BISHOP v. LONG TERM DISABILITY INC. PLAN OF SAP AM

Full title: KURT ANTHONY BISHOP, Plaintiff, v. LONG TERM DISABILITY INCOME PLAN OF SAP…

Court: United States District Court, N.D. Oklahoma

Date published: Dec 23, 2008

Case No. 04-CV-0031-CVE-PJC (N.D. Okla. Dec. 23, 2008)

Opinion

Case No. 04-CV-0031-CVE-PJC.

December 23, 2008

OPINION AND ORDER

CLAIRE EAGAN, Chief Judge

Plaintiff filed this action seeking, inter alia, to recover benefits and enforce his rights under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1101 et seq. ("ERISA"). This case was remanded to the defendant, Life Insurance Company of North America ("LINA"), for consideration of "whether travel was an essential job duty for [plaintiff's] technology consultant position at the time of his termination" and the "effect job stress would have on Bishop's ability to perform all the essential duties of his job." Dkt. # 52. On remand, LINA denied Bishop's claim on both grounds. Plaintiff reopened this case to challenge the decision of the Long Term Disability Income Plan of SAP America, Inc. ("the Plan") to deny his claim for long term disability ("LTD") benefits.¹

1 LINA has filed a motion to strike (Dkt. # 137) plaintiff's supplemental brief addressing the impact of the Supreme Court's decision in Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008), because plaintiff discusses the underlying Sixth Circuit and district court decisions rather than the Supreme Court's decision on the standard of review in ERISA cases. The Court will not strike plaintiff's supplemental brief, but it will limit its consideration of Glenn to the Supreme Court's discussion of the standard of review in ERISA cases and the impact of the Supreme Court's decision on this case.

I.

Kurt Anthony Bishop was hired by SAP America, Inc. ("SAP") in 1994 as a technology consultant. Based on a 1996 job description provided by SAP, "extensive travel" was an essential duty of Bishop's job. Admin Rec. at 222. Bishop states that, due to health reasons, he began requesting an accommodation from the travel requirement in 1997 and his supervisors permitted him to work from home from 1997 to 2000. Id. at 394. Bishop began seeing Harvey J. Blumenthal, M.D., on February 23, 1999, complaining of headaches that Bishop believed were allergy-related. Id. at 103. In 2000, he claims that he "was formally assigned to the `Remote Consulting Group' in order to work strictly from home on an official basis" and Bishop refers to this assignment as an "accommodation" of the travel requirement. Id. at 394-95. Bishop continued to see Dr. Blumenthal about his headaches from 1999 to 2001. During this time, Bishop was visiting numerous other doctors for a wide range of health problems, including colon disorders, asthma, steroid dependence, abdominal distention, and Barrett's Esophagus. Id. at 109-113.

Bishop filed a claim for short term disability ("STD") benefits on July 6, 2001 and he listed his last day of work as July 5, 2001. Id. at 114-19. Bishop attached a self-typed medical history to his claim for STD benefits and, in a section titled "Goals," stated:

I would like to file for long-term disability. Working has become very difficult and I am being pressured more and more to begin traveling again for work. I do not consider this an option. I would like to `lock in' some sort of future income, etc. and change my life style that getting and remaining healthy is my number one goal and activity in life.

Id. at 127. The Plan administrator requested Bishop's medical records from his primary care physician, Kenneth W. Piper, M.D. Dr. Piper sent a letter to the Plan administrator describing Bishop's physical condition:

Mr. Bishop has marked limitations due to shortness of breath and chronic back pain. He has underlying chronic obstructive pulmonary disease. His back condition is complex with a bilateral L4-5 laminectomy with fusion in 1984 and a 360° fusion of L5-S1 in 1994. There are significant comorbidities, glucocorticoid induced cushingoid state, and glococorticoid related vertebral pathologic fractures.

Mr. Bishop is not able to travel. His chronic pulmonary disease has decompensated repeated by [sic] in response to extrinsic allergens and pulmonary infections. He has chronic back pain sitting and standing. He has reduced stamina and energy. Dr. Joe Schelbar can provide you with complete information regarding his pulmonary function studies and his current pulmonary status.

I do not see Mr. Bishop returning to gainful employment, and I have had no conversation with him about returning to work.

Id. at 156. The Plan Administrator referred Bishop's medical records to Daniel A. Nackley, M.D., for an independent review. Dr. Nackley determined that Bishop's conditions, when viewed in combination, showed that he suffered from a "significant impairment," but Dr. Nackley stated that Bishop could return to work if "he was in a sedentary capacity in which he did not have to perform ambulatory maneuvers to any significant degree [and] no lifting to any significant degree." Id. at 175. Dr. Nackley included a "caveat" that he would expect Bishop's "condition to degrade in the near future, and that he would have an impairment at that time which would affect his functionality, even with regard to sedentary duty." Id. Dr. Nackley noted that Bishop's employer accommodated the travel requirement of Bishop's job, but it appeared that his "job duties require air travel and land travel to work on computers." Id. at 176.

Bishop's claim for STD benefits was approved from July 13, 2001 to January 10, 2002, and the Plan administrator advised Bishop that he would have to apply for LTD benefits after January 10, 2002. Id. at 187. The Plan defines Total Disability as follows:

Total Disability. An Employee will be considered Totally Disabled if, because of Injury or Sickness, he is unable to perform all the essential duties of his occupation.

An Employee will not be considered Totally Disabled if, during any period of time:

(1) his earnings exceed 80% of his indexed Prior Monthly Earnings; or

(2) Monthly Benefits are payable for Residual Disability.

Id. at 11. The Plan administrator referred Bishop's claim to its LTD department for consideration. In a "Disability Questionnaire" submitted with his claim for LTD benefits, he stated that he could not perform the essential duties of his job because:

[c]urrent essential job duties include up to 100% travel. I cannot travel due to allergies, Asthma and Chronic Pulmonary Obstructions that become life threatening with exposure to allergens and demanding physical conditions. I have anaphylactic shock reactions to all nuts and their oils. I am so sensitive to nuts that flying on planes where nuts are served makes me extremely sick, as does eating food that is cooked in any kitchen where nuts are used. Additional, chronic back pain is exaggerated by extended periods of standing or sitting.

Id. at 203. The job description submitted by SAP listed "[e]xtensive travel" as an essential duty of Bishop's job, but this job description was prepared on November 8, 1996. Id. at 222. The Plan administrator approved Bishop's claim for LTD benefits on February 21, 2002, but advised Bishop that "payment of future benefits will depend on certification of your continuing disability. . . ." Id. at 251.

The Plan administrator required Bishop to apply for Social Security benefits in addition to his application for LTD benefits. The Social Security Administration denied Bishop's claims for disability benefits because his "condition is not severe enough to keep [him] from working." Id. at 303. Bishop continued to complain of headaches over the next few months and he took a variety of medications. On June 6, 2002, Dr. Blumenthal saw Bishop at Dr. Piper's request and offered to hospitalize Bishop for addiction to painkillers. Id. at 278. Dr. Blumenthal believed that Bishop's numerous medications could be contributing to his headaches, but Bishop was "reluctant" to give up the medication. Id. On August 11, 2003, Dr. Piper examined Bishop and found that Bishop's health was generally improving. Id. at 334. He reduced Bishop's dosage of painkillers, primarily OxyContin, and advised Bishop to continue with the same treatment plan.

On September 25, 2003, the Plan administrator reevaluated Bishop's claim for LTD benefits and determined that he was no longer disabled. When the Plan administrator determined whether Bishop qualified as totally disabled under the Plan, it "consider[ed] the duties of the Regular Occupation as it is normally performed in the general labor market in the national economy, not necessarily your ability to perform your job duties per se." Id. at 348. The Plan administrator relied on an occupational definition provided by the Dictionary of Occupational Titles ("DOT") for a technology consultant and the DOT definition did not include a travel requirement. The medical evidence showed that Bishop could perform a sedentary occupation and he did not meet the Plan's definition of total disability.Id. Bishop appealed the Plan administrator's decision terminating his LTD benefits and he listed numerous medical conditions that the Plan administrator allegedly overlooked when making its decision. Id. at 353-54. Dr. Piper submitted a letter on Bishop's behalf stating that he would not clear Bishop to return to work and he believed that Bishop was "totally and permanently disabled relative to his education, previous career, and skills and experience." Id. at 355. On appeal, the Plan administrator upheld its decision to terminate Bishop's LTD benefits.

Bishop filed this lawsuit on January 14, 2004, alleging that the LINAs decision to terminate his LTD benefits was arbitrary and capricious under ERISA. This Court affirmed LINA's decision to terminate Bishop's LTD benefits. Dkt. # 40. The Court found that LINA reasonably relied on a job description from the DOT when making its decision and, under the DOT definition, travel was not as essential requirement of Bishop's job. Bishop appealed, and the Tenth Circuit Court of Appeals vacated the benefits denial with instructions to remand to LINA for further proceedings to address "whether travel was an essential job duty for Bishop's technology consultant position at the time of his termination" and "the effect job stress would have on Bishop's ability to perform all essential duties of his job." Dkt. # 51, at 8-9. On June 5, 2007, this Court remanded Bishop's claim for LTD benefits for further administrative proceedings as required by the Tenth Circuit's decision. Dkt. # 52.

The proceedings did not go smoothly on remand. The Plan did not contain any procedures for remanded claims, and LINA informed Bishop that it would limit its review of the remanded claim to the two issues identified by the Tenth Circuit. Dkt. # 83, Ex. 3. Bishop requested permission to supplement the administrative record with evidence supporting his assertion that travel was an essential job requirement. Id., Ex. 2. However, Bishop refused to provide his additional evidence until LINA informed him of the procedures on remand. Id., Ex. 3. LINA declined to proceed with review of Bishop's remanded claim until he produced his supplemental evidence, and gave Bishop until August 30, 2007 to submit his evidence. Id., Ex. 5. Bishop produced his supplemental evidence, a five page affidavit from Bishop without supporting documentation, on August 21, 2007. The affidavit states that travel was an essential requirement of Bishop's job and SAP's accommodation of this requirement was temporary. Admin. Rec. at 394-98. On October 19, 2007, Bishop filed a motion seeking a court order compelling LINA to identify the procedures on remand and setting a timeline for LINA's decision. Dkt. # 83. The Court granted Bishop's motion and ordered LINA to issue an "initial" decision no later than January 15, 2008. Dkt. # 88. However, the Court found that plaintiff's failure to cooperate with LINA during remand proceedings contributed to any delay and the Court noted that its order should not be construed as a punishment against LINA. Id. at 8-9.

LINA notified plaintiff of the procedures it used to evaluate plaintiff's remanded claim on November 20, 2007. However, LINA had already issued a final decision denying plaintiff's claim for LTD benefits on November 14, 2007. Dkt. # 89. Bishop filed a motion for contempt against LINA asserting that LINA willfully violated the Court's opinion and order by issuing a final, non-appealable decision before notifying him of the procedures it would use to review his claim. Dkt. # 90. The Court found that Bishop had raised legitimate concerns about LINA's procedures, but a motion for contempt was not the appropriate method to deal with procedural irregularities during the remand process. Instead, Bishop's arguments went to the standard of review if he chose to contest LINA's adverse decision, and he needed to reopen his ERISA case if his true purpose in filing a motion for contempt was to obtain an award of LTD benefits. Dkt. # 100, at 8-10. The Court granted Bishop leave to reopen his case and to file an amended complaint. Dkt. # 103.

Bishop filed an amended complaint on February 18, 2008, alleging that LINA's denial of his remanded claim for LTD benefits was arbitrary and capricious. LINA answered and filed a counterclaim to recover for overpayment of benefits.² Bishop objected to the administrative record, because it contained "extrinsic" evidence reviewed by LINA on remand that was not part of the original administrative record in 2004. The Court overruled Bishop's objection, because the evidence to which Bishop objected was actually considered by LINA when it reached its decision.³ Therefore, the evidence was not extrinsic and it could be considered by the Court when reviewing the reasonableness of LINA's decision to deny Bishop's claim for LTD benefits. The parties submitted simultaneous opening briefs and responses, and Bishop's ERISA claim is ripe for review.⁴

2 As the Court has noted, the administrative record shows that Bishop's claim for Social Security benefits was denied. Admin. Rec. at 303. LINA's counterclaim is based on its "information and belief" that Bishop successfully appealed the Social Security Administration's initial denial of his claim and he has received some disability benefits. Dkt. # 105, at 1.

3 That evidence consisted of an affidavit of Courtney DePeter, the vocational report of Alan Ey, and an in-house medical review by Robert N. Anfield, M.D. Admin Rec. at 399-405. DePeter's affidavit addresses whether Bishop's job required travel at the time he applied for disability benefits and states that travel was a secondary or non-essential job duty at that time. Ey relies on DePeter's affidavit to conclude that Bishop could perform the duties of his job. Dr. Anfield concludes that Bishop has not produced objective medical evidence supporting his argument that job stress prevented him from performing his essential job duties.

4 Plaintiff filed a notice (Dkt. # 140) that certain matters had been pending for more than 90 days under LCvR 7.2(n). Plaintiff's notice listed any document that had pending for over 90 days, including the amended complaint and answer. Review of plaintiff's ERISA claim would have been greatly expedited if either party had included a statement of facts in their opening or response briefs, and this has slowed the Court's review of plaintiff's claim. In the future, the parties are advised to include a statement of facts with citations to the administrative record in their ERISA briefs.

II.

As a preliminary matter the Court must establish the proper standard of review for plaintiff's ERISA claim. Plan beneficiaries, like plaintiff, have the right to federal court review of benefit denials and terminations under ERISA. "ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989). Specifically, 29 U.S.C. § 1132(a)(1)(b) grants plaintiff the right "to recover benefits due to [her] under the terms of the plan, to enforce [her] rights under the terms of the plan, or to clarify [her] rights to future benefits under the terms of the plan." The default standard of review is de novo. However, when a plan gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of a plan — as here — a challenge under § 1132(a)(1)(B) is to be reviewed under an arbitrary and capricious standard. See Firestone, 489 U.S. at 115 (applying a deferential standard of review when the plan administrator or fiduciary has discretionary authority to determine eligibility for benefits or to construe the terms of a plan). Under the "pure" version of this standard, a plan administrator's or fiduciary's decision will be upheld "so long as it is predicated on a reasoned basis." Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006). That basis "need not be the only logical one nor even the best one." Nance v. Sun Life Assur. Co. of Can., 294 F.3d 1263, 1269 (10th Cir. 2002) (quoting Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir. 1999)). The decision merely must "reside[] `somewhere on a continuum of reasonableness-even if on the low end." Adamson, 455 F.3d at 1212 (quoting Kimber, 196 F.3d at 1098). A plan's decision will not be set aside "if it was based on a reasonable interpretation of the plan's terms and was made in good faith." Trujillo v. Cyprus Amax Minerals Co. Ret. Plan Comm., 203 F.3d 733, 736 (10th Cir. 2000).

By contrast, "[i]ndicia of arbitrary and capricious decisions include lack of substantial evidence, mistake of law, bad faith, and conflict of interest by a fiduciary." Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002). The Tenth Circuit has held that "`[s]ubstantial evidence is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [decisionmaker].' Substantial evidence requires `more than a scintilla but less than a preponderance.'"Sandoval v. Aetna Life Cas. Inc. Co., 967 F.2d 377, 382 (10th Cir. 1992) (citation omitted). In reviewing the plan administrator's or fiduciary's decision, the reviewing court generally is "limited to the `administrative record' — the materials compiled by the [decisionmaker] in the course of making [the] decision." Hall v. Unum Life Ins. Co. of Am., 300 F.3d 1197, 1201 (10th Cir. 2002). The reviewing court should give less deference to a decision if the plan administrator or fiduciary fails to gather or to examine relevant evidence. Caldwell, 287 F.3d at 1282.

If an ERISA fiduciary plays more than one role — i.e., deciding eligibility and paying benefits claims out of its own pocket — a conflict of interest arises. Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1005 (10th Cir. 2004); see also Pitman v. Blue Cross Blue Shield of Okla., 217 F.3d 1291, 1296 n. 4 (10th Cir. 2000) ("[I]n Blue Cross' situation, as both insurer and administrator of the plan, there is an inherent conflict of interest between its discretion in paying claims and its need to stay financially sound."). Under the two-tier "sliding scale" approach adopted by the Tenth Circuit, "the reviewing court will always apply an arbitrary and capricious standard, but the court must decrease the level of deference given" to benefits decision "in proportion to the seriousness of the conflict." Fought, 379 F.3d at 1004. The claimant has the burden of proving that "the plan administrator's dual role jeopardized his impartiality." Id. at 1005 (internal quotation marks and citation omitted). In cases involving an inherent conflict of interest, Fought requires a district court to shift the burden to the plan administrator to prove that its decision is supported by substantial evidence. Id. at 1006. However, the United States Supreme Court has held that an employer's or insurer's dual-role conflict is simply "a factor in determining whether the plan administrator has abused its discretion in denying benefits; . . . the significance of the factor will depend upon the circumstances of the particular case." Glenn, 128 S. Ct. at 2346 (2008). The Court will address the impact of Glenn on Fought and other Tenth Circuit precedent in determining whether LINA's decision is entitled to less deference to due a conflict of interest.

A.

LINA acknowledges that it was both payor and administrator of the Plan and there is no dispute that LINA was operating under an inherent conflict of interest. Dkt. # 135, at 1. The Supreme Court was clear that Glenn does not change the standard of review from deferential to de novo in cases involving an inherent conflict of interest. Glenn, 128 S. Ct. at 2350. Glenn strongly suggests that the key inquiry for a court is whether an insurer's conflict of interest resulted in a biased decision on the plaintiff's benefits claim. In this aspect, Glenn is consistent with prior Tenth Circuit precedent. See Fought, 379 F.3d at 1005 ("Evidence of a conflict of interest requires `proof that the plan administrator's dual role jeopardized his impartiality.'"). The Tenth Circuit has suggested that Glenn does not overrule any previous decisions by the Tenth Circuit, because the existence of a "standard" conflict of interest was always a factor when determining the level of deference. See Weber v. GE Group Life Assurance Co., 541 F.3d 1002 (10th Cir. 2008).

However, Weber does not address the automatic reduction of deference required by Fought in cases such as this one, when the plan administrator and insurer have an inherent conflict of interest. The Weber court stated that it would "still employ the arbitrary and capricious standard, but [would] weigh [the plan administrator's] conflict as a factor in determining the lawfulness of the benefits denial." Weber, 541 F.3d at 1011. Under Fought, when a plan administrator and insurer operate under an inherent conflict of interest:

the plan administrator must demonstrate that its interpretation of the terms of the plan is reasonable and that its application of those terms to the claimant is supported by substantial evidence. The district court must take a hard look at the evidence and arguments presented to the plan administrator to ensure that the decision was a reasoned application of the terms of the plan to the particular case, untainted by the conflict of interest.

Fought 379 F.3d at 1006. This type of automatic burden-shifting is inconsistent with Glenn's directive to consider an inherent conflict as simply a factor in the Court's analysis. In Weber, GE Group Life Assurance Company was the plan administrator and insurer, and the Tenth Circuit did not shift the burden to the plan administrator to establish the reasonableness of its decision. The Tenth Circuit identified the plan administrator's inherent conflict of interest as a factor, but it did not specify how much the level of deference should be reduced or provide any analysis on this issue. Weber, 541 F.3d at 1011. To comply withGlenn and ensure consistency with prior, binding Tenth Circuit precedent, the Court will treat LINA's inherent conflict of interest as a factor in its decision and consider the factors identified by the parties to determine how much the Court's deference to LINA's decision should be reduced.

LINA does not dispute that it administers the Plan, evaluates claims, and pays benefits, and that this creates an inherent conflict of interest as discussed in Glenn. However, it argues that plaintiff has offered no evidence suggesting that LINA administered the Plan in a biased manner. While the Court must not ignore LINA's dual-role conflict, the mere fact that LINA has a financial interest in the outcome of plaintiff's claim does not create an inference that LINA is biased or require the Court to reduce the level of deference. See Finley v. Hewlett Packard Co. Employee Benefits Org. Income Protection Plan, 379 F.3d 1168, 1176 (10th Cir. 2004) (refusing to infer that a general motivation to deny claims for the purpose of saving money suggests that an inherently conflicted plan administrator was biased). Plaintiff argues that LINA's failure to provide adequate notice of its procedures or allow him to meaningfully participate in the review process show that LINA was biased against him. These arguments will be considered in connection with plaintiff's arguments that LINA committed serious procedural irregularities. In some cases, procedural irregularities could provide evidence of bias, but Bishop has not shown that LINA's procedural failings were the result of bias against him or his claim. Bishop also argues that LINA's adverse determination during his initial proceedings and on remand show that LINA was biased against him. However, the Tenth Circuit has rejected this argument, and the mere fact that Bishop received an adverse decision is not evidence of bias. Adamson, 455 F.3d at 1214 n. 2.

Bishop has presented no evidence that LINA's inherent conflict of interest resulted in a biased decision. Although Bishop may dispute LINA's decision to deny his claim, this does not show that LINA applied the Plan in a biased or impartial manner or that LINA's inherent conflict of interest tainted its decision. The Court will consider LINA's inherent conflict of interest as a factor. However, the Court will not substantially reduce the level of deference it shows to LINA's decision or shift the burden to LINA to prove the reasonableness of its decision based only an inherent conflict of interest.

B.

Plaintiff argues that the existence of serious procedural irregularities requires the Court to place the burden on LINA to prove the reasonableness of its decision. He claims that LINA's procedures on remand were a "sham and a mockery of ERISA" and LINA had no intention of fairly reviewing his claim. Dkt. # 127, at 9; see also Dkt. # 128, at 1 ("LINA decided it was going to deny Bishop any meaningful chance to participate in the proceedings, and was going to deny Bishop his just benefits without regard to fairness or due process. . . .").

The Tenth Circuit has held that "when a serious procedural irregularity exists, and the plan administrator has denied coverage, an additional reduction in deference is appropriate."Fought, 379 F.3d at 1006. Under this standard, the burden shifts to the fiduciary to prove "the reasonableness of its decision pursuant to th[e] [] traditional arbitrary and capricious standard." Id. The fiduciary must show "that its interpretation of the terms of the plan is reasonable and that its application of those terms to the claimant is supported by substantial evidence." Id. In such instances, the reviewing court must "take a hard look at the evidence and arguments presented to the plan administrator to ensure that the decision was a reasoned application of the terms of the plan to the particular case. . . ." Id. The Tenth Circuit has found that a serious procedural irregularity may exist when an inherently conflicted plan administrator fails to seek an independent review of the medical evidence in a complex ERISA case. Fought, 379 F.3d at 1007. More recently, however, the Tenth Circuit has noted that a serious procedural irregularity does not arise "in every instance where the plan administrator's conclusion is contrary to the result desired by the claimant." Adamson, 455 F.3d at 1214; see Grosvenor v. Qwest Commc'ns Int'l, 191 Fed. Appx. 658, 662 (10th Cir. 2006) (unpublished decision) ("A serious procedural irregularity is not present every time a plan administrator comes to a decision adverse to the claimant on conflicting evidence.").⁵ The irregularity must raise "serious doubts as to whether the result reached was the product of an arbitrary decision or the plan administrator's whim." McGarrah v. Hartford Life Ins. Co., 234 F.3d 1026, 1031 (8th Cir. 2000).

5 Unpublished decisions are not precedential, but may be cited for their persuasive value. See Fed.R.App. 32.1: 10th Cir. R. 32.1.

Plaintiff alleges that numerous procedural irregularities occurred during LINA's review of his remanded claim. Plaintiff argues that: (1) LINA failed to inform him of the standard of review or the procedures on remand before denying his claim; (2) he was not permitted to fully participate in remand proceedings; and (3) LINA refused to offer him an opportunity to appeal its denial of his remanded claim. LINA objects to each of plaintiff's arguments and insists that he was treated fairly during remand proceedings. However, plaintiff's arguments merit close inspection, because his arguments raise serious doubts that he received a fair review of his claim on remand.

Both parties rely on this Court's decision in Henry v. Principal Life Insurance Co., 2006 WL 1967374 (N.D. Okla. July 12, 2006). Specifically, Bishop argues that Henry requires LINA to abide by all ERISA regulations that apply to an initial review of his claim and provide him an internal appeal of its adverse decision. In Henry, plaintiff's claim for LTD benefits was remanded for further proceedings and plaintiff filed a motion to reconsider the Court's selection of a remedy. As noted by both parties, the Court stated:

Plaintiff requests that the Court require Principal to conduct an expedited administrative review on the issue of her long term disability coverage. Plaintiff does not offer any case law to support her request for expedited review or for limitations on the review process. The Court has already limited remand to the issue of insurance coverage, and has not ordered a full administrative review of Principal's decision to deny plaintiff continuing benefits. Under 29 U.S.C. § 1133(2), the plan is required to conduct a "full and fair review" after a denial of benefits, and the Secretary of Labor has promulgated regulations that provide a detailed list of a claimant's procedural rights during the review process. See 29 C.F.R. § 2560.503-1; Tolle v. Carroll Touch, Inc., 23 F.3d 174, 180 (7th Cir. 1994). These regulations prevent a plan administrator from conducting open-ended review of claims and specify time periods that must be followed when a claimant appeals or asks for reconsideration of a benefits decision.

Id. at *3. However, the parties fail to note the distinctions between this case and Henry. In Henry, plaintiff filed a claim for LTD benefits and her claim was denied by the plan administrator. While the case was pending in federal court, the insurer found evidence showing that plaintiff may never have applied for LTD coverage. Id. at * 1. This Court found that this issue had not been addressed during the administrative proceedings and remanded the case for further proceedings on an issue that had not been considered by the plan administrator. The Court remanded the case "to allow plaintiff a full and fair opportunity to internally appeal defendant's decision that plaintiff was not covered by long term disability insurance through her employer's group policy and for the parties to create an adequate record on this issue." Id. at *6. In other words, plaintiff had not received any administrative review of the remanded issue and she needed to exhaust her administrative remedies before judicial review would be appropriate. In this case, plaintiff exhausted all of his administrative remedies, including an internal appeal, before the case was filed in federal court, but the Tenth Circuit directed this Court to remand for further administrative proceedings because LINA relied on improper and inadequate evidence to support its decision that travel was not essential requirement of Bishop's job. The Tenth Circuit did not require LINA to conduct a complete review of Bishop's claim, nor did the Tenth Circuit specify the procedures on remand. Therefore, Henry is not directly on point and it is not the source of LINA's obligation to provide plaintiff specific procedures on remand. LINA may have been required to allow Bishop to file an administrative appeal for other reasons, but Henry is not controlling.

Bishop argues that LINA should have informed him in a timely manner of the procedures it would use on remand, and that LINA should have provided him this information before it issued a decision. LINA contends that the Plan did not provide specific procedures for remand and it was not required by the Tenth Circuit's decision, this Court's order, or ERISA regulations to provide any particular procedures when reviewing Bishop's claim. However, even if the Plan or ERISA did not require specific procedures, in fairness Bishop should have been notified of LINA's procedures before a decision was issued. LINA's argument suggests that remanded cases fall into a procedural black hole and, because no specific procedures exist, it can review a remanded case in any manner it sees fit. See Degrado v. Jefferson Pilot Financial Ins. Co., 2007 WL 3216580, at *4 (D. Colo. Oct. 26, 2007) ("the Court recognizes that the procedures to be followed on remand of an ERISA case to an insurer are unchartered . . ."). Bishop specifically asked LINA to state the procedures it would use to review his claim and LINA could not simply ignore his request. The failure of the Plan to include specific procedures for remanded claims is not plaintiff's responsibility, and he should not be prejudiced due to the absence of procedures on remand. After the Court ordered LINA to identify its procedures, LINA did so within the deadline, but it had already issued its decision. This significantly undercut the value of LINA's compliance with the Court's directive and, even though this did not technically violate the that directive, suggests that LINA had no intention of providing plaintiff a meaningful opportunity to participate in the remand proceedings.

Bishop argues that LINA was required to provide him copies of evidence and allow him an opportunity to comment on any new evidence before it issued a final decision denying his claim. Specifically, he claims that he was not permitted to review and comment on DePeter's Affidavit, Dr. Anfield's in-house medical review, and Ey's vocational reports before LINA denied his claim. Under some circumstances, the Tenth Circuit permits a claimant to review new evidence gathered by a plan administrator before a decision is issued. In Metzger v. Unum Life Insurance Company of America, 476 F.3d 1161 (10th Cir. 2007), the Tenth Circuit held that a plan administrator is required to produce documents in two general situations:

First, relevant documents generated or relied upon during the initial claims determination must be disclosed prior to or at the outset of an administrative appeal. See 29 C.F.R. § 2560.503.-1(h)(2)(iii). Second, relevant documents generated during the administrative appeal-along with the claimant's file from the original determination-must be disclosed after a final decision on appeal. See 29 C.F.R. § 2560.503.-1(i)(5). So long as appeal-level reports analyze evidence already known to the claimant and contain no new factual information or novel diagnoses, this two-phase disclosure is consistent with "full and fair review."

Id. at 1167. Bishop argues that Metzger required LINA to provide him any new evidence before it issued its initial/final decision or it should have permitted him to internally appeal the adverse decision based on new evidence cited in the denial. LINA responds that it did not review any new factual matters during remand proceedings, and Metzger did not require LINA to disclose the disputed evidence before issuing its decision.

As previously noted, the Plan does not provide procedures for remanded claims and the parties disagree as to whether LINA was required to offer Bishop an administrative appeal of a denial on remand. LINA argues that ERISA is designed to be a speedy appellate review of claims, and this policy favors denying additional appeals for remanded claims. See Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 635 (10th Cir. 2003) ("ERISA's procedural regulations are meant to promote accurate, cooperative, and reasonably speedy decision-making, not generate an endless stream of business for employment lawyers."); Sandoval v. Aetna Life Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992) (ERISA's statutory and regulatory requirements are intended 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."). Bishop responds that ERISA requires meaningful and cooperative participation by both parties in the process, and he could not meaningfully participate if he was not given a chance to present arguments based on new evidence gathered by LINA during remand proceedings. See Metzger, 476 F.3d at 1167. Under these circumstances, he claims that LINA was required to provide him an administrative appeal to respond to new evidence gathered during the administrative proceedings on his remanded claim.

Under these specific circumstances, the Court finds that LINA was required to offer Bishop an administrative appeal. Although the parties knew the issues that needed to be addressed on remand, both parties gathered new evidence and matters outside of the original administrative record were considered. It is also significant that LINA failed to make any finding on the issue of job stress in its 2004 denial of Bishop's LTD claim, and Bishop has not had a chance to internally appeal LINA's decision on this issue. The absence of an administrative appeal could have been ameliorated by LINA's adoption of clear procedures on remand, such as deadlines for submission of supplemental briefing or evidence, and a timeline for issuance a decision. However, it does not appear that Bishop had any opportunity to submit his arguments to LINA or to comment on the evidence relied upon by LINA to deny his claim. While an administrative appeal may not always be required on remand, LINA should have provided plaintiff an opportunity to appeal any denial before issuing a final denial of his LTD claim in this case. This would have largely made up for the absence of clear procedures during the remand process and given plaintiff a chance to present his arguments and comment on the evidence. The benefit of denying plaintiff's request for an administrative appeal — a speedy review of his claim — did not outweigh the risk that plaintiff would be denied a full and fair review.

LINA's decision to issue a final, rather than an initial, denial had a significant impact on this case and LINA had two options for complying with Metzger. First, LINA could have provided plaintiff copies of any new evidence before it issued its decision and permitted him to respond, and issued a final decision without providing a second administrative appeal. Second, LINA could have issued its initial decision, provided plaintiff a copy of any new evidence, and given him an opportunity to file a second administrative appeal. LINA did not comply with either option. This raises a serious question as to whether LINA's decision was reached in an arbitrary and capricious manner. LINA's failure to provide a second administrative appeal or an opportunity to comment on the evidence was a serious procedural irregularity. Under Fought, the burden shifts to LINA to prove that its application of the Plan was reasonable and that its decision was supported by substantial evidence.

III.

Bishop argues that LINA's decision to deny his claim for LTD benefits was arbitrary and capricious and he asks the Court to reinstate his benefits.⁶ In his opening brief, Bishop asserts that LINA's failure to comply with the procedural requirements of ERISA provides an independent basis for awarding benefits. However, the cases cited by Bishop do not stand for the proposition that a court may reinstate benefits on a permanent basis due to procedural violations of ERISA and, to obtain reinstatement of benefits on a prospective basis, the Court must find that LINA's decision to deny benefits was arbitrary and capricious on the merits.⁷

6 Bishop asks the Court to reconsider its decision to consider evidence that LINA reviewed on remand but that was not part of the administrative record in 2004 when LINA initially denied his claim. The Court has entered an opinion and order (Dkt. # 123) rejecting Bishop's argument and he not offered any new evidence or law that would require the Court to reconsider its prior decision. The Court also notes that Bishop's argument is lifted almost verbatim from his previous motion and it does not appear that he attempted to conduct any additional research on this issue. Bishop simply disagrees with the Court's decision. This type of argument does not justify reconsideration and his request for reconsideration is denied. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (a motion to reconsider is not the appropriate vehicle "to revisit issues already addressed or advance arguments that could have been raised in prior briefing").

7 Plaintiff cites Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771 (7th Cir. 2003), for the proposition that procedural violations alone provide a basis for reinstatement of benefits. In Hackett, the Seventh Circuit held that the plan administrator used improper procedures to terminate a claimant's LTD benefits and it was necessary to reinstate benefits retrospectively to restore the status quo during further administrative proceedings. Id. at 774-75. In this case, Bishop disputes the procedures used on remand, but his benefits were terminated under appropriate procedures before his claim was remanded. Although the merits of LINA's initial denial are under review on two specific issues, restoring the status quo does not require reinstatement of benefits. The Fourth Circuit has declined to award benefits, a substantive remedy, for purely procedural violations and this Court agrees that remand, not reinstatement of benefits, is ordinarily the appropriate remedy for violations of ERISA's procedural requirements. See Gagliano v. Reliance Standard Life Ins. Co., ___ F.3d ___, 2008 WL 4916330 (4th Cir. 2008) (remand is appropriate remedy for procedural violations unless the administrative record establishes that the plan administrator's decision was an abuse of discretion as a matter of law).

The issue before the Court is whether there is substantial evidence supporting LINA's decision to deny plaintiff's LTD claim on the grounds that travel was not an essential requirement of his job and that job stress did not prevent plaintiff from performing the essential duties of his job. In LINA's denial, it relied on DePeter's affidavit to establish that travel was not an essential duty of plaintiff's job. Admin. Rec. at 408. Based upon DePeter's affidavit, LINA's vocational rehabilitation consultant, Ey, determined that Bishop could perform the essential duties of his former job if travel was considered a secondary or non-essential job duty. Id. LINA referred Bishop's claim to Dr. Anfield for a review of the effect of job stress on plaintiff's ability to work as a technology consultant and Dr. Anfield determined that plaintiff was capable of light or sedentary work.Id. LINA considered Dr. Piper's statement that Bishop should not return to work, but Dr. Anfield did not find any medical records that provided objective support for Dr. Piper's statement. Dr. Anfield concluded that job stress would not prevent plaintiff from performing his former job as a technology consultant. Id. LINA affirmed its previous decision to terminate plaintiff's LTD benefits. Plaintiff contends that the Court should disregard DePeter's affidavit, because there is no evidence showing how the affidavit was created, LINA did not independently analyze the evidence supporting DePeter's statements, and the affidavit conflicts with other evidence in the administrative record. Dkt. # 128, at 8. Plaintiff also claims that LINA failed to give proper weight to Dr. Piper's and Dr. Nackley's reports, and improperly credited Dr. Anfield's review over other medical evidence in the administrative record.

DePeter's affidavit is the critical piece of evidence supporting LINA's decision, and the parties dispute the weight that the affidavit should be given. DePeter states that Bishop was last employed by SAP as a remote consultant with an official title as "Technical Consultant IV" and her conclusions are based upon "the records and information that are presently available."Id. at 399. DePeter offers the following description of plaintiff's duties at SAP:

7. As a remote consultant, Mr. Bishop dealt with external SAP customers over the internet and by telephone, answering questions about products, tech performance, and helping the customer to implement and configure products.

8. As a remote consultant, Mr. Bishop's physical job demands were of a sedentary nature and included sitting, talking on the telephone, typing, and keyboarding — i.e., fine manual manipulation at desk level.

9. As the name implies, a remote consultant works over the internet and by telephone, and travel is not an essential job duty. Occasional travel to attend corporate meetings at a central location was sometimes requested of remote consultants, but it was a peripheral or secondary duty and not an essential job requirement. The position of a remote consultant was, in essence, a desk job in which the employee responded to customer requirements.

Id. at 400. DePeter noted that SAP eliminated the remote consultant group six months after plaintiff quit his job. The method in which DePeter's affidavit was created does not raise any significant concerns and the absence of supporting documentation does not undermine DePeter's statements. Plaintiff claims that LINA was required to provide notes or a transcript of its interview with DePeter and the absence of such records makes LINA's reliance on DePeter's affidavit arbitrary and capricious.See Tinkler v. Level 3 Communications, LLC, 2008 WL 199901 (N.D. Okla. Jan. 22, 2008). In Tinkler, the administrative record consisted solely of handwritten notes of interviews from a company employee charged with investigating the claimant's severance benefits claim, and the Court found that the administrative record was inadequate for judicial review. Id. at *14-15. Unlike Tinkler, DePeter's affidavit speaks for itself and the record does not need to contain additional evidence supporting her statements for the Court to consider the affidavit as reliable evidence. Plaintiff has cited no authority supporting his argument that LINA was required to include him in the process of creating DePeter's affidavit, and the Court finds that such a level of claimant involvement was unnecessary. Therefore, the Court will consider DePeter's affidavit when reviewing LINA's decision.

Bishop submitted his own affidavit during the administrative proceedings on remand stating his understanding of his job duties at the time he left SAP. Id. at 394-98. He claims that he first began requesting an accommodation in 1997, but he was often allowed to work from home before 1997. Id. at 394. He states that he was "formally assigned to the `Remote Consulting Group' in order to work strictly from home on an official basis" in 2000. Bishop claims that SAP reorganized the duties of many employees and appointed Andreas Graesser to serve as a vice-president over Bishop's group. Id. at 394-95. He claims that Graesser began inquiring into Bishop's "accommodation" and offered Bishop three alternative positions within SAP, each of which required significant travel. Id. at 295. Graesser informed Bishop that the remote consulting group was being dissolved and he would be required to travel if he wanted to retain his job as a technology consultant. Id. Bishop declined the alternative positions within SAP, because he did not feel that he could travel. He states that Graesser arranged for Bishop to apply for disability benefits and his last day at work was June 28, 2001, even though he was listed on the payroll as an SAP employee until December 2001.

Other evidence in the administrative records suggests that SAP temporarily accommodated plaintiff's inability to travel and plaintiff applied for disability benefits because SAP would no longer provide an accommodation. When Dr. Nackley reviewed plaintiff's file, he noted that plaintiff's "employer accommodated the no travel restriction for one year; however, the employer has recommended that he apply for disability. Per the ICARE note, the job duties require air travel and land travel to work on computers." Id. at 176. Based in part on Dr. Nackley's review, LINA approved plaintiff's claim for STD benefits and initially approved his claim for LTD benefits. A job description created by SAP in 1996, included in the administrative record before LINA denied plaintiff's claim in 2003, states that "[e]xtensive travel is required" for the technology consultant position. Id. at 222. In an e-mail exchange between LINA's vocational rehabilitation counselor and SAP in October 2002, SAP's representative stated that "[i]f an employee worked in the PSO group, which [Bishop] did, then it's a technical consultant who needs to travel." Id. at 307.

In its initial denial of plaintiff's claim, LINA did not discuss any of the evidence suggesting that travel was an essential requirement of plaintiff's job as a technology consultant. Instead, LINA relied on a DOT definition of technology consultant that did not include a travel requirement. The Tenth Circuit held that LINA should have considered plaintiff's actual job duties and LINA could not rely on the DOT definition to show that travel was not required for plaintiff's job. Dkt. # 51, at 6. On remand, LINA claims that it used the most reliable evidence available, an affidavit from plaintiff's former employer, and it was reasonable for LINA to give this evidence greater weight. DePeter's affidavit does not refer to Bishop's position as a remote consultant as an accommodation, but treats the remote consultant position as a formal assignment. Id. at 399. This aspect of her affidavit is corroborated by Bishop's own affidavit, which refers to his position as a formal assignment.Id. at 394. LINA states that its vocational rehabilitation consultant, Ey, also found that travel was not an essential duty of plaintiff's job. However, Ey's assessment is based solely on DePeter's affidavit and assumes that plaintiff's position as a remote consultant was permanent.

Much of the confusion in this case is caused by the parties' loose use of the word "accommodation" and this has resulted in a fundamental misunderstanding of the issue on remand. DePeter's affidavit describes Bishop's job as a remote technology consultant, and the parties do not dispute that plaintiff's job as a remote consultant did not require travel. However, this statement does not resolve the issue. The Tenth Circuit did not remand the case to the Plan administrator to determine whether plaintiff's job required him to travel at the precise moment he applied for LTD benefits, because the parties are not disputing that plaintiff was assigned to the remote consulting group at that time. Instead, the Tenth Circuit directed LINA to determine whether the remote consulting assignment "was permanent or merely temporary." Dkt. # 51, at 6.

Plaintiff argues that all technology consultants were required to travel and he requested and was provided an accommodation of this requirement. However, Bishop decided to resign and apply for disability benefits when SAP was no longer willing to employ him as a remote consultant. It is clear from Bishop's affidavit and the statements of SAP employees that Bishop could not retain his employment with SAP unless he could travel. Even if his job description did not require travel at the precise moment he resigned, the reason for plaintiff's resignation was his inability to travel and travel would have been a condition of continued employment. The evidence in the administrative record is consistent on this point. Admin. Rec. at 176, 222, 307, 394-98. It appears that plaintiff's assignment to the remote consulting group was itself a form of accommodation, even if the accommodation came with a formal job title and assignment. DePeter's affidavit is not contradictory because it does not address this exact issue. DePeter's affidavit simply states that Bishop was assigned to the remote consulting group at the time he resigned, but she offers no assessment of his duties before plaintiff was assigned to the remote consulting group, nor does she address the status of plaintiff's job if he refused to accept a new position that required significant travel. Therefore, DePeter's affidavit should not have been given significant weight in LINA's analysis and LINA could not rely on DePeter's affidavit to the exclusion of other evidence in the administrative record.

LINA's finding that travel was not an essential requirement of plaintiff's job is not supported by substantial evidence. Substantial evidence is "the sort that a reasonable mind could accept as sufficient to support a conclusion" and this finding must be "evaluated against the backdrop of the administrative record as a whole." Adamson, 455 F.3d at 1212. While there was nothing improper about LINA's decision to request information from SAP, DePeter's affidavit does not clearly support LINA's finding that SAP permanently agreed to employ plaintiff without requiring him to travel. In light of other contradictory evidence in the administrative record, it was unreasonable for LINA to give controlling weight to DePeter's inconclusive affidavit. Plaintiff's affidavit, Dr. Nackley's report, and SAP's formal job description from 1996 show that regular travel was required for a technology consultant. DePeter's affidavit is based on plaintiff's duties at the time he resigned, but she fails to establish that SAP agreed to employ Bishop on a permanent basis as a remote consultant. In fact, her affidavit shows that the remote consulting position was eliminated shortly after Bishop resigned and other evidence from SAP employees establishes that SAP no longer hired non-traveling technology consultants. Id at 307, 395. At the time plaintiff resigned, he was employed as a technology consultant and, if he intended to remain a technology consultant for SAP, he would have been required to travel. If LINA had made specific findings distinguishing other evidence in the record, such as Bishop's affidavit and Dr. Nackley's report, such findings might be entitled to some deference. However, LINA made no such findings and based its decision solely on DePeter's affidavit. LINA's finding that travel was a non-essential or secondary duty is based on a narrow view of the evidence in the administrative record and fails to take into account contradictory evidence.

Based on this ruling, the Court finds that LINA's decision to terminate plaintiff's LTD benefits was arbitrary and capricious, and LINA's decision should be reversed. LINA's denial on remand was based on its conclusion that travel was not an essential requirement of plaintiff's job and that plaintiff could perform a sedentary occupation that did not require travel. Because LINA's determination that travel was not an essential duty of plaintiff's job was not supported by substantial decision, the denial of plaintiff's claim for LTD benefits must be set aside. However, the Court must determine the appropriate remedy. When a court finds that a plan administrator's decision to deny benefits was arbitrary and capricious, a court may either remand the case to the plan administrator for further review or order an award of benefits. Flinders v. Workforce Stabilization Plan of Phillips Petroleum Company, 491 F.3d 1180, 1194 (10th Cir. 2007). Remand is proper in cases where procedural deficiencies in the administrative process preclude the court from reaching the substantive issues underlying plaintiff's claim or the plan administrator failed to make adequate findings. DeGrado v. Jefferson Pilot Financial Ins. Co., 451 F.3d 1161, 1175-76 (10th Cir. 2006) (district court should remand when plan administrator commits a procedural error but evidence in the administrative record could reasonably support the denial of benefits). An award of benefits is the appropriate remedy when "the evidence in the record clearly shows that the claimant is entitled to benefits."Flinders, 491 F.3d at 1194. This case has already been remanded to LINA for further findings on two discrete issues, and LINA's decision on remand was not supported by substantial evidence. The evidence in the administrative record shows that plaintiff was offered a job as a remote consultant due to his inability to travel, and he resigned when he could no longer work for SAP without accepting a position that required travel. Although the Court could remand the case for further findings, this case has already been remanded once and, for the second time, LINA has adopted a position that was unsupported by the administrative record. Id. at 1195 (remand is not required when further administrative review would be futile). In this case, remand would be futile and an award of benefits is the appropriate remedy.

The evidence in the administrative record is insufficient to determine the appropriate amount of benefits. The Court notes that LINA filed a counterclaim seeking to recover overpayment of benefits due to plaintiff's receipt of Social Security disability benefits, and LINA alleges that any amounts paid by Social Security should be offset against any benefits paid under the Plan. The parties should submit a joint stipulation concerning the appropriate award of benefits. If the parties are unable to reach agreement, the Court will permit supplemental briefing on the issue and, if necessary, set a hearing. However, the parties are strongly encouraged to reach an agreement to expedite the entry of a final judgment.

IT IS THEREFORE ORDERED that defendant's decision to terminate plaintiff's LTD benefits is reversed. The parties's joint stipulation on benefits, or notice that no agreement is possible, is due no later than January 15, 2009. IT IS FURTHER ORDERED that Defendant's Motion to Strike Plaintiff's Supplemental Brief (Dkt. # 137) is denied.