MEMORANDUM AND ORDER

GENE PRATTER, District Judge

In this action brought pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., Plaintiff Nicholas J. DellaValle ("DellaValle") seeks an award of long-term disability benefits under an insurance policy that Defendant The Prudential Insurance Company of America ("Prudential") issued to his former employer. Mr. DellaValle commenced suit against Prudential on December 16, 2004 in the Court of Common Pleas of Philadelphia County. Following Prudential's removal of the case to the United States District Court for the Eastern District of Pennsylvania, Mr. DellaValle filed an Amended Complaint, alleging that Prudential violated ERISA by wrongfully denying him long term disability benefits. The parties have filed cross motions for summary judgment. For the reasons discussed below, the Court denies both motions for summary judgment and directs Prudential to accept Mr. DellaValle's submission of his claim for further internal consideration of his possible entitlement to long term disability benefits under the applicable policy of insurance.

I. FACTUAL BACKGROUND

A. Mr. DellaValle's Employment

Mr. DellaValle was employed as a Senior Seal Repair Technician at John Crane, Inc. from December 28, 1999 until March 8, 2004. (DellaValle Mot. at 1, 2; Pru. Resp. at 1, 2). The parties disagree about the duties Mr. DellaValle performed as part of his job as a Senior Seal Repair Technician. Mr. DellaValle awoke on the morning of March 8, 2004 with extreme pain in his lower back and radiating symptoms into his legs, which prohibited him from going to work. Mr. DellaValle filed for, and Prudential approved, short term disability benefits. Those short term disability benefits are not at issue in this case. After receiving Mr. DellaValle's claim for benefits, Prudential performed a Regular Occupation Review and determined that Mr. DellaValle's position was "medium," requiring Mr. DellaValle to lift, carry, push and pull 20-50 lbs. occasionally, 10-25 lbs. frequently and 10 lbs. constantly, and stoop and crouch occasionally. (R. at 3).

B. The Long Term Disability Policy

Mr. DellaValle was covered by a long term disability policy issued by Prudential. The policy defines "disabled" to mean "you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; and you have a 20% or more loss in your indexed monthly earnings due to that sickness or injury." (R. at 194). The policy further defines "material and substantial duties" as duties that "are normally required for the performance of your regular occupation; and cannot be reasonably omitted or modified. . . ." (R. at 194). Mr. DellaValle would have been eligible for long term disability benefits after the four month elimination period ended. (R. at 185). The policy vests Prudential with the "sole discretion to interpret the terms of the [policy], to make factual findings, and to determine eligibility for benefits." (R. at 218).

C. Mr. DellaValle's Long Term Disability Claim

On March 8, 2004, the day of the injury, Mr. DellaValle was treated by Dr. Joseph Mangel, his primary care physician. (R. at 82). Dr. Mangel continued to treat Mr. DellaValle and also referred him to other medical professionals. Initially, Mr. DellaValle received an MRI of his lumbar spine and was evaluated by Dr. Steven Yocom, a neurosurgeon. Dr. Yocom examined Mr. DellaValle on April 1, 2004 and concluded that Mr. DellaValle was suffering from a herniated disc in the lumbar region of his back. (R. at 142-43).

On June 7, 2004, Dr. Mangel submitted a Group Disability Insurance Attending Physician's Statement to Prudential. (R. at 166-68). On that form, Dr. Mangel stated that Mr. DellaValle could not sit, stand or drive for longer than 15 minutes. (R. at 167). Dr. Mangel also stated that Mr. DellaValle was unable to operate machinery, and his prognosis for returning to work was guarded with a "target date" of returning to work on August 7, 2004. (R. at 167). Dr. Mangel described Mr. DellaValle's functional abilities to fit best with sedentary work. (R. at 168).

On June 24, 2004, Mr. DellaValle returned to Dr. Yocom's office for reevaluation. (R. at 141). Dr. Yocom reported that Mr. DellaValle was undergoing physical therapy and suggested that he undergo a series of steroid injections to decrease his pain. (R. at 141).

On June 6, 2004, Mr. DellaValle filed his first claim for long term disability benefits with Prudential, which included the foregoing medical records in support of his claim. (R. at 5, 6, 170-71). At Prudential, Nurse Carrie Eccles performed the Clinical Review of Mr. DellaValle's application for Plan. (R. at 6). Prudential's Joseph Reed wrote the internal decision denying Mr. DellaValle's claim for plan benefits, stating that while Mr. DellaValle may have pain, the medical records submitted by Dr. Yocom did not support a condition that would render Mr. DellaValle unable to return to work. (R. at 7). Prudential officially denied Mr. DellaValle's claim for long term disability benefits on July 7, 2004. (R. at 23-25). In his three-page declination letter, Mr. Reed summarized the medical submissions from Dr. Yocom in great detail, but then concluded that:

While we recognize that you have symptoms of pain, the medical information submitted by Dr. Yocom for review does not indicate that your pain would be sufficiently severe to prevent you from performing the essential functions of your job. The office visit notes from Dr. Yocom do not document any physical exams or neurological deficits. Dr. Yocom did state that there [sic] a disc bulge was found at the L5-S1 level on the MRI, however this was without any spinal cord or nerve involvement. It was recommended that you undergo a course of epidural steroid injections and physical therapy, however, this alone is not supportive of an impairment that would prevent you from working. As the medical information in the file does not support your continued absence from work, your Long Term Disability claim has been disallowed.

(R. at 24). The denial letter also referred to the Prudential appellate process and confirmed that Mr. DellaValle had a right to appeal the initial denial of benefits, and if that appeal was denied, Mr. DellaValle was entitled to a second appeal. (R. at 24-25). According to the letter, after the first two levels of appeal, Mr. DellaValle could take a voluntary third appeal or file a lawsuit pursuant to ERISA. (R. at 25).

D. Mr. DellaValle's First Appeal of Denial of Long Term Disability Claim

Mr. DellaValle first appealed Prudential's July 7, 2004 denial of benefits on November 8, 2004 through his counsel. (R. at 28). In addition to the medical information outlined above, Mr. DellaValle responded to Prudential's denial by submitting medical records from Dr. Glen Miller, Dr. Pasquale Colavita, the Department of Neurosurgery at Drexel University College of Medicine, Dr. Gene Salkind, and certain diagnostic studies, including at least one MRI of Mr. DellaValle's lower back. (R. at 28-29). The substance of these reports is summarized below.

Between July 1, 2004 and September 20, 2004, Mr. DellaValle was treated by Drs. Miller, Colavita, and Salkind, who noted, inter alia, that Mr. DellaValle complained of low back pain, pain and weakness in his legs, and that he suffered from a herniated disc and had a decreased range of motion in his lumbar region. (DellaValle Resp. at Ex. H; R. at 73-74, 76-78, 118-21). The doctors made various recommendations, including epidural steroid injections, better pain management, continued physical therapy, follow-up visits with a neurosurgeon, a second MRI, and a lumbar discogram if the MRI did not show any change in his condition. (DellaValle Resp. at Ex. H; R. at 73-74, 78, 119, 121).

On August 3, 2004, Dr. Mangel wrote a letter to Mr. DellaValle's counsel outlining Mr. DellaValle's condition of a herniated disk at L5-S1 and medical treatment and examinations he had received. (R. at 31). Dr. Mangel, the only physician identified on this record who addressed Mr. DellaValle's ability to return to work, stated, "[i]t is my medical opinion that Mr. DellaValle is currently unable to return to his previous position at work. He is taking narcotic pain reliever, which prohibits him from operating machinery or driving automobiles. His back pain limits the amount of weight he can lift and the amount of time he can work."

At Prudential, employee Kathleen Pattis reviewed and summarized Mr. DellaValle's records for his appeal. (R. at 9-10). Ms. Pattis noted that Mr. DellaValle's MRIs indicated that there was a L5-S1 disc herniation with encroachment on the thecal sac without encroachment on the roots and that Dr. Colavita's documents revealed evidence that might indicate a mild S1 lumbar radiculopathy on the left greater than right. (R. at 9). Ms. Pattis also stated:

although Dr. Mangel indicated [Mr. DellaValle] is on narcotics and should not be around heavy equipment, there is no documentation in any of the medical records from any physician that [Mr. DellaValle] is have [sic] any side effects of any of his medications. [Mr. DellaValle] is noted to be alert and oriented by several [attending physicians].

(R. at 10). Ms. Pattis acknowledged the "6/7/04 [attending physician statement] by dr [sic] Mangel documents [Mr. DellaValle] is unable to drive or be around heavy machinery." (R. at 9). Later, she stated that there is "[n]o documentation in dr Mangels [sic] records that he has instructed [Dellevalle] not to drive an automobile." (R. at 10). In her analysis, Ms. Pattis acknowledged that Mr. DellaValle's physical exams have consistently documented his limited range of movement. (R. at 10).

Prudential's Tamika Artis, in her internal decision, stated that Mr. DellaValle's testing and physical examination findings are "essentially normal." (R. at 11). Ms. Artis stated that although Mr. DellaValle's counsel and treating physician document that Mr. DellaValle is "unable to operate heavy machinery due to his medications, the medical records in the file do not document [Mr. DellaValle] has been having any adverse side effects from the medications he is taking." (R. at 11). Ms. Artis went on to state that "[t]he medical information in the file does not document evidence of any physical impairment that would prevent [Mr. DellaValle] from performing the [material and substantial] duties of his [regular occupation]. Uphold." (R. at 11). Ms. Artis did not discuss Ms. Pattis' determination that Mr. DellaValle had a limited range of motion that may mean difficulty with bending activities and did not analyze Ms. Pattis' findings in relation to Mr. DellaValle's job duties.

On November 29, 2004, Ms. Artis officially denied Mr. DellaValle's plan claims in a letter, and, after giving a detailed summary of the medical information submitted by Mr. DellaValle, cursorily concluded that:

The medical information in the file does not document evidence of any sickness or injury that would prevent Mr. Mr. DellaValle from performing the material and substantial duties of his regular occupation throughout the elimination period defined above. In fact, his diagnostic testing and physical examination findings reveal essentially normal and mild findings. Although his treating physicians note that Mr. Mr. DellaValle is currently taking narcotic medications and [sic] unable to operate machinery or automobiles, the medical information in the file does not suggest that he is having any adverse side effects due to the medications he is taking.

(R. at 19). The letter also outlined the Prudential appeals process, including that Mr. DellaValle was entitled to appeal Prudential's denial of his Plan claims, that if the decision was upheld at the second appeals level, Mr. DellaValle would be entitled to file a voluntary third appeal or file a lawsuit pursuant to ERISA. (R. at 19-20).

On December 6, 2005, Mr. DellaValle's counsel sent a letter to Prudential, acknowledging receipt of the November 29, 2004 denial letter and stating that DellaValle "will take the appropriate steps." (R. at 26). Prudential responded to that letter on December 9, 2004, stating that Prudential received counsel's December 6 letter in which he indicated that Mr. DellaValle would be appealing the decision to deny Mr. DellaValle his Plan benefits. (R. at 12). Prudential's letter stated that it would begin evaluating Mr. DellaValle's claim upon receipt of his "complete appeal." (R. at 12). The record contains no indication of any other correspondence between Prudential and Mr. DellaValle. As indicated above, on December 16, 2004, Mr. DellaValle commenced this suit in the Philadelphia Court of Common Pleas.

II. DISCUSSION

Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions . . . which it believes demonstrate an absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e).

To defeat a motion for summary judgment, factual disputes must be both material and genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "material if it is predicated upon facts that are relevant and necessary and that may affect the outcome of the matter pursuant to the underlying law. Id. An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving parties. Id. at 248-49. If there is only one reasonable conclusion from the record regarding the potential verdict under the governing law, summary judgment must be awarded to the moving party. Anderson, 477 U.S. at 250. Here, with cross motions for summary judgment, the parties essentially agree that the material facts are undisputed. Their dispute concerns the legal conclusions that can or should be drawn from those facts.

A. Failure to Exhaust Administrative Remedies

Under ERISA, a beneficiary may bring a civil action to "recover benefits due to him under the terms of his plan, to enforce his rights under the terms of his plan, or to clarify his rights to future benefits under the terms of the plan. . . ." 29 U.S.C. § 1132(a)(1)(B). In general, employees seeking to enforce the terms of ERISA plans are required to exhaust their administrative remedies before seeking judicial relief. See Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir. 1990). "Courts require exhaustion of administrative remedies `to help reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a nonadversarial method of claims settlement; and to minimize the costs of claims settlement for all concerned.'" Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 249 (3d Cir. 2002) (quoting Amato v. Bernard, 618 F.2d 559, 567 (9th Cir. 1980)). Moreover, exhaustion of the administrative remedies "creates a record of the plan's rationales for denial of the claim." Zipf v. American Tel. Tel Co., 799 F.2d 889, 892 (3d Cir. 1986).

The requirement that an employee must exhaust his administrative remedies does not have to be met, however, when "resort to the administrative process would be futile." Berger, 911 F.2d at 916. "Plaintiffs merit waiver of the exhaustion requirement when they provide a `clear and positive showing of futility.'" Harrow, 279 F.3d at 249 (quoting Brown v. Cont'l Banking Co., 891 F. Supp. 238, 241 (E.D. Pa. 1995)). Courts must weigh several factors in determining whether to excuse exhaustion on futility grounds, "including: (1) whether plaintiff diligently pursued administrative relief; (2) whether plaintiff acted reasonably in seeking immediate judicial review under the circumstances; (3) existence of a fixed policy denying benefits; (4) failure of the insurance company to comply with its own internal administrative procedures; and (5) testimony of plan administrators that any administrative appeal was futile."Harrow, 279 F.3d at 250 (upholding district court determination of no futility when plaintiffs made only one telephonic inquiry and did not follow complaint procedures). Not all of the foregoing factors must be weighed equally. Id.

Prudential asserts both in its motion and at oral argument that summary judgment for Prudential is proper because Mr. DellaValle has failed to exhaust his administrative remedies. (Pru. Resp. at 4, 10; Tr. at 23). Prudential asserts that Mr. DellaValle only appealed Prudential's decision one time prior to instituting suit, when the express appeals procedure provides for an initial claim, two appeals, and a voluntary third appeal. (Pru. Resp. at 7).

Mr. DellaValle argues that he did exhaust his administrative remedies and, if the Court finds that he did not exhaust his administrative remedies, that any further appeal beyond the first would have been futile. (DellaValle Resp. at 8). Mr. DellaValle argues that Prudential denied his claims on two occasions, thus satisfying the administrative remedies, because the original denial was made on July 7, 2004, and a request for reconsideration was made on July 20, 2004, which was denied on November 29, 2004. (DellaValle Resp. at 7, 8; Tr. at 15, 36). Mr. DellaValle concedes that he filed litigation after the denial of the first appeal. (Tr. at 15-16).

The record indicates that Mr. DellaValle filed his original claim with Prudential on June 6, 2004, which was officially denied one month later on July 7, 2004. In the denial letter, Prudential outlined the appeals process, which was not inconsistent with the appeal process described in the Summary Plan Description. (R. at 219). Mr. DellaValle timely filed his first appeal through counsel on November 8, 2004. (R. at 28-29). It was officially denied on November 29, 2004. (R. at 17-20). As confirmed by Mr. DellaValle's counsel at oral argument, Mr. DellaValle never appealed the denial of the first appeal. (Tr. at 15-16, 19).

Although Mr. DellaValle argues that the denial of the original claim and the first appeal constitute exhaustion of administrative remedies, he fails to recognize that the plan provided for a claim, first appeal, and second appeal, and technically Mr. DellaValle only satisfied the first two of the three-step process. Mr. DellaValle failed to exhaust the administrative remedies provided to employees under the plan, and, for the reasons stated below, Mr. DellaValle is not excused from exhausting his administrative remedies because he has not shown that further appeal would have been futile.

Mr. DellaValle argues that additional attempts to appeal Prudential's decision would have been futile because Prudential ignored the conclusions of Mr. DellaValle's physicians, including Dr. Mangel's assertion that Mr. DellaValle was disabled. (DellaValle Resp. at 8; Tr. at 15-16). Mr. DellaValle's counsel claims there was no further information that Mr. DellaValle could have supplied to Prudential, and, instead, tries to evade the second-appeal obligation by arguing that Prudential has failed to offer any evidence as to what would have changed with a second appeal. (DellaValle Resp. at 8; Tr. at 15-17).

Looking at the Harrow factors, Mr. DellaValle cannot "clearly and positively" show that he should be excused from exhausting his administrative appeals because further appeal would have been futile. There is no indication in the record that Prudential had a fixed policy of denying benefits to people such as Mr. DellaValle, that Prudential failed to follow its own administrative procedures, or that a Prudential employee would testify to the futility of a second appeal. Mr. DellaValle's counsel conceded these points at oral argument. (Tr. 36-37). Although counsel argues that such an appeal would have been futile because there was no further medical evidence to offer, counsel, through his submissions and at oral argument, actually presented additional medical evidence that was relevant to Mr. DellaValle's long term disability claim, including a report from Dr. Salkind from December 2004. Moreover, counsel for Prudential explained during oral argument that Prudential's second appeal process is independent, more detailed, and involves a committee of more senior employees. (Tr. at 24-25).

Therefore, the Court finds that Mr. DellaValle has failed to carry his burden with respect to a showing that further appeal would have been futile, and he is not excused from exhausting his administrative remedies. For the reasons stated below, however, the Court finds that Prudential failed to comply with the notice requirements of ERISA, and, as a result, the time limits for invoking the second appeal may not be enforced against Mr. DellaValle.

B. Non-Compliance with ERISA Notice Requirements

ERISA requires that a plan "provide adequate notice in writing to any participant . . . whose claim for benefits . . . has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant. . . ." 29 U.S.C. § 1133(1). The notice of denial must provide the claimant with:

(i)The specific reason or reasons for the adverse determination;

(ii) Reference to the specific plan provisions on which the determination is based;

(iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

(iv) A description of the plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review[.]

Prudential's four-page November 29, 2004 denial letter begins with a review of the applicable plan provisions, followed by a brief discussion the initial denial of Mr. DellaValle's claim, and then includes a detailed recitation of the medical evidence submitted by Mr. DellaValle that Prudential purported to rely on in making its decision. The letter concludes:

The medical information in the file does not document evidence of any sickness or injury that would prevent Mr. Mr. DellaValle from performing the material and substantial duties of his regular occupation throughout the elimination period defined above. In fact, his diagnostic testing and physical examination findings reveal essentially normal and mild findings. Although his treating physicians note that Mr. DellaValle is currently taking narcotic medications and [sic] unable to operate machinery or automobiles, the medical information in the file does not suggest that he is having any adverse side effects due to the medications he is taking.

(R. at 17-19). The denial letter then described the appeals process in a brief paragraph, stating that any "appeal may identify the issues and provide other comments or additional evidence you wish [sic] considered." (R. at 19).

Prudential's denial letter did not satisfy the third prong of § 2560.503-1(g) requirement because it failed to identify any specific information necessary for Mr. DellaValle to submit in order to perfect his claim for long term disability benefits at the second appeal level. Although the letter reviewed the evidence that Prudential purported to rely upon in deciding to deny Mr. DellaValle's benefits in great detail, that review is insufficient to satisfy the third prong of § 2560.503-1(g). See Wahl, 1994 U.S. Dist LEXIS 1960, at *10 ("[A] description of the basis for a claims decision does not provide a meaningful substitute for a description of the information needed to alter that decision. . . ."). Further, Prudential's statement that "[t]he medical information in the file does not document evidence of any sickness or injury that would prevent Mr. DellaValle from performing the material and substantial duties of his regular occupation," certainly suggests that the numerous doctors' notes, letters and findings previously submitted are insufficient to demonstrate a disability but says nothing about what additional material might meet this requirement. Given that Mr. DellaValle's claim file already contained substantially all of the then extant medical records from his physicians, including Dr. Mangel's conclusion that Mr. DellaValle should not return to work, it is possible that Mr. DellaValle, in the absence of guidance from the Prudential decision-maker, was "no doubt at a loss as to what more he might submit." Wolfe v. J.C. Penney Co., Inc., 710 F.2d 388, 393 (7th Cir. 1983).

Prudential's letter does state that "[a]lthough [Mr. DellaValle's] treating physicians note that Mr. DellaValle is currently taking narcotic medications and [sic] unable to operate machinery or automobiles, the medical information in the file does not suggest that he is having any adverse side effects due to the medications he is taking." This statement is still insufficient to meet the requirements of the third prong of § 2560.503-1(g) because, at best, it would require Mr. DellaValle to "read between the lines" and is not "[a] description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary." Telling Mr. DellaValle that he could supply "additional evidence [he] wished to be considered" did not bring the letter into compliance with § 2560.503-1(g). Wahl, 1994 U.S. Dist LEXIS 1960, at *10-11; Wolfe, 710 F.2d at 393. While there is no reason to conclude Prudential was doing so deliberately, there is here an element of "hide the ball" if one is to devine from the denial letter what more Mr. DellaValle could have and should have submitted.

C. Remand

With these cross motions for summary judgment, and having determined that technically Prudential's denial letter of November 29, 2004 was legally deficient, as well as that Mr. DellaValle failed to exhaust his remedies, this case could effectively end in an inconclusive stalemate. The Court is left to consider whether it should fashion an appropriate remedy that would at least permit the parties to reach a more definitive resolution of the claim. Inadequate notice does not excuse the employee from the exhaustion requirement, but in such a circumstance, the normal time limits for the administrative appeal may not be enforced, and an appropriate remedy is for the Court to remand the claim to the plan administrator "for an out-of-time administrative appeal." Counts v. Am. Gen. Life Accident Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997); Syed v. Hercules Inc., 214 F.3d 155, 162 (3d Cir. 2000); Majka v. Prudential Ins. Co. of Am., 171 F. Supp. 2d 410, 416 (D.N.J. 2001); Wahl, 1994 U.S. Dist. LEXIS 1960, at *12. Mr. DellaValle can have a full and fair opportunity to present his claim for benefits, and Prudential will have the opportunity to render a decision on Mr. DellaValle's second appeal. Furthermore, remand will further the goals behind the exhaustion requirement by providing a nonadversarial method of claims settlement and hopefully minimize the costs of the claims resolution for both parties. See Harrow, 279 F.3d at 249. Remand is warranted in this situation and is within the sound discretion of this Court.See D'Amico v. CBS Corp., 297 F.3d 287, 289, 293 (3d Cir. 2002).

The Court will therefore require Mr. DellaValle to exhaust his administrative remedies by filing an appeal with Prudential in accordance with the terms of the plan. On remand, Prudential should review the record and any other records or evidence that Mr. DellaValle can provide at this time. Before Mr. DellaValle can file an effective appeal, however, Prudential must fulfill its duty under § 2560.503-1(g) and specifically inform Mr. DellaValle of the information he needs in order to perfect his claim. See e.g., Wahl, 1994 U.S. Dist. LEXIS 1960, at *13. The Court therefore requires Prudential to send Mr. DellaValle an amended denial letter which complies with § 2560.503-1(g) not later than twenty (20) days from the date of this Memorandum and accompanying Order. If he wishes to pursue his claim, Mr. DellaValle shall then be required to file an appeal with Prudential, in accordance with the terms of the Plan, not later than 60 days after the receipt of the compliant denial letter. Prudential will then be required to render a decision in accordance with the procedures for the second appeal as set forth in the denial letters. On remand, Prudential should review the existing record, along with any other records or information that Mr. DellaValle can provide at this time. If Prudential finds in Mr. DellaValle's favor, that will end the matter and the case will be dismissed. If Prudential determines that Mr. DellaValle is not entitled to benefits, Mr. DellaValle may reactivate this suit if he so determines, which will, in the meantime, be placed into the Court's suspense docket.

III. CONCLUSION

For the foregoing reasons, Mr. DellaValle's Motion for Summary Judgment will be denied. Prudential's Motion for Summary Judgment likewise will be denied. The dispute will be remanded to the plan administrator so that Mr. DellaValle will have a full and fair opportunity to present his claim for long term disability benefits, and Prudential will have the opportunity to review Mr. DellaValle's second appeal. To enable Mr. DellaValle to pursue his second appeal, the parties will be required to proceed in accordance with the schedule set forth in the accompanying Order.

An appropriate Order consistent with this Memorandum follows.

ORDER

1. Plaintiff's Motion for Summary Judgment is DENIED;

2. Defendant's Motion for Summary Judgment is DENIED;

3. Prudential Insurance Company ("Prudential") shall send Plaintiff an amended denial letter that complies with 29 C.F.R. § 2560.503-1(g) not later than twenty (20) days from the date of this Order;

4. If he wishes to pursue his claim, Plaintiff shall file an appeal with Prudential, in accordance with the terms of the Group Policy No. 66263 issued to Smith's Group Prudential's amended denial letter.

5. Prudential shall accept such an appeal and render a decision with respect to Plaintiff's appeal in accordance with the terms of the plan and the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.;

6. The parties shall jointly report to the Court in writing with respect to the status of the case at sixty (60) day intervals or more frequently if warranted by the circumstances.

By reason of the requirements that Defendant give proper notice to Plaintiff, and that Plaintiff must exhaust his administrative remedies, the action cannot proceed to trial and final disposition and, accordingly, IT IS FURTHER ORDERED that the case is STAYED and the Clerk of Court shall place the case in the Civil Suspense File and mark the case closed for statistical purposes.

IT IS FURTHER ORDERED that the Court shall retain jurisdiction and the case shall be restored to the trial docket when, and if, it is in such status that it may proceed to final disposition.