that decision for three years, the curious fiduciary at least has to ask itself and ask its reviewers what has changed. The curious fiduciary has to say. In my view, judge Jordan, show me what the underlying basis is for this and you could be didn't it?
Speaker 4:mr Mullins is treating doctor, his the orthopedic surgeon McGarry, say that he could do work with you know, lifting and walking restrictions. Similar to Patel and some differences but similar I don't think that he did.
Speaker 1:But even if he did, even if there's that in the record, judge Porter, for three years the plan accepted the medical records that were given to it as meeting the definition of Disability for this plan. And what I'm saying is what this court has said is that when a plan has Made a decision and in Miller it was a shorter time, in no get, it was a really short time where the plan is saying, hey, we're gonna put this gentleman back on claim, but the next day we're gonna go get a, an, I am me review. This court said that's a procedural Irregularity that at least should make us think that this is not an unbiased fiduciary.
Speaker 2:And yes, sir, are you making the argument that that this is a biased fiduciary and because it's a bias, you're not making the sliding scale argument to us again? Of course no, that's not. That's gone. That's not the wind, that's gone. Okay, well, go ahead, and I'm sorry I interrupted you. Keep finish your answer to.
Speaker 1:I'm trying to. I'm trying to think of where I was With that. Oh, you asked me about the treating physician. I said, lee, I don't think that's in the record but even if it was, the plan accepted it as such. And the curious in what I'm saying is a Curious fiduciary. What this court has said with this court is says we look at how they treated the claimant, and so it's not just One thing, it's not just the fact that he was on claim for three years that that would make us I suggest it, you all suspicious of the Arbitraryness of this decision you really is hinging on the idea that nothing changed.
Speaker 2:But they said something had changed. But their argument is something did change. We thought he got better and the only reason we gave him an extension was because there was new evidence about mental illness. And the Last extension we gave him was purely about mental illness. You, if I Understood your argument, correct your prep.
Speaker 2:Your pushback on that is oh no, it wasn't just about my illness. But what is there in the record that would tell us that's not so? This, especially given there, they've got this March 2019 Letter where they say that are they at least seem to indicate if mental illness is the primary cause or contributing cause, your Disability, the company's going to pay you for an up to 12 months If your condition no longer fits the correct here of mental nervous limitation. That remains the same, abling will be evaluated after that. They say these things Also that if he continued to be disabled due to a non-mental diagnosis, he should submit additional information. Those Things out of this March 2019 letter all seem to indicate that it was focused on mental illness. What do you have that says oh no, that what that's not.
Speaker 1:I understand the question. So first of all, so now if we were to take that as a demarcation line, that's two years that they've paid him for physical. Number one, number two that was not just about mental illness. We get that from two places. One, that letter, if that was a denial of benefits for Physical, needed to be a lot more clear. Remember, a risk requires the plan administrative to be very clear in saying why we're denying, in what you can do to remedy that, and I'm not.
Speaker 2:It's not enough to be implicit, when you say, okay, we're doing this for your mental illness, then you have to go on and say, and we're not doing it for non-mental.
Speaker 1:Yes, sir, that's my position, legal number one and then number two, if you go and look at the claim notes that are Surrounding this, two or three or four claim notes that surround the issuance of that letter. Basically what the claim notes said was that hey, we got this social security file, there's a Psychiatric report in it, so we haven't done the mental illness thing yet. So now let's put the mental illness thing in. And they don't. The claim notes don't say either. The letter doesn't say and claim notes and say but he doesn't have physical disability anymore in any event, even if you were to disagree with me on that, still two years into, with no change in Medical condition. Now look, yes, sir, I had a couple more questions.
Speaker 2:First turn to the social security offset. What, why? Why should we view that as other than a forfeited issue, since it wasn't?
Speaker 1:administratively because ERISA requires claimants to go through the process of Appealing internally appealing their claim decision. It does not require claimants, particularly gentlemen like 10th grade graduate Mr Mullins, to exhaust every legal issue that he has.
Speaker 2:You didn't have to exhaust that, you didn't have to raise that and talk them about it.
Speaker 1:Exactly, okay, that's 100%.
Speaker 2:Here's my last question, sue, for the sake of discussion. We thought you were right. In particular, you were right about their using a conceded and obviously wrong. And he did leave wrong vocational evaluation because it was based on a false statement of what his previous position had been. Yes, sir, and we thought garbage in, garbage out. You can't possibly say this is suitable employment when you're completely wrong about what previous employment was. Just take it for a grant for. And I'm going to ask them this yes, sir, sure that we thought that was right. What would be the appropriate remedy? Is the remedy that we say the decision was irrational, so you have to reinstate his benefits and then you can go ahead and reevaluate based on correct terms? Is it that we just say you get a do over, you don't get reinstated benefits, but you get, but they have a chance to correct their error. Is there some other thing that you would get, even if we thought you were right? But what's the answer? What's the remedy look like?
Speaker 1:The Miller vs American Airlines says that it's an unlawful termination of benefits and you say that was unlawful. We reverse that. You bring him back to status quo. You order the payment of back benefits in terms of-.
Speaker 2:Thank you, that's a good way to put it. Is status quo he doesn't have benefits because it was denied, or is it? He gets benefits and back benefits and then they have to take steps from there. I think there's two things here.
Speaker 1:Number one is what the court does with the issue of whether he's disabled or not, because if the court finds that he was-.
Speaker 2:We can't find. That's my point. That's I'm sorry, we're not going to find anything. We're a reviewing court, we're not a fact finding court. That's why I'm trying to get you to give your position here and I am going to ask their position here. What would be returning this to the status quo look like? Would it be saying your decision was irrational, ergo it can't stand and therefore you were entitled to those benefits and back benefits until you change? Or is the status quo? Your decision was irrational, it can't stand. That says nothing about past benefits. Go ahead and figure this out and do it the right way. What's it look like? What does status quo yes, sir, anti look like when we send this back, if we thought it is an arbitrary decision?
Speaker 1:Yes, sir, my view is this court has said that in the Miller versus American Airlines case, the pilot case, where the court said the decision was irrational and arbitrary, so we return the claim, the pilot in that case, to the status quo, which is unclaimed paid benefits to date. Certainly from now until age 65 or 66, whatever the plan is, they have a right to go and continue to look at his condition.
Speaker 4:Yes, sir, okay, but instead of assuming that the 2019 report is a problem, can you explain to us why it is a problem when it incorporated the 2016 report? That got the job title right? Sure, and both reports accurately described his skills and experience. Yes, sir, thank you for that question. So, number one, it seems to me like it's a gotcha argument. I know they got the wrong title, but in general, the both reports get it right, except for that mistake.
Speaker 1:No, they don't because it's not a gotcha argument, with due respect, because in one they made him the superintendent of the mines and this guy had never worked in an internal building in his life.
Speaker 4:No, I get that. That was a mistake.
Speaker 1:Yes, sir, but why I am?
Speaker 4:the reason I'm saying it sounds to me like a gotcha argument is because the same report, the 19 report that made that mistake incorporated the 16 report that got the title right, and both reports accurately described his skills and experience.
Speaker 1:What so I disagree with you on that very last part of your statement that they actually described number one, number two to the extent, and also disagree that it incorporated the later report. Incorporated the 2016 report Couldn't have, because if anyone had looked at it, they would have seen that they were black and white and white and two different. But let me say this as a matter of a risk of law he would if the court says that 2016 report was good enough. He never got the chance to address that. And in all of these vocational reports, what they do is they go here's three job titles. They don't give you any and again, no analysis, no, nothing.
Speaker 1:And what lawyers do? Lawyers go in and look and start to compare personal capabilities with things like the dictionary of occupational titles requirements, and that's what we do. So he would, at the very least, have an opportunity to go back and say all right, you want to talk about the 2016 report, mr Planned Administrator, let us address it, which we never had the opportunity to do. 2016 report was rejected anyway because they paid his benefits and so he would have had had no reason in 2016 or 2017 to even address that issue when the final denial comes out. They don't explain. We've elevated you to a lying superintendent in order to do this. So again, plan, speak through.
Speaker 2:Their denial letters Got it Okay, thank you very much. Thank you, we'll have you back under a bottle. Yes, sir, and we'll hear now from Council for Consol Energy.
Speaker 5:May I please the Court? My name is William Lewis and I'm appearing on behalf of the Pelley Consol Long Term Disability Energy Plan. How do you.
Speaker 6:Your client's name is not abbreviated for consolidated, so you pronounce it console or console. How do you pronounce?
Speaker 5:your client. I just say console, console, energy.
Speaker 2:Okay, okay. Why don't we start where we were leaving off with Mr Glass? Even if we assume that everything else you did was great, your clients once removed, lincoln's administration of this plan was going swell. If, in the last analysis, their decision to deny is based on and it has to be based on the notion that there's suitable employment for you, that you could be doing, and yet that suitable employment analysis is based on a manifestly erroneous statement of what his past experience is, how can the decision stand?
Speaker 5:Your Honor. The decision can stand here because of the notwithstanding the 19 vocational analysis or the transferable skills analysis report, or misidentifying his former position with the company as a mind superintendent. It can still stand because this is an abusive discretion review and that a reasonable mind, a reasonable person, could look at the 2019 report and be able to understand that this is still making an accurate assessment of his ability to engage in suitable employment.
Speaker 2:Yeah, that's exactly the breakdown I'm asking you to look at. And, instead of asserting that, why don't you explain to us why a reasonable mind should look at the 2019 letter and maybe we should take a step back? You'd agree, wouldn't you, that, in order to make a denial, you have to be able to identify suitable employment? Right, correct, your Honor, okay. And suitable employment is defined to be based on your education and experience. Those are the things that you have to take into account, right, correct, your Honor, okay. And here the assertion about what his previous experience was just wrong was just flat out wrong, correct? I would disagree, your Honor, you think he was a mind?
Speaker 5:supervisor. That's so in terms of his skills, I would make the argument, or our position, is that his experience and his skills were correctly identified here. His position, His experience and skills.
Speaker 2:Are you saying that the position you guys have folks excuse me, folks at Consul have are that mind supervisor and foreman in the mind are the same, so that you can say your experience and skills in those two jobs are functionally the same? Because that's what I just heard you say. Did I miss you?
Speaker 5:We're not taking the position that the mind superintendent and section supervisor are the same position here. Both reports identified the position that he held at the company one misidentified in 2019. However, they went on to explain and identify the kind of skills that this individual, that the appellant, has, and identified management skills, communication skills, computer skills, which were common.
Speaker 2:Those were as broad as can be, and it's does mind supervisor. Does the supervisor form and position say anything about computer skills? That would be. I find that a little surprising. But more importantly, aren't these aren't there? Isn't this like a computer generated thing, like you feed in what the job description is and it tells you, based on that, what the skills you'd anticipate that person would have?
Speaker 5:This analysis these locations, these transferable skills analyses is not simply just a computer generated report, so it also involved a discussion with the actual appellant, so that the person conducting the analysis took into consideration more information.
Speaker 2:They may have done, but certainly you'd have to admit that a major driver of this decision is what the person's previous job was. You look at what the DOT job description is right and you put that information in and there's this. I'm having a if there's a logical line that you have to draw to justify your decision, I'm just having real difficulty with the notion that you can call somebody, the superintendent of the entire operation, and say that the skills that you would acquire in that circumstance are going to produce suitable employment for you and then say you know what that was wrong. You're really a foreman in the mind, but never mind, because everything else we said was right. That just that. Why does that error, that conceded error, not swamp everything else? Because it feeds through all the other stuff you have to say about suitable employment.
Speaker 5:For two reasons, your honor Number one. The issue here is not whether they correctly identified his position with the company, but it's really the issue here Is he capable of performing a job that is consistent with the functional limitations identified by his treating by the peer review positions? That's true.
Speaker 2:That's the question they should have answered. Right, to answer that question, does he have the skills to have suitable employment? And what would that be? To have a rational, that is not an arbitrary or capricious, but a rational decision on that, doesn't a major input have to be correct? Can you have a major input, that analytical process be completely wrong and then at the end say, never mind, you got the Emily Littell defense from Saturday Night Live, never mind, because he still had some skills? I don't think I don't even hear them arguing that he doesn't have skills. He's got skills. The question is did you guys arbitrarily and capriciously that is, irrationally peg what his skills were and what his suitable employment would be? Because if you irrationally did that, why don't you have to go back and do it again? We would do that if this was a decision-making by a district court, wouldn't?
Speaker 5:we your Honor. They don't need to go back and do it again and the reason why is too full. So the 2019 report. The person, the analyst who created that report, referenced the 2016 report specifically so it was taking more information into account. The 2016 transferable skills analysis correctly identified his position with the company, correctly took into account his the determination by the peer review physicians that he was incapable or capable of sedentary work.
Speaker 2:I don't hear them arguing with that either. The response from Mr Glass is that's true, but so what? The decision wasn't made on the basis of the 2016. The decision was made on the basis of the 2019 evaluation, and the fact that you got it right once doesn't mean doesn't fix the error in the decision you made in 2019. And indeed, to say that you could do that would fly in the face of the responsibility you have under arrest. To be clear with the beneficiary, because what you're really saying is even though we didn't talk about 2016, even though we were talking based on 2019, you should have understood, you should have got it that what we really meant was the 2016 stuff. How does that work?
Speaker 5:So it is at issue here is was their decision to terminate his benefits based on substantial evidence and the 2016 report is substantial evidence? That was part of the claims file that was specifically considered and referenced in the 2019 report, and if he was capable? If the positions identified in the 2016 report are based upon substantial evidence, their reason and their appropriate but the 2016 benefits determination was reversed on appeal.
Speaker 6:He got benefits, so how can you say there's a finding that he is able to do the jobs listed in 2016 report?
Speaker 5:So the 2016 report what the job position right, his experience as his vocational experience, his skills and his qualifications. They didn't change between 2016 and 2019. That remained the same In so far that there was a reversal the 2000s benefits determination. That did not have to do with any kind of change in his vocational experience or history or qualifications. That was focused on the fact that his medical documentation, that there was a change in his prognosis history. So what happened in 2016 is a peer review report was engaged at that time. The peer reviews at position Dr Graham in 2016 concluded he was capable of performing sedentary work, which is the same conclusion that the subsequent peer review analysis also reached. The reason why that this was this benefits denial was reversed on appeal is because he brought it to the attention of the claims administrator that he had an ankle surgery scheduled, and so they deemed it appropriate to reinstate benefits until after and then revisit his eligibility determination for benefits after the Okay. So there's an ankle issue.
Speaker 6:Then we get to 2019-2020. We have reports by your reviewing physicians who either ignore or slight the persistent ankle issues. So that's a procedural problem with it. You're asking us to say there's substantial evidence in the record and if there hadn't been these multiple procedural errors of the wrong job title and the failure to mention to discuss the ankle and some other things, substantively would there be enough evidence? Possibly, but we can't just defer when there appear to be major procedural problems with the way this evidence was addressed, considered misunderstood, mislabeled.
Speaker 2:Your Honor, I disagree that there are major procedural errors here, that we addressed that the misident, the major Having Making a guy who's working in the mind superintendent and making that the basis of decision for what his suitable employment is. That's. You don't think that's a major problem? No, your Honor, Like you could put anything in there.
Speaker 4:Is it the basis of the decision? That mistake. Was it the basis of the decision no?
Speaker 5:Your Honor. No, it was not the basis of their decision in concluding that he was capable of performing the job, that he was capable of performing the vocations, with his functional limitations, that the peer review positions these jobs require an ability to lift 10 pounds, but the earlier documentation suggests he can only lift five pounds.
Speaker 6:There's a gap.
Speaker 5:So the documentation on what his lifting capabilities are is not as clear as the appellant would try to make out. So we have a treating physician, dr McGarry, who in a few of his treatment notes stated that he's to avoid lifting over five pounds until instructed otherwise. That reappears a few times in some of the treatment notes and then disappears. Another, his orthopedic surgeon, who actually performs ankle surgery on the appellant twice, including his treatment notes that this individual was capable of lifting up to 10 pounds regularly and up to 25 pounds occasionally, and so even his treating physicians are not uniform in their assessment of what his lifting capabilities were. So it's not without reason or irrational for four different peer review positions over the course of this claims determination to look at this and then conclude that this individual was capable of performing sedentary work.
Speaker 6:It looks to me like you're reasoning backwards from a denial benefit to the reasons for it, and the thing that maybe it's small but troubling us in there is you point to a bunch of social media posts and I don't see any evidence. It's not like he's lifting weights or a hauling timber or anything like this in this. The fact that he's outdoors you're treating as enough reason to deny. Like what evidence is there in here, unless it's that he happened to be wearing a MAGA cap in one of them? Is this bias against him?
Speaker 5:Your honor. I respectfully know. The social media posts were referred to by an administrative record only in the final benefits denial letter. He had already been given social media posts actually properly and lawfully be part of this?
Speaker 2:Weren't they things that had nothing to do with what the medical reviewers were talking about? Did any of the medical reviewers talk at all about the social media posts?
Speaker 5:No, they were not addressed by the medical reviewers.
Speaker 2:your honor, and you're not suggesting that other people that you based your decision or maybe you are. Maybe that's another problem with your decision that you really didn't. It was you know what. We've got these medical decisions, but we think we're expert enough to look at your social media posts and see you outside and determine you're not actually disabled.
Speaker 6:If you've been in a lifting competition, I would get it that you don't have to go back to the, but there's nothing here that remotely looks like he's doing strenuous activity, is there?
Speaker 5:Your honor. At the end of the day, really, what we're looking at is did they abuse their discretion? Was it completely irrational for them to reach the conclusion that this individual was no longer totally disabled? Do we?
Speaker 2:in making our judgment about that, do we have to look at your post-talk rationalizations and say that's good enough, or do we look at what you express? Right I'm talking about Lincoln that we look at what they said and pay attention to what they expressed and ask whether that is rational? Are we allowed to look beyond what their expression is of what they decided? Judge rationality on that basis? Maybe I've asked that badly. Do you know what I'm trying to?
Speaker 5:ask. I think I do your honor. So look what's relevant. What's most relevant here is what's been stated by the Claims Administrator as its reasons for denying benefits, but the entire administrative record can also be reviewed to help to discern, or help the court understand, whether there is without reason for a basis For what they've decided.
Speaker 2:So we have to look at what they said, right, that's what we're required to do what did they say? And then pay attention to whether there's substantial evidence supporting how they express their own decision right.
Speaker 5:That is correct. And the court, the courts in the Third Circuit, are very clear that it is rational and reasonable for Claims Administrators to engage peer review physicians who have complete access to the complete complement of the medical record and then make a determination. There's no requirement for them to give deference.
Speaker 2:I don't think you have to make that pitch, because that's true and we accept that, although I would ask you this should we be suspicious of peer review doctors who render an opinion on this same day that they purportedly are requiring information from others? Didn't Dr Patel write to other physicians and say, hey, tell me about your treatment of this person? And yet he issued his opinion, obviously before he got anything back, because he issued his opinion the day he wrote to these people. It looks like he's papering the record when he's got no intention of paying any attention to what anybody says to him because he's already rendered his opinion. Doesn't that undermine the assertion that these are just neutral doctors out there trying to do the right thing and instead these are doctors who are trying to paper for the benefit of the Orissa administrator to not make a payment?
Speaker 5:Your Honor, dr Patel, in his notes gave called and left messages and then wrote these letters to the treating positions and didn't wait to get an answer. So he issued his report. In his letter he requested them to respond within five days. Now he did provide his report to the claims administrator before those five days are up. However, the claims administrator did not act upon that report until I think it was 14 days later, but that's irrelevant.
Speaker 2:The question is what's the quality of his report? If he knows, I should get this information and he papers the record as if he's getting information, but he renders his opinion anyway. Should we take a look at that and say this isn't really peer review? This is a guy who's just trying to make it look good, but he's just doing what he's doing to get to a pre-determined result.
Speaker 5:Your Honor. He did reach out and left messages and when you look at his report itself, it takes into consideration the entire medical record, has acknowledged the conflicting prognosis, notes amongst the treating positions regarding the appellants lifting abilities and restrictions, and then he reaches his decision and recommendation for the claims administrator.
Speaker 2:And then he goes. Well, indulge me. I want to ask you the question that I asked Mr Glass. Assume, for the sake of discussion, we thought you know what there's enough problems here that this has to be that the decision is unsupportable based on what the decision itself expresses and so we're sending it back to the district court. What would the order look like that the district court would get? Would the district court, would we be directing the district court to tell the administrator you got to reinstate benefits, give them back benefits and then you can go ahead and reevaluate, as your colleague says Miller demands. Or is there some other order that, consistent with our law, we would enter? What's your take on that? I know you don't want to go there, but go there On the assumption I've given you you're not giving anything away.
Speaker 5:Yeah, your Honor, my understanding is that benefits, if it's determined that the claims benefit determination is decided that it's arbitrary and capricious and that there was an abusive discretion here, then my understanding is that there would be an order for benefits to be reinstated and then and that I'm actually not as clear on your Honor and so as to whether there would be back benefits for Well.
Speaker 2:I'll ask both sides to give us a letter of memorandum.
Speaker 5:And that your Honor. We would appreciate that should be very simple.
Speaker 2:Like three pages or less. Just give us the law on that. Okay, Thank you, your Honor. Okay, thank you very much, Mr Lewis, Appreciate it. Mr Gras, We'll have you back on our both.
Speaker 1:I'll make one amendment I just heard what you said about the letter but one amendment to the order going back is and properly calculate the Social Security Offsets, because I think that's clear.
Speaker 2:You frame what you think the law is and they'll frame what they think the law is, because if we may or may not get to the point of agreeing with you, but if we did get to the point of where we were agreeing with you, it would be nice to know what both sides' positions were about what the framing of an order ought to look like.
Speaker 1:Yes, sir, Sure, yes, sir. So for 28 years this guy it was by ho. It's off to where I go, first in the rock quarries of Virginia and then in the coal mines of Virginia. If you looked at a medical manual of musculoskeletal orthopedic injuries, he's got one of everything.
Speaker 2:Okay, which here's what it would be most helpful for at least me, for you to address. You don't have to persuade us that the man's got limitations. They admit he's got limitations. The question we're wrestling with is is there enough in this record to support by substantial evidence the decision they made? As they expressed it? Okay, now speak to that. Their argument is, in essence, that the district court judge got it right. Yeah, they made a mistake in the way they identified his previous employment title, but everything else was good. It's all good. Go with that argument, yes, sir.
Speaker 1:Everything else is not good, because what this court has said is we look at the procedural irregularities in the case. Starting with, let me do it this way If these reports and this decision were in the first six months or eight months when he transferred to his anti-occupation period, this is a lot closer case. The biggest thing and again I started with this argument is for three years they found that the evidence, the actual medical record, supported the claim. And all I'm saying is the unbiased, curious fiduciary must say to the doctors who are looking at paper records and making fine distinctions about whether someone can lift five pounds, ten pounds, sit for 20 minutes or not, say look, here's our baseline. We have already determined that his records entitle him to benefits and we've made that decision for three years. And that's what Miller says.
Speaker 1:And I think the case is either no gut or no to apologize, but it's in our brief and start the analysis there. What in the medical records has changed? And the only one who really addressed this is Dr Patel, because Dr Kahn, yeah, you read his report he limits his opinion to the three months from March of 2020 until the time he wrote his report. So he does no analysis of OG. You paid for three years. What's changed? And he's telling you, he's telling us, everybody only his opinion on the three months since March of 2020.
Speaker 2:Your time's up. I'll give you a couple.
Speaker 1:Give us the moment to wrap up. Look, I'm good. I appreciate the time. It's the first time I've been here. I'd ask that you find that the decision was arbitrary and I'll give you my version of what the order should look like.
Speaker 2:Could you get those 28-day letters to us? Is it a week enough time for you to do that?
Speaker 1:Take a look, ten-day We'll say ten days yes, and to be very clear, it's on what the If we were to determine in your favor.
Speaker 2:With respect to the argument that this was an abuse of discretion, what is our law called for in the way of remedy? Yes, sir, okay, thank you very much, thank you, okay, thank you. Counsel Appreciate argument.
Speaker 3:The proceeding has been a production of Ben Glass Law, a Fairfax, virginia-based personal injury and long-term disability law firm. For more information on the free evaluation of your claim, go to wwwglasslawcom or call us at 703-591-9829.