MEMORANDUM-DECISION and ORDER

DAVID HURD, District Judge

I. INTRODUCTION

Plaintiff Louise Harris, M.D. ("plaintiff") brought suit against defendants First Unum Life Insurance Company ("First Unum"), UnumProvident Corporation, and Unum Life Insurance Company of America (collectively, "defendants"), challenging the termination of her long-disability benefits under a group insurance policy administered and payable by First Unum, in violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et. seq.

Defendants have moved for "judgment on the administrative record." (Docket No. 60.) Plaintiff opposed and cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56. (Docket No. 62.) Oral argument was heard on June 2, 2004, in Albany, New York. Decision was reserved.

II. FACTUAL BACKGROUND

Plaintiff worked as an anesthesiologist at Glens Falls Hospital ("Hospital"). On March 16, 1998, her treating allergist, Dr. Michael Slaughter ("Dr. Slaughter"), diagnosed her with a latex allergy. After several unsuccessful attempts to return to work, plaintiff stopped working altogether in May 1998. She was covered under both an individual disability insurance policy, administered and payable by Provident Life Accident Insurance Company ("Provident Life"), and a group insurance policy, administered and payable by First Unum. The First Unum policy, which is at issue here, guarantees long-term disability benefits upon proof that she, by reason of disability, "cannot perform each of the material duties of [her] regular occupation." (Admin. Rec. at 67.)

In May 1998, plaintiff applied to both Provident Life and First Unum for disability benefits, claiming she was unable to perform her job duties due to "shortness of breath + wheezing on entering Hospital."Id. at 632-33. In support, she submitted medical records by Dr. Slaughter, who opined a primary diagnosis of "latex induced asthma,"Id. at 634, and her treating pulmonary physician, Dr. Desmond DelGiacco ("Dr. DelGiacco"), who stated that she had a latex allergy as well as chronic asthma.

First Unum claims it "accepted the representations of plaintiff and her physicians and approved payment of monthly disability benefits, beginning August 3, 1998." (Docket No. 60, Attach. 21, p. 3.) Provident Life had yet to make a determination on plaintiff's claim under her individual policy.

In October of 1998, plaintiff had the first of two examinations at Johns Hopkins Asthma Allergy Center ("Johns Hopkins") in Baltimore, Maryland. This evaluation resulted in the conclusion that, although plaintiff's clinical history seemed to suggest a latex allergy, lab testing did not support the same, and any asthma she had was likely due to construction at the Hospital. Shortly after the October 1998 evaluation, which was not in Provident Life's possession, plaintiff was denied disability benefits under her individual policy. Plaintiff was thereafter examined at both Johns Hopkins, where the doctors essentially adhered to their prior conclusion, and at the Mayo Clinic, where doctors concluded she could return to work without restrictions, stating that her subjective complaints were not borne out in test results, and that any problems (asthmatic or otherwise) she was having were likely due to construction at the Hospital. The doctors found no evidence of a latex allergy, and no need for plaintiff to avoid using latex gloves. First Unum was not aware of the Johns Hopkins or Mayo Clinic evaluations.

On July 15, 1999, plaintiff filed a diversity suit in federal court against Provident Life, after her administrative appeal was denied. She claimed the failure to pay benefits was a breach of contract.

Around May 2000, First Unum claims it first began to question whether plaintiff was disabled under the policy. A registered nurse reviewed plaintiff's file and concluded that there was no concrete evidence of a severe latex allergy. The record was forwarded to Dr. Leonard Sutton, who recommended plaintiff's file be reviewed by an allergist. The file was thereafter forwarded to Lawrence Du Buske ("Dr. Du Buske"), an allergist, who reviewed office treatment notes, lab reports, pulmonary function tests, allergy tests, chest x-rays, CT scans, consultative evaluations, correspondence from plaintiff and her treating physicians, Dr. DeMasi's medical examination, and surveillance footage of plaintiff from August 1998. He noted that the "gold standard" test for asthma detection came back negative, and that even if she did have asthmatic symptoms, they were likely caused not by a latex allergy, but by sensitivity to aspirin and a restriction of her airways caused by irritants from the construction at the Hospital where she worked. In any event, Dr. Du Buske opined that a latex allergy alone would not render her disabled under the policy, as the policy was only occupation specific (not site-specific) and many hospitals provided for latex-free environments. He claimed her symptoms were subjective only, as reported to her treating physicians, with little to no objective support.

By letter dated October 4, 2000, First Unum terminated plaintiff's benefits as of November 2, 2000. In pertinent part, the letter stated: "Although you may have impairments resulting from your self-reported symptomology, your history of aspirin sensitivity, allergy to dust mites, and history of nasal polyposis, it is our determination that the impairments are not severe enough to preclude your ability to return to work in your own occupation as an anesthesiologist. Moreover, the medical records do not conclusively or objectively support your claimed condition of `latex induced asthma.'" (Admin. Rec. at 425.)

By letter dated January 4, 2001, plaintiff administratively appealed the revocation of benefits through counsel, attaching in support several documents from the Provident Life case, including the complaint, the deposition testimony of Dr. Slaughter and Dr. DelGiacco, and two expert reports.

On March 5, 2001, First Unum received, for the first time, the medical records and reports from Johns Hopkins and the Mayo Clinic, nearly three years after the last of which was issued. It referred plaintiff's file, along with the newly acquired records and reports, to Dr. Steven Feagin ("Dr Feagin") for review. Dr. Feagin concluded that her claim of disability was mostly self-reported, that she had no objectively demonstrable allergy to latex, that no restrictions relating thereto need be imposed for her to work, and that there was no objectively documented severe or frequent asthma attacks that would prevent her from working full-time without restrictions.

On March 8, 2001, First Unum reaffirmed its denial of benefits, stating that the new information submitted by plaintiff did not change its conclusion that she had no objectively demonstrated allergy to latex or that her condition in any way would prevent her from working without restrictions.

On September 19, 2001, partial summary judgment was granted in plaintiff's favor in her suit against Provident Life. Harris v. Provident Life Accident Ins. Co., 166 F. Supp.2d 733 (N.D.N.Y. 2001). In the decision, it was noted that plaintiff was not precluded from arguing disability due to asthma, because she had reported symptoms related to asthma, and her treating physician had concluded she had "latex induced asthma." Id. Because Provident Life had focused only upon latex allergy, and not on the question of whether plaintiff was disabled from working due to asthma, upon which her doctors had issued opinions, summary judgment was granted in her favor on the issue of liability, Id.

In light of this decision, plaintiff again requested reconsideration of First Unum's revocation of her benefits. The file was again referred to Dr. Feagin, who adhered to his previous conclusions. On Novembers, 2001, First Unum informed plaintiff it found "no objectively demonstrated latex allergy or from some other cause, that would prohibit [her] from performing her occupation as an anesthesiologist in a full-time capacity." (Admin. Rec. at 116.) On March 1, 2002, plaintiff filed the instant suit, alleging the termination of her long-term disability benefits was improper under ERISA.

In May 2003, after the Second Circuit affirmed in part, vacated in part, and remanded the earlier decision granting partial summary judgment to plaintiff, see supra notes 4-5, a seven-day jury trial was held in plaintiff's case against Provident Life. The jury rendered a verdict in favor of plaintiff, finding that she was disabled from her occupation as an anesthesiologist due to severe asthma. At trial the jury was presented with the testimony of plaintiff's treating physicians, most principally Dr. Slaughter and Dr. DelGiacco. Provident Life witnesses Dr. DeMasi and Dr. Loren W. Hunt, from the Mayo Clinic, also testified, and the jury was read the deposition testimony of Dr. N. Franklin Adkinson, from Johns Hopkins. Having issued its decisions well before this trial, First Unum did not have the benefit of these witnesses' testimony, and exhibits incident thereto.

III. DISCUSSION

First Unum purports to move for "judgment on the administrative record," claiming that the Second Circuit in Muller v. First Unum Life Ins. Co., 341 F.3d 119 (2d Cir. 2003), "has expressly recognized that such a motion is both common and appropriate." (Docket No. 64, Attach. 6, p. 11.) While the panel in Muller certainly noted that making such a motion was "common," it far from issued anything approaching a sweeping statement that it was "appropriate." Instead, after stating that a motion for judgment on the administrative record "does not appear to be authorized by the Federal Rules of Civil Procedure," the court pointed out that such motions are usually converted into ones for summary judgment. Muller, 341 F.3d at 124. Only because summary judgment relief had already been denied did the court inMuller treat the "motion for judgment on the administrative record" as "essentially a bench trial `on the papers.'" Id. Here, First Unum has not previously moved for summary judgment, so its motion will be considered under the mandates of Fed.R.Civ.P. 56.

Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Richardson v. N.Y. State Dep't of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, however, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Anderson, 477 U.S. at 250. At that point, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec., 475 U.S. at 386. Indeed, to withstand a summary judgment motion, the nonmoving party must demonstrate that sufficient evidence exists upon which a reasonable jury could return a verdict in its favor. Anderson, 477 U.S. at 248-49;Matsushita Elec., 475 U.S. at 587.

A. Standard of Review for Denial of Benefits

ERISA is silent as to the standard of review to be applied to administrators' benefit determinations. Celardo v. GNY Auto. Dealers Health Welfare Trust, 318 F.3d 142, 145 (2d Cir. 2003). The Supreme Court, however, has held that challenges to denials of benefits are "to be reviewed under a de novo standard unless the benefit plan gives the administrator of fiduciary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The burden of proving that such authority or discretion has been granted by the plan is on the administrator.Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999). First Unum has not met its burden in this regard and, in fact, appears to concede that de novo review is appropriate. Therefore, its decision to revoke plaintiff's long-term disability benefits will be reviewed de novo. B. Expansion of the Administrative Record

The parties heatedly dispute whether the record First Unum developed at the administrative level for plaintiff's benefits claim should be expanded to include additional evidence. Particularly, plaintiff urges consideration of various testimony and exhibits heard, shown, or read to the jury in her civil trial against Provident Life, as well as a favorable disability determination from the Social Security Administration.

There is no dispute that the district court, in its discretion, "may expand [his] review of an administrative decision beyond the record in front of the claims administrator upon finding `good cause' warranting the introduction of additional evidence." Krizek v. Cigna Group Ins., 345 F.3d 91, 97 (2d Cir. 2003). One "good cause" plaintiff asserts for expanding the administrative record is First Unum's conflict of interest as the entity both responsible for determining eligibility under the policy and for paying benefits to qualified individuals. Controlling in this regard is the Second Circuit's opinion in DeFelice v. Am. Int'l Life Assur. Co. of N.Y., 112 F.3d 61 (2d Cir. 1997). In that case, the panel, while declining to issue a broad ruling on whether de novo review itself is grounds for expanding the administrative record, decided that on the facts before it the consideration of additional evidence was warranted, stating in relevant part:

[T]his case involves a conflicted administrator. The ERISA Appeals Committee which reviewed Ms. DeFelice's claim was comprised entirely of [defendant's] employees — hardly a neutral decision-making body. Moreover, several members of the Committee testified that there existed no established criteria for determining an appeal. To add insult to injury, the Committee apparently had a practice of destroying or discarding all records within minutes after hearing an appeal.

The policy . . . that district courts should not become "substitute plan administrators" is inappropriate where such a blatant conflict of interest exists at the administrative level. In such circumstances, courts must fully exercise their power to review de novo and to be substitute administrators. Plaintiff's are utterly helpless against the whim of the conflicted body's interpretation of the facts. The normal scope of limited "de novo" review is inappropriate where the fairness of the ERISA appeals process cannot be established using only the record before the administrator.

From the quoted language, it appears that the panel was asserting two separate and distinct reasons for expanding the administrative record in the case before it — the administrator's conflict of interest, and the procedural problems with the appeals process. Thus, it is not entirely clear whether expansion of the administrative record is warranted when there is merely a conflict of interest, when there is a conflict of interest plus procedural irregularities, when there is just a conflict of interest but it is "blatant," or when there is a "blatant" conflict of interest plus procedural irregularities. The language of the court's ultimate holding is instructive. Specifically, where a district court undertakesde novo review, the panel held that such review:

is limited to the record in front of the claims administrator unless the district court finds good cause to consider additional evidence. A demonstrated conflict of interest in the administrative reviewing body is an example of "good cause" warranting the introduction of additional evidence. Moreover, . . . the plaintiff need not demonstrate that the conflict caused her actual prejudice in order for the court to consider the conflict to be "good cause."

Furthermore, the panel in DeFelice did not restrict its holding to only "blatant" conflicts of interests, using instead the more broad "demonstrated conflict of interest." Consequently, most district courts have interpreted the broad language as establishing a per se rule that a conflict of interest — in the form of an administrator, like the one here, being responsible for determining eligibility for benefits and for paying those benefits — constitutes "good cause" sufficient to expand the administrative record. Compare Locher v. Unum Life Ins. Co. of Am., 126 F. Supp.2d 769, 773 (S.D.N.Y. 2001); MacMillan v. Provident Mut. Life Ins. Co. of Philadelphia, 32 F. Supp.2d 600, 615 (W.D.N.Y. 1999); Sheehan v. Metro. Life Ins. Co., No. 01 Civ. 9182, available at 2003 WL 22290230, at *3 (S.D.N.Y. Oct. 6, 2003);Keiser v. CDC Mgmt. Corp., No. 99 Civ. 12101, available at 2003 WL 1733729, at *10 (S.D.N.Y. Mar. 25, 2003); Parker v. Reliance Standard Life Ins. Co., No. 99 Civ 1822, available at 2000 WL 97362, at *2 n. 2 (S.D.N.Y. Jan. 27, 2000); Janas v. Continental Gas. Co., No. 96-CV-1901, available at 1999 WL 31006, at *4 (N.D.N.Y. Jan. 15, 1999), with Suozzo v. Bergreen, No. 00 Civ. 9649, available at 2003 WL 22387083, at *4 (S.D.N.Y. Oct. 20, 2003).

The court in Suozzo refused to interpret DeFelice as setting forth any per se rule, stating that in order for a conflict of interest to constitute good cause, the administrator's conflict must "go beyond merely being both the plan administrator and the payor" of benefits." Suozzo, supra, at *4. Relying upon the reference in DeFelice to "evidence not available at the administrative level," the court added the requirement that the additional evidence was not considered at the administrative level "because of no fault of the claimant." Id. The Second Circuit in Muller, after noting that "the presumption" is to restrict review to the administrative record and quoting the holding inDeFelice, held that the district court did not abuse its discretion in excluding letters of clarification from a claimant's physicians where the plan administrator gave the claimant "ample time to submit additional materials" and "had already received letters" from the doctors. 341 F.3d at 125-26.

However, no argument was apparently made to the panel inMuller, or in the trial court below, regarding a conflict of interest on the administrator's part. Id.; see also Muller v. First Unum Life Ins. Co., 166 F. Supp.2d 706, 710-11 (N.D.N.Y. 2001). The majority of courts that have been confronted with "demonstrated conflict[s] of interest" have deemed irrelevant any argument that additional evidence should not be considered if the plaintiff was offered the opportunity to supplement the record at the administrative level, because of the per se nature of the rule in DeFelice. See, e.g.,Keiser, supra, at *10; Parker, supra, at *3; see also Krizek, 345 F.3d at 97 (quoting without comment or modification the DeFelice holding that "`[a] demonstrated conflict of interest in the administrative reviewing body can constitute good cause'").

Even assuming plaintiff did have to demonstrate that she could not have offered the additional evidence to First Unum at the administrative level, it is noted that First Unum issued the last of its decisions on plaintiff's claim on November 5, 2001, over seventeen months before the Provident Life trial. Therefore, First Unum's conflict of interest as the entity responsible for determining benefits eligibility and for paying the benefits constitutes good cause per se so as to permit the expansion of the administrative record to include certain evidence from the Provident Life trial.

Another "good cause" for considering the additional evidence is if the administrative record is incomplete. Particularly relevant in this regard is where the claimant's treating physicians have not been afforded a proper opportunity to view evidence relied upon by the administrator in denying or terminating benefits, and to submit rebuttal materials.See Sheehan, supra, at *3. In this case, the trial testimony and exhibits could be considered responsive to the evidence upon which First Unum relied in terminating plaintiff's benefits, even if not directly so, as they were offered against Provident Life. Because there does not appear to be any evidence that First Unum offered plaintiff's treating physicians an opportunity to respond to the new materials upon which it relied in terminating benefits, it would appear good cause also exists on this basis to consider the additional evidence.

C. Remand

Nevertheless, partly for that very reason — that no opportunity was given to plaintiff's treating physicians to submit rebuttal materials to the evidence relied upon by First Unum — it is here determined appropriate that the matter be remanded to First Unum with instructions to consider the additional evidence, which will be considered plaintiff's response to such evidence, and make a new determination. This conclusion is reached notwithstanding the fact that First Unum's determination is to be reviewed de novo, for although a conflict of interest does exist, it has not been proven to be even near the level of the one the panel in DeFelice held mandated a district court to act as a substitute administrator. After First Unum considers the evidence and, if appropriate, rejects such evidence, it will be required to give to plaintiff specific reasons for such a rejection, which will enable all parties to better prepare for litigation, and will give this court a more complete record on which to conduct a de novo review.

In addition, putting aside de novo review, remand is appropriate in this case because whether plaintiff is entitled to benefits, on the administrative record alone or an expanded record, is a very close question. For example, on the administrative record alone, it is arguable that it would not have been unreasonable, as a matter of law, for benefits to have been granted or denied. Likewise, taking into consideration the additional materials from the Provident Life trial, it is arguable that it would not have beenunreasonable, as a matter of law, for benefits to have been granted or denied. In this case, even though de novo review will go beyond determining whether First Unum's decision was merely reasonable, such review will be more focused and therefore more judicially expedient if First Unum is compelled to specifically address the additional evidence.

Therefore, the matter will be remanded to First Unum with instructions to reconsider plaintiff's claim for long-term disability benefits in light of the additional evidence from the Provident Life trial. This should alleviate defendants' concern that "[b]y seeking to expand the record at this late date to include trial testimony, plaintiff is asking this Court to review information that was before the jury in [the Provident Life trial], yet was not before [First Unum] when it rendered its determination." (Docket No. 64, Attach. 6, p. 14.) First Unum can either accept such evidence as a valid basis for disability or it may adhere to its prior determination, in which case it must give specific reasons for rejecting the opinions and analysis set forth in the additional evidence.

The additional evidence First Unum must consider on remand is restricted to the live trial testimony of Drs. Slaughter, DelGiacco, DeMasi and videotape testimony of Dr. Hunt, as well as any exhibits incident thereto not already in the administrative record. The Social Security Administration finding plaintiff to be disabled shall also be made part of the expanded record. The decision is referenced in the administrative record, but the actual decision does not appear to be contained therein and there is no indication that First Unum considered the same in issuing the notices revoking plaintiff's benefits. First Unum is instructed to consider the decision, but only to the extent it explicitly contradicts the opinions and analyses embraced by First Unum, as Social Security determinations are made under standards different from ERISA benefit determinations and are not binding on administrators. See, e.g., Kunstenaar v. Conn. Gen. Life Ins. Co., 902 F.2d 181, 184 (2d Cir. 1990):Kocsis v. Standard Ins. Co., 142 FS2 241, 255 (D. Conn. 2001).

IV. CONCLUSION

Two non-exclusive "good causes" exist for expanding the administrative record in this case: (1) First Unum's conflict of interest as the entity responsible for both determining eligibility for benefits and paying benefits; and (2) the incompleteness of the record. However, the expanded record will not be considered at this juncture. Rather, First Unum will be given an opportunity to do so, and, if necessary, enable it and plaintiff to more properly frame the issues for any further proceedings in this litigation. Accordingly, it is

ORDERED that

1. Defendants' motion for summary judgment is DENIED;

2. Plaintiff's cross-motion for summary judgment is DENIED;

3. Plaintiff's claim for long-term disability benefits is REMANDED to First Unum so as to allow it to consider the additional evidence specifically mentioned in this opinion;

4. First Unum is to render a decision on remand granting or denying plaintiff long-term disability benefits, and file the same with the Clerk's office, on or before November 1, 2004;

5. The parties may file and serve second summary judgment motions on or before December 1, 2004; and

6. The failure to file and serve a second summary judgment motion shall result in a judgment being entered dismissing the complaint with prejudice.

IT IS SO ORDERED.